Notes to the Judgments of the CJEU and the High Court KBD of England on the Prestige Case

The English Court does not apply the doctrine of the CJEU which confirmed the possibility of recognising the Spanish conviction in the Prestige case in England.

The environmental tragedy of the M/T Prestige initiated a long-running legal dispute between the insurer of the M/T Prestige (The London Steam-Ship Owners’ Mutual Insurance Association Limited, hereinafter “the Club”) and Spain, through two different proceedings in two Member States at the time, the United Kingdom and Spain.

This article is based on Spain’s application to the UK courts in 2019 under Article 33 of “Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters” to recognise and enforce the Spanish court’s judgment. This decision was the Enforcement Order of 1 March 2019 of the Provincial Court of A Coruña enforcing its previous judgment, confirmed in cassation by the SC on 19 December 2018. It condemned the Master, the owners of the Prestige and the Club against the Spanish State and more than 200 other parties. As far as the Club was concerned, up to the contractual limit of USD 1 billion on the basis of the insurance policy.

The High Court of Justice Business and Property Courts of England and Wales Commercial Court (hereinafter High Court KBD) granted that application in May 2019, which was ultimately appealed by the Club on the basis of two main arguments under art. 34 of Regulation No 44/2001: (i) argument of incompatibility with the English judgment (ii) recognition of the Spanish judgment would be contrary to English public policy principles for violation of the res judicata rule.

At this procedural stage, the High Court KBD referred a question to the CJEU for a preliminary ruling, in relation to the interpretation of Regulation 44/2001, as to whether the recognition and enforcement in the UK of the sentence imposed in Spain could be refused, due to the existence in the UK of an award and a subsequent judgment upholding it, the effects of which were irreconcilable with the Spanish judgment.

The CJEU ruled on 20 June 2022 that a judgment given by a court of one Member State (UK) on the terms of an arbitral award cannot prevent the recognition, in that Member State, of a decision given by a court of another Member State (Spain), where provisions or objectives of Regulation 44/2001 have been contravened.

Therefore, the English courts had indeed to recognise and enforce the said Order of Enforcement of the AP de A Coruña, since the arbitration award on the terms of which the English judgment was rendered would have infringed certain provisions of Regulation No 44/2001, namely (i) the effect of the arbitration clause inserted in an insurance contract since, according to the CJEU’s own case law, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since, when the arbitration award was entered into, the insured person cannot be bound by the arbitration award, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since when the arbitration proceedings were brought in the UK (16 January 2012), proceedings between the Spanish State and the Club were already pending before the Spanish courts. Therefore, in accordance with Article 27 of Regulation 44/2001, the English courts should have suspended the proceedings ex officio until the Spanish courts had declared themselves to have jurisdiction and, if they did so, as was the case, they should have declined jurisdiction in favour of the Spanish courts.

Following the preliminary ruling, the High Court KBD decided on 06 October 2023 on the appeal lodged by the Club:

i). That they were irreconcilable judgments, given that the English judgment declared that under the “pay to be paid” clause, as the shipowners had not paid any amount, the Club was not liable to Spain and the Spanish judgment maintains that the Club is liable to Spain. These positions cannot coexist and therefore, both judgments are irreconcilable and thus, in accordance with art. 34 of Regulation 44/2001, the Spanish judgment can neither be recognised nor enforced in England.

ii). The English judgment in line with the arbitral award is res judicata and as Regulation 44/2001 excludes arbitration from its regulation, the existence of potentially inconsistent decisions and lack of coordination with future arbitral awards is assumed by the Regulation. Furthermore, it understood that since the Regulation does not apply to arbitration, the English court’s decision to ratify the arbitral award did not alter the provisions of the European Regulation.

It also considers that the CJEU, in its ruling on the question referred for a preliminary ruling, exceeded the scope of the questions referred for a preliminary ruling, and purported to apply the law to the facts, which is outside its competence (reserved to the Member States). Considering that the CJEU had exceeded its powers, the High Court KBD considered that it was not bound by its decision.

In conclusion, we must remember that the interpretation issued by the CJEU is binding on the court that asked the question for a preliminary ruling, which may not, under any circumstances, depart from it or ignore it, either on its own initiative or because it is instructed to do so by a hierarchically superior court, and that in the future, this interpretation of the CJEU will be the one that will be applied in the EU. However, the English judgment may be seen as opening a small door to legal uncertainty if it allows a Member State to unilaterally consider that the CJEU has exceeded its powers and that its decision is therefore not binding on it, without prejudice to any liability it may incur for breach of Community law.

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AIYON Abogados Moves to New Office in Algeciras

AIYON Abogados recently gathered in Algeciras part of its team of eight professionals from its offices in Madrid, Bilbao, Cadiz and Algeciras to inaugurate its new location in Algeciras and to share with its customers in the Algeciras enclave the good news that always comes with the opening of new facilities and the incorporation of a new professional to the team, as is the case of Rocío López.

Along with local lawyers Jose Antonio Domínguez and Rocío López, the event was attended by partners Mikel Garteiz-goxeaskoa and Zuberoa Elorriaga, from the Bilbao office; Madrid partner Verónica Meana; and partner and head of Cádiz, Enrique Ortiz, with his colleague Pablo Sánchez.

José Antonio Domínguez, director of the Algeciras office, frames these new developments in the firm’s commitment to improve the service provided to its clients in the area of influence of the Port of Algeciras, among which are shipowners, insurance companies, inland hauliers, forwarding agents, shipping agents, logistics operators, stevedores, shippers and, in general, all types of companies dedicated to international trade and the transport of goods.

“The strategic importance of Algeciras, where our clients have a very important presence, justifies the growth of our team and the improvement of our facilities,” says José Antonio Domínguez, partner in charge of the office.

Algeciras, a strategic location
As one of the most important ports in Spain and located on one of the strategic routes for international trade, the Port of Algeciras is key both for North-South traffic, with an abundant flow of goods to and from Morocco on the various ro-ro shipping lines operating in the Strait of Gibraltar, and for East-West traffic on the major containerised goods traffic routes, being an important hub port.

Algeciras is, on the other hand, a very important bunker or bunkering port in the Mediterranean, with shipyards and an anchorage where ships can make provisions or carry out repairs of all kinds.

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AIJA is held in Athens (Greece) with one of our lawyers as speaker

As planned, the AIJA (International Association of Young Lawyers) Transport Seminar took place in Athens on 14-16 September.

It was a joint event in which the Arbitration Commission and the Public Procedure Commission also participated, bringing together more than 150 young international lawyers. Among them were our colleagues from AIYON Algeciras and AIYON Bilbao, Rocío López and Irantzu Sedano respectively. The latter is an active member of AIJA.

Both lawyers enjoyed six conferences dealing with relevant and topical issues in the transport sector, with the contribution of more than twenty professionals and experts in the field. Among them, the talk on “Blockchain”, “Double Twins” and Autonomous Transport, in which our colleague Irantzu Sedano actively participated as a speaker along with other colleagues from the association, deserves special mention.

In addition to the conferences and the work carried out by the commissions, the participants were also able to enjoy a wide range of leisure and local culture in their free time.

We would like to thank AIJA, and the entire organising committee of the event, for their work and dedication in carrying out this type of international event, which undoubtedly contributes to enriching greatly the transport sector and the professionals that make it up.

Royal Decree 186/2023 and Situations of Anchoring of Tankers or Other Vessels Carrying Substances Harmful to the Marine Environment, when They Are Not Bound for Any Port or Terminal Located in Spain

Pursuant to its Sixth Final Provision, Royal Decree 186/2023, of 21 March, which approves the Regulation on the Organisation of Maritime Navigation (which is inserted below), came into force on 11 April 2023, with the exception of Chapters II, III and IV thereof, on the regime applicable to the dispatch of vessels, the role of dispatch and manning, and the enrolment and disenrolment regime of crew members, respectively, of the Regulations on the Organisation of Maritime Navigation, which will enter into force on 1 July 2024.

As stated in Article 2, Maritime Navigation Regulation is applicable both to civil ships and vessels flying the Spanish flag, as well as to those flying foreign flags when sailing in maritime areas in which Spain exercises sovereignty, sovereign rights or jurisdiction (reference to the United Nations Convention on the Law of the Sea / UNCLOS), with the exception of warships, other State ships and vessels, ships and vessels of the State Security Forces and Corps and of the Customs Surveillance Service.

Having determined its scope of application and entry into force, we will now focus on the regime of this Royal Decree in relation to the use of Spanish maritime spaces outside the territorial sea (i.e. the contiguous zone or the exclusive economic zone) as a place of anchorage by product tankers, chemical tankers, gas tankers or other vessels carrying substances polluting the marine environment and not bound for any port or terminal located in Spain, as set out in Articles 44 and 45, within Chapter VIII of the Royal Decree.

Article 44 states that this type of vessel, when transporting substances that pollute the marine environment and which, without having a port or terminal located in Spain as a destination or discharge point for all or part of their cargo, intend to use Spanish maritime spaces outside the territorial sea as a place to anchor, while awaiting orders, instructions or any other similar circumstance, must have the express authorisation of the corresponding Harbour Master.

In other words, the above types of vessels in such circumstances, prior to carrying out the anchoring operation, must have formulated and submitted a request to this effect (the content of which shall be as provided for in paragraph 2 of this Article 44, such as estimated time of arrival, port of origin, type of cargo, etc.) and obtain the express authorisation (not tacit) of the corresponding Harbour Master’s Office.

The Harbour Master may authorise or refuse such a request, taking into account the conditions under which the anchoring will be carried out, as well as the avoidance of damage that could result from an accident involving this type of vessel.

Once an authorisation to anchor has been granted, the ship shall (i) anchor in the geographical position indicated, (ii) undergo, where appropriate, a safety inspection on arrival at the anchorage, the result of which may lead to the adoption of precautionary measures or even the revocation of the anchoring authorisation.

Likewise, if it is desired to remain at anchor, the vessel must hire a tug with sufficient pulling power in relation to the vessel in question, which must be equipped with pollution control equipment, which must be kept permanently operational for the duration of the stay. Furthermore, the propulsion equipment must be kept in immediate operation at all times, the fire-fighting system line must be pressurised and, in addition, the regulatory anchoring signals must be maintained, and all deck and bridge lights must be illuminated throughout the night.

Furthermore, a vessel wishing to remain at anchor must check its geographical position periodically and record it in the logbook every hour. Along these lines, the captain must inform the Rescue Coordination Centre every four hours of the exact anchoring position and of any new development that may affect the safety of the vessel and crew, especially when the anchoring position is altered for external reasons, such as weather conditions. Obviously, the duty is also imposed to maintain the corresponding bridge and engine watches, checking the starting system in each of them. In particular, there is a requirement that at least one suitably qualified officer and one suitably qualified crew member must be on the bridge at all times.

It is also forbidden to carry out any cargo transfer, tank cleaning or repair work on machinery and deck without the corresponding authorisation while at anchor, given the high risk of pollution to the marine environment that such operations would entail.

Finally, it is imposed that all changes and movements of the vessel’s crew during its stay in the anchorage shall take place for justified reasons and with the prior authorisation of the Harbour Master.

Pablo Sánchez joins the Aiyon Cádiz office

After the latest incorporation of the lawyer Rocío López to Aiyon Algeciras, who attends the local office together with the partner in charge of the same José Antonio Domínguez, our office now incorporates a new support member in the office of Aiyon Cádiz.

The specialized publication “El Canal Marítimo y Logístico” outlines that, having completed a prior training phase in collaboration with the rest of the firm’s team, and in full collaboration with the partner in charge of Cádiz, Enrique Ortiz, Pablo Sánchez is now a permanent part of Aiyon Abogados working as a lawyer from the Aiyon Cádiz office.

Cádiz and its port, with a strategic geographical location, reflects the relevance that the maritime and logistics sector in general have in the province. It is a fact that the Port of the Bay of Cádiz, in conjunction with the port of Algeciras, has positioned itself as the southern gate of Europe and the entrance to three continents.

Connected by land through road and rail access, and by air through the local airports of Jerez and Seville, the port infrastructures of the bay of Cádiz offer the best services and have include relevant companies linked to the logistics sector and maritime transport. In fact, Cádiz, together with Puerto Real and Puerto de Santa María, is home to four commercial docks, two fishing ports, as well as shipbuilding, off-shore and aeronautical repair and construction centers, and various nautical-sports complexes with great activity.

The offer is completed with a Customs-Free Zone, a Maritime Station for passengers and constant entry of cruise ships, a Border Inspection Post, a Traffic Control Center and an Integrated Communications Center, among other infrastructures and services.

That is why Cádiz has a large port community of which Aiyon Abogados has been a part for years, with a very active presence in associations such as Cádiz-Port, being part of the board our partner Enrique Ortiz, or Comport-Algeciras Port Community, among other.

The new member of the firm Aiyon Abogados SLP, Pablo Sánchez, is graduated in Law from the University of Cádiz – UCA (2014) and member of the Illustrious Bar Association of Cádiz. In addition, he holds a Master’s Degree in Maritime-Port Business Management and Maritime Law from the University of Deusto (2018) and the Master’s Degree in Access to the Legal Profession from the UCA (2016), being awarded the prize for the best file in the latter.

Pablo Sánchez completed an internship for six months in a law firm in Dublin (Ireland), where he came into contact with European immigration law and its extensive jurisprudence, in a turbulent period such as 2017 due to the uncertainty generated by Brexit. His first professional contact with the world of maritime-port companies was at the beginning of 2018 in Bilbao, where he did an internship in a freight forwarding company well established in that city, specifically in its maritime export department, which would later lead to two fruitful years of experience in it, thus knowing first-hand maritime export/import, with all the vicissitudes that these suppose at an operational level.

At Aiyon, Pablo Sánchez now develops his vocation as a maritime and transport lawyer, specializing in the management of insurance claims, administrative sanctioning procedures against ships, recoveries, labor relations of sea workers (SOLAS Convention) and land transport claims (CMR), among others, since the firm offers a “360º Service” without limiting itself to its areas of specialization (Shipping – Transport- Insurance – Trade), thus providing solutions to its clients in all areas and according to their needs.

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WISTA SPAIN Annual Meeting, Algeciras 2023

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)

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

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.

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AIYON visits the Port of Baiona and meets with the French association of transporters O.T.R.E.

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

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.