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.

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.

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/

Relevant and updated information from “TP&I News” on anti-pandemic measures imposed in different ports

The TÜRK PANDI publishes its November “TP&I News”: “Seafarers – The key workers for the global maritime industry, Risk of Detention for Anchoring in Indonesian Waters, Attention: Is your vessel arriving at a Spanish port?, Crew changes in Argentinian ports”, with the collaboration of AIYON Abogados.

Through this publication, the P&I updates the latest news from the maritime sector geared towards shipowners, charterers, as well as any other maritime agent or operator interested or affected by the measures that have been imposed in different ports due to the pandemic.

Read article published…

Ship arrest

By Irantzu Sedano and Zuberoa Elorriaga

The usual short stay of ships in the ports where they load and unload goods, as well as the international nature of the maritime sector, means that, on many occasions, it is very difficult to recover a debt from shipowners and charterers. It is in this context that the concept of ship arrest emerges.

Ship arrest is a legal tool that enables the creditor of a claim, which must be defined as a “maritime claim” to secure the detention of the ship concerned in order to guarantee its payment. This precautionary, preventive, and urgent legal action can also be regarded as a burdensome measure due to the economic damage it can cause to the operator of the vessel, as it can lead to delays in the vessel’s navigation plans, unforeseen costs due to its stay at berth in port, etc. It can also be a costly measure for the person requesting the arrest if it is wrongly or improperly proposed.

Reasons for the arrest
The arrest of ships pursues different objectives, which vary depending on the asserted maritime claim. That is to say, when the maritime claim consists of a monetary claim, the arrest will operate so that the shipowner/charterer (debtor) provides sufficient security to lift the ship arrest, with the attaching creditor obtaining security. When the maritime claim consists of a claim to the ownership of the vessel, the arrest will ensure the application of an eventual sentence to hand over the vessel.

The detention of the vessel may be replaced by the provision of a guarantee or substitute security by the shipowner/charterer before the court applying the measure, since the ultimate objective of the arrest is to guarantee the effectiveness of a later judgement on the merits of the claim / “maritime claim”, ensuring thus the possibility of its enforcement for the creditor/attaching creditor’s.

In the event that the arrest is requested unjustifiably or improperly, the shipowner/charterer of the vessel is entitled to claim for any damages resulting from the arrest.

Requirements for the ship arrest
The international legal regime in force in Spain is the International Convention on Arrest of Ships (Geneva 1999), which entered into force on 14 September 2011. At the national level, we must resort to the Maritime Navigation Act 14/2014, of 24 July.

The requirements are as follows:

  • The allegation of a “maritime claim”: ships may only be arrested on the basis of maritime claims and not on the basis of any other claim. The list of so-called “maritime claims” is numerus clausus and is set out in Article 1(1) of the 1999 Geneva Convention. The creditor of the precautionary measure, requesting the arrest, shall be exonerated from proving his claim, being sufficient for him to allege its existence and the cause for it.
  • The arrest of the “offending ship”: arrest of the vessel causing the claim is permitted provided that the person who was the owner/bareboat lessor of the ship at the time the claim arose is still the owner/bareboat lessor at the time the arrest is requested. Under certain conditions it also provides for the possibility of arresting other vessels owned by the person liable for payment of the claim (“sister ships”).
  • The existence of periculum in mora: this refers to the risk that the ship, in principle the only property of the debtor known to the creditor, may at any time leave the port leaving the creditor without guarantees.
  • The obligation to deposit a guaranteed by the attaching creditor: its purpose is to ensure that, in the event that the arrest is requested improperly and without complying with the legal requirement, the damages generated to the shipowner/charterer as a result of the incorrect arrest can be economically alleviated.
  • The pendency of the proceedings: the arrest may be requested before, during or after the commencement of the legal proceedings on the merits. The lawsuit will be brought before the court that is to hear the merits of the dispute.

Release of the arrest and the protective measure
In order to confirm ship’s release from the arrest, the arrested party (shipowner) must lodge a replacement security or guarantee before the court covering the amount claimed by its creditor (arresting party), provided that such amount does not exceed the value of the arrested vessel. If it does, the vessel will continue its voyage, leaving deposited this amount as a security for the alleged maritime claim.

Since, as a general rule, the request for arrest is placed as a precautionary measure prior to the filing of the lawsuit, it will remain without effect if the creditor/attaching creditor does not initiate the proceedings on the merits of the dispute before the competent court and within the time limit established by the court executing the precautionary measure. In such a situation, the arresting party shall be ordered to pay damages that will be considered by the court, and the security deposited by the arresting party before the court shall be forfeited.

In summary, Article 1 of the International Convention on the Arrest of Ships lists what are considered “maritime claims” that can justify the arrest of a ship, so there are many agents in the sector that may be protected by this tool to guarantee their claims (seafarers, ship suppliers, shipyards, administration, etc.).

AIYON Abogados handles arrests of ships requested by any kind of creditors, as well as lifting of the arrests of shipowners/charterers affected by this measure; moreover, for all those who want to find out more in detail about this concept we have the following platform: www.shiparrestrelease.com

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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.

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