Roj: SAP B 2757/2010 Id Cendoj: 08019370152010100027 Body: Provincial Court Location: Barcelona Section: 15 Appeal No.: 229/2009 Resolution No.: 59/2010 Procedure: CIVIL Speaker: MARIA ELENA BOET SERRA Type of Resolution: Sentence PROVINCIAL COURT OF BARCELONA FIFTEENTH SECTION ROLL No. 229/2009 – 1st ORDINARY TRIAL No. 86/2008 COURT OF FIRST INSTANCE No. 6 OF BARCELONA
SENTENCE No. 59/10
Illustrious Sirs,
Mr. IGNACIO SANCHO GARGALLO Mr. LUIS GARRIDO ESPA Ms. ELENA BOET SERRA In the city of Barcelona, on March eleventh, two thousand and ten.
SEEN, on appeal, before the Fifteenth Section of this Provincial Court, the present ordinary trial No. 86/2008, followed by the Court of First Instance No. 6 of Barcelona, at the instance of TRANSPORT MANAGEMENT EUROPE, N.V., against ANFETRANS, S.L .; which are pending before this Superiority by virtue of the appeal filed by the DEFENDANT against the Judgment rendered therein on November 28, 2008, by the Judge of the aforementioned Court.
STATEMENT OF FACTS
FIRST.- The operative part of the appealed Judgment is literally as follows: «RULING: Estimating the lawsuit filed by TRANSPORT MANAGEMENT EUROPE, N.V. represented by Francisco Ruiz Castel against ANFETRANS, S.L. represented by the attorney Ana María Gómez Lanzas Calvo, I must condemn and condemn said defendant to pay the plaintiff the sum of five thousand and fifty-eight euros, plus the legal interest accrued from the date of filing of the lawsuit, increased by two points from the date of this resolution. No express imposition of costs is made on any of the parties.».
SECOND.- Against the aforementioned Judgment, the DEFENDANT filed an appeal, alleging the following grounds for appeal: first, lack of standing, arguing that the goods transported had been the subject of a CIF sale; second, error in the evaluation of the evidence, attributing the cause of the damages to the defective packaging of the drums; third, the defendant, as a company providing auxiliary cargo operations, should benefit from the carrier’s liability limit established in article 23 of the LOTT.
FIRST LEGAL GROUNDS
FIRST.- The plaintiff, TRANSPORT MANAGEMENT EUROPE N.V., appears as the assignee of the rights and actions of the freight forwarder company TRÁNSITOS INTERNACIONALES INTERCARGO 1999, S.A. derived from the international goods transport contract Barcelona-Egypt, operated by the shipping company BORCHARD LINES LIMITED on board the SUSAN BORCHARD vessel, to file a lawsuit for payment against the entity ANFETRANS, S.L. for damages resulting from a defective execution of the cargo loading and conditioning services within a container, based on article 1.101 CC and articles 125.1 LOTT, 171 ROTT, 303 and 306 CCom, regarding the obligations of the defendant as a consolidation or groupage company of the goods and as a warehouse keeper of goods, respectively.
The entity TRÁNSITOS INTERNACIONALES INTERCARGO 1999, S.A. is a freight forwarder company for an international maritime transport Barcelona-Alexandria, which issued in Barcelona four bills of lading (Liner Bill of Lading) with LCL / LCL clause (Less Container Load / Less Container Load), as agent of EGYTRANS SAE CO, undertaking to load the goods described in the various bills of lading into container No. MCLU 3167740 (as shown in the bills of lading, at pages 29 to 32). For the execution of the transport, the freight forwarder contracted the cargo loading operations with the defendant, ANFETRANS, S.L., who invoiced it for such services in the amount of 108 euros (on page 36); and also contracted (as shipper) the maritime transport of said container with the shipping company BORCHARD LINES LIMITED, who issued in Barcelona, through its agent, the corresponding bill of lading (Bill of Lading) dated August 11, 2006 (on page 34).
On August 12, 2008, said container was unloaded by the shipping company at the port of Genoa and sent to the dangerous goods area, because during the journey the container was leaking liquid and it contained goods classified as dangerous, specifically four pallets marked as IMO Class 8 (as shown in the bill of lading, at pages 34 and 35).
The expert report issued by the experts who inspected the container at the port of Genoa stated that liquid had leaked and part of the goods had been damaged, concluding that the cause of the damages was the leakage of the drums caused by «incorrect positioning of the DEHYTON drums due to inadequate stowage and lack of securing of the pallet stowed at the 2nd height». The same report indicates that the container was cleaned, the damaged packages were unloaded, and those that had not been damaged were stowed and secured. The shipping company invoiced the freight forwarder for the expenses derived from the accident (inspection of the goods, port handling, assistance from firefighters and customs formalities, cleaning and reconditioning of the goods), which were paid by the freight forwarder (as shown in documents No. 8 to 11 of the complaint). The plaintiff paid said amount to the freight forwarder and it assigned its rights and actions to it (as evidenced by document No. 1 of the complaint).
The first instance judgment, which fully accepts the claim, is appealed by the defendant alleging the following grounds of appeal: first, lack of standing, as the transported goods had been the subject of a CIF sale; second, error in the assessment of evidence, attributing the cause of the damages to the inadequate packaging of the drums; third, the defendant, as a company providing auxiliary cargo operations, should benefit from the liability limit of carriers established in article 23 of the LOTT.
SECOND.- It is common in the market reality to link another legal relationship of a different nature to the contract of goods transportation: a sale contract of goods. In the present case, the appellant-defendant objects to the plaintiff’s standing, arguing that the only one authorized to assign the rights over the cargo was the buyer party of the CIF sale contract entered into on commercial terms (as shown in documents 1 and 2 of the answer to the complaint), which, according to the current wording of the Uniform Rules for the Interpretation of International Trade Terms published by the International Chamber of Commerce – INCOTERMS 2000 -, means that the seller makes the delivery when the goods pass the ship’s rail at the port of shipment. These are the so-called indirect deliveries in maritime sales, whereby the seller fulfills its obligation to deliver when it entrusts the goods to the carrier, specifically when they pass the ship’s deck.
Although it is true that according to the inc
oterm CIF, in the contractual relationship between buyer and seller, it is the buyer who bears the risks of transportation, it is also true that the incoterms do not regulate the obligations between the parties to the transportation contract, nor do they regulate all the obligations arising from the sales contract. The regime of the responsibilities and obligations of the carrier and shipper is not affected by the CIF agreement relating to the sale.
The existence of a maritime sale with indirect delivery of goods and a maritime goods transport contract does not cloud the legal delimitation of the contractual parties of each of the different legal transactions and, therefore, of their obligations and responsibilities. The factual connections existing between the sale and the transport do not affect the legal autonomy of each contract (thus, the Supreme Court in a judgment of March 11, 1991 declares the independence of the documentary credit from the sales contract, and this Court has declared, in repeated judgments, the autonomy of the transport regarding the CIF agreement).
But furthermore, in the present case, an action derived from the transport contract is not exercised, but rather an action for contractual liability arising from the consolidation or groupage contract of goods in a container (container No. MCLU 3167740) contracted by the freight forwarder – who had assumed said obligation under the transport contracts with the various shippers documented in the bill of lading with LCL / LCL clause – with the defendant ANFETRANS, S.L.
(as shown in the invoice issued by ANFETRANS, S.L. to INTERCARGO 1999, S.A., on page 36). The action brought is based on the contractual liability arising from the contract to consolidate goods in a container for the damages resulting from its defective performance. Consequently, the controversy arises from the contractual obligation relationship arising from the contract existing between the freight forwarder and the defendant.
Thus, to determine the passive legitimacy in an action for contractual liability against the operator for consolidation or cargo loading and stowage in the container, the invoice for the sale or the CIF term of the sale has no effect, nor does the ownership of the goods, given the legal autonomy of said contract with the sales contract for the goods, and attention must be paid to the contractual liability regulations to determine active legitimacy. The freight forwarder contracted the service of consolidating goods in the container and, therefore, has the right to claim judicially, or to assign its rights to claim, the repair of its defective performance to the contractual counterpart that assumed its execution, that is, the defendant entity ANFETRANS, S.L.
THIRD.- The appellant alleges error in the assessment of evidence by considering that the cause of the damages claimed is not attributable to it since it does not derive from the loading of the goods in the container, but originates from a defect in the packaging of the goods, specifically the plastic strapping that wrapped the drums which, in the opinion of the appellant-defendant, was insufficient and weak, which led, due to the successive manipulations of the container, to the loosening of the plastic strapping allowing the tipping and breakage of the drum.
The assessment of the evidence in the records does not allow us to conclude that the cause of the damages claimed should be attributed to inadequate packaging of the drums, but to the consolidation of the goods inside the container, by not securing the pallet stowed at the second height, and this, in particular, for the following reasons: first, the defendant did not object or protest at the time of receiving the packaged drums for loading and consolidation into the container. The documents submitted with the response to the complaint regarding the receipt of the goods to be consolidated (documents No. 6-1 to 6-27), which indicate the number of packages, the description of the cargo, and its destination, do not contain any reservation or observation regarding the packaging of the received goods. More specifically, in relation to the five pallets with twenty-one drums of DEHYTON, nothing is mentioned in the goods receipt observations (document 6-1), while in relation to the four pallets received with IMO 8 cargo, it is indicated in the goods observations the reference to «IMO goods» (document 6-16).
Second, the only expert report in the records, issued by the expert Dr. Spolidoro who inspected both the container and the cargo at the port of Genoa, does not make any reference to the packaging as a possible cause of the damages. On the contrary, it clearly and precisely states that «based on the checks made, it is clear that the spillage occurred due to the improper positioning of the DEHYTON drums due to inadequate stowage and lack of securing of the pallet stowed at the 2nd height.
When palletized cargo is stowed firmly in a container, it is usually secured with the walls/doors of the container and with the surrounding cargo; all empty spaces that could allow cargo movement must be carefully closed with wooden pieces or, alternatively, the cargo must be properly secured by means of straps, cables, etc. Taking into account the stowage, it can be considered safe when no cargo movement occurs if the container tilts in any of the four directions at an angle of 30º. In this particular case, on the contrary, it turned out that there was an empty space of about 60 cm, without securing, between the palletized drums and the container door, which allowed the mentioned drums, without any securing, to fall during normal container handling» (on page 88).
Therefore, we consider that the cause of the drum tipping and spillage cannot be attributed to the breaking of the plastic strapping, which grouped (packaged) the drums, but to the placement of the drums in the container and the inadequate securing of the cargo.
The same packaging (plastic strapping) proved to be consistent for the drums placed at the bottom of the container and, on the contrary, the strapping of those placed at the top (at the second height) loosened. Thus, we must conclude that the cause of the drum tipping, and ultimately of the damages, does not lie in the plastic strapping or packaging of the drums but in their placement in the container and the deficient securing of the cargo.
FOURTH.- Finally, the allegation regarding the application of article 23 of the LOTT (Law 16/1987, of July 30, on Land Transport Regulation), concerning liability for losses or damages to goods or luggage, which, in the current wording given by Law 29/2003 of October 8, provides: «1. Unless expressly agreed otherwise, the liability of goods carriers for losses or damages suffered by them shall be limited to a maximum amount of 4.5 euros per kilogram.
The liability of said carriers for delays in the delivery of goods may not exceed, unless otherwise agreed, the transportation price.» There are several and of different nature the claims that can derive from a goods transport. In the present case, an action for liability for damages to the goods subject to transport is not exercised, but rather an action for contractual liability for the damages (or expenses) caused to the maritime carrier by a negligent loading of the container carried out by the cargo consolidation entrepreneur, who is not a carrier. The basis of the action brought is the contractual liability of the defendant, arising from the defective performance of the contractual provision of cargo consolidation in the container, against its counterpart – the freight forwarder company INTERCARGO 1999, S.A.
The legal relationship between the defendant ANFETRANS, S.L. and the freight forwarder INTERCARGO 1999, S.A., originates from a specific and distinct contract from the maritime transport contract. The complementary or ancillary nature of cargo loading operations in the container regarding the maritime transport contract does not have any relevance in the legal relationship between the contractual parties of that specific contract. Thus, the contractual liability of the cargo handling operator against its contractual counterpart is governed by the general regime of contractual liability, without the indemnification limits of the maritime carrier being applicable, nor the invoked limits of article 23 of the LOTT.
For all the foregoing reasons, the appeal must be dismissed and the first instance judgment confirmed.
FOURTH.- DISMISSED the appeal, the costs incurred in this second instance must be imposed on the appellant (article 398.1 LEC).
WE RULE DISMISSING the appeal lodged by the legal representation of the entity ANFETRANS, S.L. against the judgment rendered by the Commercial Court No. 6 of Barcelona, dated November 28, 2008, in the case from which this record arises; which we CONFIRM, with imposition of the costs incurred in this appeal on the appellant.
And once this resolution becomes final, return the original records to the Court of origin, with a certified copy of the same for its compliance.
Thus, by virtue of this our judgment, which will be attached to the record, we pronounce, order, and sign it.
PUBLICATION.- On this day, and once signed by all the Magistrates who have rendered it, the above judgment is made public as ordered by the Constitution and the Laws. I CERTIFY.