In its decision of 26 March 2021, the Tribunal Supremo (“Supreme Court”) deals with a case in which a carrier sues an insurance company to recover the amount of the decision against the sub-carrier insured by the insurance company.
The TS understands that the claim against the insured subcarrier by the defendant company affects the limitation of the action, as they are bound by joint and several liability. We are before a case of breach of obligations arising from a contract of carriage due to contractual negligence on the part of the defendant, who has his own insurance company that provides cover for the claim that is the subject of the litigation. The suspension of the limitation period in the case of joint and several obligations does not operate in the cases of improper liability, but this is not applicable to the relations between insurance company and insured, united by bonds of joint and several liability derived from the law, which confers to the damaged party the right of direct action against the insurer of the causer of the damage.
On the other hand, the limitation period will be that which is applicable to the exercise of the injured party’s right against the insurance company, which in this case is that of a contract of international carriage of goods, and therefore, one or three years according to art. 32 of the CMR. The TS understands that the time limit that is applicable is that of three years, given that the conduct of the insured can be subsumed to a fault equivalent to malice, considering firstly that the significant value of the goods transported (150,695.02 €), which required extreme care, as well as the fact that he had left the trailer with the goods parked in a lorry park outside the industrial estate without security, and that the subcarrier did not return to show interest in the goods for a few days.