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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Spain has signed the Brussels Convention 1924 and the Protocols of 1968 and 1979 (the Hague-Visby Rules and the Rotterdam Rules are still not in force).
What is the official extent of the carrier’s responsibility for goods?
The carrier is liable for the partial or total loss of the merchandise, damages, total or partial failure and delayed return in accordance with the agreed terms.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
The liability regulation is legal and coercive. It cannot be avoided by contractual clauses which try to minimise or cancel liability in prejudice of the bearer of the right to receive the merchandise. Nonetheless, such clauses, if agreed within the freight policy and if they do not involve indemnity for wilful misconduct or fault from the carrier's side, will be of value only in relations between the carrier and the charterer. The aggravation of liability in favour of the loader is accepted in accordance with the Hague-Visby Rules. If indemnity of the carrier's liability is accepted, it will have limited liability.
Title to sue
Who has title to sue on a bill of lading?
The signature of the shipper or its agent must appear on the bill of lading; if it is undersigned by the captain, it will be understood to be done so on behalf of the carrier. If the person acting as shipper is not sufficiently identified, it will be understood to be signed by the shipowner.
What is the time bar for cargo claims?
Actions arising from the charter contract expire one year after the date of delivery to the receiver or the date on which they should have been delivered. This term can be extended, reduced or interrupted.
In relation to claims under declaratory regulations, the term of claim and the term of expiration must be differentiated. Regarding the term of claim, the loss or damage must be notified in written to the shipper or its agent on the next working day following delivery, if it does not become apparent within three working days of delivery. Notice is unnecessary if a joint inspection has taken place. If there was a delay, the notice regarding the damage must be officially claimed within 10 working days after delivery. Failure to notify or delayed notification modifies the presumption of delivery and does not preclude the exercise of action.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
A difference is established between the contractual shipper (freight forwarders, forwarders and any other party which commits to taking care of the transport) and the effective shipper (the shipowner or charterer of the ship). They will be jointly liable for the claims.
There is no definition of ‘merchandise’. The law prohibits the shipment of merchandise as opposed to the contracted merchandise, defining this as an illegal shipment. Dangerous merchandise must be declared by the shipper and accepted by the carrier, and if it encounters risk, it may be unloaded, destroyed or transformed into harmless goods. The transport of animals is treated differently in regard to the shipper's liability, constituting negligence.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
The perils of the sea defence is linked to the cause for indemnity and is subject to a restrictive and objective interpretation. Its origin does not depend on the conduct of the carrier or its ancillaries. A specific procedure exists which the law defines as sea protest due to incidents during the voyage and which is carried out before a notary public.
In its defence, the carrier may cite:
- the lack of navigability of the ship;
- a nautical fault;
- sea perils;
- force majeure;
- acts of war;
- an act or failure of the loader of the merchandise;
- a reduction of volume or weight;
- its own or hidden defects;
- insufficient packaging;
- saving lives, goods or the marine environment; or
- any other issue that is not an event or the shipper's fault.
The carrier must prove its diligent performance.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
The carrier's agents need not present the same defence as the carrier. However, in solidarity against the loader, they can use in their favour all of the same exceptions as the carrier may use.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Deviation from the agreed route is allowed to save lives or for any other reasonable, justified cause that does not derive from the lack of navigability of the ship.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The charterer has retention rights over the merchandise for the payment of freight, delays and transport expenses. The retention right may be used only against the charterer which is the receiver, unless the transport document requires the payment of freight at destination. In relation to freight governed by time, this will apply only to merchandise belonging to the charterer. In the transport with knowledge of shipping, the retention right may be used only in respect of the receiver that is also the charterer, and can be used against third parties only when such power is expressly stipulated within the knowledge of boarding.
The charterer may also deposit or sell merchandise to comply with the payment of freight and other expenses linked to:
- the transport;
- failure to collect the merchandise; or
- failure to complete the voyage due to circumstances arising during the voyage which made it impossible, illegal or prohibited to continue.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
The Maritime Navigation Act states that multimodal carriage is equivalent to transport with knowledge of shipping.
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