This was a cargo claim brought by the cargo owner, Congelados País SL (CP), and its insurer, Zurich España Cía de Seguros y Reaseguros SA (Zurich), against Maritima Consiflet SL (MC, the local shipping agent) and Icepack Inc (Icepack, the carrier). The Court of first instance found in favour of the claimants, but limited Icepack's liability to USD 500 per package transported, for a total of USD 18,000, and dismissed the claim against MC.

Zurich appealed to the Provincial Court, arguing, among other things, that the limitation clause in the bill of lading should not apply.

Held: Appeal partially upheld. Icepak is ordered to pay Zurich USD 18,000, and CP EUR 7,571.42. MC's involvement in the transaction was limited to land-based activities. MC incurs no liability.

Contracts for the international maritime transport of goods under bills of lading must be governed by: a) The Hague Rules, ratified by the USA and by Spain, and the Law of 22 December 1949, the Maritime Transport Law (the LTM), which introduced its regulations into Spanish legislation in an appropriate manner, given the peculiarities of Spanish Law, as indicated in its Preamble; b) The Protocol of 1968 (the Hague-Visby Rules) and; c) The SDR Protocol of 1979, ratified by Spain on 16 November 1981.

Zurich's argument regarding the nullity of the package limitation clause contained in the bill of lading does not follow. Although the Hague-Visby Rules establish in art 3.8 that '[a]ny clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect', art 11 of the LTM provides that 'the carrier and the ship will be responsible for loss or damage caused to the cargo according to the value that the shipper has declared per package or unit, provided that said declaration appears in the bill of lading ... . If the shipper has not declared the value of the cargo in the bill of lading, ... the carrier shall be liable for the price of the cargo at the port of shipment, but this value is always limited to the maximum amount of five thousand pesetas paper money per package or unit'.

Given these regulations, by not stating the value of the cargo in the bill of lading, the limitation of the carrier's liability to a lump sum per package is lawful and binding for the parties in so far as it is provided for by law. In short, there is no reason to nullify the clause incorporated in the bill of lading by virtue of which it was agreed that 'this bill of lading limits the liability of Icepak Inc, its dependents and agents to $500 per piece (or usual freight unit). To obtain higher liability limits, the shipper must declare a higher value and pay an additional freight.' The clause in question that limits liability to a certain amount per package responds to a usage that governs the field of international trade in which the parties operate (the appellant is an insurer of international transport). Therefore they are aware of, or should be aware of, this usage, especially in the case of maritime carriage between companies established in different States.

It is true that art 4.5.e of the Hague-Visby Rules states that '[n]either the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result'. However, there is no evidence of such conduct in this case.

By contrast, the argument that this package limitation clause cannot be extended to the claim that CL has brought for its loss of profits and other indirect damages must be upheld. Indeed, the claim made by CL for loss of profits (EUR 7,571.42), including excess cold storage and extra days of storage, exceeds the limitation contained in the bill of lading and therefore must be compensated in full.