On 18 November 2010, the MV Stadt Bremmen stranded at Barranquilla, Colombia. The shipowner declared general average and contracted for salvage operations. Seguros Generales Suramericana SA and five other cargo insurance companies (the plaintiffs) made a general average contribution on behalf of the insured cargo owners. On 28 and 30 November 2012, the plaintiffs sent a request of payment to the shipowner to interrupt the time bar. On the latter date, they applied for a judicial conciliation, which failed. The lawsuit was filed on 28 January 2013, claiming the amounts paid as general average contributions. The claim was against Frontier Agencia Marítima SA, and Frontier Agencia Marítima del Caribe SAS, the ship’s agents at Barranquilla, and Thien & Heyenga Bereederungs, the shipowner.

The defendants, among other defences, alleged that the contract of carriage was performed, and that the action was time-barred. The first instance Court admitted the time-bar defence and dismissed the claims, stating that the period to file the suit expired on 4 December 2012, two years after the completion of the voyage. Although the application for the judicial conciliation suspended the time bar, it expired on 27 January 2013, one day before the filing of the lawsuit. On appeal, the Court of Appeals (CA) affirmed the first instance decision, stating that the claim related to general average, not a breach of the contract of carriage. A particular regime governs general average in the Code of Commerce (CCom), which establishes a one-year time limitation from the conclusion of the voyage, meaning that time expired on 2 December 2011. The plaintiffs recurred this decision in cassation before the Supreme Court of Justice. They argued that the one-year limitation applied only to claims relating to extraordinary expenses, while their claim was for a breach of the contract of carriage because the contributions they had paid constituted a higher transport cost. They also alleged that, as their claim was for contribution to salvage expenses, the time bar set for salvage claims was applicable.

Held: The SCJ dismissed the recourse.

The SCJ stated that it was necessary to define the normative legal framework applicable to the claim and, consequently, to clarify what kind of judicial action the plaintiff should have implemented. Carriage of goods by sea is the most extensive transport modality used by international trade, because of its well-known advantages. For international carriage, some international Conventions have attempted to regulate it: the Hague Rules, the Hague-Visby Rules, the Hamburg Rules, and the Rotterdam Rules. The Republic of Colombia has not subscribed nor adhered to any of these. Article 869 of the CCom establishes that the execution of a contract signed abroad, but performed in the country, must be governed by Colombian law. However, that does not prevent the application of international instruments not ratified by Colombia, according to art 7 of the CCom, when the commercial matter cannot be resolved under local provisions. The local commercial legislation does not define contracts of carriage by sea, but establishes in art 1600 of the CCom some special duties for the carrier (similar to arts 3.2 and 3.3 of the Hague Rules). The law presumes that non-performance, or defective performance, of the contract resulted from a negligent act or omission of the carrier. The carrier's exoneration from liability only occurs in the circumstances established in art 1609 of the CCom (art 4.2 of the Hague Rules). The carrier's obligations are these: i) the carriage of the goods from one place to another in the same conditions in which they were received from the shipper and within the prescribed period, or in the absence of an agreement, within a reasonable time; ii) the care and conservation of the goods; iii) the delivery of the goods at the port of destination; and iv) a guarantee of the vessel's seaworthiness.

The plaintiffs allege a breach of the contract of carriage based on the higher costs produced by the salvage operations to refloat the ship. It is evident that the incurrence of additional expenses to the freight, particularly those related to salvage operations, does not constitute any of the criteria that amount to a lack of performance. If liability results solely from a lack of performance, or defective or delayed execution of contractual duties, this is totally different from these events, where financial support is required for salvage for the benefit of the carried cargoes. The latter situation cannot give rise to an obligation to compensate. If the goods are delivered at the port of destination within the set timeframe or within a reasonable time, and the goods do not suffer loss, damage, impairment, or material damage, the cargo interests are satisfied in respect of the purpose for which the carriage was contracted. Consequently, they cannot claim that the shipowner has failed to comply with its obligations. A breach of contract means a non-juridical or unlawful situation that occurs when the debtor deviates or acts in a different manner from its due conduct, implied in the obligation that it assumed. Any event that does not fit within this definition does not generate liability. The amounts assumed by the importers of the cargo on the MV Stadt Bremmen and covered under the insurance contracts are not part of the direct obligations of the contract of carriage. They do not constitute an excess to the cost of operations or mobilisation of the cargo. Such amounts correspond to a characteristic institution of the maritime law, namely, general average.

General average refers to all the extraordinary expenses for unforeseen events incurred for the benefit of the ship or the cargo. Maritime customs provided that disputes related to general average had to be decided according to the law of the port of destination. That generated conflicting judgments that affected the commercial interests of the shipowners, who moved forward to adopt a uniform regulation in the 19th century. That gave rise to the adoption of the York-Antwerp Rules. The majority of States that have adopted legislation on this subject leave their application to the parties' agreement. That is the reason these Rules are included in bills of lading, but it does not make them a uniform international regulation due to their lack of incorporation in multilateral treaties and Conventions.

The CCom states that general average shall be regulated according to this Code, in the absence of a special agreement between the parties. However, if the application of the York-Antwerp Rules is agreed in transport documents, this regime must be applied. The CCom incorporates a definition of general average similar to that contained in r A of the York-Antwerp Rules 1974. It states that there is an act of general average only when an extraordinary sacrifice is intentionally and reasonably made, or an expense of the same nature is incurred for the common safety in order to preserve the goods from danger. From this statement, some characteristics can be deduced: it must be a voluntary act, the expense or sacrifice must be reasonable; its character must be extraordinary; imminent danger must exist; there must be a useful result or common finality; and there must be a plurality of interests.

The CCom also states that general average expenses shall be borne by the various interests called to contribute, and that only damages, losses, or expenses that are the direct consequence of general average shall be admitted (rr B and C of the York-Antwerp Rules 1974). That includes expenses generated in the average adjustment and the interest of the amounts received on loan by the master to overcome the danger. The obligation to make an average contribution is not affected, even if the event that gave rise to it was due to the fault of one of the parties of the maritime adventure. It is without prejudice to the actions that may be brought against that party (r D of the York-Antwerp Rules 1974, 1994, and 2016). In practice, many of the events that result in general average derive from the master or shipowner's fault. However, according to r D, the master's fault does not deprive the shipowner/carrier from requesting a contribution from the cargo owners, without prejudice to the latter's rights to recover those amounts later. In respect of the extraordinary expenses incurred to preserve the ship and the cargo from a common peril, like those incurred for refloating the MV Stadt Bemmen, it is mandatory to distribute the loss proportionally between all the parties involved in the maritime adventure, so that the parties affected can be compensated by all other parties.

Once general average is declared, the carrier appoints a specialist firm to make an adjustment, which determines and apportions contributions, and informs the amounts to the parties obliged to pay for general average. The CCom also states that adjustment should consider the value of the property involved at the date and port where the voyage ends (rr G and 17 of the York-Antwerp Rules 1974 and 1994). Based on the provisional calculations carried out, the shipowner requires the consignees or their insurers to guarantee such amounts by providing general average bonds or letters of guarantee. The provision of these instruments is essential to release the cargo and allow it to proceed to delivery once it arrives at the port of destination, since the carrier can otherwise retain the cargo, or even request its sale by auction. The cargo consignees or their insurance companies must deposit money into a bank account established for this purpose, or must constitute a guarantee, since the liquidation procedure is usually lengthy. The contributors may accept or reject the conclusion of the adjusters. If they accept, deposits must be released in favour of the beneficiary, and the insurance companies that issued general average guarantees must proceed to make payments.

The plaintiffs argue that the claim should have been decided under the provisions that govern contracts of carriage. They allege the inobservance of art 1030 of the CCom, which establishes that the carrier must respond for total or partial loss, damage (avería), and delay in the delivery. This provision refers to carriage of goods in general. However, carriage of goods by sea possesses a particular and autonomous legal regime of general average, which must be referred to in order to determine the rights and obligations of the parties, making art 1030 inapplicable. In any case, the word 'avería' contained in that provision refers to particular damages, not to the concept of general average. Although the plaintiffs bring a compensatory claim, contributions to general average do not have their origin in the shipowner's liability resulting from its negligence in the carriage of goods. Rather, they derive from the relationship that maritime law imposes on the parties to the maritime venture, due to the interest that they all have in the salvage of the goods. In this case, the carrier performed the obligation of carrying and delivering the cargo at the port of destination in the received condition and within the agreed time. A declaration of general average does not constitute a breach of the contract of carriage. The mechanism for general average is established in art 1520 of the CCom, which is specific and autonomous, and is subject to the one-year time bar set out in art 1528.

Another argument presented by the plaintiff was that the CA ignored that the claim also related to expenses for salvage, for which the CCom establishes a two-year time limitation. In this regard, the Salvage Convention 1910 introduced the concept of 'equitable remuneration' as remuneration for assistance and salvage acts that have a useful result, provided that the endangered ship accepted the assistance (arts 2 and 3). It assigned to the masters of all vessels a duty to render assistance to any person who is in danger of being lost, even if it is an enemy vessel, as long as the safety of the crew, ship, or passengers is not compromised (art 11). Regarding the amount of the remuneration, the Convention determines that it cannot be higher than the value of the property salved (art 2). In fixing the salvor's remuneration, the success of the operations, the danger experienced by the salved vessel, the salvor's efforts, the time spent, the goods exposed, the expenses and damages suffered, and the value of the property salved, must all be considered, among other criteria (art 8). The Salvage Convention 1989 extended the protection derived from salvage operations, under certain conditions, to State-owned warships, vessels with immunity, and fixed or floating platforms (arts 3 and 4). In addition to the traditional salvor's remuneration, the Salvage Convention 1989 recognises special compensation where salvors prevent damage to the environment arising from the emergency (art 14.1). The CCom imposes on the master the obligation to implement all available means to save the ship, including agreeing to salvage with authorisation from the shipowner. Following the Salvage Convention 1910, the CCom also obliges the masters to render assistance to any non-enemy vessels or people on board them, provided that this does not endanger the ship, crew, or passengers. Any act of assistance or salvage that has a useful result gives rise to equitable remuneration.

The stranding of vessels is one of the maritime accidents or casualties recognised by law, and salvage or assistance operations are directly related to the risks of the sea listed in article 1705 of the CCom. The nature of salvage is that of an extraordinary expense caused by a real and current danger that threatens the entire maritime venture, which must be averted by operations that ensure its safety. That is the reason salvage is admitted into the category of average. In that respect, r 6 of the York-Antwerp Rules 1974 and 1994 states that the 'expenditure incurred by the parties to the adventure on account of salvage, whether under contract or otherwise, shall be allowed in general average to the extent that the salvage operations were undertaken for the purpose of preserving from peril the property involved in the common maritime adventure'. The 2004 amendment limited its recognition within the general average to total or partial payment by one of those involved in navigation and engaged 'in assistance or salvage', of 'the proportion owed by another of the parties involved', if it was calculated taking into account the salved values, and not the contributing interests. The 2016 reform admits remuneration for salvage as general average if its purpose is to preserve the property involved in the expedition and meet the criteria set therein (rr 6.b-d of the York-Antwerp Rules 2016). Regarding the time bar, art 1554 of the CCom establishes a period of two years, counted from the moment when the salvage operation finishes. The substantive legal relations referred to in these provisions are those between the rescuers, salvors, crew, and towage providers on the one side; and on the other side, the shipowner, shipper, and other persons who receive a benefit from the assistance. These are claims aimed at obtaining remuneration for the assistance provided, reimbursement of the expenses incurred by the assistants or the salvors, and payment for exceptional services provided by towing companies that cannot be considered integral to the execution of a towing contract. They also cover compensation for damages caused by a master who refused to assist another non-enemy ship or a person at risk of death in the water if in a position to assist them; or when, in assisting a different vessel, the master seriously endangered his or her own vessel, crew or passengers.

The plaintiffs' claims for salvage expenses do not fall within this category regulated in the CCom. Furthermore, they cannot be confused with similar claims governed by these regimes, such as the judicial determination of the remuneration to which salvage gives rise when its result is useful. This mechanism does not protect the shipper, who must assume a part of that remuneration, but the salvor who puts itself and even its ship, crew and passengers at risk to help others. Although some maritime transport insurance policies recognise 'salvage expenses' as an additional risk to that of sacrifices for general average, they are also part of the latter when those expenses are incurred for the common benefit of the maritime adventure 'in order to preserve the goods involved in navigation from danger'. The latter category occurred in the emergency experienced by the MV Stadt Bremen when it ran aground. The master determined that the measure necessary to overcome the situation without damage to the hull or the cargo was to engage salvage operations. Its costs were included in the adjustment of general average, corresponding to an expense caused for the benefit of all those interested in the successful arrival of the ship at its destination. Consequently, to recover salvage expenses incorporated into the settlement of general average, art 1528 of the CCom is applicable in terms of prescription. As this provision establishes a one-year time bar, this action is barred.