This was an appeal against the judgment of the Commercial Court No 4 of Valencia of 10 January 2022, dismissing the appellant insurer's claim against the respondent carrier.

Galletas Gullón SA (GG) sold 19,481 kg of Maria cookies to Goya Foods Inc. GG entrusted transportation to the respondent. The transport consisted of a land leg from Palencia to Bilbao, a sea leg from Bilbao to New York, and then a land leg from New York to the buyer's facilities in Pedricktown, New Jersey. For the maritime phase of transport, a sea waybill was issued. Clause 5 of the waybill provided:

If the transportation requested in this Document is a transportation to or from the United States, the responsibility of the Carrier or its Subcontractor will be determined exclusively in accordance with COGSA, which is contractually incorporated into this Document. The provisions cited in the Hague Rules and in COGSA (except as specifically provided otherwise herein) will also apply before the Goods are loaded and after they are unloaded from the Ship, provided, however, that the Goods are currently in the actual custody of the Carrier or any Subcontractor.

Clause 8 of the waybill provided:

Unless written notice of loss or damage and the general nature of such loss or damage is given to the Carrier at the port of discharge or place of delivery before or at the time of delivery of the Goods, or, if the loss or damage is not apparent, within three days immediately following delivery, the Goods shall be deemed to have been delivered as described in this Document. In any event, except as indicated in the next sentence, the Carrier will be released from all liability in relation to non-delivery, misdelivery, delay, loss, or damage, unless the claim is filed within one year after the delivery of the Goods or the date on which such Goods should have been delivered. In the event of damage occurring in the custody of a Subcontractor during direct Carriage, the Carrier and Subcontractor shall be released from all liability in connection with non-delivery, misdelivery, delay, loss, or damage unless notice of claim is filed and demand is filed within the time periods prescribed by local law ...

The cargo was unloaded in the port of New York and stored at the terminal. The container then caught fire, causing a total loss of the cargo. The fire took place on 11 November 2018, which coincided with the day on which the goods were to be delivered.

Clause 6(4) of the waybill provided:

Without waiver or limitation of any exemption or limitation of liability provided by law or by this Document and in accordance with the United States Fire Statute, 46 USC, Sec. 182, neither the Carrier nor any corporation owned, or affiliated with the Carrier shall be liable for any loss or damage wherever and whenever caused by fire, including prior to loading or after unloading from the Vessel or while the Goods are in the custody of an Underlying Carrier, unless such fire was caused intentionally or through negligence, or through the fault or complicity of the Carrier or such corporation, respectively.

The appellant’s lawsuit was filed on 20 November 2019. The respondent carrier granted an extension for filing the claim until 11 February 2020.

Held: Appeal dismissed.

The Chamber must proceed from the consideration that the maritime transport contract entered into was formalised by means of a sea waybill and not by a bill of lading.

This is important because art 10 of the Hague-Visby Rules provides that the provisions of the Convention shall apply to all bills of lading relating to the carriage of goods carried out between ports belonging to two different States in certain circumstances. Therefore, it is a prerequisite for the application to the Rules to the transport contract that it has been formalised through a bill of lading. For the rest of maritime transport contracts formalised through other documents that are not documents of title, such as in this case through a sea waybill, the aforementioned Rules cannot be directly applied. However, nothing prevents the parties from agreeing to which legislation they submit their contractual relationship, including the Hague-Visby Rules, if so agreed.

The problem is that, in this case, the paramount clause does not refer to the Hague-Visby Rules, but to COGSA. The transport was to the United States, so the Brussels Convention was not applicable to the contract. In relation to the proof of foreign law, art 281 of the Civil Procedure Law provides that foreign law must be proven with regard to its content and validity, and the Court may use whatever means of investigation it deems necessary for its application.

In this case, none of the parties has provided proof of COGSA. For this reason, the Chamber is not fully apprised of what the US regulations are regarding carrier liability actions, and if they coincide with the provisions of the Brussels Convention. The consequence is that Spanish law is applicable.

Article 286 of the Law on Maritime Navigation (the LNM) establishes a limitation period of one year. Therefore, it is not an expiration period. The respondent admits that, in the event that the action was subject to a limitation period, it would be interrupted, as an extrajudicial claim was sent to the respondent within a year from the loss of the cargo.

There is no dispute between the parties that the cargo was totally lost due to a fire. As stated above, the Hague-Visby Rules cannot be applied, because this is not a contract for the carriage of goods under a bill of lading, and because the paramount clause does not refer to the Rules, but rather to foreign law. Contrary to what was alleged by the respondent carrier, the LNM does not contain an exoneration of liability where the loss of the cargo is caused by a fire.

However, the waybill does contain a clause in which liability is excepted in the event of fire. This clause can be considered valid since it does not imply exoneration for deliberate harm or gross negligence on the part of the carrier. Instead, the clause exonerates the carrier where the fire was due to force majeure/act of God, or due to the negligence of a third party.

The expert report does not attribute negligence of any kind to the carrier or its employees or agents. The exemption of liability clause therefore applies, which means that the claim cannot be upheld. Hence, its dismissal was correct, although for arguments other than those contained in the judgment of the Court of first instance. Therefore, the appeal is dismissed.