Royal Decree 596/2019 of 18th October on security and safety regulations applicable to the passenger vessels operating between Spanish ports.

On 21st December 2019, the Royal Decree 596/2019 of 18th October on security and safety regulations applicable to the passenger vessels operating between Spanish ports, which amends the Royal Decree 1247/1999 of 16th July, comes into force. 

This new Royal Decree seeks to take into consideration the combination of security measures that are required and the real conditions on board of the ships, without eluding matters such as crew training and preparation and their working conditions. 

The issuance of this new Royal Decree 596/2019 is motivated by the necessity to adjust the Spanish legislation to the existing European regulations, and the amendments mainly focus on maritime safety and security. For that, the Royal Decree amends primarily the wording of the articles that constitute it, but on a larger scale it modifies the articles 2, 3, 4, 6 and 13.   

In particular, the article 2, as we can observe, adds several new exclusions, such as vessels and sailing boats, offshore service vessels or support vessels and high-speed passenger boats when used exclusively in port areas. 

Regarding the article 3, this has been greatly amended since refences to the safety has been added by referring to the International Code on Intact Stability, 2008 (MSC 267 (85) IMO). In the same way it updates the regulation by amending the former Law 27/1992 by the current Royal Decree 2/2011, Consolidated Text of the State Ports and Marchant Navy Act. 

Its article 4, which concerns the classification of sea areas, has been amended completely. The definitions of sea areas have been simplified and, whereas in the previous classification the priorities were given to the areas where passenger vessels were operating, the current classification mentions simply sea areas and the point 3 of this article is exclusively devoted to the passenger vessels and their classification depending on the sea area where they can navigate.  

An additional paragraph has been included into the article 6, which regards significant repair works, changes and modifications performed on new vessels as well as on those already existing.  

Finally, it is worth mentioning that the wording of the articles 12 and 13 has also been amended in order to adjust them to the current international regulation. 

As we can see, legislation is a constantly progressing science that needs to be adapted to the new realities. It is evident that the reality of the sector in the matter of security applicable to passenger vessels in 1999 and the current reality are far from being even similar. Since there is a strong need for it, we do not doubt that the current reform will be welcomed.    

The responsibility of the Logistics Operator

Port operations of goods during its permanence in a port are of utmost importance for the correct development of the subsequent maritime transportation. Indeed, this is one of the most dangerous and sensitive phases for the goods throughout which it might suffer considerable damages if the operations are not performed appropriately and by qualified professionals. 

Attention is particularly drawn to the fact that there had been a poor regulation of this stage of transportation before the new Spanish Shipping Act came into force in 2014. This law, beside considering the common figures of navigation such as shipowners or shippers, also regulates other figures as harbor pilots and port operators. This last figure will be addressed in this article. 

The port operator frequently encompasses diverse nomenclatures (loader, stevedore, etc.) and the fact is that none of them covers in its description all operations that are effectively handled by port operators. In particular, the Spanish Shipping Act in its article 330 regards the operations that are handled by port operators such as: “the operations of loading, unloading, stevedoring activities on board the vessels, as well as those of reception, classification, depositing and storage in docks or harbor warehouses, and those of inter-port transportation”. 

Regarding the Port Handling Contract regulation, this has been constituted by very different norms throughout a very extensive timespan. In fact, the first legal text which attempts to regulate the Port Handling Contract at the level of international regulation is the United Nations Convention on the Liability of Operators of Transport Terminals in International Trade. This Convention provides, in a broad sense, the basis which the subsequent regulation would apply to develop legislation in this field of logistics.    

At national level, this concept was firstly regulated by the Spanish State Ports and Merchant Marine Act, developed currently under the Title VI – Provision of Services, as well as later in the Spanish Shipping Act, norm that regulates the figure of port operator from the article 329 onwards to the article 338. Articles which we strongly recommend reading.  

The mayor problem that might appear is that the law indicates that the Port Operator’s liability is based on the presumption of liability iuris tantum; that is,  there is a reversal of the burden of proof and it is assumed that the Port Operator is liable for possible damages to the goods unless the contrary is proved, as long as there is a protest (remark) of the receiver at the moment of delivery. Therefore, the moment of delivery of the goods and the possible remarks that the receipt which proves the delivery may or may not contain, is a good form of demonstrating whether the goods arrived already damaged from the point of departure or that, if damaged, these might have occurred in a previous stage of the transportation or handling and lashing of the goods.  

In fact, there are several parties which might request port operator’s liability. The principal one, obviously, is the party contracting the services; but there are other parties, as for instance the consignee of the goods, who might initiate a direct action against the port operator even though he did not contract him. 

It is thus evident that port operators will be held liable for damages to cargo and the only exceptions that the norm anticipates are those of force majeure or fortuitous cases, assessing always if all possible means to avert damages or delays have been deployed by the involved professionals. Consequently, in order to be exempt from liability, not only should be there any of the grounds for exception (force majeure or fortuitous case) but the port operator also has to prove that he tried to minimize, by any available means, the damages or delays. 

With regard to possible limitations, the Spanish Shipping Act regulates the limitation of liability for port operators in the articles 334 and 335 placing it at 2DEG/kg (Derecho Especial de Giro), 2,45 Euros/kg approximately. We understand that the legislator decides to apply this specific limitation to preserve a certain kind of agreement with the existing international rules related to Maritime Transport. In fact, the norm establishes that port operators should be granted the same exceptions as those provided for in the Hague-Visby Rules for carriers, with nuances developed in the article 334 of the Spanish Shipping Act.  

Therefore, when port operators receive the goods, they should check its state and issue a receipt, or a proof of delivery, noting down its state when deposited and indicating whether they observe any damage or not. The problem is, however, that the issuance of such receipts, despite its importance, is not a common praxis since it is the port operator who will have to prove that the goods were already damaged when they were delivered, if that was the case. 

The receiver of the goods, on his part, has the obligation to place a claim within 3 and 15 working days, depending on if these damages are visible to the naked eye or not. Once this period is over, the law presumes that the goods were delivered in perfect conditions.  

On the other hand, and in relation to the limitation period to institute proceedings against the Port Operator, as in other cases, it is not unlimited in time. The regulation seeks to avoid passivity and lack of interest of the parties, so it restricts the limit of the actions to be taken against port operators to two (2) years. In particular, the Article 337 of the Spanish Shipping Act, initiates the time period of two years in the moment of delivery of the goods by the responsible operator, or in the event of total loss on the scheduled delivery date: “Claims for damages, loss, or delays in delivery of the goods prescribe two years after their delivery by the responsible operator. In the event of total loss, the time limit shall be counted from the date on which the goods should have been delivered”.     

An interesting point of the article in comparison to international regulations is that it speaks about limitation period and not about non-interruptible time limit. The non-interruptible time limit cannot be interrupted whereas the limitation period can, providing thus for the possibility to extend the period of two years by means of the relevant interruption. 

In short, the figure of Port Operator is susceptible to claims for damages or delays in a transportation phase throughout which the goods might be exposed to high-risk situations. We therefore suggest always paying special attention to the moment of delivery of the goods granting thus an appropriate backing in case the cargo did not arrive in the expected conditions, as well as to the time limits when the damages could have occurred in order to be able to claim or reject claims, depending on who the affected party is.        

 

Cyber disruption in marine

Yesterday, one of our partners, Verónica Meana, took part in a practical conference organized by AON under the title “CYBER DISRUPTION IN MARINE” which was held in AON’s head office in Torre de Iberdrola in Bilbao. The conference was devoted to learning about and to sharing the risks and consequences that cyberattacks constitute in transportation and industry. 

Verónica had the opportunity to share the discussion panel with Max Bobys, Chris Bhatt and Nannette Wong, and in her presentation tackled administrative and civil responsibilities within transportation and logistics in the context of cyber threat, referring in particular to the maritime transportation sector and its agents. 

AIYON Abogados would like to thank AON for the opportunity we were given to participate in this event, which was greatly insightful in terms of better understanding of the new and future risks that the transportation sector is facing, the ways to deal with them and the insurance options available in the market of hull and machinery, civil liability and P&I insurance. 

PIRACY, A REALITY IN THE TWENTY-FIRST CENTURY

Piracy in the maritime world is a reality with a history of hundreds of years, being sometimes prosecuted and other times protected by the institutions of the countries present in the different maritime areas around the world. We have been currently witnessing the fact that this phenomenon is still alive and that it is a way of extorting not only companies and individuals, but also governments of those countries that have to address these unlawful actions in the most thorough manner taking always into consideration the vessels’ safety, but above all the welfare of their crews.

Focusing on our own most recent experience, we know that there have been several pirate attacks in waters of the Indian Ocean against Basque fishing vessels, in particular the “Txori Argi” and the “Haizea Lau”, which only demonstrates that, while the pirate attacks at sea do not attract the spotlight of the news worldwide as they used to some years ago, piracy is by no means eradicated. In fact, and talking here on global scale, the incidents associated with this phenomenon far from being diminishing on the contrary have been increasing according to the report of International Maritime Bureau (ICC) which signals that there were 201 incidents of maritime piracy recorded during 2018 compared with the 180 incidents recorded the year before.

These incidents experienced last year, hijackings and kidnappings committed by pirates, whose target were not only cargo and container vessels, including the vessels of the UN organization involved in international aid programs for countries in specific critical situation, but also, to a larger extent, fishing vessels.

Piracy actions that have been recently concentrated on a mayor scale in waters of the Gulf of Guinea, an area that seems to have taken over what happened in the previous years on the Somalia coastline as the recorded incidents dabbled there in 2018 compared with the year before. In fact, waters of Somalia are enjoying a “relative peace”, at least in comparison with the situation in previous years, basically due to two circumstances. On the one hand, the massive deployment of the so-called “Operation Atalanta”, in which Spain is an active participant, and whose main objective is to protect the maritime traffic in the Indian Ocean against the acts of piracy  and, on the other hand, due to the own security measures taken by the vessels, such as the established operating procedures in case of a piracy attack and the presence of private security companies on board. Yet, the navigation close to the Somalian coastline still requires extreme caution on the part of the shipowners and their crews, as demonstrated by what happened with the fishing vessels “Txori Argi” and “Haizea Lau” this year, and which prevents us from excluding Somalia from the areas of risk.

If we look to the future, we can foresee that piracy, as we know it today, will gradually disappear as the navigation of autonomous vessels and vessels piloted by a remote control from a ground base (unmanned vessels) will become a reality on our seas and oceans, developing thus a new way of maritime navigation.

If we focus on this hypothetical scenario, it might be concluded that new cyber pirates could operate from any place around the globe without any need to be on-site and even without need to be a member of an organization, so that military deployments and private security companies on board, which are nowadays common means of deterrence and protection, could not be used as the main guarantors of a nonviolent navigation. The fight against piracy, which will, one way or another, continue being a present and future threat, will have to be adjusted to the scenarios that may evolve, as well as it should be the legal systems of the countries affected by this reality.

Accordingly, it should be noted that if the control system of an unmanned vessel were intercepted from distance by means of technology and for illicit purposes, it is certain that such situation would not fit in with the provisions of the United Nations Convention on the Law of the Sea (Montego Bay) related to piracy, since the convention specifies that such acts should be committed through the intervention of the crew or the passengers of a vessel and directed against another vessel. Furthermore, if we examine the crime of piracy after the amendment introduced by the Organic Law 15/2003 of 25th November, the current Criminal Code requires that a seizure of a vessel be preceded by an act o violence, intimidation or deceit and therefore the above mentioned situation (with no violence, intimidation or deceit due to the use of virtual means) would remain, at least at the beginning, out of the current criminal penalization.

To sum up, in accordance with the current regulation, it could be concluded that the possible future acts of piracy that were mentioned above would not be considered but cyberattacks with the application of the provisions for cybercrime and other common criminal definitions provided for in the Criminal Code in accordance with the particular circumstances of each case (misappropriation, damages, etc.). This is, however, insufficient since the future acts of piracy might involve, beside a cyberattack for specific purposes, an offence against the safety at the sea and navigation, a legal interest that the crime of piracy aims to protect.

Thus, we find it necessary to review the concept of piracy, so that it encompasses other scenarios that are currently not covered, such as cyberattacks against unmanned vessels, and that these cases remain not restricted to the category of computer specific crime and other offences. We, from our law firm as a team of professionals of the sector and due to our experience, consider that it is convenient, from now on, to be aware of the new forms of piracy, which might already be a reality, and hence to adjust the regulation and the strategies to be followed without delay in order to stay ahead and protect adequately vessels and their crews.

WISTA Spain Annual Meeting – 2019 – “Bilbao in Evolution”

On 26th and 27th of April, WISTA Spain annual meeting was held in the Maritime Museum (Museo Marítimo) in Bilbao and was cosponsored by our firm. The event was organized by the WISTA associates in Bilbao, Marta Prado, the chair of the panel discussion on 26th; Itsaso Ibáñez, Carolina Ibáñez and the partner of our Bilbao office, Zuberoa Elorriaga.

As planned, the event under the title Bilbao in Evolution: New Trends in Shipping and Tradingtook place on Friday. The meeting was divided into three thematic groups, two in the morning with various presentations under the heading “Fishing Industry, Insurance and its Evolution” and “Logistics, Transportation and Supply Chain”; and one in the afternoon consisting of a very interactive panel discussion called “Development and Port Challenges in the XXIst Century”, all this with the participation and the great performance of Dr. Olga Fotinopoulos – Full Professor of Laboru Law and Social Welfare Law at the University of the Basque Country, Mr. Borja Alonso Olano – Director of the Legal and Sustainability Department of Albacora S.A., Mrs. Beate Soia – Account Executive of March JLT, Marine Insurance & Claims, Mrs. Iratxe García Gil – Director of Organization and Corporate Development in IVL/LEE (Basque Institute of Mobility and Sustainability), Mrs. Sonia García Díaz – Managing Director in Dagase, President of Asetravi ( Business Association of Transport of Biscay), Mrs. Nerea García Núñez – Regional Supply Chain Manager in Guardian Glass Automotive – Europe, Mrs. Inmaculada Ugarteche Maturana – Director of UniportBilbao – Port Community, Mrs. Elvira Gallego Uribe – General Manager in CPS Iberian Bilbao Terminal, Mrs. Ana Santiago G-Bretón – CEO in SISTEPLANT and Mrs. Sira Aranguren Lozano – Managing Director in SERGUSA and President of the Official Association of the Customs Agents in Bilbao.

Out of the present authorities it is necessary to stress the support received from Mrs. Arantxa Tapia, Minister for Economic Development and Competitiveness of the Basque Government, who also participated in the event, as well as the attendance of the Director of the Merchant Navy, Mr. Benito Núñez, the Harbour Master of Bilbao Mr. Carlos García, the Harbour Master of Pasaia Mr. Josu Gotzon Bilbao and Mr. Carlos Alzaga of the Bilbao Port Authority, among others.

From AIYON Abogados we would like to congratulate all the organizers and speakers on the excellent work done!

Royal Decree 257/2019, of April 12th – Rules Governing the Granting of Special Aids for the Adaptation of Port Stevedoring Services

In our article dated May 29th 2017 and entitled “Stevedore Service Regulation Eventually Settled in Spain”, we already mentioned the regulation enacted in the Royal Decree-Act 8/2017, of May 12th , which modifies the regulation of workers that provide port cargo handling services, which has been recently supplemented by the Royal Decree – Act 9/2019, of March 29th, which modifies the Act 14/1994, of June 1st, by means of which temporary employment agencies are governed, so that these can adapt to the requirements of the port stevedoring services.

Now, by means of the Royal Decree 257/2019 of April 12th, after intense negotiations between the Government and the affected parties, and in the pursuit of a mediation focused on stabilizing the employment in the sector and on increasing productivity in general, it has been decided to develop an aid plan for those older workers who request voluntary termination of their employment contract with the pertinent Stevedoring Collectives (the so-called “SAGEPs”) or with the company licensed for port cargo handling services or with the Port Employment Centre where they have been employed, provided, of course, that they comply with the requirements established in the this Royal Decree. The nature and the application and payment terms of these aids are specified in the articles 2 to 13 of this RD.

Moreover, the present regulation establishes a transitional period of adaptation for the workers of the “SAGEPs”, derogates the Order FOM 2297/2013 of October 23rd which determines the required vocational training qualification, as well as any provisions of equal or lower rank that oppose the provisions of this RD, and modifies and updates certain certificates of professional competence related to cargo operations and stevedoring.

This Royal Decree will enter into force the day after its publication in the Official State Gazette (BOE), except for the regulation on processing and granting of aids, which will enter into force two months after the date of its publication.

Development of ship agency duties by the Royal Decree number 131/2019, of March 8th

On March 23rd, 2019, the Spanish official gazette published the Royal Decree 131/2019, of March 8th, whereby ship agents’ duties were developed.

This new regulation complements the provisions of the State Ports and the Merchant Navy Act – Royal Decree 2/2011 of September 5, and the Spanish Shipping Act 14/2047 of July 24, regarding the figure of the ship agent.

The Royal Decree 131/2019 has a total of ten articles that develop the conditions for the establishment and exercise of the activity of ship agents in Spanish ports, both state and autonomous. These ten articles are arranged in two Chapters, one establishing a series of “General Provisions” and another, entitled “Relations of the ship agents with the Marine Administration and the Port Authorities” establishing the functions of this highly relevant figure in the world of maritime transport.

This last Chapter regulates, among other issues: (i) that communications between the ship agent and the maritime authorities will be carried out through electronic means and the national single window; (ii) the obligation to provide continuous attention to the ship and to pay the outstanding debts owed to the Harbor Master or Port Authority until the termination of the agency, termination that must be notified through electronic means; (iii) the creation of a public Registry of ship agents that will facilitate an adequate control of the persons or companies that perform as ship agents.

We would also want to highlight the definition of ship agent contained in the Royal Decree and that describes the agent as “the natural or legal person who deals, on behalf of the owner or shipowner, in whose name and representation he or she acts, with the material and legal steps necessary for the dispatch of and other needs of the ship in port“. This definition is similar although slightly broader than the one contained in art. 319 of the Spanish Shipping Act of Maritime Navigation.

The R.D. 131/2019 of March 8 will come into force on July 1st, 2019.

The legal regime of civil liability in the Prestige case

The Faculty of Law of the University of Deusto, within the framework of the Master in Maritime Law, organised yesterday a workshop to analyse the “Prestige case”. It was a special event because took part on it part of the direct protagonists of the procedure. 
 
The workshop was attended by the environmental prosecutor of Galicia, Mr. Álvaro García Ortiz, with a conference titled “Prestige case, spills of hydrocarbons in the criminal jurisdiction”; the Captain and surveyor Mr. Fernando Cayuela who was nominated at the time by the Basque Government to intervene in the technical-judicial actions; the lawyer Luis Figaredo, who could not be present for reasons beyond his control but sent his presentation in writing under the heading “Legal strategy in the PRESTIGE case in the courts of the United States”; and our partner and colleague of Bilbao Mikel Garteiz-goxeaskoa, who developed an interesting talk about the “Legal regime of civil liability in the Prestige case”.
 
From AIYON Abogados we want to thank those responsible for the Master and the University of Deusto for their invitation to take part in this interesting dissertation.

Maritime contracts in Spanish Law

The Spanish Maritime Law Association (AEDM), in cooperation with the University Carlos III and the publisher Dykinson, has recently published a book regarding maritime contracts in Spanish law, “Los contratos sobre el buque en Derecho español. Análisis práctico”. Veronica Meana, of Aiyon Abogados, has contributed to this publication with the chapter related to wreck removal contracts.

The book has been the product of the joint effort of many of the members of the AEDM and includes issues such as the contract for shipbuilding, sale and purchase, demise charter parties, time and voyage charter parties, bills of lading , other contracts for the use of the ship, yacht leasing contracts, passenger contracts, ship management, ship agency, port handling, pilotage, towing, classification, hull and machine and P&I insurance, and mortgagors’ insurance.

Royal Decree-Law 23/2018, of December 21, of transposition of Directives in the area of trademarks, rail transport and package travel and linked travel services

On December 27, 2018, Royal Decree-Law 23/2018, of December 21, transposing directives on trade marks, rail transport and package travel and related travel services is published in the BOE (Spanish Official Bulletin).

Title I, which comprises the first article, contains the modifications derived from the transposition of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015, on the approximation of the laws of the Member States in the matter of trade marks. As a novelty, the Royal Decree-Law increases the number of signs that are subject to registration to those that capable of representation in any appropriate form using generally available technology, and thus not necessarily by graphic means, as long as the representation offers satisfactory guarantees to that effect.

The distinction between “trade mark” or “well-known or renowned trade” name disappears and the concept of “infringement of trade mark” is extended to the use of the sign as a trade name or similar designation. Furthermore, the Royal Decree-Law streamlines the registration renewal procedure.

Likewise, it gives the trademark owner the power to prohibit not only the direct acts of infringement of the trade mark by third parties but also the preparatory acts in relation to the use of packing and other means and the power to exercise the rights thereof against goods coming from third countries without being released into free circulation.

As for the competence to declare the nullity and expiration, this is now shared by the Spanish Patent and Trademark Office (directly) and the Courts (indirectly).

Title II, which includes the second and third articles, contains the modifications derived from Directive 2012/34 / EU of the European Parliament and of the Council, of 21 November 2012 (modified by Directive 2016/2370, of December 14) establishing a single European railway area. It achieves the completion of the single European Area, which had already been applied to international freight transport and international passenger transport, by extending the principle of open access to domestic rail markets.

In view of the potential entry of new actors as infrastructure managers, the Royal Decree-Law incorporates the category of “vertically integrated undertaking” that allows an infrastructure manager and a transport services operator without a different legal personality to coexist in the same company. This implies the need to introduce requirements for the independence of the infrastructure manager and shielding it from possible influences or conflicts of interest with the railway undertakings. This Title also includes the concepts of reasonable margin of profit and alternative route.

The need to register the railway company license in a Registry is eliminated. In addition, the State Agency in charge of Railway Safety has the obligation to communicate without delay the resolution on the license without it being possible to understand the license not approved by administrative silence.

In another order, the Royal Decree-lay includes manoeuvres (previously auxiliary), those services to be supplied in essential service facilities, the supplies in fixed installations and the loading and unloading of merchandise among those essential services and establishes the obligation to inform about the prices and conditions of access to service facilities not managed by the infrastructure manager.

Title III, article four, contains the modifications derived from the transposition of Directive (EU) 2015/2302 of the European Parliament and of the Council, of 25 November 2015, related to package travel and linked travel arrangements.

Among the main modifications of the Royal Decree-Law, it is worth mentioning the modification of the scope of application and the harmonized definitions. The protected subject becomes now the “traveller”, which is a broader than the concept of “consumer”. In addition, the scope of the package is extended, and the concept of “linked travel arrangements” is introduced, establishing which combinations of services can be considered as linked travel services.

In addition, the Royal Decree-law reinforces the obligation to provide pre-contractual information to the traveller. The organisers may not unilaterally alter the contract unless: (i) they have reserved that right in the contract, (ii) the alterations are insignificant and (iii) the traveller has been informed in a clear and understandable manner.

The Royal Decree-Law grants the traveler the power to terminate the contract when the proposed changes significantly alter the main characteristics of the travel services with the right to a refund of the price in 14 calendar days. The traveller in such instance may be required to pay an appropriate and justifiable termination fee to the organiser, which must meet certain criteria. On the other hand, it regulates under which conditions the price can be increased.

The organisers and retailers are required to provide a security for the refund of all payments made by or on behalf of the travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation.