A new Spanish regulation, Law 15/2009 on Contracts for the Land Transport of Goods, has entered into force and it will modernize the regulation about land transport of goods by road and rail and it replaces the Commercial Code regulation which has ruled contracts on land transport since 1885.
An overview of the new Law 15/2009 on Contracts for the Land Transport of Goods
The Law on Contracts for the Land Transport of Goods which has entered into force on 12th February 2010 will modernize the regulation about land transport of goods by road and rail. It is going to be an easy task because this law replaces the Commercial Code regulation which has ruled contracts on land transport since 1885.
This new regulation is including few modifications from the former Code because it is inspired in the CMR and CIM Conventions. Obviously the law is including some matters that are not contemplated on those conventions.
The regulatory aspects of land transport and its auxiliary and complementary activities on land transport will be governed by the former regulations (1987/1990). However provisions that are contradictory with the new law will be revoked.
The most important consequence is the new liability system concerning the logistic operator when this logistic operator has subcontracted other transport companies. Some legal opinions have been issued in order to analyse the impact caused by the derogation for the contract of terrestrial transport, of article 379 of the Commercial Code, according to Law 15/2009, of November 11.
Considering the different interpretations given by the legal opinions and the influence that the administrative legislation in the transport sector has had on these and concluding that, despite of the derogation, the effects that the mentioned article were causing on freedom of hiring in the transport field, particularly in terms of terrestrial transport, are still present.
Liability for damages caused during loading and unloading operations in land carriage
The Law 15/2009 provides us with a division of the responsibility about loading and unloading of vehicles indicating that, unless stipulated otherwise, the mentioned activities are complete liability of the shipper and the recipient. The law applies the same liability to stevedoring operations for the goods.
This law indicates that Spanish lawmaker does not known the road transport practices. Day-to-day practice indicates that the truck drivers (road transport) will participate on some of those activities at destination or origin. It is obvious while the carrier will not refuse to participate on carrying out this loading or unloading for commercial and technical reasons or in order to provide and extra plus for his experience on this kind of operations. It means that interpretation problems will be coming soon.
If goods are damaged during loading or unloading operations the driver participation could be interpreted by courts as a tacit agreement between loader o receiver for the carrier to acquire liability for those operations, sharing all parties the liability for this damage or not (complete liability to the carrier).
In legal-judicial practice we could all assume that these claims will start against carrier companies as soon as the driver provide evidences of these load or unload operations (ex. Art 20).
Our law firm based on our professional experiences and litigation practice at Courts will recommend including some extra clauses in this kind of agreements. These clauses must indicate that these operations would be carried out for the account of the loaders/receivers at their own complete risk.