New website of AIYON Abogados on Ship Arrest

AIYON Abogados has launched a new website devoted to the management of the ship arrest, both to request its lifting as well as to proceed with its execution. Thus, those interested in learning about and, when needed, in using this efficient legal tool that guarantees the recovery of a debt (International Convention on Arrest of Ships, 1999) may obtain all relevant information on www.shiparrestrelease.com

The concept of arrest of ships entails the detention of any kind of vessel by judicial authorities in cooperation with maritime authorities of the place where the vessel is located. Given the usual brevity of the vessel’s port call and the internationality of the maritime sector as well as of its operators, the possibility to take an anticipatory and urgent legal action, such as arrest of ships, allows for an easy recovery of a debt from shipowners and shippers. The same urgency involves the reverse procedure when the action is taken from the position of shipowners and shippers. 

Our multidisciplinary team of lawyers, comprising of professionals of renowned prestige and with a large trajectory as experts in Maritime Law is here at your entire disposal to assist any query or initiate any action related to ship arrest or to arrange the lifting of the measure on a vessel.    

“MV EVER GIVEN”: Insurances and General Average

On 23 March 2021, the vessel “MV EVER GIVEN”, one of the largest container ships in the world with a capacity of 20,000 TEUs, was grounded in the Suez Canal (Egypt). From then on and for the following six days, until the ship could finally be towed, an immense traffic jam was generated in the area, blocking the passage of thousands of goods transported daily by this waterway.

To date, there have been countless delays, because, in addition to those suffered by the cargo carried by the “MV EVER GIVEN”, there have also been delays suffered by all the ships and their cargoes that were trapped on one side of the canal or the other during this time. This has affected a significant number of shipowners and shippers worldwide.

Over time, all the details of this event will become clearer, and responsibilities will be clarified, but what can be said is that the insurance coverages of the affected operators and agents will have to be activated in order to be able to face the many costly claims that will be filed.

In this case, the directly affected insurance policies would be:

– Hull & Machinery Insurance, for damage to the proper vessel and    salvage costs.

– Protection and Indemnity Insurance (P&I), for shipowners and charterers, with civil liability cover.

– Cargo insurance for shippers, for possible damage to cargo.

The “MV EVER GIVEN” has been arrested since 13 April, at the request of the Suez Canal Authority (hereinafter SCA). SCA originally claimed $916 million for the non-payment of the ship’s refloating and maintenance costs but decided to reduce the claim by almost a third part, filing a final claim for $600 million in order to find a quick solution for the matter.

In view of this situation, several relevant questions arise.

 

  • Do shippers have the right to claim against the carrier for the delay?

Spanish law provides some protection in this respect, obliging the shipper to prove that the delay suffered was not “reasonable”. However, after analysing the standard contracts of carriage generally used by maritime carriers, it is very unlikely that the applicable law be Spanish law, as English law usually dominates these agreements.

At the same time, it is important to bear in mind that losses arising from delay are usually excluded from cargo insurance policies for maritime transport, as is the case in the most common clauses, the English clauses (ICCA).

 

  • Why does the ship’s operator, Taiwan’s Evergreen Marine CORP (EMC), not transfer the cargo to other vessels so that it can reach its destination?

The answer to this question is not simple.

Although the operator’s legal representatives are struggling to obtain the necessary permits and transhipments, at present the vessel and the cargo transported are understood to be a single entity and indivisible unit affecting the expenses claimed by SCA. This means that as long as the vessel is detained in Egypt, so are its goods.

Furthermore, to be able to carry out the transhipment, the vessel “MV EVER GIVEN” would have to move from the lake where it is berthed and detained (Great Bitter Lake) to the nearest port.

Finally, it cannot be overlooked that the shipowner has declared the figure of “general average”, so that the cargo transported is affected by the costs of the general average.

 

  • What is “General Average”?

It is understood as any expense or sacrifice reasonably and intentionally incurred by the shipowner, the purpose of which is to preserve the maritime adventure, the voyage and the goods involved in a maritime expedition, avoiding greater damage.

Once the general average is declared, all the interests involved (the ship, the cargo, the freight, etc.) have the legal obligation to contribute proportionally to the payment of those damages or expenses generated to save the voyage and the rest of the cargo. Therefore, this is a figure that is usually present in the ICC coverage agreed by shippers.

Shippers who do not have the goods insured under these clauses will have to provide personally the guarantees required by the shipowner to ensure their subsequent contribution to the general average. As long as such guarantees are not provided, the goods will continue retained by the shipowner.

In summary, in view of the fact that the vessel continues detained while waiting for the evaluation of the possible transhipment of the cargo to other vessels, we recommend that those affected receive specialised and appropriate legal advice to deal with the damages that they may have suffered due to this situation with all the guarantees.

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

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.

The Single European Sky

In the late 1990s, among other initiatives, Europe decided to promote the creation of the single aviation market and the Single European Sky initiative.

The “Single European Sky” initiative aims primarily at reducing the fragmentation of European airspace, thereby increasing its capacity and the efficiency of air traffic management and air navigation services by reducing flight times, reducing flight costs and aircraft emissions, separating regulatory functions and service provision, interoperability of equipment, harmonised upper airspace classification and establishing common requirements for the licensing of air traffic controllers.

Until the late 1990s, air transport was carried out under the supervision and control of the national authorities of each country, and international air transport was mainly based on bilateral agreements between countries.

The evolution in Europe came with the signing of the “Single European Act” when national markets became a single competitive market for air transport. At that time, national airlines gave way to Community airlines and it was established as a basic principle that any Community airline could freely set fares for passengers and cargo, as well as access any route within the European Union, without any express permission or authorisation.

Both the European Parliament and the European Council have been key in this context. Indeed, the Treaty on the Functioning of the European Union recognises in article 100.2 the ability of the European Parliament and Council to lay down such provisions as they deem appropriate in relation to aviation.

In the field of the common conditions of competition, some of the common rules adopted to ensure the proper functioning of the European aviation system would be:

  1. The proposal for a Regulation on safeguarding competition in air transport and repealing Regulation (EC) No 868/2004 was published in June 2017.
  2. Regulation (EEC) No 95/93 and its amendments.
  3. Directive 96/67/EC.
  4. Directive 2009/12/EC.
  5. COM (2017) 0289, mechanism to ensure fair competition between Union air carriers and third countries.

In the area of passenger protection, the steps taken and to be assessed are:

  1. Creation of a European Aviation Safety Agency (EASA).
  2. The harmonisation of security requirements in all European Union airports.
  3. Regulation (EC) No 261/2004, aimed at protecting passenger rights.

These initiatives are expected to bring benefits for operators, carriers, passengers and shippers. Benefits such as tripling airspace capacity by 2035, reducing the cost of air traffic management, multiplying the safety of the sector and even reducing the environmental impact of air aviation. Examples of some of the improvements that can already be observed to date include:

  • The reduction of the average en-route delay caused by traffic flow management.
  • The decrease in average arrival delay caused by air traffic flow management.
  • The average length of the direct horizontal route has started with a downward trend.
  • The improvement of cost efficiency.

However, there are still some areas for further improvement, such as the shortcomings of the slot allocation system; avoiding that most routes departing from an airport in the Union continue to be operated by only one or two airlines; reducing the financial difficulties faced by airlines and some airports (which have increased alarmingly in these complex times of pandemic we are experiencing); improving the supervision of some airlines currently operating in some Member States.

There is no doubt that European airspace has developed to an important extent in recent years, creating a trend that has not yet been implemented in other continents despite the great efforts that have been invested in this direction.

Although there is still a long way to go, global airspace is moving towards union, transversality and sustainability, thus facilitating the intermodality of means of transport, the reduction of costs (economic, personal and environmental), as well as the development of new technologies, which undoubtedly results in a more positive progress of society.

BREXIT: The New European Scenario

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.

Transport Insurance: Limiting Clauses vs Delimitation Clauses

Transport insurance is characterised by the principle of universality of risk, that is, the object of the insurance will be the damage that can be suffered by the goods during or as a consequence of the transport, without any other precision and independently of the nature of the incident occurred. In this context, the clauses delimiting the insured risk emerge. These should be differentiated from the limiting clauses of the insured party’s rights.

The character of the delimiting clauses consists of stipulating: (i) which risks constitute the object of the contract; (ii) in what amount; (iii) during what period; (iv) in what time frame. That is to say, the objective of these clauses is to individualise the risk and establish its objective basis, eliminating possible ambiguities and specifying the nature of the risk in coherence with the object of the contract.

This type of clause will never delimit the insured risk in any way that is  contradictory to the particular conditions of the contract or in an infrequent or unusual way (Sentence STS 853/2006 of September 11, STS 1051/2007 of October 17, STS 598/2011 of July 20 and STS 273/2016 of April 22).

With respect to the limiting clauses, their character is completely different since their main objective is to condition or modify the insured party’s right. The main characteristic of these clauses is that for the insured party they imply the introduction of exclusions that go beyond the natural content of the contract, restricting, conditioning or modifying his right to receive the compensation or benefit guaranteed in the contract (Rulings, STS 273/2016 of April 22, STS 58/2019 of January 29, STS 609/2019 of November 14 and STS 421/2020 of June 14).

Contrary to what might be expected, the limiting clauses are accepted by Spanish regulations and are perfectly valid as long as they comply with the requirements of the Law of Insurance Contracts. Specifically, Article 3 of the mentioned regulation states that the clauses limiting the rights of the insured party must be specially highlighted and must be specifically accepted by both parties in writing.

The jurisprudence of the Supreme Court: Limiting clauses vs Delimitation clauses

Before starting the jurisprudential analysis of the validity and characteristics of the different clauses included in insurance policies and which affect in a direct way the rights of the insured party, we consider to be relevant to study a prime and practical example where we can observe the difference between the delimitation and limiting clauses: the requirement to subject the vehicle and the cargo to “due vigilance” during the transportation. A concept that represents a clear example of how insurance companies try to limit and consolidate their policies, through their clauses, so that the insured party guarantees a cargo transport that fulfils some minimum and general security requirements.

When considering the requirement to subject the vehicle and its load to “due vigilance”, an obligation that is imposed on the insured party in the agreed coverage, the first thing that should be emphasised is that its interpretation is not uniform or steady, since each insurance company will determine the characteristics or requirements it will demand from the insured party. However, we can outline some common patterns that are recurrent in most of the policies, which we set out hereafter:

– The vehicle must be completely and properly closed.

– The vehicle must have all the locking, alarm and locking devices available to it in proper working order and use.

– The vehicle may not be parked in inappropriate and tentative areas, that is lonely, poorly lightened areas with uncontrolled entrance, not subject of surveillance, etc.

– The vehicle must be parked primarily in a monitored parking, in a completely closed garage or building or in a solidly built and locked area.

– If the insured party proves the impossibility to park in an appropriate place, it is possible to accept other options of parking if: the vehicle is parked with other lorries, in properly-lighted areas adjacent to establishments open 24 hours a day, provided that the driver spends the night inside the vehicle, etc.

Having analysed the requirements stipulated in the transport insurance policy, the question to ask is: are these delimiting or limiting clauses?

Already in 2017, we published an article on the validity of the limitation of coverage of insurance policies for the transport of goods due to the lack of due vigilance during road transport (“Limitation of coverage due to lack of due vigilance during road transport“). At that time the Supreme Court, with its ruling of 7 November 2017 (STS 590/2017) recognized that there were two opposing interpretative criteria regarding the qualification of such clauses:

1. Those that consider that these clauses are delimiting for the purpose of the insurance.

2. Those that consider that these clauses are limiting the rights of the insured party.

At that time, the Supreme Court opted for the second interpretation, establishing an interpretative criterion for the rest of the courts. That means, it considered that the clauses that developed the concept of “due vigilance” limited and modified the rights of the insured party. The Judgement of November 7, 2017, reads as follows: “The clause that is the object of the dispute cannot be qualified as a clause that delimits the risk, given that its content, interpreted systematically, does not adjust to the nature and function of these clauses, that is, it does not attempt to individualize the risk of theft of the goods and to establish its objective basis. On the contrary, the criterion which it incorporates, in a decisive manner, apart from establishing or defining the objective basis of the risk, limits the cover initially agreed with the establishment of a regulation which departs from the natural content of the contract concluded, and from what may be considered usual or deriving from the introductory or particular clauses”.

Now, three years later, the Supreme Court, once again, ratifies this criterion by means of its Ruling of October 22, 2020 (STS 3415/2020), in which the limiting character of these clauses is reiterated and it is stated: “With respect to the distinction between clauses that delimit coverage and limiting clauses, the delimitation clauses specify the object of the contract and establish the risks that, in the event of its occurrence, cause the insured party to have the right to the benefit because it constitutes the object of the insurance. While the limiting clauses restrict, condition, or modify the insured party’s right to compensation or the benefit guaranteed in the contract, once the risk covered by the insurance has occurred. (…). The regulation of the insurance contract for land transport of goods itself establishes a series of material, temporal, and spatial exclusions and limitations: damage due to the intrinsic nature or inherent defects of the transported goods (Art. 57.2 LCS); carrying out the journey within the time limit (Art. 58 LCS); carrying out the transport within national territory (Art. 107.1.a LCS). These legal limitations, together with the intrinsic purpose of this insurance modality of compensation for material damage that the transported goods may suffer on the occasion of or as a consequence of the transport, make up its natural content. Whereas the rest of the limitations, which are usually more or less literal and extensive transcriptions of national or international forms (in this case, according to the policy itself, of the Institute Cargo Clauses, of the Institute of Insurers of London) suppose the introduction of exclusions that go beyond the natural content of the contract and, therefore, are limiting clauses, in the sense and with the effects foreseen in art. 3 LCS. As we have already stated in the aforementioned ruling 590/2017, of 7th November. 6.- Consequently, we must conclude that a clause such as litigious clause, which established a series of determining factors (places and times of parking, locked premises, surveillance, etc.) to the coverage of the risk in the event of theft of the goods, is a limiting clause of the insured party’s rights, and not merely one that delimits them”.

Although the criterion applied by the Supreme Court is clear, in the lower courts these clauses remain a controversial concept and that is because limiting clauses are every time broader and their presence is very frequent in insurance policies in general.

For all these reasons, we recommend that users (insured parties) duly analyse every type of insurance policy offered to them, particularly what regards the limiting clauses contained in the policy, before agreeing to any type of insurance contract. To this effect, you can always count on the assistance and advice of our law firm, AIYON Abogados.

Useful Guide to Stowage for Road Transport of Goods

Already in 2006, the European Union estimated that 75% of the goods transported by vehicles on its roads were not properly stowed. What is more, it then calculated that 1 of 4 accidents involving vehicles fitted out for the transport of goods had their origin in deficient stowage.

Cargo stowage is considered the adequate placement, distribution, protection and fixing of goods inside a container or vehicle so that they can safely arrive to their destination, under the custody of the carrier. 

This has always been an ill-defined, imprecise term and has led to various interpretations. In response to this, the courts have accumulated multiple sentences with contradictory definitions in relation to the interpretation of the concept itself, as well as with respect to the similarities or differences in relation to others, such as the lashing of the goods.

On the one hand, there are courts that understand that lashing and stowage are different concepts for which different agents may be responsible (Murcia Provincial Court – Decision 88/2016 or the Supreme Court – Decision of 22 November 2006), yet, on the other hand, there are courts that consider that lashing is an intrinsic part of stowage and, therefore, must be carried out by the loader as part of his duties (Barcelona Provincial Court – Decision of 30 April 2015). 

Although the situation has improved, this is still a burning issue and we need to work on it. For this reason, the Basque Government, together with the Institute for Cargo Safety and other agents and institutions in the sector, has promoted the creation of a complete Basque Guide for Road Transport of Goods, which we believe can be very useful for the agents involved in these tasks and in the area of transport.

The Guide is based on four general rules, as follows: 

– Directive 2014/47/EU of the European Parliament and of the Council of 3 April 2014 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Union and repealing Directive 2000/30/EC

– Law 15/2009, of 11 November, on the contract for land transport of goods.

– Law 16/1987, of 30 July, on the Regulation of Land Transport.

– Royal Decree 563/2017, of 2 June, which regulates the technical roadside inspections of commercial vehicles circulating in Spanish territory.

In addition, the guide is divided into several chapters which, among other matters, deal with aspects such as stowage tools; damage caused by deficient stowage; who is responsible for the cargo, stowage and lashing; or what criteria are used in the inspections and how they are carried out. Furthermore, it tries to clarify, to the most possible extent, the controversies raised by this term, and to this end it provides the following list of aspects that are considered to be inherent to the concept of STOWAGE: 

– Verification of the packaging, check that it is suitable for the transport of goods 

– Protection, if necessary. 

– Loading into the vehicle. 

– Conditioning of the goods for transport.

– Stabilisation, if necessary. 

– Adequate weight distribution. 

– Fixing and immobilisation of goods.

– Checking during the journey, and subsequent tightening if necessary.

The Guide promotes that the loader makes a correct description of the goods and ensure that it is correctly packed (paying particular attention to dangerous goods). In addition, they must ensure that the vehicle and the fastening equipment used for the transport are suitable and that the person or entity in charge of loading the goods onto the truck is duly informed of everything. 

Regarding the duties of the loader, these basically consist of two concepts: (i) the review prior to loading and (ii) the review of the operation at the end of the loading and before initiating the transportation.

Finally, and with respect to the responsibility of the Carrier, even if this has not assumed the tasks of loading and unloading the goods in the means of transport, it is required to: (i) carry out a visual inspection of the truck and the goods to ensure that there is no lack of security; (ii) ensure that the vehicle can provide all certificates and markings, if necessary; (iii) check periodically the securing of the transported goods; (iv)  carry out loading, stowage and lashing only in the event of express agreement and prior to the presentation of the vehicle. 

The eternal question of who is responsible for incorrect stowage and/or lashing is answered in Article 20 of Law 15/2009, of November 11, on the Contract for Land Transport of Goods. This answer is still being worked on as it does not convince many of the agents involved in road transport, for whom the possible handling of the cargo by the carrier should be left without effect. The current response given by Law 15/2009 is clear: “The operations of loading the goods on board the vehicles, as well as those of unloading them, shall be carried out by the loader and the consignee, respectively, unless these operations are expressly assumed by the carrier before the actual presentation of the vehicle for loading or unloading. The same applies to the stowage and unstowage of the goods“.

In other words, if no express agreement is made prior to loading, the loader will be presumed to be responsible for securing of the goods. This is also ratified by RD 563/2017 and the subsequent clarifications of the “DGT” (Directorate General for Traffic), see our articles “Inspection of the securing of cargo on trucks, clarification by the DGT”  and “R.D. 563/2017, of 2 June 2017, Technical inspection of commercial vehicles

Similarly, article 21 of Law 15/2009 reinforces this interpretation, considering that it will be the loader who must prepare the goods for transport, just as it will generally be the receiver of the goods who will be responsible for their rejection at destination, unless expressly agreed otherwise.

As we can see, the Guide is very extensive in its content and presents a very high degree of details, by which it attempts to stipulate a common terminology and criteria which will help to establish greater legal security in the sector, as well as it aims to improve the practices, training, and competitiveness of operators and shippers, and the purpose of all this to promote a more professional and safe road transport of goods.

Evaluation of Electronic Evidence

Nowadays, a large part of our relationships, both at social and professional level, develops through the use and management of new technologies; a reality that, beside generating a social revolution, has also brought about a revolution in the labour and legal environment in which we, lawyers, operate. Among other questions, we should ask ourselves: is the evidential value of an email equivalent to a read receipt and a registered letter?; are video surveillance recordings or publications on social networks valid as evidence for the Courts?; is a contract always valid when it is concluded through electronic means, be it emails, telephone messages or other means of communication?; questions that both companies and legal professionals ask themselves when a deal or contract is called into question, and whose lack of a firm answer leads to a certain legal insecurity in this respect.

When we refer to electronic evidence, we mean all the information with evidential value that has been transmitted by electronic means or that is included in it; that is to say, we can differentiate between two modalities of electronic evidence; on the one hand, we have the data that has been stored in a technological device, and, on the other hand, the information that has been transmitted through communication networks. 

We can confirm that the Courts generally consider an electronic evidence valid as long as there are no doubts about its veracity. And this is the complicating factor since, to this effect, there is a need to demonstrate the authenticity of these proofs in two basic aspects: that their apparent author is their real author and that the data they contain has not been altered. Moreover, for an electronic evidence to be regarded as valid, it must have been obtained in a lawful way. Therefore, the evidence will have to incorporate data of legality, ownership, necessity, and procedural admissibility to the procedure.

These requirements are more than justified since modifying an electronic evidence is a simple task for any user with basic computer knowledge. In fact, you can easily edit an attachment or alter an e-mail message with respect to its (sender, receiver, date, etc.), its content or the folder of its location. Similarly, people with high computer skills can access servers and digital platforms, public or private, obtaining the information they want, whether confidential documents, passwords, account numbers, contacts, etc. leaving no trace of their presence in our “clouds”. This reality often falls within the phenomenon of “cyber-attack”, a figure that we already referred to in the article published by our firm on our website in June 2019: “Piracy, a Reality in the Twenty-First Century”.

In the hypothetical case that the Court or one of the parties questions the authenticity of the evidence, it will be necessary to verify it by a study carried out by a computer expert. If it is not provided voluntarily, to access the evidence always requires judicial authorisation, which will be granted provided that the basic principles of regulation, suitability, exceptionality, necessity, proportionality, and speciality are respected with this intervention. Let us not forget that when a technological device is intervened in a judicial context there are several fundamental rights that may be affected, both of the victims or people linked to the event, as well as of third parties not connected to the conflict, such as the right to privacy, communications or data protection.

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

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.