High Court of Justice’s Judgement dated July 20th 2015
Recently the Spanish High Court of Justice delivered a Judgement on an International Maritime transport case defended successfully by our legal firm. The High Court of
Justice changed its interpretation regarding the “maritime protest” requirement, in relation to the time bar prescription of action when claiming for cargo damages, by amending its doctrine. The most remarkable aspect of the said Judgement is that it considers regulations must be adapted to our social reality when such regulation must be applied. The High Court agrees to interpret the regulation (Commercial Code) with the criteria of a later regulation (Spanish Act 15/2009), even though it is related to road transportation.
“At the time when the Spanish Commercial Code took effect, in 1885, it was applied to any type of commercial cargo transport known at the time, by road or sea, national or international and the regulations duly approved within International Conventions ruling the maritime cargo transportation under Bills of Lading and cargo road transportation.
For both the Spanish Maritime Act 1949 which embodies the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (“Hague Rules”), Brussels Convention of 1924 and the Geneva Convention CMR, for the International Carriage of Goods by Road dated May 19th 1956 (Publication BOE num. 109 May 7th 1974), the action of cargo damages responsibility prescribes that a lack of a protest or reservation within a year does not remove the right to exercise action of responsibility for cargo damages.
With regards to road transport contracts it is very significant that the Road Carriage of Goods Act (L15/1009) states within section 60 that the absence of remarks shall not impede the action of responsibility for loss or damages to cargo but it will presume –iuris tantum.- that goods were delivered as stated in the shipping document”.
The aforementioned evolution of regulations attempts to unify the protest or remark rules regarding the justification to exercise a responsibility action due to loss or damage to cargo where, as in this present case, damages were caused before the Spanish Navigation Act was approved. This has changed our interpretation of the rules of maritime protest stated within section 952.2 of Commercial Code.
Although it is correct that Court Jurisprudence interpretation of section 952.2 of the Commercial Code has as a requirement of -sine qua non- a previous maritime protest being made within a legal term of 24 hours in order to exercise the action of responsibility (amongst others Judgements of this “Sala Primera del Tribunal Supremo dated March 2nd 1988, March 23rd 1988, September 20th 1988, December 3rd 1990 and February 21st 2008) the said doctrine must be changed by interpreting the said section of the commercial code according to the social reality of the moment when it has to be applied (section 3.1 Civil Code), highlighted by the aforesaid legislative evolution which tends to unify the protest rules due to damages or loss of cargo both in maritime and road transport.
In this regard it must be understood that when cargo was damaged, protest had already a unanimous sense for all kind of transport, road (the Road Carriage of Act had already been approved) and maritime(n the case of an international carriage of cargo under a charterparty where the Hague –Visby Rules (Spanish Maritime Transport Act 1949 amended by Brussels Protocol of 19868 and the London Protocol 1979) are not applicable.) In summary, the Protest sense must be accommodated to the common rational and the absence of its formalization in legal term shall not prevent the opportunity to exercise the action as long as the said action is not time barred, like in this present case.”