This was an appeal in cassation to the Supreme Court in respect of a cargo claim between the parties arising from the transportation of pharmaceuticals from Madrid to the port of Valencia (Spain), and then on to Durban (South Africa), on board the Mozambique, allegedly carried at the wrong temperature. The essential issue for the Court was the prescription or expiration of the appellant's claim, and whether this should be governed by domestic Spanish legislation (the Maritime Navigation Act of 2014 (LNM)), or the applicable Convention (the Hague-Visby Rules).

The appellant argued that, by virtue of arts 277.2 and 286 LNM, there was in Spain a unitary regime of liability of national and international maritime carriers, so that art 286 LNM (prescription of the term for the exercise of the action of liability against the carrier) was applicable, which did not contradict, but rather complemented, art 3.6 of the Hague-Visby Rules in accordance with the uniformity and co-ordination pursued by the LNM.

In this respect, the appellant alleged the existence of contradictory case law in the provincial courts, after the entry into force of the LNM, on the nature of the term (prescription or expiry) of the action against international maritime carriers.

Furthermore, the appellant cited Supreme Court Judgment No 418/2015, of 20 July, and also considered that the appealed judgment made an unfounded interpretation of Supreme Court Judgment No 495/2020, of 28 September.

Finally, the appellant argued that art 286 LNM did not contradict the Hague-Visby Rules, but rather filled a legal gap regarding the nature of the time limit for bringing an action against the carrier. Furthermore, the appellant contended that the nature of the term in art 22 of the Maritime Transport Law 1949 (LTM), as a limitation period, in relation to art 3.6 of the Hague-Visby Rules, was a controversial issue in case law and legal scholarship before the LNM came into force.

Held: Appeal in cassation dismissed.

This appeal challenges the legal nature of the time limit for bringing a liability action against an international maritime carrier of goods transported under a bill of lading, in light of art 286 LNM, which expressly refers to the statute of limitations for this action. It also challenges the established case law on the interpretation of art 3.6 of the Hague-Visby Rules. Beyond the nominalist debate, the central issue is whether interruption of this time limit is permissible (and whether such interruption can be assessed ex officio).

To resolve this controversy, it is necessary to specify the law applicable to the carrier's liability in international maritime transport of goods under a bill of lading, following the approval of the LNM, which came into force on 25 September 2014.

The LNM, when regulating carrier liability, introduces art 286 that refers to the statute of limitations for actions:

1. Actions arising from a charterparty shall be time-barred within one year.

2. In actions for compensation for loss, damage or delay suffered by the goods, the time limit shall be counted from the delivery of the goods to the recipient or from the day on which they should have been delivered.

Regarding these maritime transport contracts for goods under a bill of lading and the carrier's liability, art 277.2 of the LNM recalls that the applicable regulations are those contained in the Hague-Visby Rules:

Contracts for the maritime transport of goods, whether national or international, under a bill of lading and the liability 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 August 25, 1924, the protocols modifying it to which Spain is a State party, and this law.

With reference to this system of legal sources, preamble 6, para 1, LNM, is also very illustrative, which states:

In Title IV, the regulation of carrier liability for damage to goods transported maintains the current regime contained in the Hague-Visby Rules, ratified by Spain and most maritime countries. According to the OECD, these Rules currently govern 95 percent of world maritime trade. The carrier liability regimes applicable to maritime transport under a bill of lading - national or international - and to chartering in its various forms have been unified. This regime is mandatory (non-waivable by the parties, for the benefit of the holder of the right to the goods) in transport contracted under a bill of lading, as this is a sector where the negotiating power of service users is more limited. When a charterparty exists, the legal regime is derogable, given the equal position of charterers and shipowners.

Furthermore, in relation to the issue raised in the present case, art 2 LNM is also very relevant, which, under the title 'Sources and interpretation', provides:

1. This law shall apply insofar as it does not conflict with the provisions of international treaties in force in Spain and with the rules of the European Union that regulate the same matter.

Supplementary provisions shall apply, as well as the customs and practices relating to maritime navigation. In the absence of these, and where recourse to analogy is not possible, common law shall apply.

In any case, the interpretation of the rules of this law shall take into account the regulations contained in international treaties in force in Spain and the desirability of promoting uniformity in the regulation of the matters covered by it.

As regards art 2 LNM, preamble 2 of the LNM emphasises the rule of interpretation of the law in accordance with the international Conventions in force in Spain:

The preliminary title reflects the most modern trends in maritime law, establishing in Article 2 the rule for interpreting the law in accordance with the international Conventions in force in Spain. This commitment to uniformity aims to eliminate the criticised duality of regulations existing in many areas of this field, where, on the one hand, Spain has ratified various international Conventions and, on the other, has its own legislation which, in many cases, does not conform to them. This also explains the legislative technique employed, based on referring to the Conventions in force in each area, with the law reserving for itself the role of filling in the gaps left by these international treaties to the States.

In this respect, the preceding passages of the same preamble (1, paras 1, 2, 3) LNM are also very suggestive, in which, when illustrating the object and purpose of this law, emphasis is placed on the necessary coherence of Spanish law with international Conventions on maritime law:

The Maritime Navigation Law carries out a comprehensive reform of Spanish maritime law, covering all its aspects. This renewal does not seek mere updating and codification, but also responds to its essential co-ordination with international maritime law and its adaptation to current maritime transport practices.

This rule makes it possible to overcome the contradictions that exist between the various international Conventions in force in Spain and the scattered regulations governing this matter, the chief of which is still Book III of the Commercial Code of 1885 ...

The law regulates the framework within which maritime traffic activities take place, consisting of the geographical environment and the physical spaces that make it possible, as well as the instruments and vehicles, guaranteeing the necessary coherence of Spanish law with the various international Conventions on maritime law ...

As a consequence of the foregoing, in order to resolve the present case, which undoubtedly involves international maritime transport of goods under a bill of lading subject to the Hague-Visby Rules, it is necessary to consider the provisions regarding the time limit for bringing an action for liability against the carrier in art 3.6. According to the original wording of the Hague Rules (ratified by Spain by instrument of 2 June 1930), art 3.6 established:

In any event, the carrier and the vessel shall be exempt from all liability for loss or damage, unless an action is brought within one year following the delivery of the goods or the date on which they should have been delivered.

This text was incorporated into art 22.4 LTM, since - as indicated in para 3 of its preamble - Spain opted 'for the system of introducing the rules of the Brussels Convention into its national legislation in a form appropriate to the peculiarities of Spanish law'.

This new wording of art 3.6 of the Hague-Visby Rules determines:

Without prejudice to the provisions of paragraph 6a, the carrier and the vessel shall in any event be discharged from any liability relating to the goods unless the corresponding action is brought within one year from the delivery of the goods, or from the date on which they should have been delivered. This period may, however, be extended by agreement between the parties after the event giving rise to the action.

When referring to the one-year period for exercising the action of liability against the carrier in the international transport of goods under a bill of lading, it is evident that art 3.6 of the Hague-Visby Rules does not expressly state that it is a limitation period. Nor did art 22.4 LTM of 1949 specify the nature of this period, which practically reproduced that rule of the Brussels Convention in its original 1924 wording.

It is therefore unsurprising that art 3.6 of the Hague Rules did not expressly address the legal nature of this period as a limitation period. This contrasts with the fact that, very soon after, another Convention on international transport, in this case air transport, did indeed: art 29 of the Warsaw Convention 1929: 'The action for liability shall, under penalty of forfeiture, be brought within two years ...'

In this regard, as legal scholars recall, the dogmatic construction of the concept of expiration originated, between the late 19th and early 20th centuries, in German legal literature (with the establishment of Befristung in contrast to Verjährung, a work by Grawein, Rosenberg, Weiß) and Italian legal literature (regarding decadenza and prescrizione, thanks to the contributions of Modica, Fadda/Bensa). These contributions were also adopted by Spanish legal scholars, who, in turn, recognised them in case law, particularly after this Court's judgment of 30 April 1940.

Furthermore, in Spain, under what is known as the common law system, expiry lacks institutional regulation, unlike in Catalan law (Book 1 of the Civil Code of Catalonia, approved by Law 29/2002 of 30 December: arts 122-1-122-5) and Navarrese law (arts 38-41 of the Compilation of the Civil Law of Navarre, approved by Law 1/1973 of 1 March, as amended by Regional Law 21/2019 of 4 April). Nevertheless, it is generally stated that in Spanish common law, expiry is modelled on prescription, but with two important differences: expiry is applicable ex officio, and the calculation of the expiry period is not interrupted.

But the answer in the present case should not be sought in the nominalist discussion on the opposition between 'prescription' and 'expiry', considering the different nature of the rights subject to each institution: that is, whether it affects claims or actions, or powers of legal configuration or modification, which respectively prescribe or expire.

Rather, the fundamental problem lies in determining its legal regime, to know whether it is possible to interrupt this period.

Although art 286 LNM attributes a prescription nature to the time limit for liability action against the carrier in maritime transport of goods, it is irrelevant, since this precept is neither applicable to the present case, nor does it condition the existing jurisprudence that interprets the applicable rule: art 3.6 of the Hague-Visby Rules.

Article 277.2 LNM, when referring to the regulations applicable to the carrier's liability in international maritime transport contracts for goods under a bill of lading, refers - as it must - to the Hague-Visby Rules. Article 3.6 of the Rules does not expressly classify the time limit for bringing a liability action against the carrier in international maritime transport of goods under a bill of lading as a limitation period. However, the unequivocal nature of the wording of this provision, based on the rule of exoneration of the carrier 'in all cases'; and 'from any liability' related to the goods, has led this Court to interpret, by an overwhelming majority, that the one-year period provided for exercising this liability action is a limitation period. Consequently, this period cannot be interrupted.

Since art 286 LNM (which expressly refers to prescription) does not apply, there is no contradiction between this provision and the prevailing jurisprudence in relation to art 3.6 of the Hague-Visby Rules (which interprets it as a period of expiry), and there is no reason to change this interpretation.