Since the Hague/Visby Rules were enacted in Spain the courts, and particularly the Supreme Court, have struggled to reach agreement as to the nature of the one-year period within which an action based on a bill of lading must be initiated under Article 3(6). While some judgments have defined this period as a mere time bar, other judgments, based on the language used in the article, have construed it as a period of extinction of the claim.

The consequences of defining this period one way or the other are very important with respect to whether it can be interrupted. While a limitation period can be interrupted by an out-of-court claim which would restart the period, a claim subject to a period of extinction dies if it is not exercised properly within that period. This would mean that an out-of-court claim, or even a lawsuit filed before the wrong court, could not be used to delay the filing of the judicial action before the competent court.

Disagreements between the courts on this point created legal uncertainty, as it was impossible to foresee whether a claim was still valid if its exercise was delayed by over one year from the date of arrival of the cargo to the port of destination (or the date on which it should have arrived).

Fortunately, from 1978 onwards the Supreme Court delivered a number of judgments in which it considered the one-year period as one of extinction of the claim, thus ending the confusion. By 1990 Spanish jurisprudence was consistent on this point.

However, on April 19 2001 the Supreme Court issued a judgment in Comercial Unión España Seguros y Reaseguros Generales SA v Jose Salvat (381/2001), in which it changed its point of view with respect to Article 22 of the Spanish Carriage of Goods by Sea Act 1949. In this decision the court held, in passing, that the one-year period was a time bar and could thus be interrupted by out-of-court claims.


This was a case of multimodal transportation. The shipper, a Spanish company, hired the services of a freight forwarder to transport goods from its warehouse in Spain to Delaware in the United States. The goods arrived in bad condition. The damage had been caused by the improper stowage of the goods inside some containers. The freight forwarder has entrusted that task to Jose Salvat SA prior to the maritime transportation from Barcelona to New York City. Jose Salvat had also stowed the containers onboard two different vessels.

The insurer of the goods filed a lawsuit against both the freight forwarder and Jose Salvat alleging a breach of contract.

Jose Salvat alleged in its defence that there was no contract between it and the owner of the goods; therefore, the insurer had no contractual action against it. As the insurer had not exercised an action in tort, Jose Salvat alleged that the courts should have dismissed the action. The Supreme Court rejected this argument on various grounds.

Firstly, the court erroneously applied, by analogy, the provisions of the Civil Code that refer to the civil contract of agency. These provisions establish that if the agent engages a substitute without authority, or with authority but of its own choosing, the principal has a direct action against that substitute.

The court's mistake was to consider the contract between the freight forwarder and the stevedore Jose Salvat as one of mere substitution. As the defendant had alleged in its writ of defence, Jose Salvat was not a substitute of the freight forwarder, but was rather a subcontractor in a contract of multimodal transportation. Following this line of argument, perhaps it would have been more appropriate for the court to apply the provisions of the Civil Code proposed by Jose Salvat regarding the contracting of services, which prohibit a direct action between the owner of the goods and the subcontractor.

Alternatively, and perhaps more in tune with the nature of the case, the court argued that Article 373 of the Commercial Code regarding multimodal transportation was applicable, and that this article allowed a direct contractual action against any of the companies that were engaged in the transportation as carriers.

In reply to this argument, Jose Salvat stated that if it was considered to be a 'carrier', then Article 22 of the Carriage of Goods by Sea Act would apply. As the action had been exercised more than one year after the arrival of the goods, it was therefore invalid.

This counter-argument was also rejected by the Supreme Court on the basis that there were two elements to Jose Salvat's performance, one of which was to load the containers and the other to stow them onboard the vessels. The first element, which was the origin of the damages, was not part of the maritime transportation (under the 'tackle-to-tackle rule'). Therefore, according to the court, Article 22 of the act was not applicable. Further, the court added that even if Article 22 had applied, the period of one year which it specifies could not be construed as a period of extinction.


Aside from the unfortunate change of view on the nature of the Article 22 period, the court applied Article 373 inconsistently. Article 373 would only apply if Jose Salvat was considered to be a carrier. Thus, if the court found that the task of stowing the containers was not part of the maritime transportation, it should then have ruled that it was part of the land transportation before applying Article 373. Otherwise, the application of Article 373 would not be appropriate.

If Jose Salvat was considered to be a land carrier, then the court would have been correct in not applying Article 22 of the Carriage of Goods by Sea Act. The applicable provision would then have been been Article 952(2) of the Commercial Code, which establishes a one-year time bar. Thus, the insurer's claim would have remained valid on the basis of its existing out-of-court claims.

However, in view of the second element of its task (ie, to stow the containers onboard the vessels), the defendant should, more appropriately, have been considered to be a maritime carrier. Article 22 of the Carriage of Goods by Sea Act would thus have been applicable and the action would have been considered extinguished.

It remains to be seen whether there will be a change in case law regarding Article 22 of the Carriage of Goods by Sea Act and Article 3(6) of the Hague/Visby Rules, or whether the Supreme Court will admit its mistake and confirm that the one-year period in which to commence an action against the maritime carrier is a period of extinction.

Only two courts, the Santa Cruz de Tenerife Court of Appeals and the Valencia Court of Appeals, have subsequently considered the judgment. On March 18 2002 the Santa Cruz Court of Appeals applied the Supreme Court's interpretation of Article 22 of the Carriage of Goods by Sea Act to the deposit of a container after it had been discharged from a vessel on which it was carried. However, on September 18 2002 the Court of Appeals of Valencia, which had to decide a case of proper maritime transportation, decided not to follow the Supreme Court's reasoning, arguing that its consideration of the nature of the one-year period was made only in passing and did not mean that the Supreme Court had changed its opinion. Unfortunately, these decisions alone are not sufficient to indicate what the case law will finally decide on this issue.

For further information on this topic please contact Veronica Meana at Fernando Meana Green & Co Abogados by telephone (+34 91 432 3875) or by fax (+34 91 432 3876) or by email ([email protected]).