Verónica Meana and Mikel Garteiz-goxeaskoa participate once again in the Master’s Degree in Business and Maritime Law of the Spanish Maritime Institute

Verónica Meana and Mikel Garteiz-goxeaskoa, partners of the AIYON Abogados’ offices in Madrid and Bilbao respectively, are once again members of the team of lectures  teaching at the Master’s Degree in Business and Maritime Law of the Spanish Maritime Institute.

Aimed particularly at graduates in Law, Economics and Business Administration, Seamanship and Naval Engineers who want to develop their work activity in the maritime sphere, this master’s degree is also intended for the professionals of the sector who want to acquire practical and updated expertise.

The master’s degree, which this year celebrates its 38th edition, collaborates with the Faculty of Law of the Universidad Pontifica Comillas and brings here together prestigious maritime lawyers. It comprises of 500 class hours, will start in October and will run until June 2022.

Verónica Meana joins the Arbitration Team of the Madrid Bar Association

Verónica Meana Larrucea, partner in charge of the AIYON Abogados’ office in Madrid, has recently joined the Arbitration Court of the Madrid Bar Association.

The arbitrators are appointed by the Arbitration Court at the proposal of an Evaluation Committee designated by the governing body of the Bar Association after considering their curriculum and eligibility.

Since her nomination for the area of Maritime and Transport Law was accepted, Verónica will participate together with the other fifteen members in the resolution of the conflicts that may arise within this sphere.

Impact of COVID-19 in the operation of vessels arriving at Spanish ports: obligation to isolate or confine “Close contacts” in case of infection of a crew member and the “Free Practique”

Air and Sea Workers, and the Reduction Coefficients

Workers in the transport sector generally endure difficult working conditions due to the long periods of work they must perform away from their homes, the distance from their families, the arduous schedules and, on occasions, the dangerous and unhealthy nature of their work; in short, the working conditions of all these workers could be defined as, at least, complicated.

In view of this reality, different Social Security systems in various countries have provided early retirement procedures for those workers who, foreseeably, suffer a deterioration in their health and put their physical or psychological integrity at risk in the performance of their professional duties. Good examples of this are workers of maritime and air transport sector, who we will focus on in this article.

In accordance with the above, different international regulations establish regimes for taking early retirement, i.e., they apply what in Spain are called “reduction coefficients” (COE).

These “reduction coefficients” of retirement pensions are coefficients that are applied to determine the amount of the pension when there has been an early retirement allowed by the Special Regime for Sea Workers (RD 1311/2007 of October 5) for example, or the Special Regime for Flight Personnel or Aerial Work (RD 1559/1986, of June 18). But when and how should these reduction coefficients be applied?

They will be applied exclusively when the worker has considered it necessary to lower his retirement age. The period of time during which the worker’s retirement age is lowered will be counted as having contributed for the sole purpose of determining the percentage applicable to calculate the amount of the retirement pension. In other words, the objective of the COE is none other than to compensate for the effects that retirement at an earlier age has on the amount of the retirement pension.

That is to say, if the worker has not considered it necessary to lower the retirement age, it will not be possible to apply the reduction coefficients to increase the amount of the pension to be received by the worker.

This explanation is supported by Supreme Court Ruling 807/2021, of July 20, 2021, which concludes that the reduction coefficients cannot be computed when the worker is 65 years old, since, in that case, he would be receiving a higher pension than the one he would have obtained if he had retired at 65 years of age. Since he/she is not entitled to the application of the reduction coefficient for being over 65 years of age, the reduction coefficient will not be recognized for the calculation of the pro-rata contribution percentage.

For this reason, we recommend that all workers who may be affected by the early retirement age and, therefore, by the application of the reduction coefficients be appropriately informed and advised by professionals on the optimum age at which to retire and the resulting contribution percentage at the time of retirement.

The concepts of Proper and Improper Solidarity

The professional sector sometimes tends to be ambiguous and complex and, despite the generous regulations in this respect, it is well known that labour relations between employers and employees are not always clear or properly defined.

In addition, subcontracting is very common, both via temporary employment agencies and between companies in the same group, which provide services to each other or exchange workers.

In this scenario, when a worker suffers a contingency arising from his or her work, whether it is an accident at work or a long-term illness, there is sometimes the need to resolve liabilities which should be undertaken by the employers and those responsible for them. However, it is not always clear to whom the claims should be addressed, or whether it should be done individually or jointly.

In this article we will try to shed some light in this regard by analysing the differences between the so-called Proper and Improper Liability, since the application of one or the other can make vary the party against which the claim must be initiated. Likewise, the differentiation of both figures is particularly relevant as it determines the causes that interrupt the prescription of the obligations of the possible “joint and several debtors/claimants”.

Proper Solidarity originates in an expressed or implicit agreement between the parties, or under the provisions of a law or a contract and is regulated by Articles 1.137 et seq. of the Civil Code.

Improper Solidarity, unlike proper solidarity, is not established by agreement between the parties or because a law or specific rule determines so but it is a “procedural” solidarity that originates and is delimited in the sentence itself, without the existence of such a figure prior to the sentence. Thus, case law applies the term improper solidarity to refer to those cases in which two or more persons are obliged to repair the same damage, regardless of whether all of them have caused or contributed to the damage in the same action or by concurrence of causes.

In other words, this improper solidarity derives from the nature of the obligation to compensate non-contractual damages and is established by doctrinal and jurisprudential criteria. Thus, there are numerous judgments of the Supreme Court that have shared an interpretative criterion, among others the STS Civil of 14 March 2003, STS of 18 July 2011 and the STS of 29 November 2010.

In this case, we would like to focus on the recent Judgment of the Supreme Court, Social Division, no. 1822/2021 of 6 May 2021, which deals, among other issues, with the determination of the causes that interrupt the limitation period for the obligations of joint and several debtors.

It states that, first of all, it must be determined in which cases there is joint and several liability between the parties. This determination will vary if we are referring to solidarity in matters of administrative, civil or other liability. Focusing in this case on civil liability, solidarity can only be inferred from the contributory culpability of the employers in the origin of the accident, without there being a prior rule that imposes it.

This is why the Court understands that we must necessarily begin with the consideration that we are dealing with a case of non-contractual culpability involving a plurality of agents without a specific delimitation of the degree or participation of each of them, being applicable the case law doctrine that has been admitting in such cases the so-called improper solidarity. Thus, and as the existence of the required connection or dependence between companies has not been accredited, the interruption of the limitation period with respect to one company can hardly be extended to the other company involved. Therefore, article 1974.1 of the Civil Code will not be applicable in this case, as there is improper solidarity between the two companies, which means that the interruption of the limitation period by the exercise of the action only applies to the debtor (company) against which the claim is made, not against the company not claimed against, but which also affects the employment relationship.

In conclusion, the Social Division of the SC determined in the case under analysis that:

  1. In the present case that we are dealing with a clear case of improper solidarity between the parties liable for the tort, with a plurality of agents and concurrence of a single cause that does not originate in law or in an express or implicit agreement between the parties but arises with the sentence of conviction.
  2. The consequence of this classification is the non-application of article 1974.1 of the Civil Code; therefore, the claim made against the employer (E.) does not interrupt the statute of limitations with respect to the action brought against the principal employer (V.D.E.).

This interpretative criterion is firm and has been maintained in a large number of judgements of the SC and in the lower courts. A clear example of this is Judgment no. 256/2021 of 19 July, delivered by Social Court no. 5 of Bilbao regarding a claim for civil liability against several companies jointly and severally, aimed at obtaining payment of damages arising from breach of the contractual obligation to protect a seafarer from occupational risks (contact with asbestos); a ruling in which the statute of limitations of the action against one of the employers of the affected worker was confirmed, and it could not be considered that the interruptive action brought against one of the companies automatically affected the rest.

Informative Talk on Maritime Law for Ship Repair Companies of Tenerife

Last May, in cooperation with our law firm, the Provincial Association of Auxiliary Companies of Ship Repair and Shipbuilding, (ATIREN-CONNAVALTE), member of FEMETE (Provincial Federation of Metal Companies and New Technologies of Santa Cruz de Tenerife and Training within Metal Sector of Tenerife), offered to its members the first formative seminar on Maritime Law, expecting it to be the first one from many others that will follow it.

During the presentation, the speakers addressed the concept of ship repair contract, its diverse models and overall requirements. They also discussed arrest of ships and the right of retention as a legal guarantee for recovery of maritime liens, that companies devoted to works or supply of parts /raw material on different vessels which they work for might have.

Our partners of AIYON Abogados located in the offices of Bilbao and Algeciras, Zuberoa Elorriaga, José Antonio Domínguez and Mikel Garteiz-goxeaskoaactively participated in this informative talk, remaining at the disposal of the companies of the association, or third entities, for resolving any question or inquiry.

From AIYON Abogados we would like to thank to ATIREN-CONNAVALTE for the opportunity we were given, hoping that this cooperation will continue in the future.

 

New website of AIYON Abogados on Ship Arrest

AIYON Abogados has launched a new website devoted to the management of the ship arrest, both to request its lifting as well as to proceed with its execution. Thus, those interested in learning about and, when needed, in using this efficient legal tool that guarantees the recovery of a debt (International Convention on Arrest of Ships, 1999) may obtain all relevant information on www.shiparrestrelease.com

The concept of arrest of ships entails the detention of any kind of vessel by judicial authorities in cooperation with maritime authorities of the place where the vessel is located. Given the usual brevity of the vessel’s port call and the internationality of the maritime sector as well as of its operators, the possibility to take an anticipatory and urgent legal action, such as arrest of ships, allows for an easy recovery of a debt from shipowners and shippers. The same urgency involves the reverse procedure when the action is taken from the position of shipowners and shippers. 

Our multidisciplinary team of lawyers, comprising of professionals of renowned prestige and with a large trajectory as experts in Maritime Law is here at your entire disposal to assist any query or initiate any action related to ship arrest or to arrange the lifting of the measure on a vessel.    

Royal Decree 339/2021, of May 18, regulating the safety and pollution prevention equipment on recreational craft

From the relentless technological evolution of the equipment to be installed on recreational craft along with the latest update coming from Europe on recreational craft and marine equipment, derives the new Royal Decree 339/2021 of May 18, regulating the safety equipment and pollution prevention of recreational craft  published today May 19, 2021, and whose entry into force is set for next July 1, 2021.

For the purposes of this RD, recreational craft will be considered all types of vessels which, regardless of their means of propulsion, have a length between 2.5 and 24 meters, have been designed and intended for recreational and sporting purposes, and which do not carry more than 12 passengers.

The main objectives include, on the one hand, the determination of the equipment for the prevention of pollution of the marine environment and the safety equipment for navigation, rescue and fire protection, as well as the distinction of the requirements for such equipment. And, on the other hand, the establishment, in a clear and precise way, of the obligations of the shipowners in relation to them.

Regarding the novelties included in this Royal Decree, developed in six chapters and several final provisions, the extension of its scope of application stands out (art. 2), which will be extended: (i) to recreational vessels that are registered or pre-registered in Spain; (ii) to those that carry out an activity for commercial or lucrative purposes in maritime waters in which Spain exercises sovereignty, sovereign rights or jurisdiction, regardless of their flag State; (iii) and that navigate in Spanish internal maritime waters or the Spanish territorial sea, regardless of their flag State, and that are owned or have their use and enjoyment, natural or legal persons with residence or registered office in Spain.

Therefore, it will apply even to those vessels that, flying a foreign flag, sail through Spanish waters and the owner or the person who is actually using the vessel has a connection with Spain. As can be deduced, the aim is to avoid the escape of recreational vessels to foreign flags with more lax requirements in terms of safety and pollution prevention.

It also highlights the reference to the responsibility of owners and skippers in relation to the maintenance of the boat and safety and prevention equipment, in terms established in this Royal Decree, ensuring in any case that the boat is always in a position, to go to sea without danger to the maximum people authorized on board.

In addition to developing the sections of Rescue Equipment, Navigation Equipment, Fire Safety Equipment and means of rescue and Pollution Prevention, the regulation includes the determination of the penalty system applicable in case of infringement. To this end, it specifies and graduates the infringements already established in the Consolidated Text of the Law of State Ports and Merchant Marine, approved by the Royal Legislative Decree 2/2011, of September 5, which facilitates the determination of the corresponding penalties to be imposed, which will range from 100 € to 3,000 €.

The Single European Sky

In the late 1990s, among other initiatives, Europe decided to promote the creation of the single aviation market and the Single European Sky initiative.

The “Single European Sky” initiative aims primarily at reducing the fragmentation of European airspace, thereby increasing its capacity and the efficiency of air traffic management and air navigation services by reducing flight times, reducing flight costs and aircraft emissions, separating regulatory functions and service provision, interoperability of equipment, harmonised upper airspace classification and establishing common requirements for the licensing of air traffic controllers.

Until the late 1990s, air transport was carried out under the supervision and control of the national authorities of each country, and international air transport was mainly based on bilateral agreements between countries.

The evolution in Europe came with the signing of the “Single European Act” when national markets became a single competitive market for air transport. At that time, national airlines gave way to Community airlines and it was established as a basic principle that any Community airline could freely set fares for passengers and cargo, as well as access any route within the European Union, without any express permission or authorisation.

Both the European Parliament and the European Council have been key in this context. Indeed, the Treaty on the Functioning of the European Union recognises in article 100.2 the ability of the European Parliament and Council to lay down such provisions as they deem appropriate in relation to aviation.

In the field of the common conditions of competition, some of the common rules adopted to ensure the proper functioning of the European aviation system would be:

  1. The proposal for a Regulation on safeguarding competition in air transport and repealing Regulation (EC) No 868/2004 was published in June 2017.
  2. Regulation (EEC) No 95/93 and its amendments.
  3. Directive 96/67/EC.
  4. Directive 2009/12/EC.
  5. COM (2017) 0289, mechanism to ensure fair competition between Union air carriers and third countries.

In the area of passenger protection, the steps taken and to be assessed are:

  1. Creation of a European Aviation Safety Agency (EASA).
  2. The harmonisation of security requirements in all European Union airports.
  3. Regulation (EC) No 261/2004, aimed at protecting passenger rights.

These initiatives are expected to bring benefits for operators, carriers, passengers and shippers. Benefits such as tripling airspace capacity by 2035, reducing the cost of air traffic management, multiplying the safety of the sector and even reducing the environmental impact of air aviation. Examples of some of the improvements that can already be observed to date include:

  • The reduction of the average en-route delay caused by traffic flow management.
  • The decrease in average arrival delay caused by air traffic flow management.
  • The average length of the direct horizontal route has started with a downward trend.
  • The improvement of cost efficiency.

However, there are still some areas for further improvement, such as the shortcomings of the slot allocation system; avoiding that most routes departing from an airport in the Union continue to be operated by only one or two airlines; reducing the financial difficulties faced by airlines and some airports (which have increased alarmingly in these complex times of pandemic we are experiencing); improving the supervision of some airlines currently operating in some Member States.

There is no doubt that European airspace has developed to an important extent in recent years, creating a trend that has not yet been implemented in other continents despite the great efforts that have been invested in this direction.

Although there is still a long way to go, global airspace is moving towards union, transversality and sustainability, thus facilitating the intermodality of means of transport, the reduction of costs (economic, personal and environmental), as well as the development of new technologies, which undoubtedly results in a more positive progress of society.

Direct Action by the Effective Carrier against the Principal Sender in case of Bankruptcy proceedings of an intermediary carrier

The Additional Provision Sixth of Law 9/2013, of 4th July, which amends Law 16/1987, of 30th July, related to the Spanish Land Transportation Regime (“LOTT) establishes the right of the effective carrier to claim, for the unpaid part of the price of the carriage, against the principal “sender” and all those parties that have preceded him in the contract chain, in case of lack of payment by his contractor. This provision has been analysed in various occasions by the Spanish Supreme Court (in judgement such as nº 644/2017, of 24th November, and 248/2019, of 6th May) as reported by Aiyon Abogados in the past.

The Spanish Supreme Court has stated, in the aforementioned judgments, that the direct action of the effective carrier, of the Additional Provision Sixth of LOTT, is not limited to the amount owed by the principal sender to the intermediary as the goal of the Provision is to provide a guarantee to final carriers who are considered to be the weakest link of the chain. For this reason, this direct action has been configured as a supplementary payment guarantee.

Recently, however, in its judgment nº 4405/2020, of 29th December, the Supreme Court has had the chance to examine the effect of bankruptcy proceedings in the direct action of the effective carrier. In this judgement, the Supreme Court analyses once again the Additional Provision Sixth of LOTT and corroborates that such Provision does not make any exceptions for bankruptcy proceedings. The Supreme Court also notes that, after the Additional Provision Sixth, the Amendments approved in the Bankruptcy Laws did not include carrier’s direct action amongst those that cannot be exercised once bankruptcy protection has been afforded. Since it considers that this direct action is not analogous to the action of the person that provides work and material to a contract against the owner of the works, which cannot be prosecuted once bankruptcy proceedings have been initiated, the Spanish Supreme Court confirmed the option to exercise the direct action by the effective carrier when the intermediary carrier is in bankruptcy regardless of whether the principal sender has previously paid or not its contracting party.