The Spanish Court of Appeal in Alicante makes a useful reminder of the Freight Forwarders Liability as Contractual Carriers under Spanish Law.
Felipe Arizon, Arizon Abogados SLP, Spain
Abstract
In its judgment of 19 December 2024 (SAP Alicante, Section 8, No. 623/2024), the Audiencia Provincial of Alicante reaffirmed a key principle of Spanish maritime law: a freight forwarder who contracts carriage in its own name assumes the legal position of a contractual carrier and may be held liable for demurrage and detention of containers caused to the shipping line, even if it does not appear as shipper or consignee in the bill of lading.
The decision consolidates existing Supreme Court doctrine and has significant practical implications for container shipping disputes involving uncollected cargo at destination.
Background of the Dispute
The Claimant acting as agent for a container shipping line, carried goods from Valencia to Algiers. The bookings were arranged by the freight forwarder for the exporter.
The forwarder booked the containers, approved the bills of lading, paid the freight, and handled communications with the carrier. However, at destination the cargo was not collected within the agreed free time, giving rise to substantial demurrage and container detention charges amounting to over USD 124,000.
The Claimant brought an action against both the exporter and the freight forwarder. While the Commercial Court of Alicante held only the exporter liable, Arkas appealed the decision insofar as Colmar was concerned.
The Legal Question
The appeal raised a recurring issue in maritime litigation: Can a freight forwarder be held contractually liable for demurrage and detention when it is not identified as shipper or consignee in the bill of lading but has contracted the carriage in its own name?
Applicable Legal Framework
The Court’s analysis was grounded primarily in:
- Article 278 of the Spanish Maritime Navigation Act (Ley de Navegación Marítima – LNM)
- Article 121 of the Land Transport Regulation Act (LOTT)
- Consistent Spanish Supreme Court case law (STS 348/2011; STS 495/2020)
Article 278 LNM expressly includes freight forwarders among those who may be considered contractual carriers when they undertake to organise transport through third parties. Spanish law presumes that freight forwarders contract in their own name, unless they prove otherwise.
Reasoning of the Court of Appeal
The Audiencia Provincial upheld the appeal and declared Colmar jointly liable with the exporter. The Court’s reasoning can be summarised under three key points.
Contracting in Own Name Prevails over Formal Appearances
Although Colmar did not appear as shipper or consignee in the bills of lading, the evidence showed that it:
- Booked the containers;
- Approved the drafts of the bills of lading;
- Paid the freight;
- Received and, in other cases, paid demurrage invoices.
This conduct demonstrated that Colmar contracted the carriage in its own name, even if it did so on behalf of its client.
Freight Forwarder as Contractual Carrier
The Court reiterated that a freight forwarder who contracts in its own name occupies, vis-à-vis the carrier, the position of contractual carrier or shipper. As such, it assumes both the rights and obligations arising from the contract of carriage, including liability for demurrage and detention caused by non-collection of cargo.
The Court emphasised that the absence of the freight forwarder’s name in the bill of lading is not decisive where the commercial reality of the transaction points clearly to contractual involvement.
Joint and Several Liability (Solidaridad Impropia)
The Court applied the doctrine of “improper joint and several liability”, holding that:
- Both the exporter and the freight forwarder contributed to the situation giving rise to the loss;
- The carrier is entitled to claim the full amount from either party;
- Any internal allocation of liability between shipper and freight forwarder is irrelevant to the carrier’s claim.
Alignment with Supreme Court Doctrine
The judgment is fully consistent with Spanish Supreme Court jurisprudence, which has repeatedly held that freight forwarders contracting in their own name are equated with carriers for liability purposes.
The Court expressly relied on earlier Supreme Court rulings establishing that freight forwarders are not mere intermediaries when they organise transport in their own name, regardless of whether they act “for the account of” another party.
Practical Implications
The ruling is an excellent reminder for maritime and logistics operators in Spain:
- Carriers are reinforced in their ability to recover demurrage and detention from freight forwarders, even where the latter are not named in transport documents.
- Freight forwarders face increased exposure to claims unless they can prove that they acted purely as agents or intermediaries.
- Shippers and exporters should be aware that carriers may pursue multiple parties, independently of internal contractual arrangements.
- From a risk-management perspective, freight forwarders should carefully review their booking practices, contractual terms, and liability clauses, particularly regarding demurrage and detention.
Conclusion
SAP Alicante No. 623/2024 confirms a substance-over-form approach in Spanish maritime law. Where a freight forwarder organizes and contracts carriage in its own name, it cannot later deny its status as contractual carrier. The judgment contributes to legal certainty in demurrage and detention disputes and underscores the importance of understanding the legal consequences of freight forwarding activities in international maritime transport.