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

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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

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Our partners Verónica Meana, Mikel Garteiz-goxeaskoa, Jose Domínguez and Enrique Ortiz  have collaborated, once again, in the section dedicated to Spanish Law of the Shipping 2022 Global Practice Guide published by Chambers. This publication focusses on practical legal issues affecting shipping in 26 key jurisdictions.

The guide provides information on marine casualties, Owners’ liability, cargo claims, maritime liens, ship arrests, Shipowners’ income tax relief, choice of Jurisdiction and Law agreements, Port State Control matters and in particular the implementation of IMO 2020 on sulphur content of fuel oil, and the implications of Covid-19, among other issues.

Read the AIYON Abogados contribution by clicking on the following link.

“Estrategia Empresarial” Stresse out our Consolidation in the Field of Aviation and Space Law

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We have had the pleasure of receiving “Estrategia Empresarial” in our Bilbao office, a prestigious publication that has been interested in getting to know in depth our activity, our team and our long professional trajectory as legal professionals. They were also interested in interviewing our partner, Zuberoa Elorriaga, in view of her recent qualification as a specialist in Aviation and Space Law, after completing the postgraduate course given by Icade University in collaboration with the Spanish Association of Aeronautics and Space Law (Aedae).

As our partner in Bilbao has rightly stated, at AIYON “we represent and protect the interests of individuals and companies immersed in a particularly complex, dynamic and multidisciplinary framework, which presents all kinds of issues affecting companies, operators, entities or individuals from all perspectives, bearing in mind that the ultimate goal is to comfort our clients by providing the most appropriate response to their query or the most beneficial solution to their problem”.

Read the full article

Royal Decree 128/2022 of 15 February on Port Reception Facilities for Ship Waste

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As a consequence of the transposition of Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for ship waste discharge, amending Directive 2010/65/EU and repealing Directive 2000/59/EC, Royal Decree 128/2022 of 15 February 2022 on Port Reception Facilities for Ship Waste was published on 16 February 2022.

The purpose of the aforementioned legal text is none other than to guarantee the protection of the marine environment from all those negative effects that might be caused by waste generated by ships and cargo residues from ships using Spanish ports. It also aims to ensure the proper functioning of maritime traffic, improving the availability and use of adequate port reception facilities, as well as the delivery of waste to these facilities.

The extension of the scope of application of this Royal Decree is one of the main innovations that it brings with it, as it now includes fishing vessels and sport or recreational vessels. Thus, this regulation will be applicable to all vessels, regardless of their flag, which call at or operate in Spanish ports, except those which are used to provide port services and State vessels. Likewise, in order to avoid unnecessary delays, in anchorages where the vessel does not carry out commercial operations of embarking and disembarking passengers or loading and unloading goods, provided that the call at anchorage is less than seven days, the obligation to discharge ship waste and pay the indirect tariff is exempted.

Another of the main updates is the application of this RD to waste caught unintentionally by fishing vessels, other unintentional catches, facilitating their collection at port waste-reception facilities free of charge; and the regulation of electronic communications through the SafeseaNetsystem, as established in Royal Decree 210/2004, of 6 February, which establishes a system for monitoring and reporting maritime traffic.

Finally, a cost recovery system is foreseen so that the costs of the ship waste reception service, excluding cargo residues, are borne by the ships themselves calling at or operating in Spanish ports through the payment of a fee, irrespective of whether they deliver the waste to a port reception facility or not. Thus, it seems that the government’s intention is that the fees should not discourage the delivery of waste.

The Royal Decree entered into force on 17 February 2022.

AIYON Abogados collaborates with the publication “The Insurance Disputes Law Review”, 2021

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We would like to thank “The Law Reviews” for allowing us to contribute to the 2021 edition of “The Insurance Disputes Law Review”, a work that we have carried out in collaboration with other prestigious international firms.

This cooperation is being carried out for the second consecutive year and has allowed our partners Verónica Meana and Mikel Garteiz-goxeaskoa to provide a broad and very complete overview of Spanish insurance regulation.

In addition to reviewing the general aspects of insurance and the legal framework, the study has also focused on studying the types of litigation that have increased in Spain in recent months in areas such as: limitation and delimitation clauses of insurance; compensation for loss of profit due to business interruptions due to Covid-19; malice and gross negligence; insurance contracts for large risks and possible negligence in the health sector, among others.

 

Read the AIYON Abogados chapter by clicking on the following link.

Comments on Supreme Court Judgment Nº 901/2021 in the “Spanair Case”

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Back in 2019, in our article “Judgement of the Spanish Supreme Court in the Spanair crash case”, we pointed out that the Civil Chamber of the Supreme Court in its judgment of 17 May 2019 no. 1513/2019 settled the question of the evaluation of personal injuries suffered in an air accident, by confirming the criteria of the Provincial Court of Barcelona, judgment no. 165/2016, of 12 July, and determining that, in the absence of regulation for the evaluation of personal injuries caused in aviation accidents, it was more appropriate to provide compensation based on the existing legal scale for personal injuries caused in motor vehicle accidents (RDL no 8/2004, of 29 October, approving the revised text of Civil Liability and Insurance Act in the Circulation of Motor Vehicles).

However, the judgement pointed out that the indicative use of the scale does not prevent the application of corrective criteria according to the circumstances of the sector of activity to which it refers. In the case of an air accident, due to its catastrophic nature and the other circumstances surrounding it, it is reasonable that the compensation resulting from the application of the scale be increased by an additional percentage, which in this case was set at 50 %.

Now, after years of litigation arising from the very serious plane crash suffered by the now defunct airline Spanair in 2008, resulting in the death of one hundred and fifty four people and eighteen injured, the recent Judgment of the Supreme Court no. 901/2021 of 21 December 2021 dismisses the extraordinary appeal for procedural infringement and the cassation appeals against judgment no 5/2018, of 8 January, of the Provincial Court of Madrid, filed by Mapfre Global Risks Compañía Internacional de Seguros y Reaseguros S.A., among others, to confirm that, without prejudice to other possible causes, the accident occurred as a result of an inadequate configuration of the aircraft to perform this maneouver, attributable to the pilot an co-pilot of the aircraft. Likewise, the court establishes hat Mapfre is civilly liable for the damages caused by the accident, as it was the insurer of the company Spanair at the time of the accident.

Furthermore, in line with the above, Judgment no 901/2021 in its Sixth Legal Basis states that, by using as a criterion for compensation the indicative application of the scale in the annex to Legislative Royal Decree no 8/2004, of 29 October, the Provincial Court did not violate the principle of indemnity in the compensation of damages or apply limitations to compensation for death or bodily injury, incompatible with the framework of the Montreal Convention and Regulation (EC) no. 2027/1997, as amended by Regulation (EC) no. 882/2002, of 13 May 2002.

Consequently, the insurer is ordered to pay compensation, the amount of which now exceeds four million Euro.

The European Maritime Safety Agency (EMSA) Continues to Deploy Drones to Monitor Emissions from Merchant Ships in EU Waters in 2022

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According to the Roadmap of the European Maritime Safety Agency (EMSA), in 2022, which is now beginning, the development of the capabilities of remotely piloted aircraft, commonly known as drones (Remotely Piloted Aircraft Systems or RPAS), will continue, especially regarding the detection of possible pollutant emissions from merchant ships exceeding the limits established in Annex VI of the International Convention on Marine Pollution (MARPOL). Sulphur content limit for marine fuels is currently set at 0.5 % by mass.

By 2022, these drones are also expected to be able to monitor the NOx content of smoke from ships underway, in addition to the SOx mentioned above.

In fact, during 2021, emission control campaigns were already carried out with drones in the waters of the Strait of Gibraltar, Lithuania, France, and the Baltic Sea. Specifically, in relation to the deployment of the drone in the waters of the Strait of Gibraltar between July and October, EMSA, together with the Directorate General of the Merchant Navy and Harbor Master of Algeciras, carried out a total of 319 controls on different merchant vessels while they were sailing through the Strait, detecting possible non-compliance in twenty-eight (28) of the vessels.

Although the readings obtained using these novel aerial means may be indicative of excess sulphur marine fuel consumption, they do not directly result in the initiation of a sanctioning proceeding or in the imposition of a penalty for the monitored vessel.  In order to corroborate the preliminary drone readings, a detailed Port State Control (PSC) inspection will always be required upon arrival of the ship in port, together with the corresponding sampling of the fuels used during the voyage.

After this inspection and chemical analysis of the fuel samples obtained, if the sulphur reading is above 0.5 % by mass, the corresponding Harbor Master’s Office will initiate an administrative sanctioning proceeding against the “ISM Manager” and against the master of the inspected vessel, and the vessel will be provisionally detained until sufficient guarantees have been provided at the discretion of the responsible Harbor Master’s Office.

The data obtained from the drone measurements are also communicated to the THETIS-EU database, also managed by EMSA. The purpose of this is to effectively monitor the non-compliance detected and to establish a system of alerts for the different maritime administrations of the Member States of the European Union, facilitating thus the taking of appropriate measures to prevent and/or sanction the aforementioned typified conducts.

P&I Clubs, a Key Player in Maritime Transport and Trade

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Canal Marítimo y Logístico, a magazine specialised in maritime and logistics information, publishes in its November issue an article on P&I Clubs written by Verónica Meana, partner of our Madrid office.

This article finds its origins in the publication of the Preliminary Bill to amend the revised text of the Law on State Ports and the Merchant Marine, and the Law on Maritime Navigation, which, among other things, includes the reform of article 465 of the latter set of regulation due to doubts that exist nowadays about the admissibility of direct action against protection and compensation clubs. It is worth taking a step back and going to the origin of these organisations and how they work.

The reform adapts to the purpose of these associations which remain fundamental to the development of maritime transport and trade as they currently insure the civil liabilities of shipowners from all parts of the world.

In itself, the article covers the basic concepts, background, established responsibilities, as well as Spanish legislation related to this key piece of maritime transport and trade.

Read article published HERE

El Canal Marítimo y Logístico Highlights the Trajectory of AIYON Abogados since its Foundation

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The journal El Canal Marítimo y Logístico analyses and highlights the trajectory of our firm since its foundation in 2015 and catalogues it as a model of success that continues to develop and grow.

The article confirms that, since the firm was founded more than six years ago, AIYON Abogados has formed a multidisciplinary, solid, and participative team of professionals, with marked quality standards in its services, and always respecting its concept of “boutique law firm” firmly connected with its clients and the sector.

From its basic nature with regard to maritime law, our firm aims to further reinforce the relationship with our international clients (maritime insurers, shipping companies and freight forwarders) on the basis of specialised training. This is one of the areas in which    we are involved as part of our activity, collaborating as regular lecturers in the Master of the Spanish Maritime Institute (Madrid), giving training talks at the University of Cadiz, maintaining collaborations with the universities of Deusto and La Laguna, as well as acting as members of the Court of Arbitration of the Madrid Bar Association. This is a commitment to the new generations, but also to clients, who expect andobtain personalised professional advice.

Likewise, the publication makes special mention of the website on the lifting of the ship arrest that the firm launched in 2021, which can be consulted at: shiparrestrelease.com.

On the other hand, the AIYON team informs that we continue to be clearly committed to handling matters related to land transport, especially in the area of national and international road transport, and the world of insurance and trade, where we have great professionals advising our clients on a daily basis and accompanying them on theirprofessional journey.

Finally, our firm’s clear vocation to deepen its knowledge of Air Law – air chartering, incidents, claims or purchase and sale of aircraft, among others – and Space Law is reflected in the “Postgraduate Specialist Course in Aeronautical and Space Law”, taught by the Faculty of Law (ICADE) in collaboration with the Spanish Association of Aeronauticaland Space Law (AEDAE).

You can read the article at the following link: https://www.diarioelcanal.com/aiyon-abogados-socio-fiable-prioriza-relacion-estrecha-cliente/

Broad representation of AIYON Abogados at the National Congress of the Spanish Association of Maritime Law (AEDM)

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Verónica Meana, Zuberoa Elorriaga and José Antonio Dominguez, partners of the offices in Madrid, Bilbao and Algeciras, respectively, took part in the National Congress of the Spanish Association of Maritime Law (AEDM) on November 18thand 19th which was held in Madrid under the title “The Maritime Law of the Recovery. Challenges and Reforms”.

The congress, which provided information of great interest to the participants, began with an In Memoriam tribute to Javier Galiano, Ramón Fernández Guerra and Fernando Meana Green. In memory of the great personal and professional legacy of the latter, Verónica, his daughter and our colleague, made a brief speech.

The congress program was structured into six modules that were addressed with rigour and depth. The latest experiences on the implementation of the Paris Memorandum, with the presentation of the point of view of various sectors (insurance, shipowners, and Directorate-General for Merchant Shipping); the “Next Generation” Funds in the maritime sector, with the analysis of the requirements for their application; liability and insurance in accidents in ports; technological challenges in technical investigation of maritime accidents; and the ongoing reforms of the Law on State Ports and Merchant Marine and the Maritime Navigation Act were discussed.