PUNTO FA, S.L. hired the services of a transport company TRANSNATUR, S.A. for the road transport of textile goods from SPEDICAM LOGISTIK GMBH’s facilities, in the German city of Nuremberg, to the facilities of JEVASO, S.L., a company in Arteixo, La Coruña.
TRANSNATUR, S.A. outsourced the transportation of said goods to its correspondent company in Germany, SPEDICAM LOGISTIK GMBH, which likewise subcontracted IMPORTEX (operating carrier).
In the course of the transportation, once in Spain, the driver in charge of shipping the goods stopped at a rest area in order to take the compulsory break from driving. During said stop, a considerable part of the goods being transported in the lorry were stolen while the driver was sleeping, by cutting the tarpaulin of the lorry. The thieves, whose identity is unknown, stole 673 kilograms of the 2,145 kilograms of goods that were being transported.
The day after of the robbery, the driver filed a complaint at the police station of the Mossos d’Esquadra of the city of Sant Celoni, reporting the facts and describing the stolen goods.
Upon the arrival of the vehicle at the facilities of TRANSNATUR, S.A., located in El Prat de Llobregat, the details of the defective delivery were noted in the CMR document.
The claimant, AXA SEGUROS GENERALES S.A., which subrogates in the position of its insured client (Art. 43 of Insurance Contract Act), filed a claim against the carrier for the value of the goods in accordance with Article 27 of the Convention on the Contract for the International Carriage of Goods by Road (hereinafter “CMR”), whereas the defendant TRANSNATUR, S.A. invoked Art. 23.3 of the CMR Convention, requesting the limit of liability of said article, which considers a limit of liability 8.33 units on account of each kilogram of gross weight of the missing goods.
The Judgment of the Mercantile Court Number 2 of Barcelona condemned the defendant applying Article 23.3 of the CMR Convention, because the forwarding agent incurred in negligence by parking in a lit resting area, without any security system, where there is a sign informing drivers of this, and the robbery may have been avoided if the driver had parked in an alternative nearby rest area with such a security system in place.
The claimant appealed against the judgment arguing that the carrier was not only negligent, but had also engaged in wilful misconduct having parked in an unmonitored place and knowing that the transportation of the goods was taking place by a lorry whose load was only protected by a tarpaulin. Furthermore, the claimant backed the argument up with Supreme Court doctrine expressed in a judgment of 10th July 2015 in a similar case to this one. Article 29 of the CMR establishes that the limits on responsibility (as per the aforementioned article 23.3 of the CMR) or the reversal of the burden of proof shall not apply if the damage has been caused by negligence or misconduct attributable or equating to negligence in the legislation of the place where it occurred.
Chamber 15 of the Provincial court of Barcelona, which dealt with the appeal of the claimant (now appellant) argued in its Judgment and also in reference to the abovementioned doctrine of the Supreme Court “the results of actions which are not intentionally pursued but arise as a consequence of such actions should be deemed as negligent”.
Such an expression of blame applied to a breach of contract (art. 1101 of the Civil Code) implies the conscious and voluntary non-observance of the assumed obligation, forgoing the intention to damage, inherent to criminal misconduct. In this way, the Supreme Court Judgment of 21st April 2009 argued that it is not appropriate to confine the scope of misconduct to malice or intention, understanding that it not only includes damage with intention to cause damage or harm, but it is enough, in line with the concept of bad faith, to voluntarily violate, being conscious that the conduct constitutes an illegal act, and carrying out actions that should not be taken.
Consequently, based upon the facts stated, in its decision on the appeal 244/2017 Chamber 15 of the Provincial court of Barcelona considered in judgment 249/2017 of 13th June 2017 that the carrier or who materially executed the transportation of the goods carried out the conscious abandonment of the obligation of custody, and must therefore respond to the totality of the damage caused. Given the circumstances that the goods were transported with the protection of a mere tarpaulin, the driver should have taken the appropriate measures and looked for a more protected place to park.
Finally, the defendant was sentenced to pay for the 673 kilogrammes of stolen goods in their entirety in accordance with the price per kilogramme established by the Claims Adjuster in its report.
In this way, the provincial court of Barcelona has continued to apply the doctrine of the Supreme court regarding the consideration of negligence or blame and the elements which must be present for this to come about, without intention or willingness to cause damage necessarily occurring in order for misconduct to take place.
Marc Martínez
Vilá Abogados
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8th of September 2017
