This was an appeal from a judgment of the Commercial Court No 3 of Valencia on 17 February 2022, dismissing the lawsuit filed by the appellant, Naturpack Importaciones SLU, against the respondent freight forwarder, Stock Logistic Transports SL.

The appellant hired the respondent to transport a container with 960 boxes of jute bags from Kolkata (India) to Valencia (Spain). Upon arrival and unloading, wet boxes and humidity were detected. The boxes were wrinkled, stained, and the bags inside were stained and had a strong smell of humidity, making their use impossible.

The respondent argued that the goods were transported under FOB KOLKATA terms, which meant that the Indian exporter of the goods loaded and sealed the container, transported it to the port of Kolkata and loaded it on board the vessel, with the respondent intervening, solely and exclusively, once the container was already loaded on the vessel. The respondent was responsible for the transportation until it reached its final destination, but not responsible for the previous phases at the start of shipping. An expert report concluded that the damage to the goods was caused by actions prior to transport and that the boxes were loaded wet, without the carrier, due to the transport terms, being able to check the condition of the goods or having any obligation to do so.

The Court dismissed the appellant's claim. The appellant appealed to the Provincial Court.

Held: Appeal allowed. The first instance judgment is revoked, and replaced by judgment in favour of the appellant in the amount of EUR 72,978.57, plus interest and costs.

All the general regulation of the contract for the transport of goods, by whatever means used, whether by road, sea, or air, has in common the treatment of the contractual liability of the carrier. This is characterised by a departure from the subjective reproach for fault in contractual breach, established for the generality of contractual relationships in arts 1,101 and 1,104 of the Civil Code, which are based on the lack of diligence of the defaulting contracting party, and becomes a semi-objective reproach of responsibility for risk, where the carrier responds in any case to the loss, delay, or damage of the goods transported by the mere fact of its event, since its transport activity is its business enterprise, and whoever profits from such activity must answer for the mere risks generated by that activity.

The transport in this case was carried out between October and December 2020, when Law 14/2014, on Maritime Navigation (the LNM) was in force. Article 277 of the LNM establishes:

1. 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.

Contractual clauses that aim directly or indirectly to attenuate or annul such liability to the detriment of the person entitled to receive the goods shall not take effect. However, such clauses, when agreed in the charter party and if they do not involving exoneration for wilful misconduct or gross negligence by the carrier, shall be valid exclusively in the relations between the shipowner and the charterer, without them being able to be held against the consignor if he is a person other than the charterer in any case.

2. 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.

For its part, art 278 of the LNM, when referring to contractual and actual carriers, indicates that:

1. The liability established in this Section shall jointly and severally affect both the party that undertakes to perform the transport, as well as the party that effectively performs it with its own resources.

2. In the first case, this shall include transport commission agents, clearing agents and other persons who undertake to the consignor to provide the transport by means of others. It shall also include the charterers of a ship who contract in the manner provided for in Article 207.

3. The second, in all cases, shall include the operator of the ship carrying the goods.

4. The contractual carrier shall be entitled to be reimbursed by the effective carrier for compensation paid by virtue of the liability upon it established in this Article. The contractual carrier’s right to be reimbursed by the effective carrier shall be subject to a prescription term of one year from the moment of paying the compensation.

In this case, we are dealing with international multimodal transport, which involves moving goods from one country to another using two or more modes of transport, in this case combined maritime and land transport. In addition, a single cargo unit has been used with the goods inside, a container, from origin to final destination, passing from one mode of transport to another but without any type of rupture.

The multimodal transport contract between a shipper and an operator is embodied in a single multimodal transport document which is generally issued by a freight forwarder and covers the entire logistics chain and the different modes of transport used. For this reason, it will be the multimodal transport operator who issues the unified document of all the means and modes of transport used, assuming the responsibilities of the execution of the contract.

Law 15/2019, of 11 November, regulates multimodal transport. Article 67 defines the type of contract. Regarding its regulation, article 68 provides that:

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

Protests 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 Act.

In the phase of international maritime transport, what follows is the application of the Hague-Visby Rules, with displacement of the application of any other regulation. In this case, it is true that there is no record that India, the State where the bill of lading was issued and where the transportation began, is a State Party to the Convention, and, having examined the contract, it is not clear whether there was a submission of the parties to the Convention (it is blurry and appears to be written in English). However, none of the parties questions the application of the Rules. Despite the allegations in the lawsuit regarding the ignorance of the phase in which the damage occurred, the evidence and the appellants' own allegations mean that there is no doubt that the appellant attributes the cause of the damage to the maritime transport phase, for which reason the Court must apply the Hague-Visby Rules.

In general terms, the carrier is responsible for damage, loss, breakdown, or delay caused to the goods transported, given that the carrier, from the moment it accepts the transport of the goods, assumes an obligation of result, committing to deliver it under the same conditions as received it, incurring responsibility if it does not do so in accordance with arts 2, 3, 4 and 4 bis of the Hague-Visby Rules.

Based on the undisputed fact that the goods were damaged by wetness and humidity, the respondent has the burden to prove, in order to exonerate itself from responsibility, that the goods were wet at the time of their stuffing inside the container and not later during maritime transport, as a result of some deficiency in the container that allowed the entry of fresh water and subsequent condensation.

Nothing turns on the FOB Incoterm, since that distributes the obligations between the seller and the buyer in the sale agreement, not in the transport contract. A different matter is the FCL/FCL clause agreed upon in transport, which acknowledges that the container was not loaded by the carrier but by the exporter/seller of the merchandise, and that the container was delivered already closed and sealed, in such a way that the carrier did not know the internal state of it. However, although the clause determines the exoneration of the tasks of loading, stowage, and unloading of the goods inside the container, it does not imply a cause of exoneration of its responsibility for circumstances or incidents unrelated to these tasks and arising during transport.

The issue is therefore whether the respondent is exonerated from liability under art 4.2.q of the Hague-Visby Rules. The Court of first instance held that it was, considering that of the possible options being considered as the cause of the damage, the most reasonable and possible was that the damage occurred at the source and at a time prior to the container being stowed.

However, it cannot be concluded that the container was in perfect condition for transport. From the documents it can only be concluded that, from its external appearance and to the naked eye, the container did not have any visible damage. It is particularly noteworthy that despite the fact that the respondent noticed the existence of deficiencies in the goods transported on discharge, it did not request that any inspection of the container be carried out by the shipping company. The respondent did not even notify the possible existence of an incident which could have affected the goods, so that the experts could have examined it immediately. This conduct is what has prevented the respondent from being able to prove the circumstances in which the container was found, in such a way that all responsibility of the carrier could have been ruled out.

From an overall assessment of the evidence, this Chamber concludes that, contrary to the conclusion reached by the trial Court, a thorough test was not carried out by the respondent that allows for a conclusion, without any doubt, that the damage was caused by acts or omissions of the shipper itself, ie that the damage to the goods occurred at the source and at a time prior to the stowage in the container or during that process.