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.

How Does Illegal Drug Trafficking Affect Transport?

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The most common way to bring illegal drugs in a country is by using the most common means of transport, such as airplanes used for air traffic, trucks used for land transportation, and ships used for maritime traffic.

When we think about how the entry of these illegal drugs can be developed in such a way that they cannot be detected in the transport from one country to another, in some cases it requires the active participation of the passengers and their luggage as essential elements that help the traffic, but in other cases the illegal cargo is hidden in containers or trailers, together with other regular cargo, in order to facilitate its transit. But there is an increasingly common phenomenon that we have been able to deal with at AIYON, which consists of the introduction of drugs hidden in the means of transport itself.

In their case, road haulage companies, especially those operating routs from Africa to Spain via the Strait of Gibraltar, face the increasingly common risk of having drug bales hidden on the outside of their trucks, specifically in the underbody, without the haulage companies or drivers being aware of it.

This operation seems to be carried out relatively easily and quickly, as the ways of placing the drugs range from fastening them to the axles of the truck with clips to placing them with magnets attached to the chassis, so that the illegal packages can be placed during any stop or rest of the driver’s journey. Although the truth is that sometimes it is not even necessary for the driver to be absent from the truck, as even when he is in the cabin, he may even not notice that there is someone under the truck (a phenomenon that also occurs when stowaways are transported).

It would be logical to think that, since it is the outside of the truck, a place in the vehicle to which anyone has access, the driver should not be held responsible until it is proven that he was the one who placed the drugs there or knew about their placement when transporting them, but the reality in the courts is quite different.  In fact, there are quite a few proceedings for crimes against the public health against truck drivers in which, after a routine inspection at border control, bundles of drugs are found and the drivers are finally convicted, even if it is not proven that they were the ones who placed the drugs there.

With regard to ships, the same problem can be detected when bales of up to 600 kilos are placed on the outside of a ship, attached to the hull below the waterline. Bales that require a complex operation, as it is divers who, at the port of origin, introduce the package into certain cavities of the ship so that they can face a sea crossing of several days and be picked up at the port of destination by other divers, without the shipowners or the crew having to be aware of it. It is a reality that there are certain ports around the world that require ships docking in them to carry out anti-drug inspection before putting to sea.

Once the problem has been detected by the police, the regular procedure carried out in the case of land transporters (whose involvement in the criminal act is often questioned more than in the case of shipowners) is to arrest the transporters allegedly involved and bring them before the police, and to proceed to the provisional weighing of the drugs by the police.

If after the provisional weighing, the quantity of drugs seized is considered notorious, the prosecutor will assess whether there is a risk of flight, the possibility of destruction of evidence and/or re-offending; having assessed this, he will draw up a report in which he will propose the measures he considers appropriate, including provisional imprisonment if necessary.

After an appearance in court on the tenth day and based on the weighing of the drugs, either Urgent Proceedings are initiated, i.e. without an investigation phase and with the possibility of an agreement with the prosecutor to pass sentence in the Examining Court, or Preliminary Proceedings in the event that they are requested by the prosecutor, issuing an Order for Abbreviated Proceedings in which a time limit is given for the written pleadings and defence. Finally, the Criminal Court, by means of an order, will admit or reject the evidence and set the date for the trial, with a subsequent sentence.

In view of this, surely the best advice we can give to carriers is to exercise extreme caution and, in the event that they are affected, to seek immediate advice from professional lawyers to best defend their interests.  

The Insurance Compensation Consortium and its Policyholders, with a Special Focus on Inland Road Freight Transport

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In this article we will analyse how the Insurance Compensation Consortium (hereinafter “CCS”) is legally configured, as well as some of the most common cases in which the CCS is related to land transport of goods, delving into the characteristics of the relationship established between the CCS and its insured parties.

The CCS was created in 1954, and is currently defined as a public business entity, framed in articles 103 and following of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector (LRJSP).

Public business entities are public law entities with separate legal personality, their own assets and autonomy in their management. As far as their financing is concerned, article 103 of the LRJSP states that “they are financed with market revenues, and that together with the exercise of administrative powers, they carry out service activities, management of services or production of goods of public interest, which are susceptible to payment”.

In addition, and as a peculiarity, it should be stressed that, although we are talking about public law entities, they are governed by private law. This is stated in Article 104 of the LRJSP, which specifies that “public business entities are governed by private law” and, specifically, it is also regulated in the CCS’s own regulations, in particular in Article 2 of Royal Legislative Decree 7/2004, of 29 October, which approves the revised text of the Legal Statute of the Insurance Compensation Consortium (hereinafter, “Legal Statute of the CCS”). Article 2 which, regarding the legal status of the entity, states: 1. The Consortium shall be governed by the provisions contained in these legal statutes (…). 2. It shall be subject, in the exercise of its insurance activity and, in the absence of special rules contained in these legal statutes, to the provisions of the revised text of the Law on the Regulation and Supervision of Private Insurance, approved by Royal Legislative Decree 6/2004, of 29 October, and in Law 50/1980, of 8 October, on Insurance Contracts. 3. The contracting of the Consortium is governed by private law, (…)”.

If we go to the Legal Statute of the CCS, we find the functions attributed to this public business entity in Chapter III, which is divided into a First Section covering its private functions in the insurance field, and a Second Section containing its public functions. Specifically, it is in the section relating to private functions where we find the different cases in which the CCS can be related to land transport of goods, which are as follows:

  • Compensate damage caused by extraordinary risks, understood as natural phenomena, or derived from events of political or social incidence, on the obvious condition of having subscribed an insurance policy for the persons or goods affected.
    This category would include, for example, all the damage suffered by the different tractor units and semi-trailers of hauliers as a result of the altercations and pickets during the strikes and stoppages of activity in the transport sector in March 2021, and which were about to be repeated in November 2022. These strikes or stoppages would fall under one of the extraordinary risks by being classified as “popular unrest”[1].
  • Assume the compulsory coverage of vehicles not accepted by insurance companies (e.g., those with foreign registration plates), as well as that of public bodies that request it. Also, compensate for damage caused by unknown, uninsured, or stolen vehicles. Think, for example, when there is a non-payment of premiums and the policy ceases to have effect after the legally established period of time[2], whether it is a private vehicle, a semi-trailer, a tractor unit or any other vehicle that causes damage.

Having analysed these two most common cases in which the CCS is related to land transport of goods, we consider it interesting to determine the characteristics of the relationship that the CCS establishes with its policyholders.

In this sense, our highest Court has been concluding since the 1990s that the relationship that exists between the insured and the CCS is contractual, provided that the insured has taken out an insurance policy with a Spanish insurance company under which the insured pays a surcharge on the premium in favour of the CCS. In such cases, the insured will be deemed to have two insurance contracts, one with the Spanish private insurer with which they took out the policy and the other with the CCS. However, both are instrumented in a single contract or policy, which is the one they sign with the Spanish private insurer.

The Supreme Court has also pointed out on several occasions that each of these two contracts has its own content and, as such, is subject to different legal regimes. Even so, the rules of the Insurance Contract Law will always be applicable to contracts entered into with the Insurance Compensation Consortium insofar as they are not provided for in its specific regulation, among others, the insured objects and their situation; the insured sum or the scope of the coverage; the amount of the premium, the surcharges and taxes; or the duration of the contract with expression of the day and time in which its effects begin and end.

Ultimately, a compulsory supplementary insurance contract is established between the insured and the CCS when the various surcharges on the premiums paid for the insurance are credited. That is why, in most cases, the liability of the CCS will be contractual. In the case of road hauliers, when policies are taken out for each insured tractor unit and/or semi-trailer.

In view of the above, we believe that it is absolutely essential for professionals in the transport sector to be aware of the characteristics of insurance policies, taken out directly or via their insurance brokers, and to review them periodically. This is because they contain intrinsic contractual rights and duties, of vital importance, which directly affect them as insured parties.

All of which is recommended in order to ensure better protection of the risks inherent in its activity and of the services provided to third parties in the event that they are affected by claims or incidents.

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[1] Defined by art. 2.1 k). of Royal Decree 300/2004, of 20 February, approving the Regulation on extraordinary risk insurance.

[2] Art. 15 of Law 50/1980 of 8 October 1980 on Insurance Contracts.

Aiyon, taking care of what is important

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Another year full of experiences.
Together we have faced and overcome every challenge.
You know that taking care of you is what gets us going every day.
The trust you place in us continues to thrill us.
Without it we could not have shared this path.
In these times when we are with our people.

We wish you a safe return home.

Aiyon
taking care of what is important
Merry Christmas and Happy New Year

AIYON Abogados collaborates with ISDE

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The ISDE Law Business School has been collaborating this year with AIYON Abogados in teaching the classes on Land Transport and Maritime Transport included in its postgraduate course offered under the title “Master in Business Law, Arbitration and ADR”.

Our partner in Madrid, Verónica Meana, was in charge of the asynchronous classes on Land and Maritime Transport and will soon be giving the in-person class on Maritime Transport, while our partners Enrique Ortiz (Cadiz) and José Domínguez (Algeciras) gave a lesson on Land Transport and Payment Methods, respectively.

This collaboration has given AIYON a new opportunity to take part in the learning process of new generations of professionals who will surely enrich the sector.

We would like to thank ISDE for this opportunity, which we hope will be the first of many.

AIYON Abogados Collaborates with ISEC

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In collaboration with the ISEC (Institute for Cargo Security), our partner in Bilbao, Zuberoa Elorriaga, took part in the III National Congress on Land Transport which took place on the 20th of October at the Centre for Traffic Management and Emergency Coordination of the Basque Country in Bilbao.

The Congress was opened by Ms. Sonia Díaz de Corcuera, Director of Traffic of the Basque Government and was aimed at members of the Local Police, Autonomous Police, Civil Guard and transport inspection technicians from the different Autonomous Communities, in order to provide them with continuous training and learning in the area of land transport, adapting to new regulations.

Together with the great professionals of the sector such as Andoni Gortazar, Francisco Fernández Sasiain and Juan Cantón Revuelto, Zuberoa took part in the presentation on Lashing Techniques, which covered a wide range of content on regulation, methodology, equipment, obligations and responsibilities, providing her vision on the role of the parties to the transport contract, and the best way for the inspection authorities to deal with the imputation of responsibilities or penalties to those involved in the stowage and lashing of cargoes.

AIYON Abogados would like to thank ISEC for giving us this opportunity, as well as for the excellent welcome received at the Traffic Management and Emergency Coordination Centre. We hope this is the first of many collaborations.

CIP and CIF – INCOTERMS® 2020 and Insurance

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In its Special issue on the XII Annual Congress of FETEIA-OLTRA (Spanish Federation of Freight Forwarders and Organisation for Logistics, Transport and Customs Representation), which will be held again between 29 September and 2 October in Algeciras, the “Canal Marítimo y Logístico” publishes an article by AIYON Abogados on INCOTERMS 2020 and Insurance, with particular attention to Incoterms CIP and CIF.

The INCOTERMS®, a term that refers to the acronym for “International Commercial Terms”, are a set of international rules, governed by the International Chamber of Commerce (ICC) since 1936, issued for the interpretation of the most used terms in international trade, and are widely used in international business throughout the world. They are neither a supranational legal norm nor a mandatory law; the ICC created them based on and with the objective of reflecting the uses and customs related to the international sale and purchase of goods at the time.

The INCOTERMS® regulate very important aspects of a transport operation such as the conditions of delivery of the goods, the distribution of risks and costs between the seller and the buyer, the contracting and payment of insurance for the goods, the passing of risk, customs formalities and the cost of transport. It is easy to see that they do not regulate aspects relating to jurisdiction and applicable law, the method of payment or the transfer of ownership.

Regarding the CIP and CIF terms, the main characteristic of these two INCOTERMS® in their 2020 version is related to insurance, insofar as they add to the seller the obligation to take out transport insurance for the goods during the international transport phase in favour of or on behalf of the buyer. The term CIF (Cost, Insurance and Freight) imposes on the seller the obligation to take out, in favour of a third party, the buyer, transport insurance with the minimum cover of the Institute Cargo Clauses, i.e., ICC (C), while the term CIP (Cost and Insurance Paid to), obliges the seller to take out, in favour of the buyer, transport insurance, in this case with maximum cover, ICC (A).

In those operations in which the INCOTERMS® CIF or CIP have been agreed, the cost and risk of the main phase of the transport is divided, with the obligation to contract the transport remaining with the seller, while the risk and, therefore, the insurable interest of the goods during the main phase of the transport falls on the buyer. In other words, the seller will have the insurable interest in the goods until they are loaded on board the ship at the port of origin (CIF) or until the goods are delivered to the first carrier or at the agreed place (CIP), while the buyer will acquire the insurable interest in the goods from that moment, i.e., from the beginning of the main transport phase.

Read the full article HERE

Changes in Land Transport Regulations

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On 14 September 2022, the “Organic Law 11/2022, of 13 September, amending the Criminal Code on reckless driving of motor vehicles or mopeds” was published in the Official State Gazette and “Royal Decree 750/2022 of 13 September, amending Article 3 and Annex I of Royal Decree 920/2017 of 23 October, regulating the technical inspection of vehicles“, with entry into force on 15 and 27 September 2022, respectively.

On the one hand, with regard to the amendments to Organic Law 11/2022 amending the Criminal Code in the area of imprudence in the driving of motor vehicles or mopeds, in general terms, it could be said that three new amendments have been introduced with the aim of reinforcing the spirit of the previous reform, that introduced by Organic Law 2/2019, of 1 March, amending Organic Law 10/1995, of 23 November, of the Criminal Code, on the subject of reckless driving of motor vehicles or mopeds and the penalty for leaving the scene of an accident, which provided the criminal justice system with greater legal certainty.

The first modification consisted in the reduction of the fine in the case of causing injuries through less serious negligence, which objectively require medical or surgical treatment of one or two months for their cure.

For its part, the second of the modifications has eliminated the requirement of a complaint by the injured party or their legal representative whenever death is caused by less serious negligence using a motor vehicle or moped, thus converting the offence typified in Article 142.2 of the Penal Code into a public offence.

And, thirdly, it has eliminated the possibility of imposing the sanction of deprivation of the right to drive motor vehicles and mopeds in offences of less serious negligence, stipulating that the imposition of this sanction is mandatory.

On the other hand, in relation to Royal Decree 750/2022 amending Article 3 and Annex I of Royal Decree 920/2017, of 23 October, which regulates the technical inspection of vehicles, two changes are introduced.

The first of these is the transposition into our legal system of the “Commission Delegated Directive (EU) 2021/1717 of 9 July 2021 amending Directive 2014/45/EU of the European Parliament and of the Council of 3 April 2014”, as regards the updating of the designation of certain categories of vehicles and the inclusion of eCall, an in-vehicle emergency system that automatically makes a free emergency call to 112 when a serious road accident occurs.

Finally, Royal Decree 750/2022, in its Single Additional Provision, increases, exceptionally and for a single time only, the period of validity of the next inspection date for vehicles affected by Order SND/413/2020, of 15 May, establishing special measures for the technical inspection of vehicles as a result of the situation caused by Rulings 1237/2021, of 18 October 2021, 1243/2021, 1244/2021 and 1246/2021, of 19 October 2021, of the Third Chamber of the Supreme Court.