The holder of a bill of lading would be entitled to sue for loss or damages to the cargo. However, title to sue on an order bill of lading would be on the endorsee and on the named party in the case of a named bill of lading.
The terms and conditions of the transport agreement are formalised by means of a charterparty or a bill of lading. The terms of a charterparty will be considered to be incorporated into the bill of lading when the latter contains an express and clear reference to the charterparty. Accordingly, if the charterparty incorporates a jurisdiction clause and the bill of lading appropriately incorporates the terms of the charterparty, any dispute derived from the execution of the transport agreement covered by the bill of lading should be subject to the jurisdiction choice set forth in the jurisdiction clause incorporated to the charterparty. However, jurisdiction and arbitration clauses in the bills of lading do not bind the acquirer of the bill of lading. Consent of this is required.
An important novelty introduced in articles 280 and 283 LNM is the express regulation, alongside the regulation of the carrier’s liability for losses and damages to the cargo, of the carrier’s liability for delays in the delivery of the cargo, which, like the liability for losses and damages, is limited in nature.
The LNM continues to demand the formulation of complaints (article 258) for damages and losses to cargo, as well as for delays in its delivery. The legal consequence of a lack of complaint is, in a departure from the Commercial Code, the presumption that the cargo has been delivered in accordance with the contents of the bill of lading. In the event of expert opinion or joint inspection of the cargo by the carrier and the recipient, the need to formulate a complaint shall be lifted. If the cargo insurer indemnifies the party with title to sue for damages or losses, the underwriter subrogated to claim against the party is liable for the damages or the losses.
The burden of proof is in the carrier which must demonstrate that it acted with due diligence, and that the damage, loss or delay was caused due to inherent vice, force majeure or nautical fault on the part of the dependents of the carrier. The claim can be against the issuer and signor of the bill of lading as contracting party, and against the owner by means of a tort action. Spanish Courts do not accept the demise clause if alleged to reject liability; however, it is occasionally admitted as grounds to pursue the joint liability of the owner and the effective carrier.