Supreme Court of Spain, Resolution dated 06/07/2009 [Majestic K]
|Posted on: 13-12-09 16:43:53|
|Case Notes - What amounts to delay in sea transport – Loss caused due to delay – Incorporation of Charterparty terms|
|Supreme Court of Spain, Resolution dated 06/07/2009 [Majestic K]|
Description of the Case: What amounts to delay in sea transport – Loss caused due to delay – Incorporation of Charterparty terms
Case name: Supreme Court of Spain, Resolution dated 06/07/2009 [Majestic K]
Date of Judgment: 06 July 2009
Court: Supreme Court of Spain
Judge: José Ramón Ferrándiz Gabriel
Background: The Spanish company, Laminados Velasco, S.L, sued Evergreen Ltd. Malta for the amount of 180.000 € for losses caused by delay in sea transport from the port of Bandar Abbas – Irán to Bilbao – Spain. The distance between the mentioned ports is 5,700 sea miles and the usual time that a shipment should take is fifteen days, sailing at seventeen knots, and twenty-four days with the engines running at ten knots. The ship reached Bilbao one hundred and five days later. As a result of this delay Laminados Velasco S.L had to buy new material and the underlying sale and purchase contracts were cancelled.
The charter party (“CP”) was signed between the carrier, Evergreen Ltd. Malta and the French company PFC L’Europeen. PFC L’Europeen endorsed the part cargo B/L to Laminados Velasco, S.L.
Issues: The main issues before the Court were:
1. whether damages for delay could be awarded given that the part cargo B/L had no contractual terms whatsoever referring on the duration of the voyage.
2. the validity of the defense advanced by Evergreen that Laminados Velasco, S.L was bound by the CP clauses, given that in the CP there was also no provision as to the duration of the voyage ( and therefore no provision for delay).
Held: The Spanish Supreme Court upheld the Ruling of the Spanish Court of Appeal, and confirmed that damages were recoverable albeit no express provision was contained in the B/L as regards delay.
Similarly the Court rejected Evergreen’s defense as to the applicability of the CP to Laminados Velasco, S.L, given that being a part cargo B/L endorsee, rather than an original contractor, it could not be bound by the CP provisions.
Significance: This resolution shows the position of the Supreme Court in Spain in relation to the concept of reasonability when applied to delay.
Finally it is also significant to highlight that CP provisions are not incorporated into a part cargo B/L endorsed to a third party.