AIYON Algeciras Strengthens its Team

We would like to announce the incorporation of our colleague and lawyer Rocío López  to the AIYON Algeciras team, who will be in charge of the local AIYON office together with the head of the office, José Antonio Domínguez. After spending more than a year collaborating with our entire team from our offices in Cádiz and Algeciras and gaining extensive experience, Rocío has joined our team of lawyers in AIYON Algeciras on a permanent basis.

Algeciras is of great importance as it has the largest Spanish port with a large volume of passenger traffic, as well as all types of goods in bulk and containers, in addition to road traffic. Whether acting as a port of destination or origin, or as a strategic transhipment port, the port is an essential area for the passage of cargo and passengers to and from the mainland and the islands, as well as from all types of locations worldwide.

Therefore, in order to provide the most complete service and confirm its essential position, Algeciras has a large port community of which AIYON Abogados has been a part for years, with a very active presence in associations such as Cádiz-Port or Comport- Algeciras Port Community.

Our new colleague, Rocío López, holds a Degree in Labour Relations and Human Resources from the University of Seville (2016) and a Degree in Law from the University of Cádiz (2020). She also holds a Master’s Degree in Maritime-Port Company Management and Maritime Law from the University of Deusto (2020) and a Master’s Degree in Access to the Legal Profession from the UNIR (2022). Her training includes previous work coordinating services and quality in a company in the maritime-port sector in Algeciras, as well as a subsequent internship in a maritime law firm in Bilbao.

We also take this opportunity to announce the departure of AIYON Cadiz lawyer Encarnación Quevedo who has embarked on a new adventure in the world of administrative law with great enthusiasm, and always with all our support and good wishes. Good luck in this new stage, Encarni!

Saitec Entrusts Aiyon Abogados with the Expert Advice on its Offshore Wind Project DemoSATH

The Basque company Saitec Offshore Engineering has developed a novel technology for floating wind turbines called SATH.

This system will be tested in the DemoSATH project in open waters, specifically in Biscayan waters, in the BIMEP test area, off the coast of Armintza, to test its operation in real sea conditions, and it will also be connected to the electricity grid. In this way, all the necessary parameters will be tested before its mass commercial launch.

For the construction of the first prototype, Saitec has contacted local suppliers in every possible way. Thus, the company points out that around 75% of the construction contracts have been made with suppliers in the immediate vicinity.

Among these necessary suppliers is Aiyon Abogados, a law firm specialising in maritime law, which has collaborated in the DemoSATH project together with Saitec. Its work has focused on legal advice on the special contracts for the marine operations necessary for the launching of the floating offshore wind turbine, the installation of its anchoring system in BIMEP, as well as for its transfer to this test area and its subsequent connection to the submarine cable.

The collaboration has been very fluid, with constant communication and a very satisfactory result, as it has offered the necessary solutions to the challenges posed by the project. “They have shown total interest in collaborating beyond the scope originally proposed and are very resolute and will undoubtedly be one of our fundamental supports in the future, both in the legal and insurance areas”, says Esteban Núñez, from Saitec, during the guided visit he made to Mikel Garteiz-goxeaskoa, Zuberoa Elorriaga and Irantzu Sedano at the Port of Bilbao.

The technology of the prototype was developed entirely by Saitec Offshore Technologies, a spin-off of Saitec engineering, based in Leioa (Bizkaia), which dates back to 1989. As a differentiating element, the platform on which the tower and the wind turbine stand was built with concrete as the raw material. This first unit will be connected to the electricity grid, providing energy equivalent to the consumption of around 2,000 homes. The prototype will be installed two nautical miles off the coast and will be anchored to the seabed, in an area 85 metres deep.

The complex loading operation of the DemoSATH floating concrete wind turbine will be carried out by SPMTs, a system of trolleys that will bring the unit from the construction position to the edge of the quay where a self-submersible pontoon will be waiting for it. The 140m long barge “Boa Barge 33” will be submerged to float the assembly with the wind turbine installed at a height of more than 90m.

This operation will mark another milestone in the programming of critical events of the project, already developed or yet to come, in which nothing can go wrong and in which expert advice, such as that provided by Aiyon Abogados in its field, becomes indispensable.

Read article…

El Diario de Cádiz Highlights the Work of Aiyon Lawyers in Algeciras and Cádiz

El Diario de Cádiz has recently published an article highlighting the work carried out by Aiyon from its offices in Algeciras and Cádiz, its solid presence in the south and its active participation in the sector, not only as expert lawyers in Maritime Law, International Trade, Insurance or Transport Law, but also as teachers and trainers of the new generations being part of the teaching staff of the “Master in Legal Consultancy of Companies” taught at the University of Cadiz.

From its headquarters in Algeciras, José Domínguez Castro, partner and head of the firm, who in addition to being a lawyer has a degree in Nautical and Maritime Transport, a Diploma in Civil Navy and a Merchant Navy Pilot with accredited experience in passenger ships and ro-ro cargo, confirmed to the Journal that the local client is fully aware of the need of specialised lawyers to provide legal advice in the different areas of our speciality. We refer to all matters relating to trade, transport and insurance, and all that this entails in terms of the lawyer’s knowledge of the world of logistics, port handling, storage and warehousing, shipbuilding and ship repair, ship supplies and services, land transport, sanctioning procedures, insurance claims, etc. Legal advice is provided from a purely contentious point of view when the dispute has already arisen and in order to try to reach a negotiated resolution, or judicial if unavoidable, as well as from a previous moment in order to obtain preventive advice and avoid possible future risk situations.

Together with Enrique Ortiz, partner in charge of Aiyon’s office in Cadiz and expert lawyer, our colleagues have actively participated as speakers and trainers in Universities and companies. An example of this are the recent lectures on transport and insurance in the international sale and purchase given int June in the “Master’s Degree in Business Legal Consultancy” at the University of Cadiz. With regard to his teaching work, we would like to echo José’s words: “We have really enjoyed giving these conferences and we are grateful to the University of Cadiz for having counted on us for this Master’s Degree. With the regulatory selection we made and the case study method, taking advantage of our real experience, we think that the students have been able to acquire a global vision of real and common risks that arise in this complicated sector and how to advise their companies or clients so that they can prepare themselves in the best possible way and protect their interests when facing operations of this type”.

Read article…

The Importance of Insurance in Air Cargo Transport

Although air cargo transport may seem to cover only movement of special or very specific cargo, the truth is that it includes all types of goods and materials, including perishable goods or live animals.

Transport may require a single journey from origin to destination or involve several flights or transfers at different airports and countries. All of this in relatively short and, in principle, very competitive, but usually costly, timescales.

It is easy for a seller/shipper or a buyer/consignee of air cargo to fall into a subjective interpretation of the conditions governing it. In particular, and in relation to the security of this sector, in view of the stringent security measures to which citizens and their luggage are subjected on air journeys both in airport facilities and on aircrafts, it is natural to infer that this means of transport is extremely safe in order to move our goods from one country to another.

In this context, it is reasonable to think that cargo insurance is not perceived as necessary or relevant as it would be in other types of transport, such as maritime transport, with longer crossings and cargoes being subject to different manipulations by operators of all kinds, or in land transport, where shipments are exposed to damage due to breakdowns, delays, or theft. However, this is a line of reasoning that must be contested mainly because of two important issues:

(i) air cargo is subject to damage, delay and loss, even if the airports of origin, transshipment and destination are located in countries with high security measures and fully standardized protocols;

(ii) the international regulation affecting the carriage of air cargo protects the figure of the carrier by establishing limitations of liability that are applicable to them, in many cases even when the figures of fraud or gross negligence of the carrier may occur.

Specifically, if we look at the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 1999) and its subsequent amendments, it states that even when there may be intent or gross negligence on the part of the carrier in failing to comply with all types of security or safekeeping measures with respect to the goods or the ULD, the carrier always has the right to limit his liability to 22/SDR/kilo based on the weight of the damaged/missing cargo (updated in Spanish Official Gazette of 16/07/20). Therefore, if the limitation of the carrier’s liability is applied, the sums to be recovered by the affected shippers based on the wight limitation are usually low when, on the contrary, in most cases the value of the transported goods is high.

Although the Warsaw Convention is still in force in certain countries and at national level, we have the obsolete Air Navigation Act of 1960 regulating air cargo, and both regulations admit in certain cases the breaking of the carrier’s limitation of liability, we cannot forget that the Montreal Convention is of massive application, and specifically to all air transport between member states of the European Union. Moreover, as Spain is a party to the MC, if the non-EU country of origin or destination of the affected cargo has also ratified it, the transport will always be subject to it.

Therefore, in the absence of a prior express declaration of value with payment of a supplement to cover us to a greater extent in the event of damage/missing cargo, in our experience at AIYON, we consider it highly advisable to insure air cargo, which is not risk-free even at the most secure airports and at the hands of the most prestigious airlines.

Read article…

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.

Royal Decree-Law 3/2022 on measures for the improvement of road freight transport

In recent months, fuel prices have risen sharply following the start of Russia’s invasion of Ukraine. This is having serious consequences for the transport sector, among others.

Royal Decree-Law 3/2022 of 1 March was enacted to mitigate the effects of this rise, to ensure the sustainability of the road freight transport sector, whose structure makes it more difficult to adapt to unfavourable scenarios, and to combat unfair competition from “letterbox companies” that operate de facto outside their States of establishment.

Among the measures included in this Royal Decree-Law applicable to land transport are the following:

 

1.- Mandatory transport price review subject to fuel price variation

RDL 3/2022 amends article 38 of Law 15/2009, of 11 November, on the Land Transport of Goods Contract (“LCTTM”) relating to the revision of the price of road transport in accordance with the variation in the price of diesel fuel. In accordance with the new wording of the aforementioned article 38:

It is compulsory to revise the price of the transport contract in line with the variation in the price of fuel, either by an increase or a reduction in the price of fuel. Any agreement to the contrary shall be considered null and void.

This duty to review applies to all transport contracts, whether verbal or in writing, whether they relate to the performance of a single journey or to continuous contracts. In the case of single-trip transport, the review shall apply if the price of fuel has changed between the day of conclusion of the contract and the time of transport. In the case of continuous contracts, which will be more affected by this measure, increases or reductions shall be applied on a quarterly basis in relation to the initially agreed price, being possible to agree on a shorter period, but under no circumstances a longer one.

The review of the price of transport will be conditional on the price of fuel having undergone a variation of more than 5%, although the parties may agree on a lower threshold.

Only one revision formula can be applied, and it will be the same for all transport contracts. In other words, it is not possible for the carrier and its customer to agree on another formula. This formula is established in article 3.4 of the Ministerial Order FOM/1882/2012 of 1 August, which approves the general contracting conditions for the transport of goods by road. The formula depends on both the variation in the price of fuel and the maximum mass of the vehicle and applies a coefficient to the percentage variation in the price of fuel.

In continuous transport contracts entered into prior to the Royal Decree-Law, these revisions shall be made:

a) If the contract includes different review formulas, these formulas must be updated to the one set by the Administration within a maximum period of 6 months from the entry into force of the Royal Decree-Law.

b) For those contracts that do not include a price revision clause due to variations in the price of diesel, it shall be compulsory to revise the price of those transports carried out after the entry into force, considering the variation in the price of fuel in the last 12 months.

The variation in the price of fuel shall be reflected in the invoice in an itemised manner, unless another way of reflecting the adjustment is agreed with the client.

 

2.- Regulation of goods loading and unloading operations

Taking up a historical demand of the transport associations, the Royal Decree-Law introduces an amendment to the thirteenth additional provision of Law 16/1987, of 30 July 1987, on the Regulation of Land Transport (“LOTT”) prohibiting drivers of goods transport vehicles of more than 7.5 tons. of MAM (Maximum Authorised Mass), whether they are self-employed or salaried, to participate in loading and unloading operations carried out in Spanish territory of goods or their supports, packaging, containers or crates, except in the following cases:

(a) Transport of removals and furniture storage.

(b) Carriage in tank vehicles.

(c) Carriage of aggregates or carriage in tipper vehicles or vehicles fitted with a crane or other devices inherent to the vehicle for the purpose of loading and unloading.

(d) Carriage in vehicle carriers and roadside assistance cranes.

(e) Carriage of break-bulk, parcels and any other similar carriage

(f) Carriage of live animals.

(g) Cases in which the regulations governing certain types of carriage specifically provide otherwise in relation to the participation of the driver.

(h) Those cases established by regulation, provided that the safety of the driver is guaranteed.

This ban also applies to drivers of foreign transport companies operating in Spain.

Unlike the rest of the Royal Decree-Law, the entry into force of this ban will take place on 2 September 2022, so that loading and unloading centres can prepare themselves.

In relation to the above, the Royal Decree-Law amends article 20 of the Land Transport of Goods Contract. The new wording stipulates that loading and unloading will be for the account of the shipper and the consignee unless, prior to the actual presentation of the vehicle for loading, it has been agreed in writing that these operations will be carried out by the carrier against payment of a supplement to the price of the transport. This agreed consideration must be shown on the invoice separately from the carriage. As regards the stowage and unstowage of the goods on board the vehicles, these will be the responsibility of the shipper and the consignee respectively, unless they are expressly assumed by the carrier.

In the event that the parties agree in writing that the carrier will carry out the loading and unloading operations, and except in the case of one of the aforementioned specialities, a person other than the driver will have to carry out these tasks.

 

3.- Regulation of stoppages

The Royal Decree-Law also modifies article 22 of the Land Transport of Goods Contract on stoppages and reduces from two hours to one hour the period of time that a vehicle must wait for loading or unloading to be completed from the time it is made available under the terms of the contract.

The stoppage of the vehicle for reasons not attributable to the carrier, including loading and unloading operations, shall give rise to compensation equivalent to the Public Indicator of Multiple Effect Incomes (“IPREM”) per day multiplied by 2 for each hour or fraction thereof, with a maximum of 10 hours per day. If the stoppage is longer than one day, this amount shall be increased by 25% for the second day and by 50% over the amount indicated for the first day for the following days of stoppages.

The parties, however, may agree on a higher amount.

This amount shall also be used to assess the compensation to the carrier when the vehicle is paralysed due to an accident or breakdown for which the carrier is not responsible.

 

4.- Other amendments affecting transport companies and employees

Royal Decree-Law 3/2022 also introduces an amendment to Law 45/1999 of 29 November 1999, on the posting of workers in the framework of a transnational provision of services in road transport, imposing an obligation of communication in the case of the posting of drivers who are employees. This communication will be made by means of the form of the public interface connected to the Internal Market Information System (“IMI”) established in Regulation (EU) 1024/2012.

Finally, the Royal Decree-Law extends the system of penalties contained in Articles 140, 141 and 143 of the Regulation of Land Transport.

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.