The Association is grateful to Miquel Roca of Law Firm Blas de Lezo, Barcelona for contributing to this article.
Miquel Roca first reported these developments in "The Maritime Advocate online" Issue 586, 3 January 2014.
Following on from a Court Resolution issued by the Commercial Court of Barcelona Number 8 (Court Resolution No. 251/2012), a freight forwarder was allowed not to pay freight and costs to a shipping line on the grounds that the forwarder did not appear in the bill of lading (b/l), and that as the forwarder's client was shown on the relevant bill of lading (b/l) the shipping line was bound to claim from that client.
This decision has now been overturned by the Appeal Court of Barcelona (Audiencia Provincial de Barcelona) and the situation has now been moved back in favour of the shipping line (Court Resolution No. 463/2013).
To briefly recall the facts the case involved a booking like many agreed in our industry. A forwarding company X contracted in its own name with a shipping line for the transport of goods from the port of Barcelona to a final destination. As usual the freight forwarder (or the shipper, the importer, etc., but never the shipping line of its own volition) provided the information to be included in the bill of lading. The shipping line then simply printed the b/l following the client's instructions.
As is not uncommon in these difficult economic times, the cargo receiver failed to collect the goods at destination. The shipping line requested instructions from the freight forwarder, who decided to ship the goods back to the port of Barcelona. This service the shipping line duly fulfilled on the basis of the instructions received.
Time went by and the shipping line began to warn the freight forwarder that the costs of having the goods inside the container and at the port terminal were increasing every day and, in the light of the non-payment of freight, the line formally started a claim against the freight forwarder for payment.
The freight forwarder refused payment and blamed its client for the failure to collect the goods. The shipping line commenced a court action and the Commercial Court of Barcelona ruled that: firstly, it was the freight forwarder (and not the actual shipper or receiver of the goods) who contracted with the shipowner. Secondly, the Court also found that the shipping line had duly fulfilled all the instructions received by the freight forwarder. But despite these findings the Court found that given that the freight forwarder did not appear mentioned in the body of the b/l, the shipping line could not claim any amount from the freight forwarder.
This judgment clearly was to the great disadvantage of the innocent shipping line. The b/l is not the contract of transport, only evidence of it (unless in the hands of a 3rd party receiver). In this trade it is a document prepared by the freight forwarder himself (or the shipper, importer, etc.), and although printed by the shipowner or its agent in a given port, it was very disadvantageous to rule that the carrier can only claim from the persons or companies named in the b/l. If this decision had been allowed to stand, it would have created a significant issue for this trade.
Fortunately for the shipping line, the Barcelona Appeal Court has overturned this decision and allowed carriers to claim from the persons or companies that actually contracted to provide services irrespective of whether they appear named in the body of the bill of lading or not.
While it may be perceived that this Appeal Court Resolution unduly favours shipping lines to the detriment of freight forwarders one has to keep in mind that the shipping line was the entirely innocent party acting on the instructions of the freight forwarder. It should also be remembered that many freight forwarders use and print their own house bills of lading, giving the carrier even less control over the transport arrangements and terms. In any event the trade overall will benefit from this Court Resolution of the Barcelona Appeal Court which goes a long way to maintaining legal clarity for the Spanish transport market.