This was an appeal against the decision of the Commercial Court No 3 of Valencia. The Court of first instance upheld the appellant freight forwarder's invoiced claim of EUR 2,878 against the respondent; and also upheld the respondent's invoiced counter-claim of EUR 8,700.55. After set-off, the appellant was ordered to pay the respondent EUR 5,822.55.

The appellant appealed, arguing that in this case the cargo was sent on CIF terms, which implied that the seller was responsible for the cost and contracting of maritime transport to the port of destination, the delivery of the cargo, and the necessary documents for customs clearance and payment of arrival expenses and fees. The respondent had to review the necessary documentation for customs clearance before its presentation. The decision to choose the customs agent was made by the respondent, which was in charge of managing such documents. Any loss incurred from the errors in the customs documents was therefore the responsibility of the respondent. The appellant did not intervene in preparing these documents. The respondent provided the information for the EUR1 certificate, later reviewed it, and confirmed that it was correct before sending it to the consignee.

The appellant argued that, as a freight forwarder, it did not assume a duty of care for completing the customs documentation. It was prepared by the customs agent and confirmed by the respondent. The error was not attributable to it, since its functions were transport intermediation and co-ordination of operations related to international transport.

Held: Appeal partially upheld. The judgment at first instance is varied. The appellant's claim of EUR 2,878 against the respondent is confirmed, but the respondent's counter-claim of EUR 8,700.55 is denied.

On the responsibility of a freight forwarder, the judgment of Section 15 of the Barcelona Provincial Court, of 5 July 2018 (ROJ SAP B 6478/18, ECLI: ES: APB: 2018: 6478) invoked by the judgment of this Section of 13 November 2018 (ROJ: SAP V 5239/2018 - ECLI:ES:APV:2018:5239) regarding the responsibility of freight forwarding entities indicates the following:

Freight forwarding entities, not regulated in our law with respect to maritime transport, have their regulation in Law 15/2009, of November 11, on Land Transport, which provides in its art 5.2 that freight forwarders may only contract in their own name, (in this sense also Judgment of this same Court dated 23 January 2007 (ROJ: SAP B 2049/2007 -ECLI:ES:APB:2007:2049). Transport operators, even when contracting and organising the relationship between shippers and carriers, are considered to be contracting in their own names; that is, they are actual shippers or carriers. Their position as surrogate in the place of the carriers has had a jurisprudential reflection, among others, in the STS of 2 February 1998.

In maritime law, such a figure is called a non-vessel operating common carrier, which is characterised by being a maritime businessperson who, without having its own fleet, promises the cargo interests to deliver the goods to their destination. The Hamburg Rules, although not applicable in these proceedings, do have an undeniable indicative nature. They distinguish between the carrier and actual carrier, the first being the one who enters, by himself or through another person, into a contract for the maritime transport of goods with a shipper; while the actual carrier is the party to whom the carrier has entrusted the execution of the transport, as well as any person who has been entrusted with that execution.

The 'freight forwarder' is dedicated in its own name to providing intermediary services in the international transport of goods, between the exporter or importer and the transport companies, organising the link between the different carriers to guarantee the continuity of transport through different means, or modes, and co-ordinating administrative operations related to international transport (tax, customs or health procedures, documentary credits, insurance, etc). Its position is analogous to that of transport agencies: it liaises between the shipper and the carrier, assuming the rights and obligations inherent to both parties. ...

In terms of maritime transport, the carrier's liability is regulated in arts 277 ff of Law 14/2014, of July 24, on Maritime Navigation, which, in the case of contracts for maritime transport of goods, national or international, refers to the International Agreement for the Unification of Certain Rules in Matter of Bills of Lading, signed in Brussels on 25 August 1924, to the Protocols that modify it, and to the Law itself. The jurisprudence has understood it this way, (STS of 20 July 2016, among others) and when determining the applicable legal regimes it says:

As this case is not governed by the Maritime Navigation Law, the lawsuit must be settled in accordance with the previous regulations. Under these regulations, it was possible to distinguish between, on the one hand, the international maritime transport of goods under the bill of lading regime, which is governed by the Hague-Visby Rules, and specifically the Maritime Transport Act of 1949 and the modifications introduced by the Brussels Protocols of 1968 and London of 1979, and, on the other hand, transport arranged by means of a charter contract, in which the policy is integrated with the general regulations of the Commercial Code ".

In this case, the intervention of the freight forwarder, as an intermediary, is evident, and is explicitly recognised by the appellant. The reading of the numerous emails reveals that the freight forwarder mediated in the remission of such documents at all times to the recipient of the cargo, at the express request for such intervention by the client. It is evident that such functions, together with the signed contract, and the appellant's status as an expert in such actions cannot lead the appellant to evade its responsibility.

However, the error produced derives from a discrepancy in the dates of dispatch of the cargo and its passage through customs in the EUR1 document, which had to be corrected, which was attempted, in the first place, by a handwritten annotation (which does not appear to be attributable to the appellant) to issue, after three failed attempts, a new document with matching dates and without any manual annotation. It is evident that the appellant did not admit having made a statement of responsibility, but the fact that, in at least two of the emails, it is the appellant who intervenes and sends the failed documentation does not support the thesis of its absence of responsibility, so this justifies, in principle, the claim that is made and therefore its passive standing ad causam.

The judgment of first instance is extraordinarily sparse on the point of damages and compensation, limiting itself to giving as proven fact the existence of an invoice from the respondent charged to the appellant, of EUR 8,700.55. However, the respondent has not proven what the invoice issued by it corresponds to, since the items that it lists, which are distinct and for two different amounts, allude to a delivery note (which is not provided) and to the payment of taxes passed on and documents and permits, which are not related to the items in the invoice. There is no evidence of actual payment of any amount by the respondent. The respondent is encumbered with the burden of proof of this issue. The Court cannot consider that it is faced with a compensable credit and therefore, the counterclaim must be dismissed.

Consequently, the Court exclusively upholds the first instance order for the respondent to pay the appellant's invoices for the transport to Costa Rica.