On 25thSeptember 2014 the new Spanish Shipping Act shall come into effect.
The Act incorporates 524 articles which, in remarkable detail, regulate nearly all aspects related to the maritime navigation and the shipping industry.
It refers to Private Law issues (such as bareboat charter, time and voyage charter and bills of lading, terminal cargo handling contracts, contract of pilotage, insurance, etc.), Public Law (regulating the registration of ships, their nationality, vessel’s clearance, maritime safety, stowaways, the right of innocent passage, civil and criminal jurisdiction on foreign vessels, sea pollution, etc.), and lastly to Procedural Law (time-limits for different actions, provisions on jurisdiction clause, specific proceedings for a forced sale of a ship, among other issues).
Another characteristic to be highlighted is that the Act definitely updates shipping regulations in Spain, which were still based in our Code of Commerce dd. 1885.
In this regard, attention should be given to the new approach to the ship’s agent liability for cargo damages sustained while the goods are being transported. Where the carrier can be identified in the B/L or other contract of carriage, the ship’s agent will not be held liable, as he previously was under the Code of Commerce provisions and Supreme Court’s uniform judgements.
We have to welcome the new procedural rules which will help to implement some international Conventions that were ratified by Spain years ago. A good example is the Convention on Limitation of Liability for Maritime Claims (LLMC 76/96). The Act lays down “ad hoc” procedure to establish and distribute the fund, what did not exist before; and tackles the crucial points on jurisdiction and specific time-limits to invoke limitation.
The Act introduces some novelties as it deals with different issues that have not previously been regulated in our country, and had only been interpreted by the Doctrine and Case Law. For instance, it refers to: i) the towage contract on its various sorts (towage transport, manoeuvre, “fortune towage”), ii) construction/building contract of ships, iii) ship management contracts, iv) Classification Societies’ liabilities, and v)nautical charter.
Handling contract with terminals are also ruled in the new shipping act for the first time in Spain. In liner terms, a direct action in tort is established in favour of the shipper/receiver against the terminal. Likewise it foresees time-limits for instituting actions in court and a particular limitation of liability for the terminal benefit. Such limitation is more advantageous than the carrier’s one, this might well lead to the latter’s greater exposure in case of joint liability vis-à-vis third parties.
We think worth mentioning three more novelties:
– According to article 11, where a stowaway has been disembarked the Authorities will be entitled to seek security from the shipowner and vessel’s agent to cover costs for his maintenance, legal assistance, translations and repatriation. The vessel will be detained until such security is posted.
– Arrest of sea-going ships not flying a flag of an State party of the Geneva Convention of 1999 shall be arrested in respect of any claim, not limited to those maritime claims listed in art. 1 of the Convention
– Previous voluntary/non-contentious actions will now be handled by public notaries, for instance: deposit and sale of undelivered goods, replacement of lost / stolen bills of lading, general average, etc. We have reasonable expectations of a quicker and more efficient way of solving these matters.
It should also be highlighted that the Act shows the firm intention to protect cargo interests in some of its provisions, for instance:
1.-Jurisdiction clauses on Bs/L shall not be valid unless they have been singularly negotiated and accepted by the Shipper and/or Cnee. Council Regulation (EC) 44/2001 on jurisdiction shall certainly prevail when: i) the jurisdiction clause refers to EU Courts (e.g. High Court of London) and, ii) it is raised against the contracting party. Referred Council Regulation does not require said singular/separate negotiation of the jurisdiction clause.
However, the Act plainly establishes that the jurisdiction clause will have no effect if not expressly accepted by third parties, such as the rightful holders of negotiable bills of lading, what will likely prove impossible.
2.-Other provisions are given a mandatory regime. The parties shall not be able to rule them out even by contract or choice of a different law. These mandatory rules can be found in carrier’s liability clauses or in a DIRECT ACTION which is now established against civil liability underwriters of maritime risks.
Some months will necessarily lapse until obtaining the first court decisions on the Act. This shall be in term of years if we think of case law to be rendered by the Appeal courts and the Supreme Court. We shall keep you informed of these experiences.