These proceedings arose from a claim brought by Pesqueras Bermeanas de Túnidos SA (the appellant) against Mr Ernesto, as master of the Honduran-flagged vessel, the Malu, for damage occurring during the carriage of frozen fish from Abidjan, Côte d’Ivoire, to Villagarcía de Arousa, Spain (for related proceedings, see CMI900). The appellant arrested the ship. The Court of first instance partially upheld the appellant's claim and ratified the ship arrest, maintaining the bank guarantee that was provided at the time to release the ship. The respondents appealed to the Third Section of the Provincial Court of La Coruña, which held that that the carrier, Tabby Compañía Naviera SA, as part of the joint venture, should have been joined to the proceedings as a defendant. Hence, the proceeding was incomplete, which made the Court unable to decide the merits of the case. The Provincial Court reversed the first instance decision and nullified the security.

The appellant appealed in cassation to the Supreme Court, citing an infraction of arts 3.6 and 4.5.e of the Hague-Visby Rules, among others.

Held: Appeal allowed. The Provincial Court decision is annulled, and the Court of first instance decision is confirmed.

In the present case, the circumstances that make up the necessary joint venture do not occur: as established in art 619 of the Commercial Code, the master will be responsible for the cargo from the time it is delivered at the dock or alongside afloat in the port where it is loaded until it is delivered on the shore or on the dock of the port of unloading, unless something else has been expressly agreed. This rule of the lex fori that is not qualified, moreover, by others derived from the Hague-Visby Rules, or by the Law of 22 December 1949 on International Maritime Transport (LTM), but is rather indirectly corroborated by them. Based on the accepted fact that the cargo was transhipped from another freezer-fishing vessel alongside the carrying vessel, and the bill of lading was signed by the master, there is no doubt that the latter assumed the functions of the carrier and, as such, his acts are binding in principle on the shipping company, so that the object of the dispute is not limited, exclusively, to the responsibility of the master or crew under his command, but also to those attributable to the shipowner-carrier, in accordance with the Hague-Visby Rules and the provisions of the LTM.

Further, the respondents argue that the Spanish courts lack jurisdiction due to the parties' submission to foreign arbitration. The appellant, on the other hand, argues that art 7.1 of the Arrest Convention 1952, as well as the legal nature of maritime transport, which is carried out under the bill of lading regime, excludes subordination to an arbitration agreement; and that there is a lack of evidence regarding the alleged arbitration clause, and the photocopied documents provided to the appellate Court were inappropriate.

The appellant's first argument does not demonstrate much consistency. Although it is true that art 7.1 of the Arrest Convention determines the jurisdiction of the courts of the State in which the arrest was made to resolve the merits of the dispute, according to points of connection that would involve the Spanish jurisdiction (eg habitual residence of the plaintiff, or place of main establishment), art 7.3 of the Convention recognises the possible effectiveness of arbitration clauses, by allowing the court within whose jurisdiction the arrest was made to fix the time within which the claimant shall bring arbitration proceedings. This is a rule established for the benefit of the debtor. Even if it has not been invoked, as in this case, it does not prevent the respondents from alleging the corresponding exception, if applicable, at the time of the main proceedings.

As to the appellant's second argument, although the provisions of the Hague-Visby Rules do not apply to charterparties, if bills are issued, in the case of a vessel subject to a charterparty, they are subject to the rules of the same (art 5 of the Convention). The partial photocopy of the bill of lading bears the designation of 'Congenbill', which suggests that it would have contained an English law and arbitration clause, as well as an incorporation clause, stating that 'all the terms and conditions and exceptions of the charter party will be incorporated into this agreement', the validity and scope of which should have been examined in terms of the proposed purpose, which raises many problems of judicial interpretation. However, in this case, all that was provided was a photocopy of p 2 of the bill of lading. The existence of the disputed arbitration clause has not been proven by means of documents with evidentiary effectiveness in court, according to Spanish law. Consequently, for the same reasons, the application of a reefer clause, limiting the liability of the shipowner or its agents for breakdowns or losses of cargo in cold storage, has not been proven.