Xavier Bisbal SL (Xavier) acquired from a Turkish seller, MMZ-Onur Boru Profil Uretim Sanayi VE Ticaret AS, 281 packages (321,150 mt) containing hollow rectangular steel tubes. The cargo was loaded onto the Moldovan-flagged Med K in the Turkish port of Karadeniz Ereğli on 28 May 2008 under a bill of lading and arrived at its destination in the port of Palamós, Girona on 9 June 2008. Matas SL (Matas) was the local shipping agent of the vessel in Palamòs. During the voyage, seawater entered the holds of the ship in which the cargo was stowed, which was damaged by the resultant corrosion. The price of the cargo transported was EUR 224,783.01. Similar cargo purchased by Eduardo Puig SA (EP) was loaded on the same ship, specifically 847 packages weighing 1,099,956 kg at a purchase price of EUR 690,898.90, and was also damaged. This latter shipment was insured by Axa Seguros Generales SA (Axa). Axa paid its insured EUR 226,856.76 as a consequence of the partial depreciation of the cargo transported and was subrogated into EP's claim.

The Court of first instance ordered Matas to pay Xavier EUR 115,634 and Axa EUR 226,856.76. Matas appealed.

Held: Appeal dismissed.

One of the grounds of appeal was that the Court of first instance should have applied art 4.5 of the Hague Rules, which limits compensation to 100 pounds sterling per package or unit or its equivalent in another currency. On that basis, Matas argued that its liability should have been limited to EUR 46,465.75. This argument cannot succeed.

The relevant bill of lading contained a paramount clause that, translated, provided that 'the Hague-Visby Rules shall apply to this bill of lading in transports where the International Convention of Brussels of 1924 modified by the Protocol signed in Brussels on February 23, 1968 - the Hague-Visby Rules - is of mandatory application'. In other words, a condition is fulfilled for the application of the 1968 Protocol, which modifies art 10 of the 1924 Convention in what refers to its field of application, ie, the bill of lading contains a clause that establishes that it will be governed by the Convention or by the legislation of a State that has ratified it. Given that Spain has ratified the relevant Protocols, it is empowered to apply them, as established in art 6 of the 1968 Protocol. As a consequence, the Hague-Visby Rules, rather than the Hague Rules, govern the determination of the liability limit.