As advanced when the Spanish Shipping Act entered into force back in September ’14, we would have to wait a few years for decisions rendered by the Appeal Courts to see how some articles were construed by our courts.
In this Newsletter we bring to your attention the first judgement on delay in the contract of carriage. It is the judgement nº 108/2018 rendered by the Appeal Court of Valencia in a claim brought by a shipper against a shipping company for a delay in delivering the cargo at destination (65 days beyond the expected transit time of 30 days). We have been advised that the judgement is not definitive yet for the defendant could file a Cassation recourse before the Supreme Court.
The Spanish Shipping Act 14/2014 set the carrier’s liability for delay in arts. 277, 280 and 283, stating that these are imperative provisions which cannot be ruled out by contract.
Art. 277.1 reads: “1. The carrier is liable for all damage or loss of goods, as well as for delay in their delivery caused while they are under its custody, according to the provisions stated in this Section, which shall imperatively apply to all contracts for carriage by sea.”
Art. 280 defines delay: when the goods are not delivered in the agreed term or, if there is no term agreed, if they are not delivered in a reasonable term according to the circumstances of the case.
Art. 283 fixes the limitation of liability for delay in 2,5 times the freight payable for the goods so affected by the delay, with a general limitation of the total freight due, exactly as in Hamburg Rules.
Literally, art. 277.1 is not demanding any proven loss caused by the delay. It would seem that the customer could claim a strict compensation to the Carrier in case of unreasonable delay in delivering the cargo at destination.
The Appeal Court finds that above provisions of the Spanish Shipping Act do complement (and thus, can coexist) with Hague Visby Rules. It further concludes that:
- Legislator established a different regime for carrier’s liability for loss or damage to the cargo and for delay.
- When talking about loss or damage to the cargo, claimant has the burden to prove the damages suffered.
- When talking about delay and literally following the wording of arts. 277.1 and 283, claimant only has to prove that it existed, not its prejudicial consequences.
In our view, Hague Visby Rules should be regarded as a comprehensive system of rules which excludes the carrier’s liability for delay as it is not expressly provided. Therefore, when HVR apply for the subject carriage the Spanish Shipping Act cannot interfere. Let’s see if this is also the view of the Supreme Court.