International Conventions and national laws relevant to marine cargo claims
The LNM regulates, in articles 203 and following, the contract for the carriage of cargo. As for a carriage under a bill of lading regime (articles 246 and following LNM), the current regulation remains applicable, since what is outlined is already set out in the Hague-Visby Rules. This results in a unification of the regime of liability of the carrier, be it for national or international transport. It is worth noting that carriers’ legal liability regime in carriages under bills of lading is ius cogens and cannot be revoked by the parties (given the little negotiative capability for carriers operating under this form of transport), whereas the legal liability of carriers in the case of charterparties is revocable, since it is assumed that shipowners and charterparties share an equally strong negotiating position.
Bills of lading in electronic form are also referred to as the possibility of its issuance, if both shipper and carrier have agreed to it in writing before the uploading of the cargo onto the vessel is outlined (article 262 LNM). Similarly, the option of issuing maritime waybills is addressed, as article 268 LNM states that, although having the same evidential value as bills of lading, such bills, like any other nonnegotiable document, are not considered securities.
It is to be mentioned that Spain was the first country to ratify the United Convention on Contract for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules).
Key principles applicable to cargo claims brought against the carrier
The holder of a bill of lading would be entitled to sue for loss or damages to the cargo. However, title to sue on an order bill of lading would be on the endorsee and on the named party in the case of a named bill of lading.
The terms and conditions of the transport agreement are formalised by means of a charterparty or a bill of lading. The terms of a charterparty will be considered to be incorporated into the bill of lading when the latter contains an express and clear reference to the charterparty. Accordingly, if the charterparty incorporates a jurisdiction clause and the bill of lading appropriately incorporates the terms of the charterparty, any dispute derived from the execution of the transport agreement covered by the bill of lading should be subject to the jurisdiction choice set forth in the jurisdiction clause incorporated to the charterparty. However, jurisdiction and arbitration clauses in the bills of lading do not bind the acquirer of the bill of lading. Consent of this is required.
An important novelty introduced in articles 280 and 283 LNM is the express regulation, alongside the regulation of the carrier’s liability for losses and damages to the cargo, of the carrier’s liability for delays in the delivery of the cargo, which, like the liability for losses and damages, is limited in nature.
The LNM continues to demand the formulation of complaints (article 258) for damages and losses to cargo, as well as for delays in its delivery. The legal consequence of a lack of complaint is, in a departure from the Commercial Code, the presumption that the cargo has been delivered in accordance with the contents of the bill of lading. In the event of expert opinion or joint inspection of the cargo by the carrier and the recipient, the need to formulate a complaint shall be lifted. If the cargo insurer indemnifies the party with title to sue for damages or losses, the underwriter subrogated to claim against the party is liable for the damages or the losses.
The burden of proof is in the carrier which must demonstrate that it acted with due diligence, and that the damage, loss or delay was caused due to inherent vice, force majeure or nautical fault on the part of the dependents of the carrier. The claim can be against the issuer and signor of the bill of lading as contracting party, and against the owner by means of a tort action. Spanish Courts do not accept the demise clause if alleged to reject liability; however, it is occasionally admitted as grounds to pursue the joint liability of the owner and the effective carrier.
Circumstances in which the carrier may establish claims against the shipper relating to misdeclaration of cargo
Pursuant to article 260 LNM, the shipper would be liable towards the carrier in respect of the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars.
Agreements between shipper and carrier or the undertaking assumed by the shipper to indemnify the carrier for misdeclaration of the cargo are admitted, but they will not be binding to third parties/the acquirer of the bill of lading.
In the case of dangerous goods, the shipper would be liable not only towards the carrier but also towards cargo owners shipped on board.
On 1 July 2016, an amendment to the International Convention for the Safety of Life at Sea (SOLAS) will take effect, requiring verification of the gross mass of packed containers prior to loading on board ships.