This was an appeal against the judgment of the Commercial Court No 4 of Barcelona dated 5 November 2021, which ordered CMA CGM SA (the appellant) to pay Zurich Insurance plc (the respondent) EUR 91,122.88 plus interest and costs.

The respondent submitted that its insured, Congemasa SL, a Spanish company, bought raw shrimp (1,797 boxes/24,145 kg) from Empacreci SA, an Ecuadorian company. For the maritime transport of the cargo from Ecuador to Spain, the buyer/insured contracted with the appellant, which made available a reefer container to the seller. After the container was stuffed at the seller's facilities, it was loaded onto the ship on 7 May 2017 in the port of Guayaquil (Ecuador). After issuing a bill of lading, maritime transport began to its destination, the port of Valencia (Spain). On 6 June 2017, the ship arrived at Valencia where the container was unloaded. After the container was opened and inspected, it was observed that the raw shrimp arrived with obvious signs of thawing and a break in the cold chain. Therefore, it was rejected for poor hygiene, and its entry into the European Union was prohibited.

The respondent maintained that the 'cause of the accident, according to the company's experts, is clear and was due to temperature problems during transport'. The respondent affirmed that the cargo was delivered pre-cooled and in good condition, as confirmed by the data logger of the appellant shipping company and a certificate of origin dated 6 May 2017, issued by the National Fisheries Institute of Ecuador.

The appellant opposed the claim, alleging, in summary, that it received the closed and sealed container and delivered it equally closed and with the same seal of origin, stating in the transport bill of lading under FCL conditions the corresponding declarations that it was unaware of anything related to the cargo that was inside the container: ('Said to contain, description of packages and goods as stated by shipper.' 'Shipper's load stow and count, above particulars declared by shipper.' 'Carrier not responsible.').

The appellant argued that the damage occurred before the maritime transport began and before the goods were delivered to the appellant for transport: (a) The cargo was delivered to the appellant in a disconnected reefer container with temperatures which yielded positive results and did not comply with the agreed temperature of -20º C, since while the merchandise was in the custody of the shipper, the container was disconnected for 16-17 hours in a row and the temperature in Guayaquil ranged between 24-32º C; (b) The sanitary certificate of origin was obtained by electronic systems after verifying compliance with the legal documentary requirements by the National Fisheries Institute, without the date of the certificate coinciding with the date of an inspection of the goods; (c) The refrigeration equipment in the reefer container worked correctly and without any fault, as evidenced by the fact that the temperature register incorporated into the container (data logger) and the disposable temperature recorder, which was introduced inside the container by the shipper before sealing it, give the same result of stable temperature at -20º C, except in the periods of disconnection of the container; (d) The shipper's temperature recorder was inserted into the container after the container had been unplugged for hours and the damage had already occurred.

The Commercial Court substantially upheld the respondent's claim based on arts 2 and 3 of the Hague-Visby Rules, concluding that the cold break periods which caused damage to the goods occurred while the goods were in the custody of the appellant.

The appellant appealed to the Provincial Court of Barcelona.

Held: Appeal upheld. The first instance ruling is revoked and the respondent's claim is dismissed.

The issue on appeal is whether the damage to the cargo was caused during the period of responsibility of the carrier.

The international transport of goods by sea in a port-to-port modality under a FCL bill of lading regime is governed, in terms of the responsibility of the carrier, by the provisions of Law 14/2014 of 24 July of Maritime Navigation (the LNM) and the Hague-Visby Rules. Pursuant to art 277.2 of the LNM:

Contracts for the carriage of goods, national or international, under the bill of lading regime and the responsibility of the carrier, shall be governed by the International Convention for the Unification of Certain Rules relating to Bills of Lading, signed in Brussels on the 25th of August 1924, the Protocols that modify it to which Spain is a State party, and this law.

The temporal responsibility of the carrier extends from when it takes the goods into its charge at the port of origin, until it makes them available to the consignee or receiver at the port of destination (art 279 of the LNM). Pursuant to the Hague-Visby Rules, applicable to this case, the carrier's responsibility extends from the time of loading until the actual unloading of the cargo. Therefore, the time period of responsibility extends exclusively to the maritime phase of transport.

In this case, the dispute is limited to determining whether the damage to the cargo occurred after it was loaded onto the ship.

The sanitary certificate issued by the National Fisheries Institute of Ecuador dated 6 May 2017 on the good condition of the merchandise and its pre-cooling (sanitary certificate for the EU), does not allow it to be proven that the goods were inspected on that date, but only that a documentary control of the goods was carried out, and not a physical inspection of the same on the aforementioned date.

The bill of lading does not create a presumption of the good condition of the goods contained in the container, since the carrier received a closed and sealed container (FCL) without being able to verify its content. In addition, the statements that appear in the bill of lading expressly state that the carrier by receiving the container has not committed itself regarding the content (cargo) inside the container.

The temperature record shows that the container was disconnected for more than 14 hours until its arrival at the port terminal. The refrigeration equipment was reconnected at the terminal, after remaining off for approximately 3 hours to unload and stow the container and its subsequent connection.

All of this leads the Court to not being able to take it as proven that the goods were delivered to the carrier in good condition and, instead, to take it as proven that the container was disconnected from the refrigeration equipment for 14 hours before the container was delivered to the appellant. It follows that the disconnections of the refrigeration equipment that occurred during the maritime journey were not the cause of the damage, even when they determine that the cargo was not kept at the temperature established in the bill of lading for its transport of -20º C. The thawing of the cargo could not have occurred during the maritime phase since thawing required positive temperatures, and these were not reached during the maritime phase.

For all these reasons, it should be taken as proven that the break in the cold chain that caused the damage to the cargo occurred before the container entered the terminal and the carrier's liability period began. Consequently, the respondent's claim must be dismissed, as it is not proven that the claimed damages were caused during the period of liability of the carrier and attributable to the appellant.