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Zoya Ilyenka
1961 Abogados y Economistas
Barcelona, Spain

The law governing land transport in Spain was reformed in 2013. One of the most important changes for the carriers of the law was the introduction of the so-called right to a  “direct action” . Despite the fact that five years have passed since the entry into force of this reform, this consolidation of the amendment began to take place recently, namely when this provision began to be applied in judicial practice.

This amendment has long been waited by carriers, and the shippers didn’t want to put up with it: the  “direct claim” is designed to ensure, or at least increase, the chances of the last carrier in the subcontracting chain (the one that transported using its own infrastructure) services.  To this end, the legislator decided to give the final carrier the right of claim not only against the consignor himself, but also against any of the previous carriers in the subcontracting chain.

This provision has caused great controversy and certain problems of interpretation and application in practice. Some of the questions that have arisen, after a series of conflicting decisions of the regional courts, have already been clarified by the Supreme Court. For example, no one doubts that the consignor (or any of the intermediate carriers) may be required to "pay twice" and in full. Indeed, in accordance with the interpretation of this amendment by the Supreme Court, the  payment for the services of the first carrier does not relieve the sender from the obligation to pay for the services of subcontracting third carriers. Moreover, the payment made is not even partially taken into account. Thus, the court considers the shipper as a kind of guarantor of the obligations of the first carrier in relation to the last one that performed the transportation.

Unfortunately, a number of issues still have not received specific, consistent decisions of the courts of Spain. In particular, such important norms for practical effectiveness as limitation of actions and the impact of the bankruptcy procedure of the intermediate carrier look insufficiently defined.

Regarding the statute of limitations, first of all, it is worth noting that the law itself regulating ground transportation does not contain a statute of limitation. In this regard, there are doubts whether the provisions on the limitation of actions contained in the law on the contract for transport services, or the general provisions contained in the civil code, should be applied to this right to “direct action”.

At the moment, most of the doctrine is inclined to believe that the right to a “direct claim” is not an independent substantive law, but only a procedural tool, in connection with which we must refer to the rules applicable to all other claims arising from the contract for transport services . Although it is paradoxical: after all, the last carrier and shipper are not bound by a contractual relationship.

The law on the contract for transport services, in turn, establishes a limitation period of one year. The clock is ticking a countdown "after 3 months from the moment of the conclusion of the contract or from the moment when the demand could be made, if such an opportunity comes later."

While the period of 15 months from the date of the conclusion of the contract does not cause doubts, the interpretation of the moment at which the “possibility of demand” comes is unresolved: from the moment of delay in payment of the invoice? Since the bankruptcy of the intermediate carrier? And what if the shipper, in turn, is the debtor of the intermediate carrier, who began the bankruptcy process? Will the court accept the claim in such a case, and will the shipper pay for the services of the first carrier if it is in the process of bankruptcy? The law is silent.

All these issues have not yet received a clear solution from the Spanish judicial practice. The next article will deal in more detail with the problems of the influence of the bankruptcy of the first carrier on the possibility of the practical application of the right to a “direct action”, as well as methods of interrupting the course of the limitation period.

In the meantime, it is important to note that  this provision is of an imperative nature, which means that the exclusion of its application by the parties to the contract does not have legal force and will be declared invalid by the court.  Therefore, we recommend that, in order to avoid unpleasant surprises, shippers and carriers that draw up a subcontracting, include in the contract a condition prohibiting subcontracting. Thus, you will be able to avoid the possible position of a “guarantor” of obligations to third carriers in the contractual chain.