Spain 20 October 1999 Appellate Court Alecante (Ice cream case)
[Cite as: http://cisgw3.law.pace.edu/cases/991020s4.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: Unavailable
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain
BUYER'S COUNTRY: Cuba
GOODS INVOLVED: Ice cream
SPAIN: Audiencia Provincial de Alicante 20 October 1999
In this case, the parties are not seller and buyer, but instead, the seller's insurance company, Catalana
Occidente S.A., Seguros y Reaseguros (defendant) and the carrier, T.C. Campillo (plaintiff). The case
arises because contracted goods suffered significant damage when the container in which they were
placed after unloading broke at the Havana port before they were delivered to the buyer. The seller's
insurance company indemnified the seller and made a claim against the carrier, who appealed in the
present case.
The court did not accept the arguments presented by the carrier that seller's insurance company lacked
standing to sue, that the statute of limitations had elapsed and that the carrier was not liable in court
since it had no legitimation to be sued. The Appellate Court affirmed the decision of the Court of First
Instance in all respects, since the parties never argued on the issues of the amount due for damages or
the amount paid by the insurance company.
Regarding the first argument, Campillo alleged that it was a mere carrier and, since the contract was
CIF and storage was not included, it was consequently not liable for damages incurred after the
unloading of the merchandise. It also referred to the CISG to claim that the carrier's liability is limited
to delivery of the merchandise to the second carrier (in this case, the company that owned the container
in which the merchandise was stored) and, therefore, only the seller should be held liable for damages
incurred.
The court established that Campillo was not a mere carrier, but a mediator, and, according to the
contract, its obligations extended to transporting the merchandise "from door to door." This meant that
it was liable for the damages incurred while the merchandise was in storage, since the company which
owned the container was a mere intermediary for whose services Campillo was liable.
APPLICATION OF CISG: Yes APPLICABLE CISG PROVISIONS AND ISSUES Key CISG provisions at issue: Classification of issues using UNCITRAL classification code
numbers:
31A [Contracts involving carriage of goods];
67A [Risk when contract involves carriage of goods (risk passes on handing goods over to first carrier): held inapplicable to facts of this case as this carrier held to have broader responsibilities than a mere carrier]
Descriptors: EDITOR: Patricia Rincón Martín
The court did not apply the CISG directly to the case; in fact, the Convention was only mentioned by
the carrier without any specific reference to its provisions. The carrier Campillo argued that the CISG
states that the delivery of merchandise consists of handing it to the first carrier and that the buyer has
full responsibility at the moment the carrier Campillo transmits the risk to the buyer.
The carrier Campillo sought to use this language of the CISG to establish that its obligations terminate
at the moment the merchandise is unloaded and put at the disposal of the buyer. The carrier Campillo
concludes with the allegation that it fulfilled its obligations as the carrier and that it is not liable for
damage incurred after the merchandise had been stored since the storage facility did not belong to it
and the liability at that point would be the seller's.
While the court does not mention the CISG in its ruling, it could be understood that it accepted the
references made to it by the carrier Campillo, since the court only rejected the claim that the carrier's
liability was limited. It is the court's opinion that the carrier Campillo in this case was not a mere
carrier, but rather a mediator whose obligations are greater and, according to the contract, they
extended to providing transportation "from door to door." This means that the companies involved
were mere intermediaries for whose services the carrier Campillo is liable. "… Las obligaciones del
transitario son mayores que las porteador … todo ello indica que quedaba obligada a responder del
buen fin del transporte, de puerta a puerta y, por lo tanto, el que facilitó el contenedor defectuoso como
la consignataria del buque en La Habana que lo tuvo en depósito en sus almacenes son intermediarios
que intervienen en el transporte, y de estos debe responder la parte demandada …"
CITATIONS TO ABSTRACTS OF DECISION (a) UNCITRAL abstract: Unavailable (b) Other abstracts Spanish: CISG-Spain and Latin America website "http://www.uc3m.es/cisg/respan12.htm" CITATIONS TO TEXT OF DECISION Original language (Spanish): CISG-Spain and Latin America website "http://www.uc3m.es/cisg/sespan12.htm" (relevant excerpts); Actualid Civil, Audiencias, No. 32, 4 a (10 September 2000) 1517-1527 @699 Translation: Unavailable CITATIONS TO COMMENTS ON DECISION Unavailable Case abstract
Classification of issues present
Editorial remarks
Citations to case abstracts, texts, and
commentaries
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Institute of International Commercial Law - Last updated September 3, 2002