Mr Juan Francisco, the appellant, was a businessman trading as Cambio Energético, exporting photovoltaic material from Valencia, Spain, to Peru. The appellant contracted with Consignaciones, Transitos y Transportes Internationales SA (COTRANSA) for the maritime transport of these goods under a bill of lading issued on 22 May 2016, for delivery to Vitivinícola Majoro SAC at Callao, Peru. However, the identity of the buyer changed during transport, so a substitution was supposed to be made in the bill of lading to reflect the new consignee, Grupo Majoro SAC. According to the appellant, Gamma Cargo, acting as an agent of COTRANSA, negligently failed to attend to the substitution in the original bills of lading, which caused a delivery delay of nine months. That caused a part of the transported material to suffer deterioration.

The Commercial Court No 1 of Madrid dismissed Francisco's claims against Allianz Cia de Seguros y Reaseguros SA and COTRANSA as time-barred. Francisco appealed to the Provincial Court.

On appeal, Francisco argued that the expiration period in art 3.6 of the Hague-Visby Rules, to which the Law on Maritime Navigation (the LNM) refers, did not apply in this case, since his claim was based on a different cause of action, ie a breach of professional diligence, supported by art 252.2 LNM. Given this, there was no reference to the Hague-Visby Rules, which did not contemplate responsibility for breach of contractual obligations with a different origin than loss of, or damage to, the goods due to the performance of the carrier. Here, the responsibility derived from having misdelivered the cargo to a person not entitled to receive it. Therefore, art 286 LNM applied, which is in the nature of prescription, and therefore susceptible to interruption. Further, the bill of lading issued by COTRANSA referred to 'prescription', an English term which can only be equated to prescripción, which entails a benefit in favour of the rights of claimants. Since a limitation period and not an expiration period was applicable, its interruption is admitted, which took place through a faxed claim, followed by various conversations between the parties up until 27 March 2018, so no more than a year elapsed before the filing of the lawsuit.

Held: Appeal dismissed.

The appellant's argument is based on art 252.2 LNM, which provides that '[i]n the event of delivery of the goods to a person who is not authorised, the carrier shall be held liable to the legitimate holder of the bill for the value of the goods at the destination port, without the carrier being able to limit the amount of liability'.

Article 286.1 LNM, read with arts 203 and 205 LNM, provides that actions under the contract of carriage 'shall expire within the term of one year'. It must be borne in mind that art 2 LNM provides that '[t]his Act shall be applied as long as it does not oppose the terms set forth in the international treaties in force in Spain and the legal provisions of the European Union that regulate the same matters'. This is fully in line with what is indicated in the Preamble of the LNM, which implemented a broad reform of Spanish maritime law in 2014, in which a mere updating and compilation of the law was not sought, but rather a response to its essential co-ordination with international maritime law and its adaptation to the current practice of maritime transport. What was pursued, therefore, was to overcome the existing contradictions between the different international Conventions in force in Spain and the disparate regulations that previously regulated the area. In accordance with this, the regulations contained in the Brussels Convention of 1924 will apply to the type of contract here concluded between the parties. The SAP of Madrid, 28th Commercial Section, no 357/2021, of October 14, held that:

If the contract that binds the parties is a maritime transport contract under a bill of lading regime, it is governed by the Brussels Convention of 1924 and the Protocols that modify it to which Spain is a State party (now without distinction if it is international or national, art 277 LNM). The international standard is of preferential application to national regulations (art 96 CE) ...

The international standard to which the LNM refers, that of the aforementioned Brussels Convention of 1924, requires consideration of the true legal nature of the period for exercising actions as expiration, even though another national standard may use different terminology. The abovementioned decision indicates that:

For this reason, the scope of the limitation period of article 286 LNM must be redirected to the contract of maritime transport of goods, excluding that which takes place under the bill of lading regime, which, being governed by the Brussels Convention of 1924 and the Protocols that modifies it to which Spain is a party, is subject to an expiration period. The desire for uniformity and the very legislative technique of referring to the agreements in force in each matter, which are mentioned in the Preamble of the LNM confirms this ...

That the LNM does not imply a change in this matter (nor can it in respect of international transport contracts under the bill of lading regime included within the scope of the Hague-Visby Rules, due to its normative preference: art 96 CE) is confirmed by the Preamble, which notes that:

regulation of the liability of the carrier for damage and breakage of the goods carried maintains the regime in force, contained in the Hague-Visby Rules ratified by Spain and by most maritime countries. ... The regimes of liability of the carrier have been unified, as applicable to carriage by sea under the - Spanish or international - bill of lading regime, and on the different charter modes.

The determination of the rule applicable to the type of contract entered into between the parties must lead to the conclusion that there is an expiration period, not a prescription period. The jurisprudence is settled that the one-year period for bringing the action provided for in art. 3.6 of the Brussels Convention of 1924 results in the expiration of the action, as indicated, among others, SSTS 348/2011, of 26 May or 437/2016, of 29 June, and those cases cited therein.

The appellant invokes the decision of the SAP of Madrid, 28th Commercial Section, no 474/2019, of 11 October, in support of the non-application of the Hague-Visby Rules to certain type of claims. The appellant's argument is that those Rules only operate in the case of delay, damage, or loss of the goods, but not in the event of other breaches by the carrier, which should be governed by the LNM. However, the decision does not support that argument.

The appellant's secondary argument is that the bill of lading referred to 'prescription' in English, which should be construed in his favour. This argument cannot be accepted. First, the simple use of this term is completely assimilable to the terminology used in the applicable norms. The jurisprudential doctrine has established that the nature of this term is an expiration of the action. Secondly, reading the clause in its full context shows that there was no intention of granting any benefit to the claimant with respect to the legal nature of the limitation period, but indeed the clause precisely indicates that it is an expiration period, where claims must be brought within the peremptory period of 12 months, without anticipating the possibility of any interruption.