Obitlane Ltd (the plaintiff) claimed for damage to a cargo of frozen fish carried from Agadir, Morroco, to Barcelona, Spain, on the MV Inezgane. The lawsuit was filed against the carrier, Cie de Navigation du Detroit (Conade) and the carrier’s agent, Naviera del Odiel de Contenedores SA (Contenosa).

Only Contenosa appeared in the process and alleged, among other defences, time limitation. The first instance Court stated that according to the Hague-Visby Rules which were applicable to the claim, the one-year time bar runs from the moment the cargo was delivered or the date on which it should have been delivered, which means, from the moment of the effective readiness of the shipment for collection by the consignee. The Court stated that the lack of protest or notice within three days after collection of the cargo of non-apparent damage is not a condition to dismiss the claim. The notice of damage to the carrier affects only the evidence to determine the damages. As the lawsuit was filed in time, the Court rejected this defence and ordered Contenosa to pay compensation. Contenosa appealed the decision and the Court of Appeal reversed it. The Court of Appeals asserted that the agent must be released of liability for damage to the cargo, as it had not intervened in contracting the carriage. The plaintiffs recurred this decision in cassation before the Tribunal Supremo/Supreme Court (SC).

Held: The SC reversed the Court of Appeal’s decision. The SC analysed the position of the carrier’s agent according to the Hague-Visby Rules and its interplay with the local law. The Hague Rules were incorporated into Spanish law, with some modifications, by the Law on Carriage of Goods by Sea of 22 December 1949 (LCGS 1949). On 16 November 1991, Spain ratified the Protocols of 1968 and 1979, introducing the Hague-Visby Rules and SDR Protocol. Article 2 of the LCGS 1949 states that the carrier is the ‘owner or the charterer who enters into a contract of carriage with a shipper’, a definition that corresponds to art 1.a of the Hague-Visby Rules. However, art 3 of the LCGS presents a more extensive concept of ‘carrier’ stating that with regard to the previous article '"carrier" shall mean the owner of the vessel which equips, hires the crew, victuals and exploits it at its own risk, and also the person in charge of representing the vessel in the port in which it is located'. The Hague-Visby Rules do not contain a similar provision. The SC explained that the Hague-Visby Rules, where applicable, did not exclude the application of the CCom in so far as it is not contradictory to them. The Spanish jurisprudence had consistently applied the LCGS even after the adoption of the new Rules. Article 3 of the Visby Protocol of 1968 introduces art 4 bis.2, which refers to the action for contractual or non-contractual liability brought against a representative or servant of the carrier, who was not an independent contractor, stating that such servants shall be entitled to avail themselves of the liability exemptions and limitations that the carrier may rely on under the Rules. Therefore, Contenosa, in its capacity of representative of the carrier, was held liable as the carrier for the damages claimed, according to art 3 of the LCGS and art 586 of the Code of Commerce (CCom), provisions that were not overruled by the adoption of the Hague-Visby Rules.​