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In practice, delays or failure to deliver goods on time or on the agreed date are frequent, the effects vary from mere delay without major consequences to compensation claims up to the limit of the freight price or even the total value of the goods in the case of damage. Let us see:
a) The consignee or customer claims delay but without reservations about loss or damage. The goods are then presumed to arrive in good condition.
The problem would only be about the price of the freight, which would be negotiable, and always if the delivery date was agreed and appears in the consignment note. In this case, they would accept the goods and claim non-payment due to the delay, which they can do at that moment or even within 21 days. If the carrier agrees to the penalty to be made, either as agent or intermediary as the contracted carrier, then the problem is solved without further ado. Then the problem is simply solved.
If the carrier understands that the freight charge must be made even at the expense of the delay, because there has been no damage or fault, which would be justified if the amount of the damage due to delay is less than the value of the freight, then you can claim the freight price, or at least a part of it, by means of a claim in time. In any case, if there are no reservations about loss or damage, the maximum amount that could be claimed would be the carriage charge, which if you act as an intermediary or forwarding agent can be passed on to the contracted transporter.
b) They accept delivery and make reservations about the goods and their condition, due to loss or damage, in addition to the delay. There are two possible scenarios:
– The goods are accepted but with reservations and in this case there is agreement on the type of damage suffered and the amount of compensation. Normally after the corresponding damage report to the insurance company, and the expert’s report on the defects caused.
– If it is accepted but there is no agreement on the damage and the compensation, then it will be necessary to proceed with the appropriate legal claims that each party believes appropriate in due time, and on the compensation for the degree of damage caused but without total loss. Also after the corresponding expert’s report and damage report.
The claim is made either to the agent or to the actual carrier who makes the carriage and is effective even if it is made only to one of them against both. If the reservations are addressed exclusively to one of the carriers, the latter is obliged to inform the other. Otherwise, the former will be liable to the latter for the damages caused by the lack of communication. It must also be assessed whether there have been no instructions once the delay has occurred from the client shipper about the possibility of a different destination for the goods in the interval during which the delay is occurring, when the situation must have been known by the client shipper when the goods did not arrive.
Regarding the nature of the damage, in principle, the transported goods must be delivered to the consignee in the same condition as when they were received by the carrier, without any loss or damage, in accordance with the conditions and the description of the goods in the consignment note. Therefore, it will be necessary to assess whether the delay causes damage to the goods or not.
If the carrier, or if applicable the agent that assumes the position in the agency contract as such, and the shipper are unable to agree on the state of the goods delivered or the causes that have led to the damage, they may arrange for their recognition by an expert appointed for this purpose by themselves or by the corresponding judicial body or the Transport Arbitration Board.
When they do not agree with the expert’s report that, where appropriate, has been carried out or otherwise settle their differences, each of the parties shall use their rights as appropriate, that is to say, to make the corresponding claim in the appropriate manner, so that it may decide whether or not there has been a breakdown and the amount of the claim, and subsequent repetition against the contractor.
With regard to possible compensation and its amount in the event of damage, the carrier is obliged to compensate the loss of value of the goods.
The compensation will be equivalent to the difference between the value of the goods at the time and place where the carrier received them for carriage and the value that the same goods would have had with the damage at the same time and place.
When the damage affects the entirety of the goods carried, the compensation may not exceed the compensation due in case of total loss.
Where the damage results in the depreciation of only part of the goods carried, the compensation may not exceed the amount that would be due in the event of loss of the depreciated part. It is very important to have an expert appraisal of the condition of the goods at the time of delivery and to record their actual condition.
Here, too, there is a compensation limit. This limitation is set, as provided for in art. 57 Law 15/2009, of 11 November Article.57 Law 15/2009, of 11 November, on the contract of carriage of goods by land.
1. Compensation for loss or damage may not exceed one third of the Public Indicator of Multiple Effects Income/day for each kilogram of gross weight of goods lost or damaged.
2. Compensation for damage resulting from delay shall not exceed the price of the transport.
3. In the event of concurrence of compensation for several of these concepts, the total amount to be paid by the carrier shall not exceed the sum due in the event of total loss of the goods.
The consignee must express its reservations in writing to the carrier or its servants, giving a general description of the loss or damage at the time of delivery. In the case of undisclosed loss or damage, reservations must be made within seven calendar days of delivery.
Where no reservations are made, it shall be presumed, unless proved otherwise, that the goods were delivered in the condition described in the consignment note. The reservation is not necessary when the carrier and the consignee have jointly examined the goods and agree on their condition and the reasons for it. In the absence of agreement, they may proceed to the examination of the goods in accordance with the provisions of article 26.3 article 26.3 Law 15/2009, of 11 November, on the contract of carriage of goods by land.
c) The consignee does not accept delivery of the goods. In this case, the consignee would refuse to pay the freight and would also claim the value of the goods not delivered for the damage caused. There are two possibilities:
– He does not accept the goods because all the goods have been lost and it is obvious according to all the experts, then either an agreement is reached (difficult) or each party makes a claim as he sees fit in court.
– If he does not accept the goods even if objectively they could still have an outlet or objective utility for the consignee according to the expert opinion, then it is necessary to prove very well that they are still usable and have value, for the purpose of later claims. In any case, the carrier can take possession of the goods and give them the appropriate destination by selling them and taking charge of them or consigning them to the corresponding arbitration body at the destination.
In practice, it is very common for different transporters to intervene, either at the request of Transport Agencies or through subcontractors, each one being liable to the person who contracted him, but in the event of a breakdown, it is very convenient to notify all the known intervening parties for the purpose of possible claims.
The way of proceeding would be as follows in the event of delivery incidents:
1º- If the consignee indicated in the consignment note does not take charge of the shipment, the carrier and the transporter, or in its case the agent, communicates this to the client or shipper as soon as possible in order to know their instructions. In principle, the carrier or the agent, as the case may be, would be entitled to demand from the shipper the payment of the expenses and damages caused by the request and execution of instructions, as well as the delay or the lack of instructions, unless these expenses are caused by the fault of the carrier or the agent due to the delay.
The provisions of this condition are dictated in execution of the criteria set out in art. 36.1, 2, 3 and 4 of Law 15/2009, of 11 November, on the contract of land transport of goods.
2 – If it is not possible to request new instructions from the shipper, or if such instructions are not given by the shipper within the period agreed by the parties, the carrier may proceed in accordance with the provisions of condition 5.10. In this regard, the carrier may assess the lack of instructions from the shipper if more than two hours have elapsed since it requested them without having received them.
When the carrier decides to deposit the goods, it may take one of the following decisions:
(a) Immediately unload the goods at the expense of the person entitled thereto, and take custody of them. In this case, the liability regime established in these General Conditions shall be maintained.
b) To deliver the goods in deposit to a third party. In this case, the carrier shall only be liable for fault in the choice of the bailee.
c) Request the constitution of the deposit of the goods before the competent judicial body or the Transport Arbitration Board. This deposit will have the effect of delivery for the carrier, and the carriage will be considered to have been completed.
3º- Sale of goods, the carrier may request the competent judicial body or the Transport Arbitration Board to dispose of the goods, without awaiting instructions from the party with rights over them, if this is justified by their perishable nature or the state they are in or if the custody costs are excessive in relation to their value. In the absence of such circumstances, the carrier may request the disposition of the goods only if it has not within a reasonable time received instructions from the person entitled to dispose of the goods to the contrary, the execution of which is proportionate to the circumstances of the case.
The provisions of this condition are dictated in execution of the criteria set out in art. 44.2 of Law 15/2009, of 11 November, on the contract for the land carriage of goods.
4º If there is also a risk of loss or damage to the goods:
If, despite the measures that may have been taken, the goods that make up the consignment are at risk of being lost or seriously damaged, the carrier shall immediately inform the shipper or, where appropriate, the consignee, requesting instructions.
The person that has given instructions shall bear the costs arising from their request and execution, unless there is fault on the part of the carrier.
The carrier may apply to the competent judicial body or the Transport Arbitration Board for the sale of the goods without waiting for instructions, when this is justified by their nature or condition. The proceeds of such sale shall remain at the disposal of the person concerned, after deduction of the price of the carriage and the expenses incurred.
The provisions of this condition are dictated in execution of the criteria set out in art. 32 of Law 15/2009, of 11 November, on the contract of land transport of goods.
5º- The destination of the sale price shall be applied as follows:
The proceeds from the sale of the goods, disposed of in accordance with the provisions of the above conditions shall be made available to the person entitled to them, after deducting the costs incurred and the obligations arising from the contract of carriage. If these amounts exceed the proceeds of the sale, the carrier may claim the difference.
The provisions of this condition are dictated in execution of the criteria set out in art. 45 of Law 15/2009, of 11 November, on the contract of carriage of goods by land.
Justifications or grounds for exemption that may be invoked by carriers in the event of loss or damage.
It will also be necessary to see what excuses or motivations are given by the carriers involved to justify the delay or, where appropriate, the breakdown that occurs in order to study possible causes for exoneration, whether force majeure due to weekend weather conditions or others:
Grounds for exoneration:
The carrier is not liable if it proves that the loss, damage or delay was caused by the fault of the shipper or consignee, by an instruction of the shipper or consignee not due to negligence on the part of the carrier, by an inherent defect in the goods or by circumstances which the carrier could not avoid and the consequences of which it was unable to prevent.
Presumptions of exoneration:
The carrier shall be exonerated from liability if it proves that, having regard to the circumstances of the particular case, the loss or damage could plausibly have resulted from any of the following risks:
(a) Use of open and uncovered vehicles, when such use has been agreed or is in accordance with custom.
b) Absence or deficiency in the packing of goods, as a result of which the goods are exposed, by their nature, to loss or damage.
(c) Handling, loading, stowing, unstowing or unloading by, respectively, the shipper or the consignee, or persons acting on behalf of the shipper or the consignee.
d) Nature of certain goods exposed by inherent causes to total or partial loss or damage, especially due to breakage, mould, rust, internal and spontaneous deterioration, shrinkage, spillage, desiccation, or the action of moths and rodents.
e) Deficient identification or marking of the packages.
However, the person entitled to claim may prove that the damage was not caused, in whole or in part, by any of these risks. If it is proved that the damage was partly caused by a circumstance attributable to the carrier, the carrier is liable only to the extent that such circumstance contributed to the damage.
The provisions of this condition are dictated in execution of the criteria set out in art. 49 of Law 15/2009, of 11 November, on the contract of carriage of goods by land.
It is very important that if damage is alleged, the condition of the goods is clearly determined, because it is not a matter of compensating loss of profit, i.e. the loss of the sale operation of the shipper or consignee, but the existence of either delay or damage. Therefore, at the time the reservations are made, an expert assessment must be made which also includes the participation of all those involved in the transport if there were subcontractors with their corresponding insurance companies and the intervention of all possible experts.
Ldo. F. J. A. Guzmán