Supreme Court endorses bringing of direct action by carrier against main shipper in carriage by land
The Supreme Court has endorsed the bringing of direct action by the carrier against the main shipper, even if a court insolvency order has been issued on the intermediary that contracted it. In this judgment, delivered on March 3, 2021, the court reiterated the case law on direct action by the actual carrier against the shipper and the participants in the subcontracting chain.
In its ruling, it explained that "direct action against the main shipper in cases involving intermediaries” under additional provision six of Law 9/2013, of July 4, 2013, amending Law 16/1987, of July 30, 1987 on carriage by land, had already been interpreted in judgments 644/2017, of November 24, 2017, and 248/2019, of May 6, 2019 delivered by the Civil Chamber. And went on to say that “the doubt that arose over how to interpret the direct action granted to the actual carrier was whether, in tune with article 1597 of the Civil Code, the main carrier is only liable to the extent of any sum it owes to the intermediate carrier, or whether it is liable, despite not owing anything to that carrier, by way of guarantor of the actual carrier and of the other successive carriers. Because the transcribed additional provision does not expressly mention whether the shipper’s obligation exists at all events (even if it has paid carriage) or is limited to the amount that the shipper owes its carrier when the third party makes a claim against it”.
It has therefore reiterated its findings in those judgments that in this type of direct action the limitation determining that only the amount owed by main shipper to the intermediate carrier could be claimed does not apply; as well as that the aim of the law was to provide a guarantee to the end carriers and intermediate carriers, as the weakest link financially in the chain of carriers. To which it has added the following: “To sum up, we have concluded that direct action by the actual carrier goes beyond the contents of article 1597 CC, and constitutes a specific and particular rule on the contract of carriage by land, to be, not just the traditional direct action, but also a kind of additional payment guarantee. It may therefore happen that the actual carrier may claim from the shipper the carriage cost that it has already paid to the contractual carrier”.