The direct action of the effective carrier against the sender in case of non-payment of freight – the sender as new guarantor of the payment
by Maria Vidal
On 24 November 2017 the Spanish Supreme Court issued judgment no. 644/17 in a case relating to a road transport contract, regarding the construction of Additional Provision 6 in the Act 9/2013 which amended the Road Transport Regime Act 16/1987.
Additional Provision 6 grants the effective carrier a direct action against the sender and against all parties which may have intervened in the transport chain, in case the freight for the transport has not been paid. It does clarify, however, whether the sender’s obligation to pay the effective carrier is absolute, i.e. regardless of whether the sender has already paid the freight to its contractual carrier or, on the contrary, it is limited to such amount as the sender may still owe to its contractual carrier at the time of the claim by the effective carrier.
The Supreme Court has held that the effective carrier’s direct action against all parties in the transport chain, including the sender, is not affected by any payment defence, so that the action is available even in cases in which any of such parties has previously paid its contractual carrier and the party in question must effect a double payment, without prejudice to its right to seek recovery of the relevant amount from its contractual carrier. The judgment points out that the initial draft of the new Act included the express limitation that the direct action could not be for an amount in excess of the amount which at the relevant time was still due by the sender to its contractual carrier and that this limitation was subsequently removed in the final version.
The Supreme Court then concludes that the action in question is a new action inspired by the similar actions contemplated in other legislation, in particular in article 132-8 of the French Commercial Code and article 7.ter of the Italian Road Transport Law-Decree 286/2005, and grants the effective carrier an additional guarantee of payment which renders the sender and the intermediate carriers joint and several guarantors of the payment of the freight to the effective carrier, regardless of whether they have paid the freight to their contractual carriers prior to receiving the claim from the effective carrier. Such guarantee is justified on the basis that the effective carrier is considered the weak party in the transport chain.
The fact that the purpose of the provision in question is to protect specifically the effective carrier as the weak party implies that the direct action is not available to any intermediate carriers in the chain.
If you would like to discuss any of the issues in this article, please contact Maria Vidal, whose details appear below.