The Additional Provision 6 in the Act 9/2013 which amended the Road Transport Regulation Act 16/1987 grants the effective carrier a direct action against the sender and against all parties that may have intervened in the transport chain in the event that the payment for the freight to be transported has not been received.
However, it was not clear if the sender’s obligation was absolute regardless of whether the sender had already paid its contractual carrier for the freight or if it was limited to such amount as the sender may still owe to its contractual carrier at the time of the claim by the effective carrier.
This question was considered by the Supreme Court in its judgment number 644/2017 of 24 November 2017, in which it held that the effective carrier’s direct action against all parties in the transport chain, including the sender, was not affected by any payment defence. This means that the action is available even in cases in which any of the parties has previously paid its contractual carrier. 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.
As a consequence of the above, the action in question 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 their contractual carriers for the freight before they receive the claim from the effective carrier. Such guarantee is justified on the basis of the consideration of the effective carrier on the assumption that it is the weakest party in the transport chain.
There have, however, been numerous attempts by the sender’s companies to limit the effects of "direct action" despite the High Court’s endorsement of its full effectiveness and validity over the years.
The Civil Chamber of the Supreme Court, in its judgment number 119/2021 of 3 March 2021, has recently held that the sender's obligation exists in any case, regardless of whether the latter has paid for the transport in whole or in part, considering it not only a traditional direct action but a form of supplementary payment guarantee.
In addition, the Civil Chamber of the Supreme Court, in its judgment number 114/2021 of 2 March 2021, has also endorsed the direct action of the effective carrier against the main shipper even in the event that the intermediary which engaged it has been judicially declared bankrupt and regardless of whether or not the shipper has previously paid the bankrupt company for the freight. The Additional Provision 6 in the Act 9/2013 does not contain any proviso excepting its application in the event of bankruptcy of the intermediate carrier.
Furthermore, the judgment points out that, because the intermediary is insolvent and has been declared bankrupt, the exercise of the direct action against the main shipper makes more sense, rendering it ex lege guarantor of the debt.
Consequently, the Supreme Court has come to reinforce the right of collection that an effective carrier has against the main shipper and against all those who have preceded it in the contract chain.
A Spanish translation of this article can be found here.