Schizophrenic jurisprudence

Vicente Sebastián and Lars Hovmand Mikkelsen of Barcelona-based ZAFO LAW look at claims for delays in Spain and the Spanish jurisprudence regarding profit and loss.

THE Spanish tradition regarding jurisprudence in transport is quite contradictory, but even worse than that is the jurisprudence regarding delays. The question is very simple – can you claim profit and loss for delays in Spain? Nowadays, that is not an easy question to answer. It all comes down to whether or not you have agreed an Estimated Time of Arrival (ETA).

Spanish legislation does not explicitly regulate profit and loss originating from transport delays. This leaves something of a legal gap. To overcome this, some professionals are trying to obtain judicial resolution through different arguments and differentiating between losses (resultant damage) and profits (loss of probable benefit). Delay would not be considered in the latter instance if the goods were not damaged but it was not possible to sell them, or they had to be sold as a knockdown price.

The Hague-Visby Rules make no mention of the forwarder’s liability in delay cases but this does not mean that the courts automatically refuse this liability. Spanish national regulation, Ley Transporte Marítimo (LTM), contains the word ‘perjuicio’ (translated as a ‘detriment’ or ‘financial loss’), which explains the general forwarder’s liability. Some doctrines says that ‘perjuicio’ refers to delay cases because it is a logical interpretation of an expansive rule.

Spanish jurisprudence has determined that the way to resolve the question of profit and loss is through national legislation – contractual or non-contractual liability – or, in the case of cabotage, by applying the LTM. The second kind of liability essentially means that you should indemnify if there is a connection between your behaviour and the resulting damage. You may have a damage compensation case but you would also need another ingredient, e.g., intention, recklessness or blame.

But this kind of jurisprudence is not unanimous. It is possible to find some cases where the most important fact is the agreed ETA. Others, however, have determined that the most important question is to know if the time was reasonable or not, and particularly if there was evidence of any force which justified the delay.

Take, for example, the case of Audiencia Provincial de Alicante (December 15, 2000, JUR 2001/79585). An ETA did not exist and the ship arrived ten days late. According to the courts and a shipowners’ association, the delay was ‘acceptable’ because it was a transoceanic freight and the delay was not considered to be a breach of contract. In such a case we need to know beforehand the specific percentage of delay that is considered ‘reasonable’. The case also underlines the question of subsidiaries’ obligations to report on the circumstances of transportation, the situation of the goods, contract, etc.

The decision in this case means that there is liability for delay but tinged by jurisprudence. The delay should not be acceptable when it is excessive, or if the forwarder has not given information with regard to the circumstances or other subsidiary obligations.

It may be argued that this is very reasonable jurisprudence. But Spain requires a new regulation regarding maritime transport which definitively rejects or accepts this principle of liability. A criterion should be set by the Spanish courts.