The plaintiff carrier and defendant freight forwarder brought a claim and counterclaim against each other in respect of multimodal container transport from Brieselang (Germany) to Hamburg (Germany), and from there to Port Qasim (Pakistan) and the final destination in Karachi (Pakistan), including its land and sea phases, where there was a delay in the weighing and lashing services of the containers for their maritime transport, which gave rise to additional costs in Hamburg.

Held: Both the claim and the counterclaim are dismissed as time-barred.

Article 277.1 of Law 14/2014, of 24 July, on Maritime Navigation (the LNM) provides that:

The carrier is liable for all damage or loss of goods, as well as delay in their delivery, caused while they are in its custody, according to the provisions in this Section, which shall imperatively apply to all contracts for carriage by sea.

Article 277.2 of the LNM adds that:

Contracts for national or international carriage of goods by sea under the bill of lading regime and liability of the carrier shall be governed by the Convention for the Unification of Certain Rules of Law relating to Bills of Lading, done in Brussels, on 25th August 1924, the Protocols that amend it to which Spain is a party, and this Act.

In its Judgment of of 29 October 2018, SAP PO 1941/2018, the Provincial Court of Pontevedra, 1st Section, stated that:

The contract that binds the parties is a maritime transport contract under the bill of lading regime, for which international regulations come into play on a preferential basis, as of the date constituted by the aforementioned [Hague-Visby Rules] regarding the specific aspects of the contract that fall under its scope of application, including the duration of the carrier's liability for claims, provided for in art 3.6, according to which 'the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.'

Given the preferential application of international regulations regarding transport under a bill of lading, it is consolidated doctrine - although not uniform - when interpreting the nature of the previous provision for the exercise of liability actions against the carrier, that it must be construed as an expiration period, which does not allow for interruption in its calculation from the delivery of the goods.

In similar terms, the judgment of the Provincial Court of Madrid, 28th Section, of 14 October 2021 (SAP M 12733/2021) affirmed that:

The jurisprudence instructs that the one-year period of exercise of the action provided for in art 3.6 of the [Hague-Visby Rules] is one of expiration (among others, SSTS 348/2011, of 26 May or 437/2016, of 29 June, and those cases that are cited in these judgments). As we argued in our judgment of 6 July 2020: 'This criterion regarding the expiration of the term is one that has been maintained in many decisions (among others, SSTS of 11 March 1987 and 18 September 1988) and the rigor of the term is based on the need to provide the maritime transport claims system with a determined and unchangeable term within which actions derived from transport can be exercised, so that the carrier (or freight forwarder, as the case may be) is not exposed to untimely Brussels Convention claims, made long after the transport).'

Therefore, as long as the existence of an agreement to extend the term is not proven, a possibility provided for in art 3.6, fourth paragraph, of the Brussels Convention, with the modifications of the 1968 and 1979 Protocols, after the annual period the action expires. And this is without admitting interruption, because it is affirmed that, unlike prescription, expiration protects a general interest linked to the requirement of certainty of legal relationships. On the other hand, it is known that the prescription does admit interruption and requires the express invocation by the party.

In this case, the claims of both parties, in a reciprocal way, derive from multimodal transport, the maritime phase of which began late, causing costs in the port of origin (Hamburg), along with allegations of incorrect billing. But since such costs accrued in the port of Hamburg were claimable and quantifiable from 17 December 2018, and the dispute over billing in the counterclaim occurred on 14 January 2019, the claims brought by both parties have expired. It is appropriate, therefore, to dismiss both the claim and counterclaim.

Such a conclusion is not prevented by the counterclaiming defendant freight forwarder's allegation of the absence of a contractual relationship between it and the plaintiff carrier, inasmuch as the latter assumed the transport of the goods, and invoiced the consignee in its own name for the entire transport. This would allegedly make it possible for the defendant freight forwarder to sustain its claim within the prescriptive term of 15 years under art 1964 of the Civil Code.

This claim must be rejected. The Judgment of the Provincial Court of Madrid, 28th Section, of 9 April 2018 (SAP M 7679/2018) points out that:

As a multimodal transport operator (MTO) its mission is not limited to hiring transport, but rather it is a true organiser. ... The doctrine highlights the complexity of multimodal transport, which leads shippers to entrust this type of operations to logistics experts who are in charge of something that goes beyond the mere contracting of transport, since their intervention includes the organisation and management of transport. In short, the MTO assumes the responsibility of transport as a result, which implies equating this entity to that of the carrier, since the shipper contracts for a full transport operation, the vicissitudes of which are foreign to it.

Every transport organiser responds as if it were a carrier (among others, STS of 26 May 2011, referring to the same defendant) ...

The Judgment of the Provincial Court of Pontevedra, 1st Section, of 22 January 2016 (SAP PO 608/2016) adds that:

The freight forwarder's status is characterised by a settled jurisprudence that currently makes the regulations apply to it as a contractual carrier. In this way, the general transport regulations are applied for liability purposes, which equates the freight forwarder with the carrier, 'remaining subrogated, in the place of the carriers themselves, both in terms of their obligations and responsibilities as well as their rights' (art 379 of the Commercial Code). From the shipper's perspective, the freight forwarder assumes the position of sole carrier, so that the shipper only deals with the - generally multimodal - transport operator, not being affected by the complexity and by the vicissitudes of the relationships that may exist between the freight forwarder, as contractual carrier, and the network of actual carriers (cf STS 26 May 2011 (RJ 2011, 3989) and 13 September 2013 (RJ 2013, 6400), which applied the norms of art 379 of the Commercial Code and art 126.1.a of Law 16/1987).

As a result, the freight forwarder, or sole multimodal transport operator, is equated to the carrier of art 22 of the LTM of 1949 and art 3.6 of the Hague-Visby Rules. It is appropriate, therefore, to dismiss the counterclaim filed.