San Simón & Duch
San Simón & Duch provides legal advice on national and international issues in all areas of maritime Law, transport Law and insurance Law as well as on every aspect of international trade.Show more
Following the enactment of Act 29/2015 on International Judicial Cooperation on Civil Matters and the recast EU Brussels Regulation (1215/2012), the jurisdiction and recognition and enforcement of foreign judgments are now governed by clear rules. Foreign judgments and other titles that can be enforced in Spain must be done so in accordance with the Civil Procedural Act, unless otherwise provided by the international conventions in force in Spain.
Shipping & Transport
Due to the differences between continental and common law, the Spanish courts have found it difficult to distinguish between the legal concepts of 'wilful misconduct' and 'gross negligence'. In recent years, the courts have issued rulings exploring these concepts in a number of cases involving the theft of goods during carriage. Specifically, two 2015 Supreme Court judgments have clarified and consolidated the concepts.
The Insolvency Act is based on the principle of universality with regard to assets and liabilities. However, certain credits – including maritime privileged credits – must be separated from a bankruptcy estate, resulting in a breach of this principle. Ultimately, if a maritime privileged credit is exercised against the ship of a party undergoing bankruptcy proceedings, the creditor or owner of the credit can separate the ship from the bankruptcy estate if the liquidation of assets phase has yet to commence.
The Spanish courts have increasingly dismissed cargo claims brought by cargo owners or their subrogated underwriters, citing a lack of jurisdiction due to the inclusion of a jurisdiction clause in the bill of lading. However, in some cases, the courts have followed this trend without performing a strict analysis of the jurisdiction clause in question, thereby accepting clauses of questionable validity.
The Community Customs Code states that the 'abandonment' of goods must be carried out in accordance with national provisions and must not cause harm to public funds. The Navigation Act and the Police Regulations, Rules and Service Ports govern the treatment of goods abandoned in port service areas.
On July 1 2016 an amendment to the International Convention for the Safety of Life at Sea will take effect, requiring verification of the gross mass of packed containers prior to loading on board ships. From that date, any container leaving from any port in the world must be accompanied by a new document signed by the shipper listing the verified gross mass of the container. But is Spain ready for this?
The sinking of the Prestige in 2002 resulted in a catastrophic oil spill. While all defendants were originally acquitted of criminal offences against the environment, several parties appealed the decision. In a controversial recent judgment, the Supreme Court ruled that the Prestige's master, owner and insurer were civilly liable for the damage to the environment.
The procedures for dealing with abandoned, shipwrecked or sunken vessels in Spain are regulated by the Shipping Act and the recast text of the Law on State-Owned Ports and the Merchant Navy. These laws set out the procedure for dealing with a vessel abandoned in a state port service area and the process that must be followed when a vessel is wrecked or sunk within Spanish maritime areas.
Although Article 76 of the Insurance Act 1980 provides for direct action by injured parties against civil liability insurers, the act does not apply to marine insurance; thus, traditionally, no direct action against protection and indemnity (P&I) clubs was possible. However, since the Maritime Navigation Act came into force, the position regarding P&I clubs is less clear.
Act 35/2015, on appraising personal and property damage caused by traffic accidents, was recently approved and will come into force on January 1 2016. In addition to providing a practical update of general damages amounts, the new act seeks to fulfil the legislature's intention to include new appraisal criteria which require the aggrieved to be fairly compensated in an objective manner.
If the parties fail to settle the general average – either privately or according to the procedures set out in the Maritime Navigation Act – a notary public may be appointed, and he or she shall appoint a liquidator to present a report on the settlement. The public certification process also applies when the applicable law entitles the carrier to request the deposit and sale of goods or luggage carried in certain circumstances set out in the Maritime Navigation Act.
The new Shipping Law establishes some new limitation periods for the exercise of actions derived from contracts and from situations relating to maritime navigation. These include a significant reduction in the limitation periods for actions resulting from failure to comply with a shipbuilding contract and a shorter limitation period for claims arising from maritime insurance contracts.
The marine insurance regime set out in the new Shipping Law is modelled on modern Anglo-Saxon policies and clauses – as these have long been the most common models in the field – adapted to reflect concepts from the Spanish legal system. The most notable changes introduced by the new law include the shipowner's insurance cover for civil liability arising from pollution and for injuries to passengers.
The new Shipping Law contains detailed provisions on collisions, salvage, shipwrecks and pollution. In the event of a collision resulting from shared fault, fault-based liability proportional to the degree of responsibility of each vessel will now apply. Meanwhile, both the master and the shipowner can now sign salvage contracts on behalf of the owner of the goods on board.
The new Shipping Law governs a number of key contracts used in the shipping industry. They include lease, charter, passage, towage and nautical contracts. In response to demand from the nautical sports sector, the law regulates nautical charter contracts for the first time. Another innovation is the new naval management contract.
The new Shipping Law marks a milestone in Spanish maritime law. It has brought the domestic regime into line with international conventions and EU regulations, and makes Spain one of the few countries in the world where the vast majority of maritime law is governed by a single statute. This update outlines the key players governed by the law.