“The Legal 500” joins the list of international distinctions of AIYON Abogados

/in , , /by

AIYON Abogados SLP has received a special recognition for its areas of Maritima and Land Transport Law by “The Legal 500”, a prestigious international guide that investigates the activity of more than 2,700 law firms in 80 countries. This evaluation is added to the gradually extending relation of distinctions granted to the firm: “The International Comparative Legal Guides (ICGL)”, “The Insurance Disputes Law Review” and “Chambers”, among others.   

In its 2021 edition for Europe, “The Legal 500” places AIYON Abogados in leading positions in Maritime and Land Transport Law and recommends its services for being considered, according to collected testimonies, “a top-rate boutique law firm with a team available 24 hours every day of the year and comprising of professionals with an ample formation in law and in-depth knowledge of recent Spanish jurisdiction. The guide also underscores the “fairness and the easy communication of its lawyers”, “who have been involved in the majority of the main maritime, trade, insurance and transport cases in Spain with excellent results”. 

Maritime Law

With regard to the performance in maritime transport, the references consulted by “The Legal 500” stresses that it is “a solid firm that, from its offices in Bilbao, Madrid, Cádiz and Algeciras, offers an on-site service throughout the whole country”. “The extensive legal and technical training of its lawyers in maritime transport – the guide adds – provides them with deep knowledge of the business, the operations and its physical execution”. In the same way, “the proximity and the permanent communication with the clients (shipowners / charterers, masters, crew members, ship agents, insurance companies, etc.) and their successful and renowned trajectory in advising on sea pollution, collisions, salvage, wrecking, insurance, stowaways, ship arrests, piracy, ship repair and construction contracts are positively pondered.

Land and Air Transport 

The firm also receives excellent references for its “experience in any kind of issues arising in the sector of land transport”. Particular consideration shall be given to their efforts in national and international transport (cargo claims and theft, contracts of guarantee, contracts of logistics and multimodal transport, sanctioning proceedings, etc.) The expert capability and practice in air transport is also being addressed (insurance contracts and air traffic accidents, as well as purchase, leasing and financing of aircrafts, etc.) 

In both sections, the guide evaluates the added value of AIYON Abogados that, according to the references obtained by “The Legal 500” rests upon the ample experience of every member of the team (on average 17 years) and a large teamwork culture, since all the partners have been working together for most of the time of their careers. This allows the firm to choose the best team for every case and client in particular with the aim to protect and promote the business of their clients. 

“The Legal 500” 

The ´purpose of “The Legal 500” is to help lawyers and operators find the most suitable advisors by means their classification, based on the opinion of 300,000 respondents that are processed and evaluated by independent researchers. Merit is the only criterion applied for including law firms into the classification, which is thoroughly reviewed every year. 

Read the article published…

Aiyon Abogados, a “boutique law firm” of experts in Maritime, Transport, International Trade and Insurance Law

/in , , /by

As the newspaper EL Correo Español – El Pueblo Vasco reports in one of its article published in March, the professionals who make up AIYON Abogados, S.L.P. like to consider themselves members of a ’boutique law firm’ that has earned the trust of its clients and the recognition of its sector.

The AIYON Abogados team is distributed in four locations: Bilbao, Madrid, Cadiz and Algeciras, and all of them form a team of experts in Maritime, Transport, International Trade and Insurance Law that is proud to be able to handle national and international cases of great importance while defending the interests of clients with a very diverse profile. In all cases and circumstances, the secret of success lies in a principle that has been maintained to the letter since the team started working together: direct and personalised attention for a comprehensive legal service provided twenty-four hours a day, every day of the year.

Furthermore, one of AIYON Abogados’ strengths is its international projection. Major world references such as ‘The International Comparative Legal Guides (ICLG)’, ‘The Insurance Disputes Law Review’ and ‘The Chambers ‘Shipping 2021′ Global Practice Guide’ have entrusted the firm with their chapters on Spanish law in both maritime and insurance law.

All of this, without forgetting that the greatest guarantee of its success is the accumulated experience of more than twenty years in handling countless cases in their areas of expertise, some of them as well known as the sinking and pollution of ‘Prestige’, the sinking of ‘Costa Concordia’, the hijacking of the fishing boat ‘Alakrana’, the capsizing of the ship ‘Denev’, etc.

Read article published HERE

M/V “Ever Given”: Do you have any cargo on board? How to protect your interests

/in , /by

On 23 March 2021, one of the largest containerships in the world grounded in the Suez Canal. The vessel was touching the banks on both sides effectively blocking the channel for six days. This caused the stoppage of the “EVER GIVEN” voyage and the delay of about four hundred vessels that were queuing to cross the channel. As a result of this situation, the delivery of the cargoes on board “EVER GIVEN” and the other blocked vessels has been also delayed.

The 2018 container vessel was bound to the Port of Rotterdam from where its cargo was to be distributed to its destination, many of them to Spain.

Although some of the details of the casualty and the causes are still unknown, cargo owners are worried about what will happen to their cargoes now.

Presently, the M/V “EVER GIVEN” has re-floated and is being towed to a place of refuge where to she will be inspected for damage assessment. This could take days, if not weeks. In fact, if the vessel does not pass the inspection, the vessel operator, EVERGREEN, will probably be compelled to tranship the cargo onto one or more alternative ships to conclude the voyage. This will increase the delay on delivery and the costs.

As a summary, therefore, and regardless of how the events will develop, the cargoes on board the “EVER GIVEN” and/or the approximately four hundred blocked vessels will arrive to their destination with important delays and significant costs. The situation with the blockage will take time to be resolved and that it will also cause bottlenecks on the global logistic chain.

Would cargo owners be entitled to claim damages for delayed delivery against the carrier?

Spanish law does give some protection on that respect. To claim damages for delay, cargo interests will need to provide evidence that the delay was unreasonable under the circumstances. Would Spanish Law be sufficient protection? Would Spanish law be applicable to the contract of carriage? After having studied the contracts of carriage generally used by sea carriers, we may conclude that Spanish law will not be applicable as the conditions of these contracts usually remit to English law.

Will the insurance grant cover for delay?

Most marine cargo insurance policies do not cover losses due to delays. This is the case, for example, of “all risks” ICC A clauses in which delay is expressly excluded. Therefore, unless there is an express agreement to remove such exclusion, cargo insurance will not cover the losses for delay.

Lastly, cargo owners might end paying a large part of the invoice for the salvage operation through General Average.

Cargo interests should also bear in mind that salvors that are intervening to rescue the vessel and her cargo have the right to lien the vessel, the cargo, her freight, and bunkers as a guarantee for the payment of their salvage reward. Presumably, a salvage contract (LOF) has been entered into by Owners and Salvors through which the salvage costs and reward will be paid by Owners and the Salvors will not claim against cargo interests directly.

However, it is possible that the shipowner decides to declare General Average. This is a specialty of maritime law based on equity and an interesting option to the shipowner since it requires that interested parties in the marine adventure (vessel, cargo, freight) contribute in proportion to their interests to the payment of the salvage costs.

Cargo interests insured under any of the ICC policies will be covered and their insurer will take care of the General Average contribution. But uninsured cargo interests will need to handle the claim and procure average guarantees/security by themselves before they obtain delivery of the cargo. If guarantee/security for the General Average contribution is not placed, the carrier will be entitled to exercise a lien on the cargo.

Consequently, cargo interests are encouraged to contact their legal advisors to take adequate steps for the handling on this incident.

Challenges for Maritime Law

/in , /by

“Puertos y más”, a magazine specialised in transport and logistics, publishes today an article on the challenges the maritime sector is facing in these difficult times by our colleagues Verónica Meana and Irantzu Sedano.

The year 2020 and its special circumstances had a profound impact on the maritime sector. The covid pandemic has altered the way we operate, hindering the supply of goods and limiting the mobility of people. This has led to the maritime transport of goods being declared an essential activity in Spain. Moreover, the year ended with the culmination of Brexit, which meant no less than additional challenges.

Maritime law is obliged to adjust to the new times and the circumstances arising from this new reality, which is why, in 2021, there are many challenges that the sector in Spain is facing. These include, for example, the development of intermodality, guaranteeing thus connectivity with air and land means of transport, and above all, the rail transport.

Thanks to these connections, delivery times will be speeded up, which will ensure the supply of essential goods. Improving work safety is another challenge to be met that will require bettering the employment situation of seafarers, which has been seriously jeopardised by the pandemic, including labour conflicts due to excessive embarkation periods; fatigue syndromes; uncertainty about their embarkation or disembarkation dates and reliefs; and the need to ensure the repatriation of workers.

We cannot also forget the need to guarantee environmental sustainability of maritime services. Maritime transport is still considered a highly polluting mode of transport (due to the high volume of goods transported by sea and the consequent abundance of maritime traffic). A major effort has already been made to enforce the use of low sulphur fuels, but the maritime industry wants to and must continue to evolve. Some of the challenges that arise in this respect are: researching maritime propulsion systems powered by renewable energies; developing the shipping industry to make new constructions less polluting; and adapting existing ships to new, more environmentally friendly fuels.

Finally, it is necessary to continue to make progress in the digitalisation of administrative and bureaucratic processes, as well as in the automation of port-logistic operations and to adapt legislation to the autonomous vessels that are already a reality. After the complex 2020, this year will bring changes to some of the regulations that affect the sector, such as the State Ports and Merchant Marine Act and the Maritime Navigation Act, as part of the constant adaptation and modernisation required by the maritime world at international, European and national level, as well as by the agents that form part of it, as is the case of our firm, to meet the future challenges the sector is facing.

Read article published HERE

BREXIT: The New European Scenario

/in , , , , /by

The European Union ended the year 2020 with breaking news. It was the agreement reached “in extremis” with the United Kingdom on the management of trade relations after 1st January 2021; the date on which, after approximately 4 years of extensions and postponements, BREXIT would finally enter into force.  

After arduous negotiations, on 24th December, Ursula Von der Leyen (President of the European Commission) and Boris Johnson (Prime Minister of the United Kingdom) announced that an agreement had been reached, avoiding so the much feared “Hard Brexit” or “extreme Brexit”, whereby the United Kingdom would leave the European Union without a previous agreement.

There is no doubt that the close trade relations that exist between the two territories have produced significant pressure which has led to this final agreement. In any case, whether by means of a global agreement or by means of sectoral agreements, trade relations with the United Kingdom would ultimately be signed since UK is a vital trading partner for the European Union. In fact, for Spain, the United Kingdom is the fifth in the scale of its trading partners, moving (between imports and exports) over 32 billion Euros during 2019. 

The importance of this agreement arises, to a certain extent, from the fact that thanks to it, bilateral trade relations can be maintained without customs duties or quotas, an aspect that is of particular interest to exporters and importers, but which in general affects the whole society, since the costs to be assumed in import operations, as well as in export operations, will always have an impact on the final cost and customer. However, this agreement does not prevent bureaucratic, administrative, and fiscal procedures from being multiplied due to this departure. Examples of it are customs declarations, sanitary and phytosanitary controls, and the payment of VAT on the declared value of the goods at the time of import.

In other words, since 1st January 2021 the United Kingdom is a third country for the European Union, and as it happens with goods entering and leaving third countries outside the EU, the Spanish Customs Authorities will have to ensure that they are informed on and have control of the goods that are to be introduced into their territory and, consequently, into the European Union. 

This information about entries and exits will generally be provided by the company carrying out the transport of the goods (shipping companies, airlines, or land carriers) and must coincide with the presented customs declarations. In fact, efficiency and speed in the transmission of this information will be key to facilitating border formalities and thus avoiding discontinuities and delays, which for now are unavoidable. Companies that usually trade with importers or exporters from third countries outside the Union are already aware of the formalities required for these operations.

 

TRADE AND COOPERATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY, ON THE ONE HAND, AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, ON THE OTHER HAND

With respect to the Agreement reached, we would like to highlight its second part, which includes aspects related to trade, transport, fishing and other provisions that are of interest to our sector with the aim of facilitating trade of goods between the parties and maintaining liberalized trade to the extent agreed in the Agreement. 

To this end, different aspects are addressed, such as:

  1. The recognition of the freedom of transit through their territories to persons with nationality of either Party. 
  2. The prohibition of customs duties, that is, a Party may not adopt or maintain any duties, taxes and other charges imposed on the exportation of a good to the other Party or in connection with such exportation, or any tax that is higher than the tax or charge that would be imposed on similar goods but destined for domestic consumption. 
  3. With respect to taxes and charges, the Parties may not assess these amounts ad valorem, but may simply charge such taxes and charges limited in amount to the cost of the services rendered and shall not constitute indirect protection of domestic products. There are exceptions for some specific services.
  4. Agree that the Parties may not impose restrictions, prohibitions or monopolies on imports or exports of goods destined for the territory of the other Party (except Article 11 of the GATT 1994). 
  5. That each Party shall determine in its territory the customs value of the goods of the other Party. 
  6. To create rules for determining the origin of goods for the purposes of applying preferential tariff treatment and to establish origin procedures. 
  7. Agree on the sanitary and phytosanitary measures to be applied on goods imported into the Parties to this Agreement. 
  8. Ensure customs cooperation for trade simplification. To this end, measures such as the rapid release of goods, the presentation and advance electronic processing of documentation, the promotion of the association of authorized economic operators, the establishment of the single window, the facilitation of roll-on-roll-off traffic, etc., are taken. 

Although this agreement regulates many aspects of interest for the sector, there are other things that it does not resolve and that are fundamental for the correct development of commercial relations. In particular, we would like to make special mention of the exequatur or recognition of foreign judgments, as well as the jurisdiction applicable in the resolution of disputes between the Parties. 

Given the transcendence that an incorrect choice of the applicable jurisdiction may imply for the subjects involved in international trade operations, from AIYON Abogados we would like to recommend all agents involved in trade with the United Kingdom, before starting a new commercial relationship, to make express agreements where the jurisdiction to which they will submit their disputes is agreed. In case of pre-existing commercial relations, we recommend analysing whether the jurisdiction agreed upon at the time is still the best for the defence of their present and future commercial interests.

Royal Decree 927/2020, of 27 October, which extends the scope of the action of Ship Inspection and Survey Organizations, and modifies Royal Decree 877/2011, of 24 June, and Royal Decree 357/2015, of 8 May

/in , , /by

States are responsible for ensuring that ships under their flag are designed, constructed and maintained in compliance with the safety requirements established in the conventions and instruments approved within the IMO. To carry out these tasks, they are supported by the classification societies.

The regulation of classification societies in Spain is contained in articles 97 and 107 of Law 14/2014, of 24 July, known as the Spanish Shipping Act. It is algo applicable the Royal Decree 877/2011, issued following European Directive 2009/15/CE, of 23 April 2009, that establishes unified rules and regulations for organizations in charge of inspection and recognition of vessels, and various European Regulations, such as Regulations (EC) 336/2006, of 15 February 2006, y (EU) 1257/2013 of 20 November 2013.

The main purpose of Royal Decree 927/2020 is to establish in which cases a recognized organization can act in the name of the Spanish Maritime Administration The aim is to reduce waiting times for obtaining the obligatory certificates and to improve the competitiveness of ships flying the Spanish flag as these cannot see their activity affected by delays in carrying out necessary inspections. The new international Conventions and EU Regulations affecting maritime safety and prevention of contamination of the marine environment require more flexibility and delegating on these organizations.

The cases in which recognized organizations may be authorized to carry out ship surveys on behalf of the Spanish General Directorate of the Merchant Navy (GDMN) are as follows:

a) When a Spanish ship is in a foreign port and needs to extend the term of validity of any mandatory certificate as the expiration date approaches.

b) When a Spanish ship is dedicated to making trips between foreign ports and its transfer to a national port is detrimental to its commercial exploitation, to carry out any of the mandatory surveys.

c) When a Spanish ship, due to breakdowns or other causes of accident, must be recognized abroad.

d) When a Spanish ship is built or carries out transformation, reform or major repair works abroad.

e) When a Spanish ship calls in a Spanish port on non-working days or outside working hours, or for any other reason, the surveys cannot be provided by the inspection services of the Harbour Master Office.

f) When, in light of logistical conditions, to adapt to its procedures or the need for agility in the operation, the company so decides.

g) When a ship is abroad and requests to be flagged in Spain.

h) When a company has its head office abroad.

In addition to the above, authorized organizations will be able to control that the rules for the management of the operational safety of a vessel are followed and will be able issue and renew the maritime labour certificate and the declaration of maritime labour compliance Part I, referred to in the Maritime Labour Convention (MLC).

AIYON Abogados collaborates with the “ICLG Shipping Laws and Regulations, 2020”

/in , , /by

Our partners of Madrid and Bilbao offices, Veronica Meana and Mikel Garteiz-goxeaskoa, have participated in the chapter dedicated to Spanish Law of the ICLG Shipping Laws and Regulations: 2020,publication which covers common issues in the area of Shipping law in forty jurisdictions.

Among these common issues are: the regulation of maritime casualties, cargo claims and passenger claims, the regulation of ship arrest and procedural issues such as the collection of evidence, judicial and other dispute resolutions methods applicable to maritime claims and the enforcement of court judgments and arbitration awards.

 

Royal Decree-Law 26/2020, of 7 July, on economic recovery measures to deal with the impact of COVID-19 in the areas of transport and housing

/in , , , , /by

On Wednesday 8 July 2020, Royal Decree Law 26/2020, was published in the Official State Bulletin, with the aim of approving a set of measures required for the purposes of economic recovery in the transport sector and in the field of housing, protecting the health of workers and travellers, guaranteeing the availability of essential goods and services, providing liquidity to companies and reducing administrative burdens.

In this article, we will analyse this regulatory text, focusing on the specific measures arising for the transport service. 

1. AIR TRANSPORT

Articles 2 to 7 include the management measures adopted for air transport. General prevention measures against COVID-19 that companies in the sector must guarantee compliance with, as well as all those that the Autonomous Communities have adopted. 

Operational guidelines have been established from Europe, which are applicable to the entire Spanish territory. The EASA/ECDC Guidelines will be compulsory not only for airport managers but also for companies that carry out their work as auxiliaries at airports: 

– Inform users on the preventive measures and health reasons why they should refrain from accessing the airport, as well as the consequences of detecting a person suspected of having COVID-19 during health checks. 

For its part, the Transport Facilitation Committee will be responsible for coordinating and supervising all the actors who have a role in the application or definition of these measures.

 

2. MARITIME TRANSPORT

Articles 8 to 14 set out the measures taken to revitalise the maritime sector. Firstly, the reasoned reduction of maritime traffic requirements for 2020 at the request of the concessionaire will be permitted, due to the impossibility of compliance (deriving from COVID-19). 

Likewise, the liquid quota of the occupation rate accrued during the financial year 2020 may be reduced, being determined this reduction depending on the decrease in maritime traffic or, failing this, on incomes attributable to the activity, the different types and also depending on the economic and financial situation of the Port Authority. 

With regard to the activity tax, the Port Authorities may (upon request of the taxpayer) leave the lower limit of the annual activity tax quota without effect for the year 2020. In turn, the enforceability of the activity fee established in the authorisation may also be modified. 

As we have already commented in other publications, this Royal Decree confirms that the fees for vessels (between 1 March 2020 and 31 October 2020) may be modified, depending on the reason for the stay in port waters. Likewise, the Port Authorities may grant deferrals of tax debts accrued (between 1 March and 31 October 2020) and not paid.

As a final comment, it should be noted that the provision of human resources at the passenger terminals serving the regular maritime services during the state of alarm, are considered as emergency services for all purposes.

 

3. RAIL TRANSPORT

With regard to Railway Transport, it should be mentioned that RENFE is authorised to arrange credit operations during the 2020 financial year, for the amount of 1 billion euros. 

It is also planned to authorise extraordinary credits to be financed with Public Debt.

 

4. ROAD TRANSPORT

Articles 18 to 30 contain the provisions relating to road transport. Firstly, moratoriums will be granted for the public goods and occasional passenger transported by bus. 

Among other measures, deferrals of payments of instalments on loan, leasing and renting contracts used by self-employed persons and public undertakings for the purchase of buses and public transport vehicles of more than 3.5 tonnes, maximum authorised mass, are accepted. 

With regard to the approval of road transport authorisations, this will be extended, establishing 2021 as an open deadline for approval of transport authorisations that should be endorsed in 2020 and have not been yet. Also, for those authorizations that should be endorsed in 2020 and have done so, the deadline for their next endorsement is extended until 2023. In addition, the opportunity to apply for extraordinary rehabilitation for public transport authorisations invalidated during 2020 is provided due to the inability to certify the requirements for their endorsement. 

Finally, an extension of 3 months is established for those technical inspection certificates of vehicles that expire between 21 June and 31 August. 

AIYON Abogados cooperates with the Master’s programme of the IME (Spanish Maritime Institute)

/in , , /by

AIYON Abogados maintains its commitment to cooperate with diverse institutions and associations involved in the progress and application of maritime law in Spain, as well as with Universities and educational institutions engaged in the formation of future professionals of the sector. This is evidenced by our already consolidated relationship with the IME (Spanish Maritime Institute) over the last several years, teaching subjects that belong to our area of expertise.

This year, due to the lock-down, the partners of our Madrid and Bilbao offices, Ms. Verónica Meana and Mr. Mikel Garteiz-Goxeaskoa, gave their annual lecture at the IME through video-conferencing system.  In particular, the lecture was focused on the applicable wreck removal provisions and the Nairobi Convention (not in force in Spain), as well as on the Civil Liability for Carriage of HNS goods regime under the 2010 Convention (still to enter into force).

We hope the students enjoy the lectures in the same way as our partners do, and we are grateful for IME’s support and effort that makes possible that the formation continues also during the COVID-19 crisis.