This was an appeal in cassation brought by the appellant, Axa Seguros Generales SA, against a decision dismissing its claim against the respondent, Hijos de Cabanellas SL, for EUR 662,703.77.

In February 2007, Construcciones y Auxiliar de Ferrocarriles SA (CAF) hired ABX Logistics España SA (ABX), a freight forwarder, to organise the transport of 1,260 sets of railway wagon wheel axles from Beasain in the Basque Country to India. ABX undertook to arrange the transport logistics of the cargo from its departure from the factory to its ultimate destination. ABX subcontracted the stowage of the cargo to Selzi SL and the lashing or fastening of the axles to the respondent. The first shipment was shipped from Bilbao under a bill of lading to Rotterdam. On arrival it was found that the cargo had suffered damage during the maritime transport. The survey report confirmed that the axles being transported were poorly lashed inside the containers, which made it possible for them to move and the ropes to rub against the ends of the axles during navigation, with the consequent fraying of their fibres.

After the first shipment, the respondent carried out a second lashing of 180 wheel axles, which were shipped from Bilbao under a bill of lading to Le Havre. Once again, there was damage to the goods and it was determined by an expert that lashing defects inside the containers were the cause of the damage. The damage found in Rotterdam and Le Havre meant that the goods had to be returned to Bilbao for possible salvage, with the consequent return costs.

CAF had taken out transport insurance with the appellant, by virtue of which the latter compensated CAF for EUR 662,703.73. On 13 January 2017, the appellant filed a lawsuit against the defendant, in exercise of a subrogation action under art 43 of the Insurance Contract Law. The first instance judgment dismissed the claim, considering the action prescribed. The appellant appealed, but the Provincial Court also dismissed the appeal. It held that the limitation period for the exercise of the action by the shipper against the freight forwarder ABX was one year from the delivery of the goods, as established in art 3.6 of the Hague Rules and art 22 of the Maritime Transport Law of 22 December 1949. The appellant appealed in cassation to the Supreme Court.

Held: Appeal dismissed.

The appellant argues that the lashing of the cargo must be seen as one of the accessory tasks of a complex maritime transport contract. As a work contract, the longer limitation period in art 1964 of the Civil Code (CC) applies. It is not disputed that the work of lashing or cargo securing is a type of work contract. Therefore, as such a contract individually considered, the provisions of arts 1588-1600 of the CC do apply, and this is what the jurisprudence of this Court has been acknowledging since its decision of 31 January 1983.

However, this consideration would be important if the Court were faced with a claim between the parties to the lashing contract, ABX and the respondent (breach due to poor execution, non-payment of work, etc). But the relationship between the shipper CAF (in whose contractual position the appellant is subrogated) and the lashing company is that of a maritime contract, which includes various phases, including the stowage and lashing of the cargo, so the responsibility to take into account is that which would correspond to the freight forwarder ABX, as the person in charge of all transport operations. CAF did not contract directly with the respondent, but what it entered into was a contract with a freight forwarder who was in charge of all the tasks or logistics of the maritime transport.

Consequently, the claims of CAF (and of the appellant by subrogation) for cargo damage are those of a maritime transport contract and not, in isolation, those of a lashing contract (a work contract). Hence, the limitation period of the action is that of maritime transport, the same that would have applied to claims against the freight forwarder (which the appellant has avoided suing, being aware of this limitation period, and seeking to circumvent it by means of bringing an action against the lashing company instead).

The appellant further argues that art 3.6 of the Hague-Visby Rules, the regime made applicable by the bill of lading, does not apply to it. The appellant contends, in summary, that the regulations contained in the Hague-Visby Rules are only applicable to the maritime carrier, as can be seen from arts 1 and 3 of the Rules. In addition, the Rules only regulate the responsibility of the carrier from the time the merchandise is loaded on the ship. Activities prior to shipment, such as lashing, are excluded.

However, once it has been decided that the applicable limitation period is that of maritime transport, in that the freight forwarder assumes the functions of the carrier and the lashing tasks are ancillary to that transport, and taking into account that the transport was carried out under a bill of lading regime, the rules on prescription (or more accurately, extinguishment of action) applicable are those provided for in art. 3.6 of the Hague Rules and art 22 of the Maritime Transport Law of 22 December 1949. This limitation period applies to the operations that, as a whole, make up maritime transport, and not only in terms of claims against the carrier. In accordance with the case law, the freight forwarder (and its assistants) must deliver the cargo at the destination in the same state in which it was shipped. That is, the freight forwarder's obligation is an obligation of result in the same terms as the carrier.

It is not correct to say that the aforementioned precepts only apply to damage caused after shipment, since maritime transport covers the period for 'the time elapsed from the loading of the goods to their unloading' (STS 3144/2016 - ECLI:ES:TS:2016:3144, 29 June 2016 (CMI520)) and the loading also includes, as a preliminary task, the essential tasks of stowage and lashing. The industrialisation, technology, and complexity of maritime transport of goods, especially through the use of containers, means that modern maritime transport cannot be considered as a mere transfer of goods from one port to another, but must be considered as a set of operations oriented to carrying out transport in maximum safety conditions, from the address of the sender to that of the recipient. This operational set of tasks includes the preparation of the shipment, its organisation, the co-ordination of the different participants, the provision of the vehicles used, the transhipment of the goods, and their loading and unloading from the ship.

In addition, although the origin of the damage was the defective lashing of the cargo in the containers before loading it onto the two ships, the actual damage occurred during the maritime transport, when the axles moved inside the containers and collided with each other (the immediate cause of the damage).