Derecho marítimo

Barcelona Appeal Court: «Not being named in the Bill of Lading is no excuse not to pay freight and charges»

Some time ago we published a post on this blog about the wrong Court Resolution issued by the Commercial Court of Barcelona Number 8 (Court Resolution No. 251/2012) which allowed a freight forwarder not to pay freight and costs to the shipping line alleging that it did not appear in the Bill of Lading (BL), and that as its client was shown in the relevant BL the shipping line had to claim that client.

Fortunately, the Appeal Court of Barcelona (Audiencia Provincial de Barcelona) has overturned the judgment and has spared us a little revolution in the maritime sector.

Let’s briefly recall the facts. In a booking like the 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 it always happens, the freight forwarder (or the shipper, the importer, etc., but never the shipping line on its own motion) provides the information to be included in the bill of lading. The shipping line then simply prints the BL following the client’s instructions.

Quite commonly these days, the cargo receiver failed to collect the goods at destination. The shipping line requested instructions to the freight forwarder, which decided to ship the goods back to the port of Barcelona. And so did the shipping line duly fulfilling the instructions received.

Time went by and the shipping line started 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, it formally started a claim for payment against the freight forwarder.

The freight forwarder refused payment and blamed its client for failing to collect the goods. The shipping line commences a court claim and the Commercial Court of Barcelona ruled that: first, it had been established that it was the freight forwarder (and not the actual shipper or receiver of the goods) who contracted with the shipowner. Secondly, it also found that it was clear that the shipping line duly fulfilled all the instructions received by the freight forwarder. But despite this it surprisingly found that given that the freight forwarder did not appear mentioned in the body of the BL, the shipping line could not claim any amount from the freight forwarder.

This judgment was obviously wrong. The BL is not the contract of transport. It is a document prepared by the freight forwarder itself (or the shipper, importer, etc.), and although printed by the shipowner or its agent in a given port, it is wrong to rule that the carrier can only claim to the persons or companies named in the BL. Allowing so would have created a significant revolution in the market.

Fortunately, the Barcelona Appeal Court has overturned this wrong Court Resolution and allows carriers to claim to the persons or companies that actually contracted its services irrespective of whether they appear named in the body of the bill of lading.

You may think that this Court Resolution favours shipping lines in detriment of freight forwarders. That is not correct. Don’t forget that most freight forwarders also use and print their own house bills of lading. Freight Forwarders massively benefit as well from this Court Resolution of the Barcelona Appeal Court which somehow restores the legal certainty needed in the Spanish transport market.

Miquel Roca
Managing Partner
Blas de Lezo

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