The plaintiff carrier sued the defendant shipper for EUR 9,515.92 for not having paid for the transport services provided by the plaintiff. The defendant alleged that one of its containers was returned due to damage caused in transport. In relation to the second incident, the container was not delivered to the recipient on the day they had arranged, but later, and the defendant was not responsible for the costs of delay in the delivery of the container.

Held: The plaintiff's claim is partially upheld for EUR 4,774.

This is a multimodal transport carried out by a freight forwarder, involving the transport of three containers loaded with tomatoes from the defendant's facilities located in Santa Amalia, Spain, to the port of Sines in Portugal, and from there by ship to Hamburg in Germany. The incidents relate to the maritime segment of the multimodal transport. Contracts for the maritime transport of goods, national or international, under the bill of lading system and the responsibility of the carrier, are governed by the Hague Rules, the Protocols that modify it to which Spain is a State party (the Hague-Visby Rules and SDR Protocol) and the Law on Maritime Navigation (the LNM).

Article 3.2 of the Hague-Visby Rules attributes to the carrier the main obligation to conserve, guard, and transport the cargo. Articles 2 and 3 of the Hague-Visby Rules establish a general principle of liability due to the fault of the carrier for breach of its contractual obligations and those of its auxiliary personnel. This general principle is complemented by another according to which the carrier's responsibility is presumed in case of damage and/or harm to the cargo during the period when the custody obligation exists. This special legal regime ordinarily applies from the loading of the cargo in the port of origin until its unloading in the port of destination. This presumption of responsibility of the carrier affects the non-observance of the duty of diligence in the fulfilment of its obligations.

This presumption admits evidence to the contrary in accordance with art 4 of the Hague-Visby Rules. On the one hand, the carrier may be exonerated from liability if it proves that it has used due diligence. And on the other hand, to facilitate the exoneration of liability of the carrier, a series of cases are contemplated in which, if they apply, the carrier is exempt from liability. The burden of proof of the occurrence of any of these causes of exoneration lies with the carrier.

This system of responsibility must be reconciled with the different reservations that can be included in the bill of lading and with their consequences. The carrier may include reservations in the knowledge that the cargo is in poor condition or shows apparent signs of being so, since the packaging is defective, or the container has broken seals, etc. These reservations serve the purpose of destroying the presumption that the goods were delivered to the carrier in perfect condition. The issuing of the bill of lading by the carrier constitutes a presumption, which admits proof to the contrary, that the goods were delivered to the carrier in the conditions described in the document.

Furthermore, art 3.6 of the Hague-Visby Rules indicates that the removal of the goods, will constitute, unless proven otherwise, a presumption that they have been delivered by the carrier in the form consigned in the bill of lading, unless notice of loss or damage and the general nature of such loss or damage is given in writing to the carrier or its agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage.

Article 278 of the LNM determines that the liability established in this section applies jointly and severally both those who undertake to carry out the transport and those who effectively carry it out with their own means. Article 282 of the LNM establishes that the 'liability of the carrier for loss or damage of the goods transported shall be limited, except where the bill of lading has declared the real value of such goods, to the figures established in the Convention for the Unification of Certain Rules of Law relating to Bills of Lading and the Protocols that amend it to which Spain is a party'. Article 283 of the LNM provides:

1. Liability for delay is limited to a figure equivalent to two and a half times the freight payable for the goods affected by the delay, but it shall not exceed the total amount of the freight that must be paid by virtue of the carriage contract.
2. In the case of concurrent compensation for damage and delay, the accumulation of both shall be limited to the figures established to limit liability for loss or damage.

Article 285 of the LNM provides:

1. The consignee shall provide the carrier or its agent a written notice of loss or damage suffered by the goods, describing their nature in general terms, during the working day following their delivery. If the loss or damage is not apparent, the notice may be given within three working days following that of delivery. The notice shall not be necessary when the carrier and consignee have carried out a joint inspection of the state of the goods.
2. The consignee shall provide the carrier or its agent with written notice of the delay in delivery of the goods, describing the damage suffered in general terms, within ten working days following that of delivery.
3. If the notification is omitted or it is given outside the term, it shall be assumed, except for proof to the contrary, that the goods have been delivered just as described in the bill of lading.

Finally, art 286 provides:

1. Actions arising from a carriage contract shall expire within the term of one year.
2. In actions to compensate losses, breakages or delays suffered by the goods, the term shall be counted from delivery of these to the consignee, or from the day on which they should have been delivered.
3. Likewise, the term shall be calculated to claim freight, delays and other transport expenses. However, in time charters, the term shall be counted from the day on which the freight or other fees are due under the policy.

Applying these legal rules to the facts, in respect of the first incident, one of the containers was rejected by the recipient for the reason that 'the barrels were not placed correctly on the pallets'. The company receiving the cargo was afraid that when unloading the barrels they would fall and someone could be injured. There was photographic evidence that much of the cargo was displaced, the covers were open, and there even some swollen barrels. It can be deduced that these defects were due to inadequate fastening: 'Please note that according to the shipping inspector, the cargo was refused by the consignee due to cargo deformations resulting from improper cargo securing and packaging.'

This damage is not attributable to the transport company. The shipper is the party which delivers the container with the cargo placed on pallets in an appropriate way for transport, so if the barrels have moved, or the lids have opened, without any evidence that the damage has been suffered during transport, that damage is attributable to the defendant, which should have packed and fastened the barrels properly.

In relation to the second incident, the container arrived at its destination on 31 July 2018, but the plaintiff carrier did not inform the defendant until 27 August 2018 that the consignee had not proceeded to remove the cargo, stating that the consignee does not respond to telephone calls or emails. However, it has not been proven that the plaintiff contacted the consignee, or that it tried to do so, since no proof of failed phone calls or emails is provided. The cargo was finally delivered on 5 September 2018.

For this reason, the delay in delivery cannot be attributed to the shipper, since almost a month passed before the carrier informed it that it was having problems contacting the client. From that moment, the problem was solved, the customer was contacted and the cargo was collected in a few days, so that the delay is attributable to the carrier, and the claim in relation to this incident should be dismissed.