SHIPPING archivos - Page 12 of 15

Sale contracts with the Incoterm DAP

14 December, 2018/in AIR, LAND TRANSPORTATION, LEGAL, INSURANCE AND TRADE, SHIPPING/by Aiyon

In view of several cases managed by our law firm in which the use of the international commercial term DAP (Delivered At Place) has been of special relevance, in this article we will try to shed light on its origin and application.

As a global business organization, the International Chamber of Commerce (ICC) intends to provide the necessary practical tools to activate and simplify world trade through the use of standard terms that allow defining the rights and obligations assumed by of the parties to a sales contract, including those referring to the transportation of the goods from origin to destination. Incoterms or International Commercial Terms affect some relevant aspects of the commercial relation (sales contract) between seller and buyer, but they do not delimit the entire contents of said contract.

European and Spanish courts, to a greater extent the Spanish mercantile courts specialized in transport law, have been aware of the reality of the Incoterms and this is reflected in many resolutions. An example of this is the Judgment of the Court of Justice (EU) C-87/2010 of June 9, 2011, when it states: “In order to check whether the place of delivery is determined ‘according to the contract’, the national jurisdictional body that has knowledge of the matter must take into account all the terms and all the relevant clauses of said contract that clearly designate said place, including the terms and clauses generally recognized and enshrined by international commercial uses, such as Incoterms elaborated by the International Chamber of Commerce.”

DAP is one of the last terms incorporated in the publication “Incoterms 2010” issued by the ICC and, together with the term DAT, it replaces the previous DAF, DEQ, DDU and DES in order to adjust adequately to the current logistic reality. Consequently, as of 1^st of January of 2011, date of entry into force of the aforementioned publication, the ICC reduced the Incoterms in use to eleven.

When the parties of a sales contract arrange the inclusion of the term DAP, they essentially agree, among other rights and obligations, that the seller-exporter will comply with its obligations by making available the cargo to the buyer-importer ready for unloading in the used means of transport at the destination agreed in the contract; the buyer shall therefore be responsible for all expenses associated with the unloading of the merchandise from the means of transport used until destination, as well as for its clearance for importation. Since the seller will assume the organization and materialization of the transport to the place of destination agreed in the contract, he should make sure that this concrete place is duly specified in the sales contract since he runs with the risks of the cargo up to that point. Therefore, buying under DAP conditions will imply a lower risk for the buyer.

The DAP Incoterm is a multimodal term, which means that it can be used regardless of the means of transport used; therefore, its use is justified whether the goods are transported by road, sea, rail or air.

The knowledge and proper use of the terms of international trade is an indispensable part in international sales contracts and increasingly in those of national scope, since their national use has been extended for the benefit of transactions. It is a reality that has been gaining strength since the entry into force of the “Incoterms 2010”.

In short, receiving adequate advice at the time of closing and drafting sale contracts in relation to the Incoterms that best suit the needs of the parties, as well as in relation to the other relevant aspects to be agreed, is essential to protect the position of our clients and achieve the good end of any commercial transaction.

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The “ISSA Istanbul 2018” fair

13 December, 2018/in AIYON, SHIPPING/by Aiyon

AIYON Abogados was present at the “ISSA Istanbul 2018” fair (63rd Annual Convention of the International Shipsuppliers & Services Association), which was held between the 23^rd and 24^th of November and was attended by the partners of the firm Enrique Ortiz-Bastos and Zuberoa Elorriaga .

Our law firm wants to thank the excellent organization of the trip to Istanbul as well as their warm welcome to the Chamber of Commerce of Cadiz. Together with representatives of other Spanish companies Zuberoa and Enrique were able to attend this event of special relevance in the international maritime sector. Within its International Promotion Plan for 2018 the Cadiz Chamber of Commerce, in collaboration with the Provincial Council of Cadiz as well as with the ERDF (European Regional Development Fund), organised this trip which represents an opportunity to promote Spanish companies and improve their reach in countries like Turkey, whose maritime sector is growing.

Judgment C-88/17 of 11 July 2018 of the CJEU

19 November, 2018/in LAND TRANSPORTATION, INSURANCE AND TRADE, SHIPPING/by Aiyon

Judgment C-88/17 of 11 July 2018 of the CJEU has confirmed that in a transport contract that has several stages and that is carried out by a number of means of transport, both the place of origin and the place of delivery of the goods constitute places where the transport services are provided ensuring a close link between the contract of carriage and the court having jurisdiction. Consequently, and pursuant to Article 5.1.b) of Regulation No. 44/2001, in force at the time of the facts, the plaintiff may choose to place the claim by reason of said contract in one or another jurisdiction.

This decision follows the same line of interpretation as judgment C-204/08 of 9 July 2009 (Rehder) issued in the framework of an air transport contract.

Actions to be taken by the Master in response to a maritime accident

19 November, 2018/in AIYON, INSURANCE AND TRADE, SHIPPING/by Aiyon

On 8^TH November 2018, our colleagues from the south José Domínguez and Enrique Ortiz held a lecture at the University of La Laguna in Santa Cruz de Tenerife on “Actions to be taken by the Master in response to a maritime accident”.

AIYON Abogados want to thank the University of La Laguna and in particular the “Escuela Politécnica Superior de Ingeniería Sección: Náutica, Máquinas y Radioelectrónica Naval” for their invitation and hospitality. We are happy to contribute to the training of the students of Maritime Law and future Masters and Chief Engineers in the handling of incidents covered by marine insurance.

Our colleagues Jose Castro and Enrique Ortiz attended the conference last Thursday, November 8th, and would like to thank the interest shown by the conference participants, numerous university students in their 4th course of the Degree of Nautical and other invited professionals from the sector, and the hospitality with which were welcomed by the teachers of the University.

New revision of the “Tax Lease”

26 September, 2018/in LEGAL, SHIPPING/by Aiyon

At the end of July, the Court of Justice of the European Union (CJEU), the highest authority of the Community, annulled the sentence delivered by the General Court of the European Union (GC) on the so-called “Spanish tax lease system” or “Tax lease”.

Let us recall that the now annulled sentence was delivered by the CJEU in 2015 and it set aside a previous decision of the European Commission by means of which the Commission ordered the recovery of the tax aids granted by Spain to the maritime shipping companies between 2007 and 2011 for considering the State aids illegal and incompatible with the internal European market. The Commission reached this conclusion after a formal investigation which concluded on July 17^th 2013 with the Decision, now annulled by the CJEU, on the existence of tax aids granted by Spain whose only beneficiaries were Economic Interest Groups (EIG) and their investors. This decision, needless to say, had an important impact on the affected Spanish naval sector and was appealed before the CJEU by the Spanish government and by numerous investors of the EIGs.

Amendment of the Organic Law on Counter Smuggling

20 July, 2018/in LEGAL, SHIPPING/by Aiyon

On July 13th 2018, the Council of Ministers approved the preliminary draft of Amendment of the Organic Law 12/1995, of December 12th, on Counter Smuggling, proposed by the Ministry of Finance – Customs and Excise Department .

The aim of this legislative initiative is to strengthen the fight against the criminal organizations involved in drug trafficking and tobacco and drug smuggling in Spain by declaring, for the purpose of the preliminary draft, the so-called RHIBS (rigid-hulled inflatable boat) as a prohibited type. The preliminary draft specifies that the types to be considered illegal are: a) rigid-hulled inflatable boats over 8 meters in length; b) or under 8 meters in length but with power greater than 150 kW (203.94 CV); c) and any other boats that might be suspected, on the basis of reasonable indications, to be used for committing or enabling the commission of an offence of smuggling. If the preliminary draft is adopted, the bodies responsible for suppressing these criminal activities shall be allowed to confiscate those high-speed boats that “are supposedly used” for committing smuggling-related criminal acts. Read more

Conflict resolution: PASSENGER CLAIMS

17 July, 2018/in INSURANCE AND TRADE, LEGAL, SHIPPING/by Aiyon

With a clear bet in favour of cruise tourism due to the relevance that this sector has in the economy of our country, Spain has achieved a privileged position in the global context of this sector. According to data from the public entity Puertos del Estado, in 2017 the number of visitors on cruise ships exceeded by 9 million, making Spain the second largest European country in the number of cruise passengers. Puertos del Estado estimates that by 2020, Spain will receive 9.5 million cruise passengers.

These data must be completed with regular line vessels that progressively add tourist visits year after year. In 2017, the total number of passengers traveling on regular lines amounted to 24.7 million. Although the majority of these lines are dedicated to the traffic between the peninsula and Africa and inter-island connections, it is expected that these numbers will increase as the routes linking Spain with Italy and the United Kingdom or the recently inaugurated line between Santander and the Irish port of Cork, are gaining prominence. Read more

Sulphur content of marine fuels, lead to sanction

30 January, 2018/in LEGAL, SHIPPING/by Aiyon

Over the last few months we assisted in many sanctioning proceedings initiated by various Spanish Harbour Masters and the Directorate General of the Merchant Navy (DGMN) related to the sulphur content of fuels for maritime use used by ships docked and anchored in Spanish ports.

International Sales under CIF terms and the Active Legitimation of the Insurers

30 October, 2017/in INSURANCE AND TRADE, SHIPPING/by Aiyon

In international sales under CIF (Cost, Insurance and Freight) or CFR (Cost and Freight) terms, it is clear that the Buyer bears all risks of damage once the goods are onboard the ship at the port of shipment. However, it is common that the Insurer of the goods compensates the CIF Seller while the goods are damaged during the voyage although, according to the agreed CIF terms, the Seller is not responsible for any risk in the moment of the damage.