ASETRABI counts on its collaborator, AIYON Lawyers, to analyse safety and efficiency in road transport

On 30 October, the Bizkaia Transport Business Association, ASETRABI, held a conference on efficient driving and load stowage, with speakers including our partner in Bilbao, Zuberoa Elorriaga, as well as Andoni Gortazar, representing the Institute for Load Safety (ISEC), among other professionals from the land transport sector. This is an entity with which our firm also collaborates.

As part of the interesting training sessions that ASETRABI is holding this autumn in Bilbao, all of them of great interest due to the topics covered (loading and stowage, driving efficiency, decarbonisation, alternative fuels, etc.), on this occasion AIYON Abogados has been involved to explain to the participants of the event the complexity of the tasks and actions related to loading and stowage on lorries, all from a legal point of view.

For her part, Zuberoa tried to convey to the listeners the legal vision of stevedoring offered by the applicable international and national regulations, as well as the jurisprudential interpretation made by Spanish judges of the different regulations, always assessed on a case-by-case basis. This is because the extensive experience accumulated by our firm in more than eight years of activity always offers our lawyers a direct contact with the problems, as well as with each of our clients. This allows us to have a very close, as well as practical, view of the problems experienced in the road transport sector from all angles (shippers, receivers, carriers, insurance, etc.), which enables us to provide an appropriate and personalised solution in each of the consultancy services we offer.

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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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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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Damage to Cargo During Carriage by Sea Covered by CMR Consignment Note

The International Convention for the Unification of Certain Rules Relating to Bills of Lading of 25 August 1924, better known as the Hague-Visby Rules, is the law applicable to contracts of carriage made “in a bill of lading or any similar document serving as a document of title for the carriage of goods by sea“, which means that its provisions apply to claims arising out of any damage or loss, preservation, stowage, carriage, supervision and discharge of cargo.

On the other hand, the Instrument of Accession of Spain to the Convention on the Contract for the International Carriage of Goods by Road (CMR), done in Geneva on 19 May 1956, shall apply to claims arising from land transport contracts formalised under the CMR document. For national transport, Law 15/2009, of 11 November, on the contract of carriage of goods by land, shall be applicable.

Both regulations provide for different regulations in their fields of application which, apart from general features such as the limitation of the carrier’s liability, are quite different.

This does not seem to pose a problem when both means of transport are not combined; however, the issue becomes more complicated when we find cases, much more common than might be imagined, in which different means of transport coexist to carry out the transport of certain goods under a single transport document (land – air – land // land – maritime – maritime, etc.).

In this specific case we will analyse, we are dealing with the transport of goods on a lorry, loaded in a factory in Burgos and bound for Cheltenham (United Kingdom), in which the need arises to load it onto a ferry from Santander to Portsmouth (United Kingdom) to complete the transport by sea crossing the Cantabrian Sea. There is a maritime transport, but this international transport contract is documented in a consignment note governed by the CMR Convention. In this case, which law will be applicable to damage occurring during the maritime transport phase, the CMR Convention or the Hague-Visby Rules?

Article 2.1 of the CMR Convention stipulates that in cases where one of the stages of a carriage covered by a CMR consignment note is carried by sea, without freight interruption, i.e. without unloading the goods, the CMR Convention will apply (complete transfer of the load with the truck or trailer); however, this regulation will not apply when the freight is interrupted, as in the case of a container, initially loaded on the platform of a truck, which is then loaded on board a ship, and subsequently reloaded onto another truck trailer.

Nor does the CMR Convention apply where it is proved that, in a carriage under a CMR consignment note without freight interruption, damage has occurred during the maritime phase; in this case, the potential liability of the road haulier will be determined in the way liability has been established for the maritime carrier.

In conclusion, for the law governing the non-road means of transport, in our case the Hague Visby Rules, to apply, it is required that the loss or damage was not caused by an act or omission of the road transport operator, and that such loss or damage could only have occurred during the carriage of the road vehicle on board the ship.

In any case, the identification of the applicable law is of vital importance, especially in terms of statutes of limitation and/or lapse of time, protests, or actions to be taken. Each case should be studied with the support of experts in the field.

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 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.

Royal Decree-Law 14/2022 of 1 August and its Most Significant Developments in the Field of Land Freight Transport

As reflected in the Preamble of Royal Decree-Law 14/2022, of 1 August, on economic sustainability measures in the field of transport, in terms of grants and study aids, as well as measures for energy saving, efficiency and reduction of energy dependence on natural gas (hereinafter RDL 14/2022), the land freight transport sector in Spain is made up of small companies (53% of companies with heavy goods vehicles have only one vehicle), which exacerbates the difficulties that small road transport operators may have in adapting to scenarios in which sharp increases in transport costs occur unexpectedly and unpredictably (such as fuel, due to inflation and the war in Ukraine, or tyres and spare parts in general). This calls for greater intervention by the public authorities to guarantee the proper functioning of an activity that represents around 2% of Spanish GDP.

It is for this reason that on 2 August 2022, RDL 14/2022 came into force, which came to modify precepts of the national land transport of goods regulations such as Law 15/2009, of 11 November, on the Contract of Land Transport of Goods and Law 16/1987, of 30 July, on the Organisation of Land Transport.

Title I of RDL 14/2022 refers to land transport measures, and with the legislator’s objective in mind of guaranteeing that the price of transport be higher than the actual individual costs and expenses borne by the carrier, it has been considered necessary to require written documentation of transport contracts for a single consignment made with the actual carrier, provided that these exceed 150.00 euros, as well as of those contracts for continuous transport.

Similarly, it is now required that the transport price with reference to the related costs be expressly stated in the transport document, requiring that the transport price be equal to or higher than the actual individual costs incurred by the carrier (art. 1 RDL 14/2022 amending art. 10 bis Law on the Contract of Land Transport of Goods referring to the transport document in contracts concluded with the actual carrier).

This reformed article 10 bis of the Law on the Contract of Land Transport of Goods states that, in order to determine the actual cost of transport, it is possible to “take the time reference that best suits the carrier’s forecasts and business strategy”; in other words, a fairly flexible criterion has been chosen that allows the carrier to vary and adapt the cost of transport to the circumstances of the moment, or if desired, to the prices of the moment, and thus reflect it in the consignment note.

To translate the above into the daily practice of hauliers, and to know which costs can and cannot be included in the transport documents, we must refer to the new ninth additional provision of the Law on the Contract of Land Transport of Goods introduced by RDL 14/2022. This states that, in order to determine the actual individual cost of transport provided by the actual carrier, the cost item structure of the observatory of road freight transport costs drawn up by the Ministry of Transport, Mobility and the Urban Agenda will be valid. This cost item includes:

  • Depreciation costs of the different elements (tractor units, trailers, semi-trailers and auxiliary equipment);
  • Annual financing costs of the different elements purchased;
  • Costs of driving personnel;
  • Vehicle insurance costs;
  • Tax costs;
  • Fuel costs;
  • Urea dilution costs;
  • Tyre, maintenance and repair costs;
  • Driver’s per diem costs;
  • Toll costs;
  • Indirect costs that can be passed on to each vehicle (such as fleet management software).

Consequently, we would recommend that all land transport operators have these costs perfectly identified in a general way for their entire fleet (pro rata for each vehicle) and that, subsequently and for each specific transport, they take “the time reference that best fits the carrier’s business strategy and forecasts” and adapt these costs, as if they were a tailor-made suit, in order to reflect them in the consignment note and ensure that the price they will finally charge for the transport is higher than the costs and expenses of the transport.

Finally, it should be noted that, if these costs are not reflected in the consignment note, in accordance with Article 13 of the Law on the Contract of Land Transport of Goods, this absence or irregularity in the consignment note provided for in Article 10 bis does not render the contract non-existent or null and void, and that the omission of any mention of Articles 10.1 and 10 bis.1 does not render the consignment note ineffective.

Aiyon, taking care of what is important

Another year full of experiences.
Together we have faced and overcome every challenge.
You know that taking care of you is what gets us going every day.
The trust you place in us continues to thrill us.
Without it we could not have shared this path.
In these times when we are with our people.

We wish you a safe return home.

Aiyon
taking care of what is important
Merry Christmas and Happy New Year

AIYON Abogados collaborates with ISDE

The ISDE Law Business School has been collaborating this year with AIYON Abogados in teaching the classes on Land Transport and Maritime Transport included in its postgraduate course offered under the title “Master in Business Law, Arbitration and ADR”.

Our partner in Madrid, Verónica Meana, was in charge of the asynchronous classes on Land and Maritime Transport and will soon be giving the in-person class on Maritime Transport, while our partners Enrique Ortiz (Cadiz) and José Domínguez (Algeciras) gave a lesson on Land Transport and Payment Methods, respectively.

This collaboration has given AIYON a new opportunity to take part in the learning process of new generations of professionals who will surely enrich the sector.

We would like to thank ISDE for this opportunity, which we hope will be the first of many.

On the Collision of the “OS35” and “ADAM LNG” in the Waters of the Strait of Gibraltar

On the night of Monday 29 August 2022, the vessels “OS 35” and “ADAM LNG” collided during the manoeuvre out of the Bay of the Port of Gibraltar.

What happened was a textbook collision, as there was physical contact between the two ships and certain damage was caused after the collision: ‘Collision is defined as a collision involving ships, vessels or naval craft, resulting in damage to any of them, persons or things’.

In this regard, the Brussels International Convention of 23 September 1910, for the Unification of Certain Rules Relating to Collision, states that its consequence extends: “to compensation for damage which, either by execution or omission of a manoeuvre, or by non-observance of the regulations, a vessel causes to another vessel or to persons or things on board the latter, even if there has not been collision”, demanding as an indispensable requirement to determine that a accident between two vessels is collision, that damage is caused. For its part, the Spanish Maritime Navigation Act of 2014 complements this legal concept, extending its regime to damages produced in navigation accidents in which there has been physical contact or not, such as those that may be suffered in the event of omission or execution of a manoeuvre.

Fortunately, and despite the seriousness of the events, it should be noted that there were no fatalities. The ship that suffered the most damage, the bulkcarrier “OS 35”, ran aground near the port in shallow waters, precisely to avoid putting the safety of its crew at risk, to avoid polluting spills, and to affect the situation of the cargo as little as possible.

Nevertheless, from an environmental point of view, significant risks were caused because, contrary to the initial information given by the “OS 35”, the vessel was indeed suffering from small fuel oil leaks. These leaks, after intense work by experts, were identified and sealed after several days. This situation has undoubtedly also had an impact in Spain, and in particular in the Campo de Gibraltar area.

Although a priori, by analysing the trajectory of the ships involved, it might seem easy to identify who is responsible, it is not always easy to delimit. In those cases, in which the fault is shared by both ships, both the 1910 Convention and the Spanish Maritime Navigation Act provide for a system of graduation of liability; that is to say, a system of graduation in proportion to the degree of fault actually produced by each ship, the only exception being the case in which it is impossible to determine the degree of fault of each party. Only in that case would the presumption of liability of the shipowners in equal shares come into play.

Leaving aside the responsibilities yet to be delimited and possible administrative sanctions that the vessels or their owners may receive, more than a month after the accident we can affirm that one of the most controversial aspects of this incident has been precisely the determination of sovereignty over the waters in which it occurred, which is not clearly defined.

This collision has particularly affected the United Kingdom (Gibraltar) and the Kingdom of Spain, both signatories to the Treaty of Utrecht. The acceptance of this Treaty by both states determines the mutual acceptance that Gibraltar, together with its port (castle, city, inland waters and harbour), are under the sovereignty of the United Kingdom. However, what it does not determine, and what Spain therefore objects to, is that Gibraltar can generate maritime spaces outside its jurisdiction.

But we should not forget that, regardless of which state ultimately determines sovereignty over the waters in which the incident occurred, international law imposes an obligation on both states to cooperate, inter alia to protect and preserve the marine environment (United Nations Convention on the Law of the Sea).

The gas tanker “ADAM LNG” is currently sailing normally after having entrusted its emergency repairs to a Spanish shipyard. However, the vessel “OS 35”, which undoubtedly bore the brunt of the collision, and which has been the subject of full public attention due to its spectacular situation, is still being managed by the Gibraltarian authorities after being sunk and stabilised in a controlled manner so that it cannot move and turn with the waves, the tide and/or the wind. As of today, it remains in position after having discharged all its fuel, as well as the polluting substances it had on board, but there is still much to be done and decided on this collision.

This, however, has reminded us of the relevance and magnitude of merchant ships and their mission, carrying out complex and risky work daily as they sail the world’s waters.