Ricardo Romero Vigoya claimed the loss of a cargo of 20 boxes of nuts and bolts carried from New York, USA, to Cartagena, Colombia, against the carrier, Flota Mercante Grancolombiana SA. The defendant denied liability, alleging that the cargo was declared abandoned after it caught fire in the ship's hold. The first instance Court rejected this defence, finding that the carrier failed to deliver the cargo, and ordered the carrier to pay compensation. On appeal, the Court of Appeal (CA) affirmed the first instance decision, stating that according to the Code of Commerce (CCom), the carrier must prove both the occurrence of a fire, and that the fire caused the damage or loss, in order to avoid liability. It was proven that there was a fire in hold no 3 LH of the ship on 26 September 1983, but there was no evidence that this event caused the loss of the cargo in question. The CA also found that limitation of liability did not apply, because of the confusing terms of the cargo description, and because it was obliged to construe the text of the bill of lading against the carrier, as it was a contract of adhesion. The defendant recurred this decision in cassation before the Supreme Court of Justice (SCJ), arguing that the CA did not correctly assess the evidence that proved its exoneration and limitation of liability.

Held: The SCJ admitted the recourse and reversed the CA's decision.

The SCJ stated that the CCom establishes a particular liability system for the ocean carrier for delay, damage and total loss of the cargo, which is based on the Hague Rules. The CCom does not establish a general principle for exoneration of liability, but lists the only possible causes of exoneration, corresponding with the method adopted in art 4.2 of the Hague Rules.

The guiding criterion is that the debtor of this kind of contract [here, the carrier] is liable when it does not execute its obligations, or fails to demonstrate that non-execution of its obligations was not its responsibility. That supposes a presumption of the fault of the party who fails to fulfil its obligations in the agreed manner and due time, because the lack of performance affects the rights of a third party. This presumption, however, is not absolute. The debtor can overcome it by proving that non-performance was caused by force majeure, or a fortuitous event that occurred without its fault. However, as fault arises from not acting with the diligence and care that the law establishes in relation to this type of contract in order to exonerate liability, the debtor must not only prove the fortuitous event, but also that it acted with due diligence to make the contract's performance possible.

A carrier who undertakes carriage of cargo by sea must deliver the goods at the destination in the same condition in which they were received and within the agreed time. The carrier is obligated to provide a specific result, which, if not fulfilled, creates a presumption of fault, and an obligation to pay compensation, if the carrier does not demonstrate any of the causes of exoneration of liability. The national legislation holds the carrier responsible for the whole loss, damage, or delay that affects the cargo, unless it proves that the damaging events constitute one of the risks expressly excepted in the law. The carrier must establish that the loss of the goods was caused by an unforeseen event that occurred by force majeure, a fortuitous event, an act or omission of the shipper, or inherent vice, and that it implemented all reasonable measures to prevent the damage or its aggravation. Furthermore, the carrier must also demonstrate the causal link between the exonerating event and the damage, because the CCom provides that the cause of exoneration must be the direct and effective cause for the lack of performance.

The CCom, following the Hague Rules, establishes an exoneration of liability when the damage or loss is caused by fire, unless it is proven that the fire was the carrier's fault (art 4.2.b of the Hague Rules). Since ships were historically made of wood, fire on board was one of the most severe risks that affected the community of interests of the parties to a maritime adventure. For this reason, by virtue of customs, later confirmed by several statutes, beginning with the Fire Act 1851 (US), and ending with the Hamburg Rules (art 5.4.a), there is an established exception of liability for damage caused by fire, or by firefighting operations, unless the fire was caused by the action or negligence of the carrier. This latter aspect is the shipper's responsibility to prove. If the fire and the link with the damage are proven, the cargo interest must prove that the fire was the carrier's fault. The shipper, consignee or the holder of the bill of lading may prove the inconsistency of this defence by demonstrating the ship's unseaworthiness, or, for example, the lack of firefighting equipment, defective stowage or any other circumstance that constitutes the carrier's fault or its incapacity to control the fire. The CA declared the fire proven, but not the causal link with the damage. Therefore, the respondent is correct in asserting that the CA made an incorrect assessment of the evidence, and the decision must be reversed.