In a June 2016 decision the Supreme Court applied the previous International Merchant Shipping Act 1949 to establish which party was responsible for damages incurred during the unloading of goods. The case centred on whether the transport of goods from the ship to the unloading area constituted land or maritime transport, which in turn would determine whether the claim for damages was subject to an expiration or a prescription period.
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.
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.
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?