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

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!

V State Sectoral Agreement on Stevedoring

On Friday 8 May 2022, the V State Sectoral Agreement on Stevedoring was signed, which came into force in May 2022 following its publication on May 18 in the Official State Gazette, under the title: “Resolution of 4 May 2022, of the Directorate General of Labour, by which the V Agreement for the regulation of labour relations in the port stevedoring sector is registered and published”.

There were five signatories to this long-awaited and important agreement at local and state level:

  1. The National Association of Stevedoring Companies.
  2. Port Employment Centres.
  3. The State Coordinator of Seafarers
  4. The State Federation of Services, Mobility and Consumption of the General Union of Workers.
  5. The Federation of Citizen Services of Trade Union Commissions.

In addition to the signature of these five corporations, this Agreement has the approval of the National Commission for Markets and Competition, as well as that of the Ministries of Transport, Mobility and Urban Agenda and the Ministries of Labour and Social Economy.

The main objective of this Agreement is to provide legal certainty to the economic activity of stevedoring, and to this end, it had to adopt the legal provisions of both the state framework, as well as those applicable in the EU. In other words, this Agreement had to adapt to and respect the new legal framework of the stevedoring sector, as well as the rulings of the Court of Justice of the European Union in its judgements of 11 December 2014 and 13 July 2017.

With regard to the technical characteristics of this Agreement, it should be noted that this Agreement will be applied in the Spanish territory, without exclusions, and in particular it will apply to companies holding a licence for port services for the handling of goods and to Port Employment Centres.

It is scheduled to run until 31 December 2025 and may be extended.

Regarding the most noteworthy content of this 5th State Sectoral Agreement on Stevedoring, we highlight the following aspects:

  1. The organisation and direction of work shall be the sole responsibility of the management of stevedoring companies.
  2. The stevedoring companies shall employ the personnel affected by this Agreement in the activities of the functional scope taking into account the legally required qualifications and the selection procedure and professional framework agreed in the agreement.
  3. The work will be distributed daily by rotating the available staff by professional groups.
    Likewise, the Port Employment Centres will be able to make personnel available to stevedoring companies through a rotation system by professional groups and specialities.
  4. The workers covered by this Agreement are classified into 4 groups according to their specialization:
    a. Specialist.
    b. Handling Officer.
    c. Commodity Controller.
    d. Foreman.
  5. The selection and recruitment of personnel for the provision of port handling or cargo handling services shall be free.
  6. Regarding the regularisation of labour relations:
    a. A maximum working time of 1,826 hours per year is established.
    b. It is established that excess working time is to be counted as overtime.
    c. The minimum annual leave shall be 30 calendar days.
    d. It is stipulated that minimum vocational training must be ensured.
    e. Finally, with regard to the minimum remuneration to be received, it is established that a guaranteed salary of thirty shifts per month must be provided for full-time permanent staff, adapting the same to other types of working hours.

This guarantee replaces the so-called inactivity wage and does not apply to those Port Employment Centres and stevedoring companies that have fixed monthly time unit wage or a guaranteed minimum monthly wage.

This guarantee replaces the so-called inactivity wage and does not apply to those Port Employment Centres and stevedoring companies that have fixed monthly time unit wage or a guaranteed minimum monthly wage.

As can be seen, this 5th State Sectoral Agreement on Stevedoring does not leave indifferent any agent or worker linked to the sector, who will have to adapt to what has been agreed.

Aiyon Collaborates Again with the Spanish Maritime Institute and the Universidad Pontificia de Comillas in the Master’s Degree in Maritime Business and Law

On 26 May 2022, our partners Verónica Meana and Mikel Garteiz-Goxeaskoa have taught one more year the class on “Removal of wreck and Nairobi Convention 2007” and “HNS Convention 2010”.

This is the fifth consecutive year that our colleagues are part of the faculty of the Master’s Degree in Business and Maritime Law of the Spanish Maritime Institute in collaboration with the Universidad Pontificia de Comillas, sharing their theoretical and practical knowledge on matters affecting the maritime transport sector.

In this case, the subject dealt with was “Liability and compensation for damage caused by harmful and potentially hazardous substances during maritime transport”, which affects both operators in the sector and public administrations, both nationally and internationally.

As always, we enjoyed giving the class and hope that the students found it useful and interesting.

Is the Detention of Russian Mega Yachts Legal?

On 24 February 2022, Russia begins its invasion of Ukraine, provoking an immediate reaction from the European Union and the United States, condemning the action and announcing sanctions. Among the sanctions adopted by the EU is the freezing of assets belonging to Russian oligarchs who participate or have participated in the war against Ukraine. European countries immediately began to immobilise assets located in their territories.

In the case of Spain, the arrests of several mega yachts of more than 24 metres in length, such as the “Valerie”, located in Barcelona, and the “Lady Anastasia”, docked in Palma de Mallorca, have been striking. The question is, on what instrument is Spain basing these detentions?

AIYON analysed the situation in an article that was published by the newspapers ABC Sevilla and ABC Madrid last April, which we recommend reading.

Read article published here.

Royal Decree-Law 3/2022 on measures for the improvement of road freight transport

In recent months, fuel prices have risen sharply following the start of Russia’s invasion of Ukraine. This is having serious consequences for the transport sector, among others.

Royal Decree-Law 3/2022 of 1 March was enacted to mitigate the effects of this rise, to ensure the sustainability of the road freight transport sector, whose structure makes it more difficult to adapt to unfavourable scenarios, and to combat unfair competition from “letterbox companies” that operate de facto outside their States of establishment.

Among the measures included in this Royal Decree-Law applicable to land transport are the following:

 

1.- Mandatory transport price review subject to fuel price variation

RDL 3/2022 amends article 38 of Law 15/2009, of 11 November, on the Land Transport of Goods Contract (“LCTTM”) relating to the revision of the price of road transport in accordance with the variation in the price of diesel fuel. In accordance with the new wording of the aforementioned article 38:

It is compulsory to revise the price of the transport contract in line with the variation in the price of fuel, either by an increase or a reduction in the price of fuel. Any agreement to the contrary shall be considered null and void.

This duty to review applies to all transport contracts, whether verbal or in writing, whether they relate to the performance of a single journey or to continuous contracts. In the case of single-trip transport, the review shall apply if the price of fuel has changed between the day of conclusion of the contract and the time of transport. In the case of continuous contracts, which will be more affected by this measure, increases or reductions shall be applied on a quarterly basis in relation to the initially agreed price, being possible to agree on a shorter period, but under no circumstances a longer one.

The review of the price of transport will be conditional on the price of fuel having undergone a variation of more than 5%, although the parties may agree on a lower threshold.

Only one revision formula can be applied, and it will be the same for all transport contracts. In other words, it is not possible for the carrier and its customer to agree on another formula. This formula is established in article 3.4 of the Ministerial Order FOM/1882/2012 of 1 August, which approves the general contracting conditions for the transport of goods by road. The formula depends on both the variation in the price of fuel and the maximum mass of the vehicle and applies a coefficient to the percentage variation in the price of fuel.

In continuous transport contracts entered into prior to the Royal Decree-Law, these revisions shall be made:

a) If the contract includes different review formulas, these formulas must be updated to the one set by the Administration within a maximum period of 6 months from the entry into force of the Royal Decree-Law.

b) For those contracts that do not include a price revision clause due to variations in the price of diesel, it shall be compulsory to revise the price of those transports carried out after the entry into force, considering the variation in the price of fuel in the last 12 months.

The variation in the price of fuel shall be reflected in the invoice in an itemised manner, unless another way of reflecting the adjustment is agreed with the client.

 

2.- Regulation of goods loading and unloading operations

Taking up a historical demand of the transport associations, the Royal Decree-Law introduces an amendment to the thirteenth additional provision of Law 16/1987, of 30 July 1987, on the Regulation of Land Transport (“LOTT”) prohibiting drivers of goods transport vehicles of more than 7.5 tons. of MAM (Maximum Authorised Mass), whether they are self-employed or salaried, to participate in loading and unloading operations carried out in Spanish territory of goods or their supports, packaging, containers or crates, except in the following cases:

(a) Transport of removals and furniture storage.

(b) Carriage in tank vehicles.

(c) Carriage of aggregates or carriage in tipper vehicles or vehicles fitted with a crane or other devices inherent to the vehicle for the purpose of loading and unloading.

(d) Carriage in vehicle carriers and roadside assistance cranes.

(e) Carriage of break-bulk, parcels and any other similar carriage

(f) Carriage of live animals.

(g) Cases in which the regulations governing certain types of carriage specifically provide otherwise in relation to the participation of the driver.

(h) Those cases established by regulation, provided that the safety of the driver is guaranteed.

This ban also applies to drivers of foreign transport companies operating in Spain.

Unlike the rest of the Royal Decree-Law, the entry into force of this ban will take place on 2 September 2022, so that loading and unloading centres can prepare themselves.

In relation to the above, the Royal Decree-Law amends article 20 of the Land Transport of Goods Contract. The new wording stipulates that loading and unloading will be for the account of the shipper and the consignee unless, prior to the actual presentation of the vehicle for loading, it has been agreed in writing that these operations will be carried out by the carrier against payment of a supplement to the price of the transport. This agreed consideration must be shown on the invoice separately from the carriage. As regards the stowage and unstowage of the goods on board the vehicles, these will be the responsibility of the shipper and the consignee respectively, unless they are expressly assumed by the carrier.

In the event that the parties agree in writing that the carrier will carry out the loading and unloading operations, and except in the case of one of the aforementioned specialities, a person other than the driver will have to carry out these tasks.

 

3.- Regulation of stoppages

The Royal Decree-Law also modifies article 22 of the Land Transport of Goods Contract on stoppages and reduces from two hours to one hour the period of time that a vehicle must wait for loading or unloading to be completed from the time it is made available under the terms of the contract.

The stoppage of the vehicle for reasons not attributable to the carrier, including loading and unloading operations, shall give rise to compensation equivalent to the Public Indicator of Multiple Effect Incomes (“IPREM”) per day multiplied by 2 for each hour or fraction thereof, with a maximum of 10 hours per day. If the stoppage is longer than one day, this amount shall be increased by 25% for the second day and by 50% over the amount indicated for the first day for the following days of stoppages.

The parties, however, may agree on a higher amount.

This amount shall also be used to assess the compensation to the carrier when the vehicle is paralysed due to an accident or breakdown for which the carrier is not responsible.

 

4.- Other amendments affecting transport companies and employees

Royal Decree-Law 3/2022 also introduces an amendment to Law 45/1999 of 29 November 1999, on the posting of workers in the framework of a transnational provision of services in road transport, imposing an obligation of communication in the case of the posting of drivers who are employees. This communication will be made by means of the form of the public interface connected to the Internal Market Information System (“IMI”) established in Regulation (EU) 1024/2012.

Finally, the Royal Decree-Law extends the system of penalties contained in Articles 140, 141 and 143 of the Regulation of Land Transport.

P&I Clubs, a Key Player in Maritime Transport and Trade

Canal Marítimo y Logístico, a magazine specialised in maritime and logistics information, publishes in its November issue an article on P&I Clubs written by Verónica Meana, partner of our Madrid office.

This article finds its origins in the publication of the Preliminary Bill to amend the revised text of the Law on State Ports and the Merchant Marine, and the Law on Maritime Navigation, which, among other things, includes the reform of article 465 of the latter set of regulation due to doubts that exist nowadays about the admissibility of direct action against protection and compensation clubs. It is worth taking a step back and going to the origin of these organisations and how they work.

The reform adapts to the purpose of these associations which remain fundamental to the development of maritime transport and trade as they currently insure the civil liabilities of shipowners from all parts of the world.

In itself, the article covers the basic concepts, background, established responsibilities, as well as Spanish legislation related to this key piece of maritime transport and trade.

Read article published HERE

El Canal Marítimo y Logístico Highlights the Trajectory of AIYON Abogados since its Foundation

The journal El Canal Marítimo y Logístico analyses and highlights the trajectory of our firm since its foundation in 2015 and catalogues it as a model of success that continues to develop and grow.

The article confirms that, since the firm was founded more than six years ago, AIYON Abogados has formed a multidisciplinary, solid, and participative team of professionals, with marked quality standards in its services, and always respecting its concept of “boutique law firm” firmly connected with its clients and the sector.

From its basic nature with regard to maritime law, our firm aims to further reinforce the relationship with our international clients (maritime insurers, shipping companies and freight forwarders) on the basis of specialised training. This is one of the areas in which    we are involved as part of our activity, collaborating as regular lecturers in the Master of the Spanish Maritime Institute (Madrid), giving training talks at the University of Cadiz, maintaining collaborations with the universities of Deusto and La Laguna, as well as acting as members of the Court of Arbitration of the Madrid Bar Association. This is a commitment to the new generations, but also to clients, who expect andobtain personalised professional advice.

Likewise, the publication makes special mention of the website on the lifting of the ship arrest that the firm launched in 2021, which can be consulted at: shiparrestrelease.com.

On the other hand, the AIYON team informs that we continue to be clearly committed to handling matters related to land transport, especially in the area of national and international road transport, and the world of insurance and trade, where we have great professionals advising our clients on a daily basis and accompanying them on theirprofessional journey.

Finally, our firm’s clear vocation to deepen its knowledge of Air Law – air chartering, incidents, claims or purchase and sale of aircraft, among others – and Space Law is reflected in the “Postgraduate Specialist Course in Aeronautical and Space Law”, taught by the Faculty of Law (ICADE) in collaboration with the Spanish Association of Aeronauticaland Space Law (AEDAE).

You can read the article at the following link: https://www.diarioelcanal.com/aiyon-abogados-socio-fiable-prioriza-relacion-estrecha-cliente/

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.

Read the article published…