The delivery of damaged or spoiled goods is one of the most common incidents that importers or recipients have to deal with.
In these cases, it is common for recipients or importers to have doubts about the most
effective way to proceed with the appropriate claim, as the feeling of
dismay at finding that our goods are not in optimal condition,
may be added to the disappointment of not being able to claim their return or reimbursement for not
having acted under the legal requirements.
Therefore, we propose the following action measures when we receive
a damaged goods or batch and we order them in the following order of priority.
1st Examine the goods
It is essential that the recipient checks the condition of the goods immediately
after receiving them, whenever this is possible.
It may be advisable to record a video or make a photographic report of the
unsealing and opening of the container, although the value of such evidence can be put in
question relatively easily before our courts, which is why if we
suspect that the goods are in poor condition, we should consider requesting the
intervention of a notary to issue a report during the opening of the container and
unsealing.
- Make reservations in writing.
In the case of land transport by road, we will make these reservations in
accordance with the provisions of article 60.1 of Law 15/2009 on the contract for land transport of goods
and in the case of international transport, we will express these reservations in accordance with the provisions of article 30.1 of the CMR agreement.
In the event of apparent damage, which can be detected by a
superficial visual inspection of the goods, and without the need for the
goods to be unsealed, these reservations must be announced on the same day of delivery and in a
maximum of 24 hours from the date of delivery. Therefore, it is essential that the importer or
recipient reacts quickly.
“Hidden” damages that are not immediately perceptible must be declared in writing within a maximum of 7 days from receipt.
If it is a maritime transport, we will record these reservations/protests in accordance with the provisions of the Hague-Visby Convention, which establishes a period of 24 hours to report “apparent” damages and a maximum period of 72 hours from receipt for “hidden” damages.
It is essential that these reservations are communicated in a reliable manner to the carrier
and the shipper, identifying the type of damage, the quantity of damaged goods or
affected units, as well as any available evidence, such as photographs or
inspection reports. We must bear in mind that if these reservations are not expressed
or are not correctly identified, the goods will be presumed to have been delivered in
perfect condition, and it will no longer be possible to claim liability from the actual or contractual
carrier (usually the freight forwarding company).
3rd It is advisable to have an expert assessment, a “survey” that carries out an assessment of the
damages in order to substantiate our claim and have evidence in a
possible legal procedure, especially when it involves a large quantity of
damaged goods or where its defect results in a high cost.
4th Submission of an effective claim, for the value of the damaged goods and
any other related costs, such as additional transport costs or financial
losses due to delays.
Although nothing will prevent us from filing a lawsuit, our experience
recommends us to open a negotiation phase that allows for a “friendly” solution, avoiding
the judicial waiting times and the emotional and material expenses associated with it.
In accordance with art. 79 of Law 15/2009 and art. 32 of the CMR agreement, the period
to make any judicial action effective in this regard will generally expire in one year from the delivery of the goods, although this prescription can be interrupted by a reliable claim.
How should the damage be assessed?
One of the main characteristics of the transport regulations is materialized in the
fact that the carrier’s liability for damage or loss of the goods is limited.
For this reason, to establish the value of the claim, a maximum amount must be taken into account, depending on the nature of the goods and the value declared by the shipper. If the value of the goods has not been reflected in the transport documents, we must consider the value based on the mode and type of transport contracted.
In the case of international road transport (CMR), the calculation is based on 8.33
SDR x kg (10.24€ x kg).
For national road transport, a value of 1/3 IPREM/Day or (6.67€ x kg) is set.
For maritime transport, a criterion of 2 SDR per kg (2.35€ per kg or 789.94€
per package) is applied; For cases where these are not specified in the bill of lading (BL), one container is equivalent to one package.
SDR = Special Drawing Right.
We hope that these recommendations will be helpful in establishing basic lines of action, although it will always be advisable to draw up an internal protocol for the reception of the merchandise that facilitates these actions and allows a simple and profitable resolution of this type of incident.
We would like to thank Andrei Gabriel Secu for his collaboration and support in the preparation of these lines.
