Transitex-Tránsitos de Extremadura SA (Transitex), a freight forwarder, filed a claim against Peninplastic SL (Peninplastic), a shipper/exporter, claiming EUR 15,314.12 for unpaid costs. The parties had entered into a contract for the transportation of nine containers of plastic waste from Lisbon, Portugal, to Laem Chabang, Thailand. A direct service was not contracted for. The actual carrier, Cosco Shipping Lines, decided to make a stopover in Rotterdam, from where it would proceed to tranship the containers into larger capacity vessels. The containers were blocked in Rotterdam by the port authorities of Thailand. Informed of this situation, Peninplastic decided that some of the containers should instead be sent to the Dutch city of Volendam and the remaining containers sent to Laos. However, as Peninplastic had not obtained authorisation for the cargo to enter Laos, the containers were stuck for several days in Rotterdam and their subsequent transfer generated expenses which fell on Transitex.

Peninplastic counterclaimed, invoking Transitex's breach of the maritime transport contract, and claiming damages for EUR 46,875 related to the cost of transporting the goods from Rotterdam to their final destination. Peninplastic argued that it had not been informed that the shipping company was going to make a stopover in Rotterdam. As a consequence of this stopover, the cargo was blocked, which prevented the possibility of making a change of destination to another port of Asia or returning the cargo to Portugal. In addition, Transitex took too long to communicate the retention of the cargo in the Port of Rotterdam. The dispatch of the cargo by Transitex was negligent because it did not verify if Laos had responded in accordance with the provisions of EU Regulation 1418/2007 regarding the export of waste, and if prior authorisation was necessary for the entry of the cargo into Laos.

Faced with Peninplastic's counterclaim, Transitex alleged the expiration of the counterclaim on an application of art 3.6 of the Hague-Visby Rules by reference to art 277.2 of the Law on Maritime Navigation (the LNM), which establishes a limitation period of one year from the arrival of the goods, or from when they should have arrived. Transitex denied responsibility because it duly complied with the provisions of the signed contract of carriage.

The judgment of first instance upheld Transitex's claim and dismissed Peninplastic's counterclaim. Peninplastic appealed to the Provincial Court.

Held: Appeal dismissed.

Article 277 of the LNM provides, in terms of liability, that 'the carrier is responsible for any damage or loss of cargo, as well as delay in delivery, caused while the goods were under his custody, in accordance with the provisions set forth in this section, which shall be applied mandatorily to all maritime transport contracts'. Article 277.2 refers, for the purposes of determining the carrier's liability in respect of contracts for the maritime transport of goods, both national or international, that are undertaken under the bill of lading system, to the Hague Rules, the Protocols that modify the Hague Rules to which Spain is a State party, and the LNM.

Article 3.2 of the Hague-Visby Rules attributes to the carrier the main obligation to conserve, guard, and transport the goods. As for the exception of expiration adduced in respect of the counterclaim, it is appropriate to estimate the same as the period of one year provided for in art 22 of the [former] Law on Maritime Transport (LTM). As this Court has said on other occasions (see SAP B 6478/2018 - ECLI:ES:APB:2018:6478): 'In accordance with art. 22 LTM, the claim in respect of damage caused to the cargo must be exercised "within the year following the delivery of the goods or the date on which they should have been delivered" ... The aforementioned annual term is an expiration term'.

In this case, the cargo should have been delivered on 27 August 2018, and Peninplastic's counterclaim was filed on 17 February 2020. The counterclaim has expired, so there is no entering into the analysis of the merits of the counterclaim.

As to the main claim, in line with what is stated in the lower Court judgment and the evidence in the proceedings, two issues are proven. First, carriage between Lisbon and Thailand was agreed between the parties (this is the result of the bill of lading and the order emails) without assuming the arrival of the goods in Laos. Second, no specific route conditions were agreed upon. Peninplastic also had access to the shipping company's booking where the stopover in the Port of Rotterdam was recorded, so was aware of the transhipment of the goods. In any case, the cause of the retention of the cargo in Rotterdam was not the decision of the shipping company to make that stop, but the fact that the port authorities of Thailand prohibited the entry of certain plastics into their ports after the transport had begun. Even if the transport had been carried out without interruption, the problem would have arisen in any case, such a circumstance being totally unexpected and beyond the control of the parties, and therefore vitiating any type of liability on the part of the carrier. For this reason, we are facing an unexpected circumstance for which Transitex cannot be held responsible. As to the necessary authorisation for the cargo to enter Laos, it was the exporter who should have carried out this procedure, and not the fright forwarder. The goods left the port of loading correctly, and it was later events that led to the blockade in Rotterdam, as well as the negligence of the exporter in not requesting authorisation for the entry of its cargo into Laos.