AIYON Abogados Moves to New Office in Algeciras

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AIYON Abogados recently gathered in Algeciras part of its team of eight professionals from its offices in Madrid, Bilbao, Cadiz and Algeciras to inaugurate its new location in Algeciras and to share with its customers in the Algeciras enclave the good news that always comes with the opening of new facilities and the incorporation of a new professional to the team, as is the case of Rocío López.

Along with local lawyers Jose Antonio Domínguez and Rocío López, the event was attended by partners Mikel Garteiz-goxeaskoa and Zuberoa Elorriaga, from the Bilbao office; Madrid partner Verónica Meana; and partner and head of Cádiz, Enrique Ortiz, with his colleague Pablo Sánchez.

José Antonio Domínguez, director of the Algeciras office, frames these new developments in the firm’s commitment to improve the service provided to its clients in the area of influence of the Port of Algeciras, among which are shipowners, insurance companies, inland hauliers, forwarding agents, shipping agents, logistics operators, stevedores, shippers and, in general, all types of companies dedicated to international trade and the transport of goods.

“The strategic importance of Algeciras, where our clients have a very important presence, justifies the growth of our team and the improvement of our facilities,” says José Antonio Domínguez, partner in charge of the office.

Algeciras, a strategic location
As one of the most important ports in Spain and located on one of the strategic routes for international trade, the Port of Algeciras is key both for North-South traffic, with an abundant flow of goods to and from Morocco on the various ro-ro shipping lines operating in the Strait of Gibraltar, and for East-West traffic on the major containerised goods traffic routes, being an important hub port.

Algeciras is, on the other hand, a very important bunker or bunkering port in the Mediterranean, with shipyards and an anchorage where ships can make provisions or carry out repairs of all kinds.

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AIJA is held in Athens (Greece) with one of our lawyers as speaker

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As planned, the AIJA (International Association of Young Lawyers) Transport Seminar took place in Athens on 14-16 September.

It was a joint event in which the Arbitration Commission and the Public Procedure Commission also participated, bringing together more than 150 young international lawyers. Among them were our colleagues from AIYON Algeciras and AIYON Bilbao, Rocío López and Irantzu Sedano respectively. The latter is an active member of AIJA.

Both lawyers enjoyed six conferences dealing with relevant and topical issues in the transport sector, with the contribution of more than twenty professionals and experts in the field. Among them, the talk on “Blockchain”, “Double Twins” and Autonomous Transport, in which our colleague Irantzu Sedano actively participated as a speaker along with other colleagues from the association, deserves special mention.

In addition to the conferences and the work carried out by the commissions, the participants were also able to enjoy a wide range of leisure and local culture in their free time.

We would like to thank AIJA, and the entire organising committee of the event, for their work and dedication in carrying out this type of international event, which undoubtedly contributes to enriching greatly the transport sector and the professionals that make it up.

Practical Application of the Law on Late Payment in Land Transport (Law 13/2021)

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The partial amendment of the Land Transport Law for the purpose of combating late payment in the field of road freight transport by application of the content of Law 13/2021, of 1 October, arose, among other reasons, from the need to solve the problem of late payment of commercial transactions in Spain, which amounts, let us remember, to an average of 90 days and is therefore in breach of the European regulations applicable to these transactions.

With effect from 3 October 2021 and on the general basis that any agreement on payment terms longer than 60 days can be considered null and void, even in companies belonging to the same group, this law creates a new type of offence providing for penalties for those cases in which the legal maximum payment limit is not respected and therefore does not comply with the provisions of Law 13/2021 (article 4) and the Land Transport Law (article 140).

Having said that, we can currently state that this regulation is already having tangible practical consequences, as in Aiyon we have had several consultations related to administrative sanctioning proceedings initiated by the General Directorate of Land Transport against road transport companies, in their capacity as subcontractors of land transport with other effective carriers.

Thus, following inspections carried out locally by the Administration in certain land transport companies, it has been observed that their contractors did not pay the invoices issued for their services within this 60-day period, which is why the inspection has initiated infringement proceedings against the debtors, warning them of this breach of the applicable regulations.

Administrative sanctioning proceedings which, although they can be defended, do not leave much room for refuting the position of the administrative inspector since, when this legal limit is exceeded within the different parameters for calculating the sixty days, little can be said in defence of the debtor’s position.

The fact that there is an agreement, express or implied, between the two carriers involved to relax this time limit upwards, or that there is a prior dispute between shipper and contract carrier that prevents the contract carrier from charging for the carriage, which could be considered a reason to condition the payment of its service to the actual carrier, we do not consider these to be valid excuses in law to justify the use of a longer payment period.

Once the accounts of a transport company have been randomly inspected, or after a complaint by the creditor, the Directorate General for Land Transport will notify those companies that have paid invoices outside the legal deadline of the initiation of the corresponding sanctioning procedure against them, proposing penalties which, in our experience, have ranged between € 2, 001.00 and € 3,000.00  (depending on different factors such as the excess over 60 days, the number of invoices pending payment, etc.), being classified as very serious offences under the Land Transport Law.

In view of the above, it is important to remind operators of the importance of respecting this regulation and of always regularising outstanding payments to road hauliers within the non-mandatory legal deadline (60 days), establishing internally adequate measures to avoid being sanctioned now or in the future.

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Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus (Interbus Agreement)

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As we know, the policies of the European Union and its contracting states always and everywhere promote international passenger transport in and through Europe.

It is a fact that European tourism has been increasing for years and continues to grow. The contracting parties to the Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus have therefore extended the scope of application of the Interbus Agreement to include regular services and special regular services under certain conditions, as it has hitherto covered only occasional services.

This new Agreement has been negotiated between the European Commission and other fourteen third countries outside the European Union, thus regulating transport between the EU and these signatory countries.

The main features of the Agreement include the following:

  1. The liberalisation of regular services, and regular services subject to authorisation, should apply only to services to or from the contracting party of establishment of the road transport operator in which his vehicles are registered.

As a general rule, regular services shall be available worldwide, subject to compliance with the obligation to settle where appropriate.

  1. Regular or scheduled services to and from the same Contracting Party may not be operated by carriers established in another Contracting Party.
  2. They are extended to regular services, which are services that ensure the transport of persons with a specified frequency and route. These services can pick up and set down passengers at predetermined stops.

Special regular services mean regular services which provide for the carriage of specified categories of passengers to the exclusion of other passengers. These services shall include, inter alia, carriage to and from the place of work for workers and carriage to and from the educational institution for school pupils and students.

  1. The principle of non-discrimination on the grounds of nationality or place of establishment of the transport operator, and of the origin or destination of the coach or bus, and/or of the service provided, is prioritised as a basis for the provision of international road passenger transport services.
  2. It is necessary for the Contracting Parties to apply uniform social measures concerning the work of crews of buses and coaches engaged in international road transport, which are governed by the rules enshrined in the Interbus Convention, to which this Protocol should refer.
  3. The technical conditions applicable to buses and coaches operating international services between the contracting parties should be harmonised and should be governed by the rules enshrined in the Interbus Agreement.
  4. Carriers established in the European Union require an authorisation issued by the competent authority of the Member State of origin or destination of the transport.

Authorisations shall be issued in the name of the carrier and shall not be transferable.

The maximum period of validity of the authorisations shall be 5 years, and the minimum content of the authorisation shall include aspects such as: the type of service; the route; the period of validity of the authorisations; the stops and timetables.

These modifications are just some of the new guidelines for action implemented by the European Union to continue promoting cultural exchanges between the contracting parties to this

Pablo Sánchez joins the Aiyon Cádiz office

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After the latest incorporation of the lawyer Rocío López to Aiyon Algeciras, who attends the local office together with the partner in charge of the same José Antonio Domínguez, our office now incorporates a new support member in the office of Aiyon Cádiz.

The specialized publication “El Canal Marítimo y Logístico” outlines that, having completed a prior training phase in collaboration with the rest of the firm’s team, and in full collaboration with the partner in charge of Cádiz, Enrique Ortiz, Pablo Sánchez is now a permanent part of Aiyon Abogados working as a lawyer from the Aiyon Cádiz office.

Cádiz and its port, with a strategic geographical location, reflects the relevance that the maritime and logistics sector in general have in the province. It is a fact that the Port of the Bay of Cádiz, in conjunction with the port of Algeciras, has positioned itself as the southern gate of Europe and the entrance to three continents.

Connected by land through road and rail access, and by air through the local airports of Jerez and Seville, the port infrastructures of the bay of Cádiz offer the best services and have include relevant companies linked to the logistics sector and maritime transport. In fact, Cádiz, together with Puerto Real and Puerto de Santa María, is home to four commercial docks, two fishing ports, as well as shipbuilding, off-shore and aeronautical repair and construction centers, and various nautical-sports complexes with great activity.

The offer is completed with a Customs-Free Zone, a Maritime Station for passengers and constant entry of cruise ships, a Border Inspection Post, a Traffic Control Center and an Integrated Communications Center, among other infrastructures and services.

That is why Cádiz 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, being part of the board our partner Enrique Ortiz, or Comport-Algeciras Port Community, among other.

The new member of the firm Aiyon Abogados SLP, Pablo Sánchez, is graduated in Law from the University of Cádiz – UCA (2014) and member of the Illustrious Bar Association of Cádiz. In addition, he holds a Master’s Degree in Maritime-Port Business Management and Maritime Law from the University of Deusto (2018) and the Master’s Degree in Access to the Legal Profession from the UCA (2016), being awarded the prize for the best file in the latter.

Pablo Sánchez completed an internship for six months in a law firm in Dublin (Ireland), where he came into contact with European immigration law and its extensive jurisprudence, in a turbulent period such as 2017 due to the uncertainty generated by Brexit. His first professional contact with the world of maritime-port companies was at the beginning of 2018 in Bilbao, where he did an internship in a freight forwarding company well established in that city, specifically in its maritime export department, which would later lead to two fruitful years of experience in it, thus knowing first-hand maritime export/import, with all the vicissitudes that these suppose at an operational level.

At Aiyon, Pablo Sánchez now develops his vocation as a maritime and transport lawyer, specializing in the management of insurance claims, administrative sanctioning procedures against ships, recoveries, labor relations of sea workers (SOLAS Convention) and land transport claims (CMR), among others, since the firm offers a “360º Service” without limiting itself to its areas of specialization (Shipping – Transport- Insurance – Trade), thus providing solutions to its clients in all areas and according to their needs.

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Damage to Cargo During Carriage by Sea Covered by CMR Consignment Note

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The International Convention for the Unification of Certain Rules Relating to Bills of Lading of 25 August 1924, better known as the Hague-Visby Rules, is the law applicable to contracts of carriage made “in a bill of lading or any similar document serving as a document of title for the carriage of goods by sea“, which means that its provisions apply to claims arising out of any damage or loss, preservation, stowage, carriage, supervision and discharge of cargo.

On the other hand, the Instrument of Accession of Spain to the Convention on the Contract for the International Carriage of Goods by Road (CMR), done in Geneva on 19 May 1956, shall apply to claims arising from land transport contracts formalised under the CMR document. For national transport, Law 15/2009, of 11 November, on the contract of carriage of goods by land, shall be applicable.

Both regulations provide for different regulations in their fields of application which, apart from general features such as the limitation of the carrier’s liability, are quite different.

This does not seem to pose a problem when both means of transport are not combined; however, the issue becomes more complicated when we find cases, much more common than might be imagined, in which different means of transport coexist to carry out the transport of certain goods under a single transport document (land – air – land // land – maritime – maritime, etc.).

In this specific case we will analyse, we are dealing with the transport of goods on a lorry, loaded in a factory in Burgos and bound for Cheltenham (United Kingdom), in which the need arises to load it onto a ferry from Santander to Portsmouth (United Kingdom) to complete the transport by sea crossing the Cantabrian Sea. There is a maritime transport, but this international transport contract is documented in a consignment note governed by the CMR Convention. In this case, which law will be applicable to damage occurring during the maritime transport phase, the CMR Convention or the Hague-Visby Rules?

Article 2.1 of the CMR Convention stipulates that in cases where one of the stages of a carriage covered by a CMR consignment note is carried by sea, without freight interruption, i.e. without unloading the goods, the CMR Convention will apply (complete transfer of the load with the truck or trailer); however, this regulation will not apply when the freight is interrupted, as in the case of a container, initially loaded on the platform of a truck, which is then loaded on board a ship, and subsequently reloaded onto another truck trailer.

Nor does the CMR Convention apply where it is proved that, in a carriage under a CMR consignment note without freight interruption, damage has occurred during the maritime phase; in this case, the potential liability of the road haulier will be determined in the way liability has been established for the maritime carrier.

In conclusion, for the law governing the non-road means of transport, in our case the Hague Visby Rules, to apply, it is required that the loss or damage was not caused by an act or omission of the road transport operator, and that such loss or damage could only have occurred during the carriage of the road vehicle on board the ship.

In any case, the identification of the applicable law is of vital importance, especially in terms of statutes of limitation and/or lapse of time, protests, or actions to be taken. Each case should be studied with the support of experts in the field.

WISTA SPAIN Annual Meeting, Algeciras 2023

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Last Friday 12 May, in the Millán Picazo Auditorium located in the Port of Algeciras, the Annual Conference of WISTA Spain took place under the title “Strait of Gibraltar: Bridge of Cooperation”, which was attended by our colleagues from Bilbao and Algeciras, Zuberoa Elorriaga, José Antonio Domínguez and Rocío López.

During the conference, the speakers, first-class professionals, carried out a reflective analysis from an eminently institutional perspective on the bilateral relations and cooperation between Spain and its neighbouring country, Morocco; two countries that cooperate as well as compete in the transport and logistics market. The advantages of the strategic location of the Strait of Gibraltar and the Port of Algeciras were also highlighted.

The presentation on the relevance of the Operation Crossing the Strait from the perspective of passengers and land transport was also quite useful, and somewhat more practical, in which details were given, among other topics, on the management of this operation in the ports of Algeciras, Ceuta and Morocco, as well as on the problems and traffic volumes, among others.

Finally, it is worth highlighting the interventions in relation to global trade and the transformation of freight traffic in the Strait of Gibraltar.

Without a doubt, WISTA Spain provided a great meeting opportunity, as well as fostering the pooling of knowledge and experience between local and national operators and highlighting the importance of women in the maritime and transport industry.

AIYON Abogados, and specifically its partners Zuberoa Elorriaga, José Antonio Domínguez and Rocío López, would like to thank WISTA Spain, and in particular the WISTA colleagues from Algeciras and Cádiz, for the excellent organisation of the event, which was very well attended.

AIYON visits the Port of Baiona and meets with the French association of transporters O.T.R.E.

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We would like to thank the Chamber of Commerce of Baiona for the excellent welcome we received during our visit to their port facilities on Wednesday 15th, a port that is currently undergoing a process of intense growth following the approval of important investments, which will greatly improve the area and will undoubtedly attract more traffic.

Zuberoa Elorriaga, from AIYON Bilbao, together with Sonia García acting as President of the Transport Business Association of Bizkaia (ASETRABI), met yesterday, Wednesday, with the commercial manager of the port of Baiona, Mr. Joxan Madinabeitia, who, as representative of the Chamber of Commerce and Industry of Baiona – Basque Country (CCI Bayonne Pays Basque), is working to establish a better understanding in cross-border logistics and wants to promote the possibilities of collaboration between companies and associations on both sides of the Basque-French border.

After visiting the port and getting to know the local traffic, the three of them had the opportunity to enjoy an interesting lunch with Mrs. Caroline Auge, head of the French hauliers’ association O.T.R.E. for the 64th (Pyrénées-Atlantiques area) and 40th (Landes area) departments. O.T.R.E. is the French representative organisation for small and medium-sized transport companies in France, grouping together more than 3,000 companies and 75,000 employees, and since 2021 it has been a member of the European Road Hauliers Association (UETR).

This lunch allowed them to share and discuss the realities experienced in each country in relation to road transport, as well as the new regulations being promoted by the European Union. Both associations considered this visit a good opportunity to establish the basis for future collaboration, with AIYON’s support and legal assistance when required by the heads of the associations or their members.

It should be recalled that AIYON is the firm of reference for ASETRABI and its associates in the areas related to land transport, insurance and other matters involved in its activity.

Royal Decree-Law 14/2022 of 1 August and its Most Significant Developments in the Field of Land Freight Transport

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As reflected in the Preamble of Royal Decree-Law 14/2022, of 1 August, on economic sustainability measures in the field of transport, in terms of grants and study aids, as well as measures for energy saving, efficiency and reduction of energy dependence on natural gas (hereinafter RDL 14/2022), the land freight transport sector in Spain is made up of small companies (53% of companies with heavy goods vehicles have only one vehicle), which exacerbates the difficulties that small road transport operators may have in adapting to scenarios in which sharp increases in transport costs occur unexpectedly and unpredictably (such as fuel, due to inflation and the war in Ukraine, or tyres and spare parts in general). This calls for greater intervention by the public authorities to guarantee the proper functioning of an activity that represents around 2% of Spanish GDP.

It is for this reason that on 2 August 2022, RDL 14/2022 came into force, which came to modify precepts of the national land transport of goods regulations such as Law 15/2009, of 11 November, on the Contract of Land Transport of Goods and Law 16/1987, of 30 July, on the Organisation of Land Transport.

Title I of RDL 14/2022 refers to land transport measures, and with the legislator’s objective in mind of guaranteeing that the price of transport be higher than the actual individual costs and expenses borne by the carrier, it has been considered necessary to require written documentation of transport contracts for a single consignment made with the actual carrier, provided that these exceed 150.00 euros, as well as of those contracts for continuous transport.

Similarly, it is now required that the transport price with reference to the related costs be expressly stated in the transport document, requiring that the transport price be equal to or higher than the actual individual costs incurred by the carrier (art. 1 RDL 14/2022 amending art. 10 bis Law on the Contract of Land Transport of Goods referring to the transport document in contracts concluded with the actual carrier).

This reformed article 10 bis of the Law on the Contract of Land Transport of Goods states that, in order to determine the actual cost of transport, it is possible to “take the time reference that best suits the carrier’s forecasts and business strategy”; in other words, a fairly flexible criterion has been chosen that allows the carrier to vary and adapt the cost of transport to the circumstances of the moment, or if desired, to the prices of the moment, and thus reflect it in the consignment note.

To translate the above into the daily practice of hauliers, and to know which costs can and cannot be included in the transport documents, we must refer to the new ninth additional provision of the Law on the Contract of Land Transport of Goods introduced by RDL 14/2022. This states that, in order to determine the actual individual cost of transport provided by the actual carrier, the cost item structure of the observatory of road freight transport costs drawn up by the Ministry of Transport, Mobility and the Urban Agenda will be valid. This cost item includes:

  • Depreciation costs of the different elements (tractor units, trailers, semi-trailers and auxiliary equipment);
  • Annual financing costs of the different elements purchased;
  • Costs of driving personnel;
  • Vehicle insurance costs;
  • Tax costs;
  • Fuel costs;
  • Urea dilution costs;
  • Tyre, maintenance and repair costs;
  • Driver’s per diem costs;
  • Toll costs;
  • Indirect costs that can be passed on to each vehicle (such as fleet management software).

Consequently, we would recommend that all land transport operators have these costs perfectly identified in a general way for their entire fleet (pro rata for each vehicle) and that, subsequently and for each specific transport, they take “the time reference that best fits the carrier’s business strategy and forecasts” and adapt these costs, as if they were a tailor-made suit, in order to reflect them in the consignment note and ensure that the price they will finally charge for the transport is higher than the costs and expenses of the transport.

Finally, it should be noted that, if these costs are not reflected in the consignment note, in accordance with Article 13 of the Law on the Contract of Land Transport of Goods, this absence or irregularity in the consignment note provided for in Article 10 bis does not render the contract non-existent or null and void, and that the omission of any mention of Articles 10.1 and 10 bis.1 does not render the consignment note ineffective.

AIYON Abogados participates in the Special Supplement on Transport and Logistics of El Correo

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On the occasion of the celebration of the “Empack and Logistics & Automotion” trade fair, which will take place at the Bilbao Exhibition Centre (BEC) in Bilbao on 1 and 2 March 2023, the newspaper El Correo has prepared a special on Transport and Logistics with the collaboration of our firm.

AIYON has prepared the article “Why is adequate legal advice necessary for transport companies“, which aims to explain the need for the legal advisor to take an active part not only in the dispute resolution phases or claims that clients may require, but also in the previous phases of consultation, advice or processing. In any case, accompanying the operators in the logistics chain in an active and participative manner, trying to avoid possible setbacks in the development of their work, or to tackle problems, optimising their work as much as possible.

This collaboration is also accompanied by the participation as moderator of our partner from Bilbao, Zuberoa Elorriaga in the round table organised by the Basque Institute of Logistics and Sustainable Mobility (IVL/LEE) for the 2nd of March under the title “Present and Future of Land Freight Transport in the Basque Country”, in which Zuberoa will share space with professionals such as Sonia García – President of ASETRABI, Almudena Palomera – Manager Director at TUBACEX, Iñaki Cepeda – Manager of the GUITRANS Foundation, Inmaculada Ugarteche – Director of UNIPORT and Antonio Jaraices – Director of Organisation, Communication and Corporate Strategy at EUSKOTREN.