WISTA SPAIN Annual Meeting, Algeciras 2023

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

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

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

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

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

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

AIYON at EAST MED 2023, Limassol (Cyprus)

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From AIYON we would like to thank COMPORT – Algeciras Port Community for facilitating and organising the attendance of the different companies involved with the port environment of Algeciras to the event organised in Cyprus, the EAST MED EXPO OFFICIAL 2023, which brought together in Limassol different leading companies of the maritime industry.

The partner in charge of the Aiyon Cadiz office, Enrique Ortiz, and our partner of the Aiyon Bilbao office, Zuberoa Elorriaga, attended this interesting meeting together with the rest of the companies of the port area of Algeciras, led by different Cypriot companies linked to port activities. As a sign of the impact of this important event on the city, it was inaugurated by the Mayor of Limassol at a reception held at the Limassol City Hall on Wednesday 19 April.

With over 80 exhibitors from around the world, East Med Marine and Offshore Exhibition continues for the tenth time to provide a first-class opportunity for the marine and offshore sectors for key players and stakeholders to interact and learn about important industry and technology updates.

This event, of international scope, is held every two years in Limassol-Cyprus with the support of the government of the country, whose Minister of Maritime Affairs, Ms. Marina Hadjimanolis, took a personal interest in the services offered by the Port of Algeciras, a reference in the Mediterranean.

For our part, we cannot forget the warm welcome of the Cypriots, who have been very supportive during our trip.

 

AIYON ABOGADOS SLP has been a beneficiary of the European Regional Development Fund (ERDF), whose objective is to achieve a more competitive business fabric and thanks to which it has participated in the action: Visit EAST MED MARINE & OFFSHORE EXHIBITION 2023 to promote its internationalisation. This action took place from 19 to 21 April 2023. To do so, it has had the support of the International Promotion Programme of the Chamber of Commerce of Campo de Gibraltar.

A way of doing Europe

Automated Ports

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Once again, the special edition of “Transporte XXI” on Ports of Spain, in this case in its April 2023 version, collaborated with our office by publishing the article “Automated Ports” prepared by our colleague from Bilbao, Irantzu Sedano.

Irantzu’s article shows how the continuous advances in technology are having a major influence on the automation of ships, as well as on the automation of the ports in which they work. It is a fact that autonomous navigation brings as a direct and main consequence the need for autonomous berths and moorings in ports, thus forcing ports to focus their efforts on this new reality that is getting closer and closer to us, and which undoubtedly cannot be ignored.

This is why most Spanish ports are already automated in many of their functions; in other words, they use advanced technologies to improve efficiency and productivity in their operations, be they loading and unloading, transport and storage of goods, access to the port, etc. Automation reduces operating costs, optimises space, improves the safety of operations, as well as it allows the handling of large volumes of cargo and the reduction of waiting times for ships and lorries in the port.

However, this scenario also poses many legislative challenges, which will have to be tackled prudently and tenaciously to ensure safe and sustainable development of this new maritime reality:

Much of the pre-existing regulation is not adequate to deal with issues related to port automation and needs to be updated or even new specific regulations developed. These include: (i) the pre-existing and traditional security regulations such as ISPS (International Ship and Port Facilities Security), which have been updated to take into account the risks of port and ship automation, cyber security and data protection, etc.; (ii) the IMO recommendations; (iii) ISO standards establishing a framework for information security management; (iv) SAE J3016 standards relating to vehicle automation levels, which have been adapted for use on ships; (v) SNAME (Society of Naval Architects and Marine Engineers) guidelines.

The development of a legal framework should define the liability regime in case of accidents or damage in the context of autonomous systems.

Privacy and data protection regulation is required, in terms of respect for privacy rights and protection of shared personal data.

Modernisation and adaptation of existing workplaces must take place. Automation will undoubtedly reduce the need for human intervention, and it will be necessary to regulate the retraining and relocation of workers whose functions have been automated. Therefore, automation and robotisation will have to coexist with the human factor, provided that adequate measures are put in place to ensure safety, redistribution of tasks and adaptation of the workforce.

The cybersecurity of operations will have to be guaranteed by establishing regulations to always ensure the security of autonomous systems and data protection. It is a reality that malware attacks on automated maritime infrastructures have increased due to this new way of working that has been implemented.

Not only will all operators and competent authorities have to implement state-of-the-art security protocols and systems, but the cyber insurance phenomenon will have to coexist with this new reality, as at the end of the day this will be the only way to transfer the risk of possible cyber security incidents to a third party that will cover us for this eventuality.

In conclusion, as has been the case so far, but now even more so, it will be important that national and international regulatory authorities, the maritime and port industry, and the other actors in the sector, work together to develop an updated legal and regulatory framework adapted to the new realities of the port sector and maritime navigation.

Read the article…

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.

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.  

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

Irantzu Sedano Speaker at the National Maritime Law Congress

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Once again, this year on 17 and 18 November 2022, the National Maritime Law Congress organised by the Spanish Maritime Law Association was held in Madrid.

AIYON Abogados, in addition to sponsoring the event, has collaborated closely in it, as our colleague Irantzu Sedano had the opportunity to be a speaker at the event with her presentation on the guarantees to be provided in requests for places of refuge for ships that are carried out in Spain.

Irantzu and her other three fellow speakers, Neus León, Carmen Zulueta and María Fernández Llamazares, all members of the Young Lawyers Group of the Spanish Maritime Law Association, through their interesting presentations on the personal guarantees to be provided in maritime navigation, provided us with practical and useful information, and helped us to broaden our knowledge on the subject.

In particular, our colleague’s presentation highlighted the analysis of the real and practical application of the provisions of the regulations applicable in Spain, through the case study of the ship “Modern Express” managed in conjunction with the port of Bilbao.

If you want more information on the guarantees to be provided in refugee applications made in Spain, we recommend that you read our article “On Ports of Refuge”.

On Ports of Refuge

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Vessels in an emergency or dangerous situation while underway, whether due to fire, capsize, explosion, collision, etc., require urgent assistance. This assistance may come from vessels close to the incident, as well as from the rescue teams and coastal state authorities in charge of the area of responsibility for maritime search and rescue (SAR area) in which the vessel is located.

However, once human lives have been saved (always in compliance with SOLAS convention) and the damage and risks have been assessed, the affected vessel will most likely initiate the appropriate procedure to request the ship’s refuge in an appropriate place.

Although historically it has been understood that a place of refuge should correspond to a port, the International Maritime Organisation (IMO) changed this interpretation and broadened the term place of refuge to cover all places where ships in need of assistance can take the necessary measures to stabilise their condition or situation, be they berths, anchorages, ports or any other place.

The procedure for requesting refuge in Spain is relatively simple, and special attention should be paid to the provisions of Royal Decree 210/2004 of 6 February, which establishes a system of monitoring and information on maritime traffic.

The Master of the ship, or alternatively, a representative of the operator or shipping company concerned must submit a request for refuge to the competent authority of the country, in our case the Director General of the Merchant Navy, explaining the reasons why the ship requires refuge.

Once the Directorate General of the Merchant Navy has received the request for refuge, it will convene a technical committee comprising at least of the Maritime Master, the Head of the maritime district, the maritime inspection and safety coordinators and any other persons whose opinion may be relevant to the case; an example would be the local Port Authority in the event that the assessed place of refuge is a Port.

This committee will deliberate and carry out all the investigative acts it deems appropriate and may even go as far as to physically inspect the ship. It should not be overlooked that, in the first instance, the provision of a place of refuge may pose a serious danger, either by causing pollution, port congestion, etc., so all requests for a place of refuge must be carefully considered. On the other hand, it is true that failure to provide the necessary refuge in a timely manner could also lead to the ship’s situation worsening to such an extent that the damage that could have been contained, or at least minimised by the assistance required, would be multiplied. This was the reality in the case of the Prestige in 2002.

The decision authorising access or refusal of refuge may be taken orally without undue formality; however, it must always be communicated to the persons concerned in writing and duly reasoned within a period of less than 96 hours.

Furthermore, practice has shown that authorisation to give refuge to a ship in need of assistance is to a greater or lesser extent subject to the provision of a guarantee. The characteristics of this guarantee are mainly set out in the aforementioned Royal Decree 210/2004 and in the revised text of the Law on State Ports and the Merchant Navy, and as a summary we can highlight the following peculiarities:

  1. When the guarantee is required: The Second Transitional Provision of Royal Decree 210/2004 establishes that the provision of the financial guarantee will be an essential element to be taken into account when authorising the refuge. Furthermore, practice shows that the guarantee is always requested before the ship has been admitted.
  2. Perceptiveness of the guarantee: In this aspect, we can affirm that the provisions of the regulations and the practical reality of refugee applications are contradictory. Although article 22 of RD 210/2004 and article 299 of the revised text of the Law on State Ports and the Merchant Navy suggest that the provision of the guarantee does not seem to be mandatory, the reality is different, as practice shows that refuges are not authorised without the provision of the necessary guarantee.
  3. Purpose of the guarantee: The purpose of the guarantee is clear; it is required to cover possible damage which may be caused to persons, public entities or property of any nature by the ship, its fuel or cargo, as well as to cover expenses incurred in the application of preventive measures.
    The guarantee shall cover all damage caused during the ship’s voyage to or from the place of refuge, as well as during its stay in the place of refuge.
  1. Maximum amount of the guarantee: This limitation cannot be confused with the limits of liability, which will have to be determined in accordance with the regulations applicable to each case.
    Depending on the goods transported, the limits will be one or the other:
    • Goods with the characteristics outlined in Regulation EC/1726/2003 of the European Parliament and of the Council of 22 July 2003. 7,000,000.00 euros for vessels not exceeding 2,000 GT and 10,000.00 euros for each tonnage unit exceeding 2,000 GT.
    • The rest of the goods. 2,5000,000.00 euros up to 2,000 GT and 600.00 euros for each tonnage unit exceeding 2,000 GT.
    Given the urgency of these processes, establishing the amount of the guarantee is very complicated; therefore, the maritime authority concerned usually seeks to be on the safe side by establishing the maximum permitted limit.
    In the event that no damage or costs are incurred in the course of the ship’s refuge, as was the case, for example, of “Modern Express” in the port of Bilbao, the guarantee will not be invoked.
  1. Types of guarantees allowed: Article 22 of RD 210/2004 establishes that a financial guarantee must be provided in favour of the Directorate General of the Merchant Navy at a bank domiciled in Spain, i.e. the General Deposit Fund.

In addition to this, in certain cases, there is a possibility of providing other types of guarantees, such as Letter of Undertaking (LOU) from Protection and Indemnity Clubs (P&I Clubs). Generally, in order to be accepted, the Letter of Undertaking is required to be provided by a P&I Club with an “A” rating, i.e. the highest credit rating.

The acceptance or rejection of this guarantee shall be taken on a case-by-case basis by the relevant authority.

Despite the fact that requests for places of refuge are not very common in the course of maritime navigation or in the day-to-day life of the sector, given their importance and the extremely serious and urgent situations that arise at such times, it is important that maritime lawyers and other experts involved in these operations are properly prepared to deal with this type of procedure. This is in order to guarantee an adequate resolution of these incidents, as well as to provide the best protection to the parties that may be affected.

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.