Relevant and updated information from “TP&I News” on anti-pandemic measures imposed in different ports

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The TÜRK PANDI publishes its November “TP&I News”: “Seafarers – The key workers for the global maritime industry, Risk of Detention for Anchoring in Indonesian Waters, Attention: Is your vessel arriving at a Spanish port?, Crew changes in Argentinian ports”, with the collaboration of AIYON Abogados.

Through this publication, the P&I updates the latest news from the maritime sector geared towards shipowners, charterers, as well as any other maritime agent or operator interested or affected by the measures that have been imposed in different ports due to the pandemic.

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Ship arrest

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By Irantzu Sedano and Zuberoa Elorriaga

The usual short stay of ships in the ports where they load and unload goods, as well as the international nature of the maritime sector, means that, on many occasions, it is very difficult to recover a debt from shipowners and charterers. It is in this context that the concept of ship arrest emerges.

Ship arrest is a legal tool that enables the creditor of a claim, which must be defined as a “maritime claim” to secure the detention of the ship concerned in order to guarantee its payment. This precautionary, preventive, and urgent legal action can also be regarded as a burdensome measure due to the economic damage it can cause to the operator of the vessel, as it can lead to delays in the vessel’s navigation plans, unforeseen costs due to its stay at berth in port, etc. It can also be a costly measure for the person requesting the arrest if it is wrongly or improperly proposed.

Reasons for the arrest
The arrest of ships pursues different objectives, which vary depending on the asserted maritime claim. That is to say, when the maritime claim consists of a monetary claim, the arrest will operate so that the shipowner/charterer (debtor) provides sufficient security to lift the ship arrest, with the attaching creditor obtaining security. When the maritime claim consists of a claim to the ownership of the vessel, the arrest will ensure the application of an eventual sentence to hand over the vessel.

The detention of the vessel may be replaced by the provision of a guarantee or substitute security by the shipowner/charterer before the court applying the measure, since the ultimate objective of the arrest is to guarantee the effectiveness of a later judgement on the merits of the claim / “maritime claim”, ensuring thus the possibility of its enforcement for the creditor/attaching creditor’s.

In the event that the arrest is requested unjustifiably or improperly, the shipowner/charterer of the vessel is entitled to claim for any damages resulting from the arrest.

Requirements for the ship arrest
The international legal regime in force in Spain is the International Convention on Arrest of Ships (Geneva 1999), which entered into force on 14 September 2011. At the national level, we must resort to the Maritime Navigation Act 14/2014, of 24 July.

The requirements are as follows:

  • The allegation of a “maritime claim”: ships may only be arrested on the basis of maritime claims and not on the basis of any other claim. The list of so-called “maritime claims” is numerus clausus and is set out in Article 1(1) of the 1999 Geneva Convention. The creditor of the precautionary measure, requesting the arrest, shall be exonerated from proving his claim, being sufficient for him to allege its existence and the cause for it.
  • The arrest of the “offending ship”: arrest of the vessel causing the claim is permitted provided that the person who was the owner/bareboat lessor of the ship at the time the claim arose is still the owner/bareboat lessor at the time the arrest is requested. Under certain conditions it also provides for the possibility of arresting other vessels owned by the person liable for payment of the claim (“sister ships”).
  • The existence of periculum in mora: this refers to the risk that the ship, in principle the only property of the debtor known to the creditor, may at any time leave the port leaving the creditor without guarantees.
  • The obligation to deposit a guaranteed by the attaching creditor: its purpose is to ensure that, in the event that the arrest is requested improperly and without complying with the legal requirement, the damages generated to the shipowner/charterer as a result of the incorrect arrest can be economically alleviated.
  • The pendency of the proceedings: the arrest may be requested before, during or after the commencement of the legal proceedings on the merits. The lawsuit will be brought before the court that is to hear the merits of the dispute.

Release of the arrest and the protective measure
In order to confirm ship’s release from the arrest, the arrested party (shipowner) must lodge a replacement security or guarantee before the court covering the amount claimed by its creditor (arresting party), provided that such amount does not exceed the value of the arrested vessel. If it does, the vessel will continue its voyage, leaving deposited this amount as a security for the alleged maritime claim.

Since, as a general rule, the request for arrest is placed as a precautionary measure prior to the filing of the lawsuit, it will remain without effect if the creditor/attaching creditor does not initiate the proceedings on the merits of the dispute before the competent court and within the time limit established by the court executing the precautionary measure. In such a situation, the arresting party shall be ordered to pay damages that will be considered by the court, and the security deposited by the arresting party before the court shall be forfeited.

In summary, Article 1 of the International Convention on the Arrest of Ships lists what are considered “maritime claims” that can justify the arrest of a ship, so there are many agents in the sector that may be protected by this tool to guarantee their claims (seafarers, ship suppliers, shipyards, administration, etc.).

AIYON Abogados handles arrests of ships requested by any kind of creditors, as well as lifting of the arrests of shipowners/charterers affected by this measure; moreover, for all those who want to find out more in detail about this concept we have the following platform: www.shiparrestrelease.com

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Comments on Spanish Law 13/2021, of 1st October, on combating late payment in the carriage of goods by road

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On 2 October 2021, the Act 13/2021 was published in the Official State Journal, which amends the Land Transport Act to combat late payment in the field of land freight transport; this regulation came into force one day after its publication.

The need for this regulation arises from the fact that in Spain the average payment term for commercial transactions is 90 days, well above the European average, and that the existing asymmetry between the parties to the land transport contract may generate possible situations of unfair competition in the regulatory framework regulating the activity.

In order to correct this situation, a new type of infringement has been created under this new law, which will penalize cases in which transport prices are paid more than sixty days in advance (payment terms of more than 60 days were already void according to pre-existing regulations).

THUS, AND IN A VERY SCHEMATIC WAY:
Two new infringements are created: a very serious one, in the event that the price of the transport exceeds EUR 3,000 and another serious one when it is less than or equal to EUR 3,000.

The regulation establishes a scale of penalties depending on the price of transport, ranging from a minimum fine of EUR 401 to a maximum of EUR 6,000, which, in the even of a repeated offence, may be increased to a maximum of EUR 18,000, with aggravated fines of up to EUR 30,000.

For dissuasive purposes, the regulation contemplates the possibility of publishing the sanctioning resolutions imposed for incurring in very serious infringements.

The regulation does not establish when the maximum period of 60 days starts to be calculated, and although it is most likely to begin with the provision of the service (delivery of the goods at destination), the alternative would be that this period would be calculated from the issuance of the invoice for which the carrier has a maximum period of 15 days from the date of transport/delivery of the goods at destination.

The offending party may be any type of company that owes the price of a transport (even a carrier in the case of subcontracting), regardless of whether the creditor company is a carrier or not. To this effect, it must be taken into account that in the case of subcontracting for transport between companies belonging to the same group, these will also be considered as offending parties and will have to face the corresponding penalties in the event of not complying with the maximum payment term.

It will not be necessary for the creditors to denounce the non-payment of the transport price, that is, the Administration will act ex officio, and we assume that it will be by the inspectors of the Ministry of Transport within the inspections they perform in the transport companies. Although it seems that the sense of this amendment is to support and facilitate the collection of the transport price by the carriers, it is also true that this makes it unlikely that it will be applied to foreign clients of Spanish carriers.

The regulation does not apply retroactively, that is, to transports carried out prior to October 3, 2021.

AIYON Abogados strengthens its position in Aeronautical and Space Law

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AIYON Abogados maintains its commitment to becoming a benchmark law firm in Aeronautical and Space Law. Its position in these areas is reinforced by the new qualification obtained by Zuberoa Elorriaga, partner of Aiyon’s Bilbao office. Her graduation was held last October 25, becoming the first class of the “Postgraduate Course of Specialist in Aeronautical and Space Law” offered by the Faculty of Law of the Universidad Pontificia Comillas (ICADE), in collaboration with the Spanish Association of Aeronautical and Space Law (AEDAE).

These two prestigious entities have launched this pioneering initiative whose objective is solving the existing training deficit in Spain in these two fields, which have traditionally been monopolized by the Administration and other public entities until their liberalization.

AIYON Abogados will continue advising its clients in matters derived from the dynamics of airports, such as handling its legal regime, aircraft contracts, certification and legal regime related to the manufacture and financing of aircrafts, code sharing and interlining in contracts with airlines, insurances, aeronautical inspections and labour contracts, among others.

It is also worth mentioning the training acquired in the increasingly present and relevant space law environment: international treaties and conventions, legal aspects of satellite navigation systems, use of resources, space waste, etc.

The interest and involvement of AIYON Abogados in these areas will be evident on November 5 with the participation of partners from Bilbao and Algeciras,  Zuberoa Elorriaga and José Antonio Dominguez, in the 33rd Annual Conference of the European Air Law Association (EALA) in Copenhagen.

During this meeting of experts, issues related to competition in the sector will be addressed in relation to state aid and EU legislation, the impact of Brexit, changes in the financing of the airline industry and sustainable aviation, among many other issues.

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

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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

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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”

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Air and Sea Workers, and the Reduction Coefficients

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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

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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

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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-goxeaskoa, actively 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.