Pesqueras Echebastar SA and Impesca Fishing Ltd (the plaintiffs) claimed for the damage of a cargo of frozen fish against Don Benjamin, the master of the carrying ship. The first instance Court dismissed the claim. On appeal, the decision was affirmed. The plaintiffs recurred the decision in cassation before the Tribunal Supremo/Supreme Court (SC) alleging an infraction to the provisions of the Code of Commerce (CCom) that hold the master of the ship directly and personally liable for damage to cargo during its transportation.

Held: The SC affirmed the decision. The SC stated that the regulation of the carriage of goods by sea under bills of lading is based on the Hague Rules, introduced with some modifications by the Law on Carriage of Goods by Sea of 22 December 1949 (LCGS 1949), and as amended by the Protocols of 1968 and 1979, making the Hague-Visby Rules applicable. The Spanish legislation on maritime transport is not uniform and does not provide a specific rule regarding the liability of the carrier, considering that the provisions of the CCom are also applicable to maritime transport. In this case, the carriage departed from Madagascar, which has not signed the Rules. That makes the carriage subject to the legal regime referred to in the paramount clause according to art 10 of the Hague-Visby Rules and the LCGS.

Both legal regimes establish the obligation of the carrier to ensure that holds, refrigeration and cooling chambers are in good condition for the cargo (art 3.1 of the Hague-Visby Rules). The CCom holds the carrier liable for the acts of the master and enables the carrier to recover against the master for those damages. But those provisions of the CCom instituting generic norms must never be considered as establishing a direct or exclusive responsibility of the master to the point of excluding the obligations of the carrier or shipowner. An action must be filed against the carrier without requiring the inclusion of the master as a co-defendant. It is so, even if the master acted negligently regarding the refrigerating apparatus, the poor condition of which caused the damage of the cargo. The damage occurred due to a commercial fault, which means a fault that affects the care, handling and maintenance of the cargo directly, according to art 3.2 of the Hague-Visby Rules. It cannot be ignored that the cargo damage occurred due to a failure in the refrigeration system. In these cases, it is the shipowner or carrier who has direct liability for the damage. The concurrence of nautical fault [ie the master's negligence] that also affected the cargo is irrelevant. Therefore, the action must have been filed against the carrier, alone or jointly with the master, but never against the master alone. As we approach the twenty-first century, the responsibility of the master, as an officer of high technical rank and without implication in commercial operations, is constrained to the area of his/her activity, and never, at least solely, to the business activity of the carrier.