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

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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

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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

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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

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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

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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.

CIP and CIF – INCOTERMS® 2020 and Insurance

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In its Special issue on the XII Annual Congress of FETEIA-OLTRA (Spanish Federation of Freight Forwarders and Organisation for Logistics, Transport and Customs Representation), which will be held again between 29 September and 2 October in Algeciras, the “Canal Marítimo y Logístico” publishes an article by AIYON Abogados on INCOTERMS 2020 and Insurance, with particular attention to Incoterms CIP and CIF.

The INCOTERMS®, a term that refers to the acronym for “International Commercial Terms”, are a set of international rules, governed by the International Chamber of Commerce (ICC) since 1936, issued for the interpretation of the most used terms in international trade, and are widely used in international business throughout the world. They are neither a supranational legal norm nor a mandatory law; the ICC created them based on and with the objective of reflecting the uses and customs related to the international sale and purchase of goods at the time.

The INCOTERMS® regulate very important aspects of a transport operation such as the conditions of delivery of the goods, the distribution of risks and costs between the seller and the buyer, the contracting and payment of insurance for the goods, the passing of risk, customs formalities and the cost of transport. It is easy to see that they do not regulate aspects relating to jurisdiction and applicable law, the method of payment or the transfer of ownership.

Regarding the CIP and CIF terms, the main characteristic of these two INCOTERMS® in their 2020 version is related to insurance, insofar as they add to the seller the obligation to take out transport insurance for the goods during the international transport phase in favour of or on behalf of the buyer. The term CIF (Cost, Insurance and Freight) imposes on the seller the obligation to take out, in favour of a third party, the buyer, transport insurance with the minimum cover of the Institute Cargo Clauses, i.e., ICC (C), while the term CIP (Cost and Insurance Paid to), obliges the seller to take out, in favour of the buyer, transport insurance, in this case with maximum cover, ICC (A).

In those operations in which the INCOTERMS® CIF or CIP have been agreed, the cost and risk of the main phase of the transport is divided, with the obligation to contract the transport remaining with the seller, while the risk and, therefore, the insurable interest of the goods during the main phase of the transport falls on the buyer. In other words, the seller will have the insurable interest in the goods until they are loaded on board the ship at the port of origin (CIF) or until the goods are delivered to the first carrier or at the agreed place (CIP), while the buyer will acquire the insurable interest in the goods from that moment, i.e., from the beginning of the main transport phase.

Read the full article HERE

AIYON Algeciras Strengthens its Team

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We would like to announce the incorporation of our colleague and lawyer Rocío López  to the AIYON Algeciras team, who will be in charge of the local AIYON office together with the head of the office, José Antonio Domínguez. After spending more than a year collaborating with our entire team from our offices in Cádiz and Algeciras and gaining extensive experience, Rocío has joined our team of lawyers in AIYON Algeciras on a permanent basis.

Algeciras is of great importance as it has the largest Spanish port with a large volume of passenger traffic, as well as all types of goods in bulk and containers, in addition to road traffic. Whether acting as a port of destination or origin, or as a strategic transhipment port, the port is an essential area for the passage of cargo and passengers to and from the mainland and the islands, as well as from all types of locations worldwide.

Therefore, in order to provide the most complete service and confirm its essential position, Algeciras 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 or Comport- Algeciras Port Community.

Our new colleague, Rocío López, holds a Degree in Labour Relations and Human Resources from the University of Seville (2016) and a Degree in Law from the University of Cádiz (2020). She also holds a Master’s Degree in Maritime-Port Company Management and Maritime Law from the University of Deusto (2020) and a Master’s Degree in Access to the Legal Profession from the UNIR (2022). Her training includes previous work coordinating services and quality in a company in the maritime-port sector in Algeciras, as well as a subsequent internship in a maritime law firm in Bilbao.

We also take this opportunity to announce the departure of AIYON Cadiz lawyer Encarnación Quevedo who has embarked on a new adventure in the world of administrative law with great enthusiasm, and always with all our support and good wishes. Good luck in this new stage, Encarni!

El Diario de Cádiz Highlights the Work of Aiyon Lawyers in Algeciras and Cádiz

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El Diario de Cádiz has recently published an article highlighting the work carried out by Aiyon from its offices in Algeciras and Cádiz, its solid presence in the south and its active participation in the sector, not only as expert lawyers in Maritime Law, International Trade, Insurance or Transport Law, but also as teachers and trainers of the new generations being part of the teaching staff of the “Master in Legal Consultancy of Companies” taught at the University of Cadiz.

From its headquarters in Algeciras, José Domínguez Castro, partner and head of the firm, who in addition to being a lawyer has a degree in Nautical and Maritime Transport, a Diploma in Civil Navy and a Merchant Navy Pilot with accredited experience in passenger ships and ro-ro cargo, confirmed to the Journal that the local client is fully aware of the need of specialised lawyers to provide legal advice in the different areas of our speciality. We refer to all matters relating to trade, transport and insurance, and all that this entails in terms of the lawyer’s knowledge of the world of logistics, port handling, storage and warehousing, shipbuilding and ship repair, ship supplies and services, land transport, sanctioning procedures, insurance claims, etc. Legal advice is provided from a purely contentious point of view when the dispute has already arisen and in order to try to reach a negotiated resolution, or judicial if unavoidable, as well as from a previous moment in order to obtain preventive advice and avoid possible future risk situations.

Together with Enrique Ortiz, partner in charge of Aiyon’s office in Cadiz and expert lawyer, our colleagues have actively participated as speakers and trainers in Universities and companies. An example of this are the recent lectures on transport and insurance in the international sale and purchase given int June in the “Master’s Degree in Business Legal Consultancy” at the University of Cadiz. With regard to his teaching work, we would like to echo José’s words: “We have really enjoyed giving these conferences and we are grateful to the University of Cadiz for having counted on us for this Master’s Degree. With the regulatory selection we made and the case study method, taking advantage of our real experience, we think that the students have been able to acquire a global vision of real and common risks that arise in this complicated sector and how to advise their companies or clients so that they can prepare themselves in the best possible way and protect their interests when facing operations of this type”.

Read article…

The Importance of Insurance in Air Cargo Transport

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Although air cargo transport may seem to cover only movement of special or very specific cargo, the truth is that it includes all types of goods and materials, including perishable goods or live animals.

Transport may require a single journey from origin to destination or involve several flights or transfers at different airports and countries. All of this in relatively short and, in principle, very competitive, but usually costly, timescales.

It is easy for a seller/shipper or a buyer/consignee of air cargo to fall into a subjective interpretation of the conditions governing it. In particular, and in relation to the security of this sector, in view of the stringent security measures to which citizens and their luggage are subjected on air journeys both in airport facilities and on aircrafts, it is natural to infer that this means of transport is extremely safe in order to move our goods from one country to another.

In this context, it is reasonable to think that cargo insurance is not perceived as necessary or relevant as it would be in other types of transport, such as maritime transport, with longer crossings and cargoes being subject to different manipulations by operators of all kinds, or in land transport, where shipments are exposed to damage due to breakdowns, delays, or theft. However, this is a line of reasoning that must be contested mainly because of two important issues:

(i) air cargo is subject to damage, delay and loss, even if the airports of origin, transshipment and destination are located in countries with high security measures and fully standardized protocols;

(ii) the international regulation affecting the carriage of air cargo protects the figure of the carrier by establishing limitations of liability that are applicable to them, in many cases even when the figures of fraud or gross negligence of the carrier may occur.

Specifically, if we look at the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 1999) and its subsequent amendments, it states that even when there may be intent or gross negligence on the part of the carrier in failing to comply with all types of security or safekeeping measures with respect to the goods or the ULD, the carrier always has the right to limit his liability to 22/SDR/kilo based on the weight of the damaged/missing cargo (updated in Spanish Official Gazette of 16/07/20). Therefore, if the limitation of the carrier’s liability is applied, the sums to be recovered by the affected shippers based on the wight limitation are usually low when, on the contrary, in most cases the value of the transported goods is high.

Although the Warsaw Convention is still in force in certain countries and at national level, we have the obsolete Air Navigation Act of 1960 regulating air cargo, and both regulations admit in certain cases the breaking of the carrier’s limitation of liability, we cannot forget that the Montreal Convention is of massive application, and specifically to all air transport between member states of the European Union. Moreover, as Spain is a party to the MC, if the non-EU country of origin or destination of the affected cargo has also ratified it, the transport will always be subject to it.

Therefore, in the absence of a prior express declaration of value with payment of a supplement to cover us to a greater extent in the event of damage/missing cargo, in our experience at AIYON, we consider it highly advisable to insure air cargo, which is not risk-free even at the most secure airports and at the hands of the most prestigious airlines.

Read article…

Enrique Ortiz and José Antonio Domínguez participate in the “Master in Business Legal Consultancy” of the University of Cadiz

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We would like to thank the University of Cadiz for their warm welcome to our partners of Aiyon Cadiz and Aiyon Algeciras, who had the honour of being part of the teaching staff of the “Master in Legal Business Consultancy (MAJE)” organized by the Faculty of Law of the University of Cadiz and the University Business Foundation of the province of Cadiz (FUECA).

A Master’s Degree that offers its students the opportunity to broaden and deepen their legal and accounting knowledge in the business world, from a comprehensive, up-to-date and practical perspective, so that they can plan their professional career in the specific field of legal-business advice, and which is taught by renowned professionals with extensive experience in legal-business advice, both from the University itself and from the private sector.

In their classes, our colleagues, Enrique Ortiz and José Antonio Domínguez, have worked with the students on two subjects of great relevance in the field of international trade, such as the international transport contract and insurance in the international market. All this within the rest of the subjects that made up the module entitled “International Dimension of the Company” of which they have been part.

Likewise, Enrique and José have shared with the attendees their long and extensive professional experience, acquired during the many years they have been active in managing matters for all types of clients related to the transport, insurance, and international trade sector, commenting on practical cases and common situations in their day-to-day work in AIYON Abogados.

We are sure that these new generations of professionals will be very well received, and we wish good luck to all of them!