The Sixth Additional Provision of the Law 9/2013, of July 4, which modified the Law 16/1987, of July 30, of Land Transport Management, granted the effective carrier the possibility of exercising a direct action against the main shipper, and against those who had preceded it in the subcontracting chain, in case of non-payment of the price of the transport by whom he had hired .
Although its interpretation has not always been peaceful in the courts, the Supreme Court established, through Judgment of May 6, 2019, the criteria to be followed in the matter of direct action of the effective carrier against the main carrier and intermediate carriers.
This sentence has special relevance it ends with the interpretive doubt that was generated in the application of the direct action, on whether the main shipper should only respond to the effective carrier up to the amount owed to the intermediate carrier; or if, on the contrary, the main shipper had to respond, even without owing anything to the intermediate carrier (for example: in the case of having paid the intermediate contractor / carrier, and the latter did not, in turn, pay the effective carrier)
Now, following the criteria of the Supreme Court, it is established that the effective carrier could claim the contractor of the transport service, and it may be the case that he has to pay twice for the same order.
As a result, two important considerations must be drawn:
- Although it may be unfair for the shipper, effective carriers see their right to collection just reinforced, by having the option of claiming non-payment of their services directly from the shipper, in case they have not received payment from their contractor. This, even if the shipper had paid said contractor. In this case, the shipper would be forced to face a double payment, which could only be recovered by claiming reimbursement from the contractor, with all the costs and solvency risks that derive from this, especially in times of crisis such as the one we face .
- For shippers, it will be of special importance to contractually provide for the prohibition of subcontracting the commissioned service, as well as to require the contracted operator to prove that they have paid the amounts due as a condition prior to payment of the transport service. In the event that the shipper is affected by the exercise of direct action, without having been able to contractually incorporate the necessary provisions, an appropriate pre-procedural and procedural strategy must be implemented, which allows the shipper to avoid a double payment.
GEMMA PEREZ / FRANCISCO ORTIGOSA / JULIO RIBELLES
