Judgement of the Spanish Supreme Court in the “SPANAIR crash case”

The recent Judgement of the Supreme Court (The Civil Chamber) nº 1513/2019, of 17th of May 2019, brings to a close the issue on the assessment of personal injuries in aviation accidents as it states that, in the absence of assessment standards for personal injuries caused in aircraft accidents a compensation based on the existing legal scale for personal injuries caused in motor vehicle accidents is considered more appropriate.

The Judgement of the Supreme Court confirms the criterion of the Province (High) Court of Barcelona regarding the absence of two payable compensations accumulated for the same injury, an objective one and a subjective one. Nonetheless, the Supreme Court, disagreeing with the Province Court, considers that the Regulation nº 785/2004 does not pursue the quantification of damage to the victim nor it establishes the criteria of quantification. Its sole objective is to establish a minimum insurance coverage for a risky operation such as that of an air carrier. This damage should be evaluated in each Member State in accordance with their own criteria for assessment of damage since there are no Community rules that would provide a frame of assessment. This is consistent with the doctrine of case of law of the First Chamber of the Supreme Court that determines that recoverable damage is a damage that was suffered. Yet the judgement points out that the indicative use of the scale for car accidents for the quantification of the compensation of personal injuries does not prevent the application of corrective mechanisms depending on the circumstances involved in the sector of the activity to which this application is related. In case of death of a passenger in an aviation accident, its catastrophic nature and all other surrounding circumstances are such that it is reasonable that the compensation resulting from the application of the scale be increased by an additional percentage, which was set at 50% in this particular case.

Finally, the Supreme Court considered that the payment of interests of the article 20 of the Insurance Contract Act should be applicable to the insurance company of the airline since they were not contemplated as punitive damages but as delay interests, consequence of an action brought by the injured party directly against the insurer of the carrier.

This Judgement, in principle applicable to air transport, establishes criteria that are applicable by analogy to personal injuries in maritime transport.

WISTA Spain Annual Meeting – 2019 – “Bilbao in Evolution”

On 26th and 27th of April, WISTA Spain annual meeting was held in the Maritime Museum (Museo Marítimo) in Bilbao and was cosponsored by our firm. The event was organized by the WISTA associates in Bilbao, Marta Prado, the chair of the panel discussion on 26th; Itsaso Ibáñez, Carolina Ibáñez and the partner of our Bilbao office, Zuberoa Elorriaga.

As planned, the event under the title Bilbao in Evolution: New Trends in Shipping and Tradingtook place on Friday. The meeting was divided into three thematic groups, two in the morning with various presentations under the heading “Fishing Industry, Insurance and its Evolution” and “Logistics, Transportation and Supply Chain”; and one in the afternoon consisting of a very interactive panel discussion called “Development and Port Challenges in the XXIst Century”, all this with the participation and the great performance of Dr. Olga Fotinopoulos – Full Professor of Laboru Law and Social Welfare Law at the University of the Basque Country, Mr. Borja Alonso Olano – Director of the Legal and Sustainability Department of Albacora S.A., Mrs. Beate Soia – Account Executive of March JLT, Marine Insurance & Claims, Mrs. Iratxe García Gil – Director of Organization and Corporate Development in IVL/LEE (Basque Institute of Mobility and Sustainability), Mrs. Sonia García Díaz – Managing Director in Dagase, President of Asetravi ( Business Association of Transport of Biscay), Mrs. Nerea García Núñez – Regional Supply Chain Manager in Guardian Glass Automotive – Europe, Mrs. Inmaculada Ugarteche Maturana – Director of UniportBilbao – Port Community, Mrs. Elvira Gallego Uribe – General Manager in CPS Iberian Bilbao Terminal, Mrs. Ana Santiago G-Bretón – CEO in SISTEPLANT and Mrs. Sira Aranguren Lozano – Managing Director in SERGUSA and President of the Official Association of the Customs Agents in Bilbao.

Out of the present authorities it is necessary to stress the support received from Mrs. Arantxa Tapia, Minister for Economic Development and Competitiveness of the Basque Government, who also participated in the event, as well as the attendance of the Director of the Merchant Navy, Mr. Benito Núñez, the Harbour Master of Bilbao Mr. Carlos García, the Harbour Master of Pasaia Mr. Josu Gotzon Bilbao and Mr. Carlos Alzaga of the Bilbao Port Authority, among others.

From AIYON Abogados we would like to congratulate all the organizers and speakers on the excellent work done!

National Civil Aviation Security Programme, February 1st 2019

The objective of the National Civil Aviation Security Programme (NCASP) is to establish general guidelines to comply with the basic standards of the civil aviation safety, in particular with regard to the organization, practices and procedures necessary for the protection and safeguarding of the passengers, crew, general public, ground personnel, aircrafts, airports and their facilities, preserving the regularity and efficiency of the national and international air traffic.

By means of the Resolution of 1st of February 2019, published on 27th of February 2019, the update of the public part of the National Aviation Security Programme has been adopted. This resolution approves the amendments and updates of the public part of the National Aviation Security Programme, which complies with the standards and recommended practices of the ICAO Annex 17 to the Convention on the International Civil Aviation and the Regulation (EC) No 300/2008 of the European Parliament and of the Council and the implemented Regulations.

The authority responsible for the civil aviation security will ensure the compliance with the measures contained in it at:

  1. All national airports, heliports and air navigation facilities, both those included and not included in the airport premises.
  2. All operators, including air carriers, providing services at the airports mentioned in point a).
  3. All entities applying aviation security standards that operate from premises situated inside or outside airport premises and provide goods and/or services to or through airports referred to in point a).

When the application of certain measures is not possible at some airports or heliports, alternative measures will be applied in order to ensure an adequate level of safety in accordance with additional provisions. In any case, these airports and/or heliports will submit a Security Programme for its approval by the appropriate authority.

Royal Decree-Law 23/2018, of December 21, of transposition of Directives in the area of trademarks, rail transport and package travel and linked travel services

On December 27, 2018, Royal Decree-Law 23/2018, of December 21, transposing directives on trade marks, rail transport and package travel and related travel services is published in the BOE (Spanish Official Bulletin).

Title I, which comprises the first article, contains the modifications derived from the transposition of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015, on the approximation of the laws of the Member States in the matter of trade marks. As a novelty, the Royal Decree-Law increases the number of signs that are subject to registration to those that capable of representation in any appropriate form using generally available technology, and thus not necessarily by graphic means, as long as the representation offers satisfactory guarantees to that effect.

The distinction between “trade mark” or “well-known or renowned trade” name disappears and the concept of “infringement of trade mark” is extended to the use of the sign as a trade name or similar designation. Furthermore, the Royal Decree-Law streamlines the registration renewal procedure.

Likewise, it gives the trademark owner the power to prohibit not only the direct acts of infringement of the trade mark by third parties but also the preparatory acts in relation to the use of packing and other means and the power to exercise the rights thereof against goods coming from third countries without being released into free circulation.

As for the competence to declare the nullity and expiration, this is now shared by the Spanish Patent and Trademark Office (directly) and the Courts (indirectly).

Title II, which includes the second and third articles, contains the modifications derived from Directive 2012/34 / EU of the European Parliament and of the Council, of 21 November 2012 (modified by Directive 2016/2370, of December 14) establishing a single European railway area. It achieves the completion of the single European Area, which had already been applied to international freight transport and international passenger transport, by extending the principle of open access to domestic rail markets.

In view of the potential entry of new actors as infrastructure managers, the Royal Decree-Law incorporates the category of “vertically integrated undertaking” that allows an infrastructure manager and a transport services operator without a different legal personality to coexist in the same company. This implies the need to introduce requirements for the independence of the infrastructure manager and shielding it from possible influences or conflicts of interest with the railway undertakings. This Title also includes the concepts of reasonable margin of profit and alternative route.

The need to register the railway company license in a Registry is eliminated. In addition, the State Agency in charge of Railway Safety has the obligation to communicate without delay the resolution on the license without it being possible to understand the license not approved by administrative silence.

In another order, the Royal Decree-lay includes manoeuvres (previously auxiliary), those services to be supplied in essential service facilities, the supplies in fixed installations and the loading and unloading of merchandise among those essential services and establishes the obligation to inform about the prices and conditions of access to service facilities not managed by the infrastructure manager.

Title III, article four, contains the modifications derived from the transposition of Directive (EU) 2015/2302 of the European Parliament and of the Council, of 25 November 2015, related to package travel and linked travel arrangements.

Among the main modifications of the Royal Decree-Law, it is worth mentioning the modification of the scope of application and the harmonized definitions. The protected subject becomes now the “traveller”, which is a broader than the concept of “consumer”. In addition, the scope of the package is extended, and the concept of “linked travel arrangements” is introduced, establishing which combinations of services can be considered as linked travel services.

In addition, the Royal Decree-law reinforces the obligation to provide pre-contractual information to the traveller. The organisers may not unilaterally alter the contract unless: (i) they have reserved that right in the contract, (ii) the alterations are insignificant and (iii) the traveller has been informed in a clear and understandable manner.

The Royal Decree-Law grants the traveler the power to terminate the contract when the proposed changes significantly alter the main characteristics of the travel services with the right to a refund of the price in 14 calendar days. The traveller in such instance may be required to pay an appropriate and justifiable termination fee to the organiser, which must meet certain criteria. On the other hand, it regulates under which conditions the price can be increased.

The organisers and retailers are required to provide a security for the refund of all payments made by or on behalf of the travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation.

Sale contracts with the Incoterm DAP

In view of several cases managed by our law firm in which the use of the international commercial term DAP (Delivered At Place) has been of special relevance, in this article we will try to shed light on its origin and application.

As a global business organization, the International Chamber of Commerce (ICC) intends to provide the necessary practical tools to activate and simplify world trade through the use of standard terms that allow defining the rights and obligations assumed by of the parties to a sales contract, including those referring to the transportation of the goods from origin to destination. Incoterms or International Commercial Terms affect some relevant aspects of the commercial relation (sales contract) between seller and buyer, but they do not delimit the entire contents of said contract.

European and Spanish courts, to a greater extent the Spanish mercantile courts specialized in transport law, have been aware of the reality of the Incoterms and this is reflected in many resolutions. An example of this is the Judgment of the Court of Justice (EU) C-87/2010 of June 9, 2011, when it states: “In order to check whether the place of delivery is determined ‘according to the contract’, the national jurisdictional body that has knowledge of the matter must take into account all the terms and all the relevant clauses of said contract that clearly designate said place, including the terms and clauses generally recognized and enshrined by international commercial uses, such as Incoterms elaborated by the International Chamber of Commerce.”

DAP is one of the last terms incorporated in the publication “Incoterms 2010” issued by the ICC and, together with the term DAT, it replaces the previous DAF, DEQ, DDU and DES in order to adjust adequately to the current logistic reality. Consequently, as of 1st of January of 2011, date of entry into force of the aforementioned publication, the ICC reduced the Incoterms in use to eleven.

When the parties of a sales contract arrange the inclusion of the term DAP, they essentially agree, among other rights and obligations, that the seller-exporter will comply with its obligations by making available the cargo to the buyer-importer ready for unloading in the used means of transport  at the destination agreed in the contract; the buyer shall therefore be responsible for all expenses associated with the unloading of the merchandise from the means of transport used until destination, as well as for its clearance for importation. Since the seller will assume the organization and materialization of the transport to the place of destination agreed in the contract, he should make sure that this concrete place is duly specified in the sales contract since he runs with the risks of the cargo up to that point. Therefore, buying under DAP conditions will imply a lower risk for the buyer.

The DAP Incoterm is a multimodal term, which means that it can be used regardless of the means of transport used; therefore, its use is justified whether the goods are transported by road, sea, rail or air.

The knowledge and proper use of the terms of international trade is an indispensable part in international sales contracts and increasingly in those of national scope, since their national use has been extended for the benefit of transactions. It is a reality that has been gaining strength since the entry into force of the “Incoterms 2010”.

In short, receiving adequate advice at the time of closing and drafting sale contracts in relation to the Incoterms that best suit the needs of the parties, as well as in relation to the other relevant aspects to be agreed, is essential to protect the position of our clients and achieve the good end of any commercial transaction.

Article 8.1-a) of the Regulation (EU) 261/2004

In its judgment dated 12th September 2018, Case C-601/17, the EUCJ held that Regulation EU n. 261/2004, and in particular Article 8.1-a) thereof, must be interpreted as meaning that the price of the ticket to be taken into consideration for the purposes of determining the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by the air carrier, which corresponds to a commission collected by a person (or authorised agent) acting as an intermediary between those two parties, unless that commission was set without the knowledge of the air carrier, which it is for the referring court to ascertain.

The Court took into account that the objectives of Regulation EU n. 261/2004 are not only to ensure a high level of protection for passengers but also to strike a balance between the interests of passengers and those of air carriers.

In the light of those objectives, the Court considered that, while a commission collected by an intermediary from a passenger when a ticket was bought must, in principle, be regarded as a component of the price to be reimbursed to that passenger in the event of cancellation of the corresponding flight, its inclusion must nevertheless be subject to certain limits, in view of the interests of the air carriers which it affects.

 

Scope and delimitation of article 3.1.A) of European Regulation No. 261/2004, according to the CJEU

The Court of Justice of the European Union (CJEU) has recently ruled on the scope and delimitation of Article 3.1.a) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004, which establishes common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delays of flights. Read more

Air transport strikes: extraordinary circumstances?

Summer is nearly here and with it the desired vacations. With that in mind, we, AIYON Abogados, consider that it is the right time to bring up one of the common fears of tourists and travelers: Will I be affected by pilot, air traffic controller or airport staff strike?

Without undermining the concept of strike as a response mechanism for workers to claim and protect their legitimate rights, the fact is that the disruptions resulting from a strike are more than significant: delays, cancellations, and multitudes of angry passengers. Luckily for the latter, in the light of the European Regulation nº 261/2004 and from the interpretations by the various Courts engaged in its development, it will be difficult for the air carriers to allege the existence of an “extraordinary circumstance” in order to avoid the payment of the corresponding compensations in case of a strike, which the affected passengers are entitled to by law.  This will apply only in case we find ourselves facing very specific circumstances such as “unpredictable and illegal strikes.” Read more

Euro Mediterranean Aviation Agreements

Three months after the entry into force of the Multilateral Agreement between the European Community and Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Iceland, Macedonia, Norway, Serbia and Montenegro, Romania and Kosovo on the creation of a European Common Aviation Area (ECAA), on March 1st 2018, the EuroMediterranean Aviation Agreement between the European Union and its members on the one hand and the Kingdom of Morocco on the other  came into force; this agreement having been designed in Brussels on December 12th 2006. Read more

New regulation on remotely piloted aircrafts

On December 30th, just one day after being published in the “Boletín Oficial del Estado (BOE)”, the new Royal Decree 1036/2017 dated December 15th (Real Decreto 1036/2017), by which the civil use of remotely piloted aircrafts is regulated, came into force. This Decree puts an end to the temporary regime introduced by Law 18/2014, dated October 15th, on the approval of urgent measures for growth, competitiveness and efficiency.

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