Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Spain 20 October 1999 Appellate Court Alecante (Ice cream case)
[Cite as: http://cisgw3.law.pace.edu/cases/991020s4.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America website

Case Table of Contents


Case identification

DATE OF DECISION: 19991020 (20 October 1999)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial [Appellate Court] de Alicante

JUDGE(S): Segovia López

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: T.C. Campillo S.A. [carrier] v. Catalano Occidente S.A., seguros y reaseguros [insurance company (española)] [Comintur Caracol S.A. (compradora (cubana) Aiadhesa (vendedora) (española)

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Spain

BUYER'S COUNTRY: Cuba

GOODS INVOLVED: Ice cream


Case abstract

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.

Go to Case Table of Contents


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 31 ; 67

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: Delivery ; Passage of risk

Go to Case Table of Contents


Editorial remarks

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 "

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

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

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated September 3, 2002
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography