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?