Order TMA/201/2022 of 14 March: New Procedure for the Settlement of Disputes in Favour of Air Transport Users

On 17 March 2022, the Official Spanish Gazette (BOE) published the order TMA/201/2022, of 14 March, which regulates the procedure for alternative dispute resolution for air transport users on the rights recognised in the European Union in terms of compensation and assistance in the event of denied boarding, cancellation, or long delay, as well as in relation to the rights of persons with disabilities or reduced mobility, approved by the Ministry of Transport, Mobility and Urban Agenda.

The entry into force took place the day after its publication, affecting those incidents occurring after the first day of the month following the publication of the resolution of the competent authority in the Official Spanish Gazette, accrediting the State Aviation Safety Agency (hereinafter also the Agency) as an alternative dispute resolution entity in the field of air transport user protection.

The Order shall apply to the procedure which the Agency provides for air transport users (whether they are consumers or not) to resolve disputes over the application of the following regulations:

– Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91; and

– Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

This rule in no way precludes the exercise of the passenger’s right to resort to any out-of-court dispute resolution system accepted by the airline or airport operator.

The procedure shall be free of charge, without prejudice to the assumption of the costs of the tests by the party proposing them. For passengers, voluntary acceptance and non-binding outcome; for airlines, mandatory acceptance and binding outcome; for pre-acceding airport operators, mandatory acceptance and non-binding outcome; and for all other operators, voluntary acceptance and non-binding outcome.

Finally, it should be noted that the Agency’s decision, which will always be reasoned, as mentioned above, will be binding on the airline but not on the passenger, who may bring any civil action he or she may have against the airline.

Aiyon Abogados collaborates with Chambers in the shipping law 2022 Global Practice Guide

Our partners Verónica Meana, Mikel Garteiz-goxeaskoa, Jose Domínguez and Enrique Ortiz  have collaborated, once again, in the section dedicated to Spanish Law of the Shipping 2022 Global Practice Guide published by Chambers. This publication focusses on practical legal issues affecting shipping in 26 key jurisdictions.

The guide provides information on marine casualties, Owners’ liability, cargo claims, maritime liens, ship arrests, Shipowners’ income tax relief, choice of Jurisdiction and Law agreements, Port State Control matters and in particular the implementation of IMO 2020 on sulphur content of fuel oil, and the implications of Covid-19, among other issues.

Read the AIYON Abogados contribution by clicking on the following link.

“Estrategia Empresarial” Stresse out our Consolidation in the Field of Aviation and Space Law

We have had the pleasure of receiving “Estrategia Empresarial” in our Bilbao office, a prestigious publication that has been interested in getting to know in depth our activity, our team and our long professional trajectory as legal professionals. They were also interested in interviewing our partner, Zuberoa Elorriaga, in view of her recent qualification as a specialist in Aviation and Space Law, after completing the postgraduate course given by Icade University in collaboration with the Spanish Association of Aeronautics and Space Law (Aedae).

As our partner in Bilbao has rightly stated, at AIYON “we represent and protect the interests of individuals and companies immersed in a particularly complex, dynamic and multidisciplinary framework, which presents all kinds of issues affecting companies, operators, entities or individuals from all perspectives, bearing in mind that the ultimate goal is to comfort our clients by providing the most appropriate response to their query or the most beneficial solution to their problem”.

Read the full article

AIYON Abogados collaborates with the publication “The Insurance Disputes Law Review”, 2021

We would like to thank “The Law Reviews” for allowing us to contribute to the 2021 edition of “The Insurance Disputes Law Review”, a work that we have carried out in collaboration with other prestigious international firms.

This cooperation is being carried out for the second consecutive year and has allowed our partners Verónica Meana and Mikel Garteiz-goxeaskoa to provide a broad and very complete overview of Spanish insurance regulation.

In addition to reviewing the general aspects of insurance and the legal framework, the study has also focused on studying the types of litigation that have increased in Spain in recent months in areas such as: limitation and delimitation clauses of insurance; compensation for loss of profit due to business interruptions due to Covid-19; malice and gross negligence; insurance contracts for large risks and possible negligence in the health sector, among others.

 

Read the AIYON Abogados chapter by clicking on the following link.

Comments on Supreme Court Judgment Nº 901/2021 in the “Spanair Case”

Back in 2019, in our article “Judgement of the Spanish Supreme Court in the Spanair crash case”, we pointed out that the Civil Chamber of the Supreme Court in its judgment of 17 May 2019 no. 1513/2019 settled the question of the evaluation of personal injuries suffered in an air accident, by confirming the criteria of the Provincial Court of Barcelona, judgment no. 165/2016, of 12 July, and determining that, in the absence of regulation for the evaluation of personal injuries caused in aviation accidents, it was more appropriate to provide compensation based on the existing legal scale for personal injuries caused in motor vehicle accidents (RDL no 8/2004, of 29 October, approving the revised text of Civil Liability and Insurance Act in the Circulation of Motor Vehicles).

However, the judgement pointed out that the indicative use of the scale does not prevent the application of corrective criteria according to the circumstances of the sector of activity to which it refers. In the case of an air accident, due to its catastrophic nature and the other circumstances surrounding it, it is reasonable that the compensation resulting from the application of the scale be increased by an additional percentage, which in this case was set at 50 %.

Now, after years of litigation arising from the very serious plane crash suffered by the now defunct airline Spanair in 2008, resulting in the death of one hundred and fifty four people and eighteen injured, the recent Judgment of the Supreme Court no. 901/2021 of 21 December 2021 dismisses the extraordinary appeal for procedural infringement and the cassation appeals against judgment no 5/2018, of 8 January, of the Provincial Court of Madrid, filed by Mapfre Global Risks Compañía Internacional de Seguros y Reaseguros S.A., among others, to confirm that, without prejudice to other possible causes, the accident occurred as a result of an inadequate configuration of the aircraft to perform this maneouver, attributable to the pilot an co-pilot of the aircraft. Likewise, the court establishes hat Mapfre is civilly liable for the damages caused by the accident, as it was the insurer of the company Spanair at the time of the accident.

Furthermore, in line with the above, Judgment no 901/2021 in its Sixth Legal Basis states that, by using as a criterion for compensation the indicative application of the scale in the annex to Legislative Royal Decree no 8/2004, of 29 October, the Provincial Court did not violate the principle of indemnity in the compensation of damages or apply limitations to compensation for death or bodily injury, incompatible with the framework of the Montreal Convention and Regulation (EC) no. 2027/1997, as amended by Regulation (EC) no. 882/2002, of 13 May 2002.

Consequently, the insurer is ordered to pay compensation, the amount of which now exceeds four million Euro.

The European Maritime Safety Agency (EMSA) Continues to Deploy Drones to Monitor Emissions from Merchant Ships in EU Waters in 2022

According to the Roadmap of the European Maritime Safety Agency (EMSA), in 2022, which is now beginning, the development of the capabilities of remotely piloted aircraft, commonly known as drones (Remotely Piloted Aircraft Systems or RPAS), will continue, especially regarding the detection of possible pollutant emissions from merchant ships exceeding the limits established in Annex VI of the International Convention on Marine Pollution (MARPOL). Sulphur content limit for marine fuels is currently set at 0.5 % by mass.

By 2022, these drones are also expected to be able to monitor the NOx content of smoke from ships underway, in addition to the SOx mentioned above.

In fact, during 2021, emission control campaigns were already carried out with drones in the waters of the Strait of Gibraltar, Lithuania, France, and the Baltic Sea. Specifically, in relation to the deployment of the drone in the waters of the Strait of Gibraltar between July and October, EMSA, together with the Directorate General of the Merchant Navy and Harbor Master of Algeciras, carried out a total of 319 controls on different merchant vessels while they were sailing through the Strait, detecting possible non-compliance in twenty-eight (28) of the vessels.

Although the readings obtained using these novel aerial means may be indicative of excess sulphur marine fuel consumption, they do not directly result in the initiation of a sanctioning proceeding or in the imposition of a penalty for the monitored vessel.  In order to corroborate the preliminary drone readings, a detailed Port State Control (PSC) inspection will always be required upon arrival of the ship in port, together with the corresponding sampling of the fuels used during the voyage.

After this inspection and chemical analysis of the fuel samples obtained, if the sulphur reading is above 0.5 % by mass, the corresponding Harbor Master’s Office will initiate an administrative sanctioning proceeding against the “ISM Manager” and against the master of the inspected vessel, and the vessel will be provisionally detained until sufficient guarantees have been provided at the discretion of the responsible Harbor Master’s Office.

The data obtained from the drone measurements are also communicated to the THETIS-EU database, also managed by EMSA. The purpose of this is to effectively monitor the non-compliance detected and to establish a system of alerts for the different maritime administrations of the Member States of the European Union, facilitating thus the taking of appropriate measures to prevent and/or sanction the aforementioned typified conducts.

P&I Clubs, a Key Player in Maritime Transport and Trade

Canal Marítimo y Logístico, a magazine specialised in maritime and logistics information, publishes in its November issue an article on P&I Clubs written by Verónica Meana, partner of our Madrid office.

This article finds its origins in the publication of the Preliminary Bill to amend the revised text of the Law on State Ports and the Merchant Marine, and the Law on Maritime Navigation, which, among other things, includes the reform of article 465 of the latter set of regulation due to doubts that exist nowadays about the admissibility of direct action against protection and compensation clubs. It is worth taking a step back and going to the origin of these organisations and how they work.

The reform adapts to the purpose of these associations which remain fundamental to the development of maritime transport and trade as they currently insure the civil liabilities of shipowners from all parts of the world.

In itself, the article covers the basic concepts, background, established responsibilities, as well as Spanish legislation related to this key piece of maritime transport and trade.

Read article published HERE

El Canal Marítimo y Logístico Highlights the Trajectory of AIYON Abogados since its Foundation

The journal El Canal Marítimo y Logístico analyses and highlights the trajectory of our firm since its foundation in 2015 and catalogues it as a model of success that continues to develop and grow.

The article confirms that, since the firm was founded more than six years ago, AIYON Abogados has formed a multidisciplinary, solid, and participative team of professionals, with marked quality standards in its services, and always respecting its concept of “boutique law firm” firmly connected with its clients and the sector.

From its basic nature with regard to maritime law, our firm aims to further reinforce the relationship with our international clients (maritime insurers, shipping companies and freight forwarders) on the basis of specialised training. This is one of the areas in which    we are involved as part of our activity, collaborating as regular lecturers in the Master of the Spanish Maritime Institute (Madrid), giving training talks at the University of Cadiz, maintaining collaborations with the universities of Deusto and La Laguna, as well as acting as members of the Court of Arbitration of the Madrid Bar Association. This is a commitment to the new generations, but also to clients, who expect andobtain personalised professional advice.

Likewise, the publication makes special mention of the website on the lifting of the ship arrest that the firm launched in 2021, which can be consulted at: shiparrestrelease.com.

On the other hand, the AIYON team informs that we continue to be clearly committed to handling matters related to land transport, especially in the area of national and international road transport, and the world of insurance and trade, where we have great professionals advising our clients on a daily basis and accompanying them on theirprofessional journey.

Finally, our firm’s clear vocation to deepen its knowledge of Air Law – air chartering, incidents, claims or purchase and sale of aircraft, among others – and Space Law is reflected in the “Postgraduate Specialist Course in Aeronautical and Space Law”, taught by the Faculty of Law (ICADE) in collaboration with the Spanish Association of Aeronauticaland Space Law (AEDAE).

You can read the article at the following link: https://www.diarioelcanal.com/aiyon-abogados-socio-fiable-prioriza-relacion-estrecha-cliente/

AIYON Abogados strengthens its position in Aeronautical and Space Law

AIYON Abogados maintains its commitment to becoming a benchmark law firm in Aeronautical and Space Law. Its position in these areas is reinforced by the new qualification obtained by Zuberoa Elorriaga, partner of Aiyon’s Bilbao office. Her graduation was held last October 25, becoming the first class of the “Postgraduate Course of Specialist in Aeronautical and Space Law” offered by the Faculty of Law of the Universidad Pontificia Comillas (ICADE), in collaboration with the Spanish Association of Aeronautical and Space Law (AEDAE).

These two prestigious entities have launched this pioneering initiative whose objective is solving the existing training deficit in Spain in these two fields, which have traditionally been monopolized by the Administration and other public entities until their liberalization.

AIYON Abogados will continue advising its clients in matters derived from the dynamics of airports, such as handling its legal regime, aircraft contracts, certification and legal regime related to the manufacture and financing of aircrafts, code sharing and interlining in contracts with airlines, insurances, aeronautical inspections and labour contracts, among others.

It is also worth mentioning the training acquired in the increasingly present and relevant space law environment: international treaties and conventions, legal aspects of satellite navigation systems, use of resources, space waste, etc.

The interest and involvement of AIYON Abogados in these areas will be evident on November 5 with the participation of partners from Bilbao and Algeciras,  Zuberoa Elorriaga and José Antonio Dominguez, in the 33rd Annual Conference of the European Air Law Association (EALA) in Copenhagen.

During this meeting of experts, issues related to competition in the sector will be addressed in relation to state aid and EU legislation, the impact of Brexit, changes in the financing of the airline industry and sustainable aviation, among many other issues.

Read article published…

Verónica Meana joins the Arbitration Team of the Madrid Bar Association

Verónica Meana Larrucea, partner in charge of the AIYON Abogados’ office in Madrid, has recently joined the Arbitration Court of the Madrid Bar Association.

The arbitrators are appointed by the Arbitration Court at the proposal of an Evaluation Committee designated by the governing body of the Bar Association after considering their curriculum and eligibility.

Since her nomination for the area of Maritime and Transport Law was accepted, Verónica will participate together with the other fifteen members in the resolution of the conflicts that may arise within this sphere.