Abandonment of Recreational Craft

The abandonment of recreational boats is a real and tangible phenomenon that occurs more frequently than one might think, with very negative and, generally, costly consequences.

What is more, the marina concessionary company with which the mooring is contracted, or the dry marina, are generally the parties that suffer the most, as they act as the depository of the boats. The consequences of this problem are accentuated when the shipowners are not citizens of the country where their boats are berthed.

There are currently hundreds of abandoned boats in different marinas in the country, a problem that increases significantly when the economy is truncated by periodic crises. And this is because, beyond the fact that the personal economic situation of a shipowner can be affected at any given time, sometimes even drastically, we must add other ancillary issues to this, such as the relentless increase in the price of fuel, the cost of revisions and inspections, the increase in the regulatory requirements on navigation elements, the periodic increase in the price of maritime taxes, etc. All of which makes it impossible for many yacht owners to take care of their boats, and they are forced to abandon them without even the slightest explanation.

Despite the above, there is hardly any specific legal regulation of this phenomenon, although it is expected that this situation will change soon.

Article 302 of Royal Legislative Decree 2/2011, of 5 September, which approves the Revised Text of the Law on State Ports and the Merchant Navy, states that when we talk about abandoned ships, we are referring to vessels that have remained for more than three months moored, anchored, or even on land, in the same place within the same port, and without having any type of externally appreciable activity on board. Abandoned ships which, in order to be catalogued and declared as such by the competent Port Authority, must also have failed to pay their corresponding fees and tariffs for at least three months.

After processing the corresponding procedure, and once the ship has been declared abandoned by the Port Authority, the latter will proceed: (i) either to its sale at public auction, paying the proceeds of the sale after subtracting the credits accrued in its favour for port taxes/fees and the costs of the procedure; (ii) or, to the sinking of the ship when, due to its condition, maritime safety reasons make it advisable to do so.

However, in this article we are referring to vessels abandoned in a port that is not a port of general interest, with indirect management by the administration as these are ports under concession. Consequently, the port authorities of the main port to which the concessioned port is attached are often opposed to initiating the administrative procedures for abandonment of vessels under Article 302 on the grounds, among others, that the procedure for abandonment of vessels is only applicable to vessels which are moored or anchored in a port under the direct management of the authority; that they cannot rule on the abandonment of a vessel when there is a contractual relationship between the concession holder and the owner of the vessel; or that the administrative procedure for the abandonment of vessels is only applicable to recover debts owed by the vessel to the port authorities (fees, tariffs, etc.) and not those owed to the concession holder in the context of a private contract.

In view of this, in the absence of a specific regulation in this respect to date, in the face of the “disappearance” of the yacht owner and the consequent non-payment of the services he has contracted, the current option available to marinas or suppliers to deal with these incidents is to initiate legal proceedings for breach of contract and claim for payment against the person who contracted the unpaid services (art.1124 of the Civil Code). This would be done either with the intervention of the shipowner in the process or in default, in case the shipowner does not comply with the injunction.

If the shipowner does not meet his obligations voluntarily once the marina/concessionary company obtains a favourable court ruling, the latter will have to initiate a second legal process to request the forced execution of the sentence in which it would have the option of seizing the vessel in order to promote its subsequent auction and public sale. With the sum obtained from this sale, and after payment of the debts incurred in the management of the auction, the rest of the debts existing up to that moment, including that of the port, would be settled. Another option could be for the concessionary company itself to be awarded the vessel, being able to dispose of it as it sees fit.

As instrumental measures to such a declaratory process, there would be two other legal options to be studied in each case:

  • Exercise the right of retention of the vessel in the hands of the concessionaire by instituting a declaratory judgment (art. 1780 of the Civil Code).
  • On the basis that the service contracting party is the registered owner of the vessel, proceed to the preventive seizure of the vessel by filing the measure before the competent court (art. 470 of the Maritime Navigation Act).

For the time being, this lack of regulation by state regulations has led some of the most affected autonomous communities, such as Valencia and the Balearic Islands, to publish their own specific regulations with the aim of speeding up and avoiding the serious problems of indebtedness and deterioration that vessels immobilised in port present, with the danger of pollution or that of navigation itself due to not being properly guarded or maintained.

This situation will hopefully change soon since, as announced on 1 March 2022, the amendment of the revised text of the Law on State Ports and the Merchant Navy and the Law on Maritime Navigation has been approved to bring it into line with current European regulations and, among other points, recreational boating activity will be dealt with and regulated in more detail. In fact, it is expected that the Maritime Navigation Law will add a new Chapter VII to the current Title X that specifically regulates the abandonment of recreational craft.

We can conclude, therefore, that currently the ways of managing abandonment situations are limited and costly, or are only regulated locally, so that in any case we advise seeking prior legal advice from a law firm specialised in the matter so that they can duly assist the affected parties.

Read article published here.

Enrique Ortiz and José Antonio Domínguez participate in the “Master in Business Legal Consultancy” of the University of Cadiz

We would like to thank the University of Cadiz for their warm welcome to our partners of Aiyon Cadiz and Aiyon Algeciras, who had the honour of being part of the teaching staff of the “Master in Legal Business Consultancy (MAJE)” organized by the Faculty of Law of the University of Cadiz and the University Business Foundation of the province of Cadiz (FUECA).

A Master’s Degree that offers its students the opportunity to broaden and deepen their legal and accounting knowledge in the business world, from a comprehensive, up-to-date and practical perspective, so that they can plan their professional career in the specific field of legal-business advice, and which is taught by renowned professionals with extensive experience in legal-business advice, both from the University itself and from the private sector.

In their classes, our colleagues, Enrique Ortiz and José Antonio Domínguez, have worked with the students on two subjects of great relevance in the field of international trade, such as the international transport contract and insurance in the international market. All this within the rest of the subjects that made up the module entitled “International Dimension of the Company” of which they have been part.

Likewise, Enrique and José have shared with the attendees their long and extensive professional experience, acquired during the many years they have been active in managing matters for all types of clients related to the transport, insurance, and international trade sector, commenting on practical cases and common situations in their day-to-day work in AIYON Abogados.

We are sure that these new generations of professionals will be very well received, and we wish good luck to all of them!

Aiyon Collaborates Again with the Spanish Maritime Institute and the Universidad Pontificia de Comillas in the Master’s Degree in Maritime Business and Law

On 26 May 2022, our partners Verónica Meana and Mikel Garteiz-Goxeaskoa have taught one more year the class on “Removal of wreck and Nairobi Convention 2007” and “HNS Convention 2010”.

This is the fifth consecutive year that our colleagues are part of the faculty of the Master’s Degree in Business and Maritime Law of the Spanish Maritime Institute in collaboration with the Universidad Pontificia de Comillas, sharing their theoretical and practical knowledge on matters affecting the maritime transport sector.

In this case, the subject dealt with was “Liability and compensation for damage caused by harmful and potentially hazardous substances during maritime transport”, which affects both operators in the sector and public administrations, both nationally and internationally.

As always, we enjoyed giving the class and hope that the students found it useful and interesting.

Is the Detention of Russian Mega Yachts Legal?

On 24 February 2022, Russia begins its invasion of Ukraine, provoking an immediate reaction from the European Union and the United States, condemning the action and announcing sanctions. Among the sanctions adopted by the EU is the freezing of assets belonging to Russian oligarchs who participate or have participated in the war against Ukraine. European countries immediately began to immobilise assets located in their territories.

In the case of Spain, the arrests of several mega yachts of more than 24 metres in length, such as the “Valerie”, located in Barcelona, and the “Lady Anastasia”, docked in Palma de Mallorca, have been striking. The question is, on what instrument is Spain basing these detentions?

AIYON analysed the situation in an article that was published by the newspapers ABC Sevilla and ABC Madrid last April, which we recommend reading.

Read article published here.

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.

Renewal of the Board of Directors of the Propeller Club of the Basque Country Port of Bilbao

On 27 January 2002, the Propeller Club of the Basque Country – Port of Bilbao, an association in which our firm participates, began the year 2022 with a change in its presidency.

Gerardo Tiedemann, who has led the association for years with great success and dedication, handed over his post to José Luis Grijalvo, to whom we wish the best in this new journey.

In the Board of Directors of the Propeller Club of the Basque Country-Bilbao, together with the rest of the relevant representatives of the maritime and logistics sector in Bilbao, our partner from Bilbao, Mikel Garteiz-goxeaskoa, remains as treasurer and member of the Board of Directors.

Merry Christmas and Happy New Year

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