The plaintiff, Frutas Superior SL, brought a claim against the defendant freight forwarder, Transitex-Transitos de Extremadura SL, on 25 January 2022, for EUR 43,414.92 for cargo damage.

The plaintiff contracted with the defendant for the transportation of ginger from Brazil to its facilities in Beniel, Murcia, carrying out multimodal maritime and road transport. On the arrival of the cargo on 4 May 2020 at the port of Algeciras, it was subject to an inspection by the customs authorities. On that day, the reefer container containing the goods underwent a temperature change that caused a fungus that attacked the ginger to proliferate. The goods arrived at their destination with obvious damage, in addition to damage to the packaging.

The defendant opposed the plaintiff's claim, alleging prescription of the action, as well as not being responsible for the damages caused by the customs inspection.

Held: The plaintiff's claim is dismissed.

This case involved multimodal transport carried out by a freight forwarder. The Law of Land Transport of Goods, of 12 November 2009, which regulates the multimodal contract, provides in art 68:

The multimodal transport contract will be governed by the regulations of each transport mode, as if the carrier and the loader had entered into a different transport contract for each phase of the journey.

Claims for losses, breakdowns or delays will be governed by the rules applicable to the mode of transport in which the delivery is made or must be made.

When the phase of the journey in which the damage occurred cannot be determined, the responsibility of the carrier will be decided in accordance with the provisions of this law.

Contracts for the maritime transport of cargo, whether national or international, under a bill of lading are governed in Spain by the Hague-Visby Rules.

The Hague-Visby Rules (arts 2 and 3) enshrine a general principle of liability for the fault of the carrier for breach of its contractual obligations and those of its auxiliary personnel. This general principle is complemented by another, according to which the responsibility of the carrier is presumed in case of damage and/or loss to the cargo during the time in which the custody obligation exists. The scope of application of this special legal regime is understood, ordinarily, as being from the loading of the cargo at the port of origin until its unloading at the destination. This presumption of responsibility of the carrier affects the non-observance of the duty of diligence in the fulfilment of its obligations.

This presumption admits evidence to the contrary under art 4 of the Hague-Visby Rules. On the one hand, the carrier may be exonerated from liability if it proves that it has used due diligence. And on the other hand, to facilitate the exoneration of the carrier's liability, a series of cases are contemplated in which, if they occur, the carrier is exempted from liability. The burden of proof of the concurrence of any of these causes of exoneration lies upon the carrier.

This liability system must be combined with the different reservations that can be included in the bill of lading and with its consequences. The carrier may include in its reservations that the cargo is in poor condition or shows apparent signs of being so, since the packaging is defective, with broken seals etc. These reservations serve the purpose of destroying the presumption that the cargo was delivered to the carrier in perfect condition. The issuing of a bill of lading by the carrier constitutes a juris tantum presumption, which admits evidence to the contrary, that the goods were delivered to the carrier in the condition described in the document.

In addition, art 3.6 of the aforementioned Rules indicates that the fact of discharging the cargo, will constitute, unless proven otherwise, a presumption that it has been delivered by the carrier in the condition described in the bill of lading, unless before or at the time of discharging the goods and placing them in the custody of the person who has the right to receive them, in accordance with the contract of carriage, written notice is given to the carrier or its agent at the port of discharge of the loss or damage suffered and of the general nature of this loss or damage.

Given that the damage in this case occurred when the cargo arrived at the port of Algeciras, after having completed the maritime transport, and as a consequence of the inspection carried out by the customs authorities, the Land Transport Law is applicable.

That law establishes that the prescription period is one year from the delivery of the goods to the consignee. Here, the cargo arrived at its destination on 7 May 2020. A claim was made in writing on 24 September 2020, which was rejected by burofax on 14 December 2020, which was received by the plaintiff on 28 December 2020. On that date, the statute of limitations that began on 7 May 2020 resumed.

As a consequence, the limitation period for the action ended in August 2021, and the claim was not filed until January 2022. The claim must be dismissed.

The action would also be prescribed if the Maritime Transport Law were to be applied.