Tag Archive for: aiyonabogados

Reform of Civil Cassation following the entry into force of the Royal Decree-law 5/2023

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The Royal Decree-Law 5/2023 of 28 June adopting and extending certain measures in response to the economic and social consequences of the war in Ukraine, to support the reconstruction of the island of La Palma and other situations of vulnerability, to transpose European Union Directives on structural modifications of commercial companies and the reconciliation of family and professional life for parents and carers; and on the implementation and enforcement of European Union law, which came into force on 29 July 2023, introduces, among others, a series of modifications in the regulation of civil proceedings, especially in the regulation of civil cassation, the purpose of which is to make the processing of appeals more agile and to relieve the Supreme Court.

One of the main changes is the elimination of the extraordinary appeal for procedural infringement, as separating the reporting of procedural infringements from substantive infringements is not considered operative. Although RDL 5/2023 does not include a provision expressly repealing articles 468 to 476 and the sixteenth Final Provision of the Spanish Civil Procedure Act regarding the extraordinary appeal for procedural infringement, the fact is that these provisions must be understood to be repealed due to their manifest incompatibility with the new regulation about cassation’s appeal and in accordance, moreover, with the sole general repealing provision of RDL 5/2023.

On another note, the new regulation about cassation’s appeal includes the limitation of appealable decisions to two, on the one hand, “judgments that put an end to the second instance dictated by the Provincial Courts when, in accordance with the law, they must act as a collegiate body” and, on the other hand, “orders and judgments handed down on appeal in proceedings on the recognition and enforcement of foreign judgments in civil and commercial matters under international treaties and conventions, as well as under European Union regulations or other international rules, when the power to appeal is recognised in the corresponding instrument”.

A limitation is also introduced in relation to the means of access to the appeal, specifically, these channels of access are reduced to two: the first channel requires the appeal to have a cassation interest and the second requires the appealed decision to have been issued for the protection of fundamental rights that can be protected even when there is no cassation interest, thus eliminating the previous channel of access to appeal for an amount greater than 600,000 euros.

On the other hand, according to the modifications introduced by RDL 5/2023, there is a cassation interest when the contested decision infringes the case law of the Supreme Court, when it resolves issues on which there is contradictory case law of the Courts of Appeal (“Audiencias Provinciales”) or when rules are applied on which there is no case law of the Supreme Court, in the latter case removing the requirement that the rule on which there is no case law has not been in force for more than five years.

Likewise, it will also be possible to appreciate a notorious cassation interest when the contested decision has been issued in a process in which the disputed issue is of considered of “general interest”, that is to say, when the issue potentially or effectively affects a large number of situations, either in itself or because it transcends the case that is the object of the process.

This new regulation of the appeal in cassation eliminates the possibility to challenge the admission or rejection of the appeal. The Admissions Chamber of the Supreme Court will simply limit itself to admitting the cassation by means of an order expressing the reasons why it must rule on the issue or issues raised in the appeal or, where appropriate, to rejecting the cassation by means of a succinctly reasoned order which will declare, where appropriate, the finality of the appealed decision.

The need to hold a hearing when requested by all the parties is abolished, with the Court now having the power to decide on the pertinence of holding such a hearing for the better delivery of justice.

Another novelty is the incorporation into the Civil Procedure Act of the formal requirements that had been demanded in the Agreements on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement, of January 2017, criteria such as, the identification of the channel of access and the rule infringed, the articulation of the appeal in grounds or the summary of the infringement, among others.

Likewise, among other questions of format introduced by RDL 5/2023, the First Chamber (i.e., Civil Docket) of the Supreme Court is empowered to determine the maximum length of the cassation appeal and the opposition brief by means of an agreement that must be published in the Official State Gazette (“BOE”).

It also establishes the possibility that appeals in cassation may be resolved by means of an order in those cases in which the Chamber considers that the consolidated doctrine reported has indeed been infringed. By means of this order, the case will be returned to the court of origin so that, in accordance with the jurisprudential doctrine, it may issue a new decision.

Finally, and in accordance with the transitional regime, it should be clarified that this new regulation will only apply to appeals lodged against decisions handed down after its entry into force.

The Future of Air Cargo

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Until now, the concept of air cargo has been understood as the transfer of goods by air using the different types of aircraft available on the market to transport goods from one point of origin to another destination.

But this vision must now expand and evolve as the imminent entry of UAS (Unmanned Aircraft System), or what we colloquially call drones, into the commercial system becomes a reality.

Leaving aside the use of these systems for weapons and defence purposes, which in itself is a highly specialised world and there is much to analyse, we are interested in the commercial purposes sought by the development of drones and the impact they will have on the future of air cargo.

It is a fact that it is not easy to adapt national and international regulations to the great technological progress that is being experienced, but since 2017 the European Union has already begun to develop the so-called “U-space”, with impact in Spain from 2019 with projects led by ENAIRE, in order to urge a regulatory framework that will allow the management of UAS traffic in an automated and integrated manner with the management of manned aviation. All this to enable operations with unmanned aircraft in an orderly, fluid, safe and affordable manner.

A statement that is easy to make but difficult to execute, given that the “U-space” must be a safe and highly controlled (and certified) space in which the drones themselves, represented by their pilot; the service provider in that space that operates via the pilot; the provider of information services on the aircraft and its safety; the national control authorities; the security forces; and the general public as an interested party and recipient of any type of information will coexist; all of this, in addition to the traditional aviation itself, which we have known up to now as the “U-space”; the national control authorities; law enforcement agencies; and the general public as an interested party and recipient of any type of information; all of this, in addition to traditional passenger and cargo aviation itself, which we have known until now as the only one but which is considered “manned aviation”.

All this requires a “National Action Plan for the Deployment of U-space” (PANDU) in Spain, which is carried out through the coordinated action of the Directorate General of Civil Aviation (DGAC), the State Aviation Safety Agency (AESA) and ENAIRE, in conjunction with the Ministry of Defence. Thus, by the end of 2023 or early 2024, it is expected to have a controlled space in which to operate drones. This is a very important challenge and, without a doubt, unstoppable.

The evolution in the world of transport is constant and, therefore, this new reality should not surprise us, but there are other factors that help and drive these changes, such as the EU’s goal of minimising emissions from all modes of transport (with very demanding challenges for operators) and optimising the performance of equipment and people.

Thus, the use of UAS is seen as an alternative to transporting certain loads with a positive environmental and resource impact.

A mere example of the new reality that is coming, and in which the world of shipping is affected, is the fact of performing the tasks of shipping consignment and provisioning of a vessel through the use of drones. Let’s say that a ship calls at the port of Vigo, which until now has required the assistance of one or two operations staff from the shipping agent contracted to attend to it, in addition to the rest of the suppliers. If the needs for the delivery of documentation or supplies could be met through the use of drones, it would be feasible to save personnel movements (with their components of contamination and use of resources and equipment), and direct contact would not even be necessary in some cases where there might be necessary isolation situations, such as those experienced during COVID.

This is just one example of a reality that will undoubtedly change the way we understand air cargo transport and, in the not-too-distant future, passenger transport. A small change that only heralds the great change that is coming and to which we will have to adapt.

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Royal Decree 186/2023 and Situations of Anchoring of Tankers or Other Vessels Carrying Substances Harmful to the Marine Environment, when They Are Not Bound for Any Port or Terminal Located in Spain

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Pursuant to its Sixth Final Provision, Royal Decree 186/2023, of 21 March, which approves the Regulation on the Organisation of Maritime Navigation (which is inserted below), came into force on 11 April 2023, with the exception of Chapters II, III and IV thereof, on the regime applicable to the dispatch of vessels, the role of dispatch and manning, and the enrolment and disenrolment regime of crew members, respectively, of the Regulations on the Organisation of Maritime Navigation, which will enter into force on 1 July 2024.

As stated in Article 2, Maritime Navigation Regulation is applicable both to civil ships and vessels flying the Spanish flag, as well as to those flying foreign flags when sailing in maritime areas in which Spain exercises sovereignty, sovereign rights or jurisdiction (reference to the United Nations Convention on the Law of the Sea / UNCLOS), with the exception of warships, other State ships and vessels, ships and vessels of the State Security Forces and Corps and of the Customs Surveillance Service.

Having determined its scope of application and entry into force, we will now focus on the regime of this Royal Decree in relation to the use of Spanish maritime spaces outside the territorial sea (i.e. the contiguous zone or the exclusive economic zone) as a place of anchorage by product tankers, chemical tankers, gas tankers or other vessels carrying substances polluting the marine environment and not bound for any port or terminal located in Spain, as set out in Articles 44 and 45, within Chapter VIII of the Royal Decree.

Article 44 states that this type of vessel, when transporting substances that pollute the marine environment and which, without having a port or terminal located in Spain as a destination or discharge point for all or part of their cargo, intend to use Spanish maritime spaces outside the territorial sea as a place to anchor, while awaiting orders, instructions or any other similar circumstance, must have the express authorisation of the corresponding Harbour Master.

In other words, the above types of vessels in such circumstances, prior to carrying out the anchoring operation, must have formulated and submitted a request to this effect (the content of which shall be as provided for in paragraph 2 of this Article 44, such as estimated time of arrival, port of origin, type of cargo, etc.) and obtain the express authorisation (not tacit) of the corresponding Harbour Master’s Office.

The Harbour Master may authorise or refuse such a request, taking into account the conditions under which the anchoring will be carried out, as well as the avoidance of damage that could result from an accident involving this type of vessel.

Once an authorisation to anchor has been granted, the ship shall (i) anchor in the geographical position indicated, (ii) undergo, where appropriate, a safety inspection on arrival at the anchorage, the result of which may lead to the adoption of precautionary measures or even the revocation of the anchoring authorisation.

Likewise, if it is desired to remain at anchor, the vessel must hire a tug with sufficient pulling power in relation to the vessel in question, which must be equipped with pollution control equipment, which must be kept permanently operational for the duration of the stay. Furthermore, the propulsion equipment must be kept in immediate operation at all times, the fire-fighting system line must be pressurised and, in addition, the regulatory anchoring signals must be maintained, and all deck and bridge lights must be illuminated throughout the night.

Furthermore, a vessel wishing to remain at anchor must check its geographical position periodically and record it in the logbook every hour. Along these lines, the captain must inform the Rescue Coordination Centre every four hours of the exact anchoring position and of any new development that may affect the safety of the vessel and crew, especially when the anchoring position is altered for external reasons, such as weather conditions. Obviously, the duty is also imposed to maintain the corresponding bridge and engine watches, checking the starting system in each of them. In particular, there is a requirement that at least one suitably qualified officer and one suitably qualified crew member must be on the bridge at all times.

It is also forbidden to carry out any cargo transfer, tank cleaning or repair work on machinery and deck without the corresponding authorisation while at anchor, given the high risk of pollution to the marine environment that such operations would entail.

Finally, it is imposed that all changes and movements of the vessel’s crew during its stay in the anchorage shall take place for justified reasons and with the prior authorisation of the Harbour Master.

Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus (Interbus Agreement)

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As we know, the policies of the European Union and its contracting states always and everywhere promote international passenger transport in and through Europe.

It is a fact that European tourism has been increasing for years and continues to grow. The contracting parties to the Protocol to the Agreement on the International Occasional Carriage of Passengers by Coach and Bus have therefore extended the scope of application of the Interbus Agreement to include regular services and special regular services under certain conditions, as it has hitherto covered only occasional services.

This new Agreement has been negotiated between the European Commission and other fourteen third countries outside the European Union, thus regulating transport between the EU and these signatory countries.

The main features of the Agreement include the following:

  1. The liberalisation of regular services, and regular services subject to authorisation, should apply only to services to or from the contracting party of establishment of the road transport operator in which his vehicles are registered.

As a general rule, regular services shall be available worldwide, subject to compliance with the obligation to settle where appropriate.

  1. Regular or scheduled services to and from the same Contracting Party may not be operated by carriers established in another Contracting Party.
  2. They are extended to regular services, which are services that ensure the transport of persons with a specified frequency and route. These services can pick up and set down passengers at predetermined stops.

Special regular services mean regular services which provide for the carriage of specified categories of passengers to the exclusion of other passengers. These services shall include, inter alia, carriage to and from the place of work for workers and carriage to and from the educational institution for school pupils and students.

  1. The principle of non-discrimination on the grounds of nationality or place of establishment of the transport operator, and of the origin or destination of the coach or bus, and/or of the service provided, is prioritised as a basis for the provision of international road passenger transport services.
  2. It is necessary for the Contracting Parties to apply uniform social measures concerning the work of crews of buses and coaches engaged in international road transport, which are governed by the rules enshrined in the Interbus Convention, to which this Protocol should refer.
  3. The technical conditions applicable to buses and coaches operating international services between the contracting parties should be harmonised and should be governed by the rules enshrined in the Interbus Agreement.
  4. Carriers established in the European Union require an authorisation issued by the competent authority of the Member State of origin or destination of the transport.

Authorisations shall be issued in the name of the carrier and shall not be transferable.

The maximum period of validity of the authorisations shall be 5 years, and the minimum content of the authorisation shall include aspects such as: the type of service; the route; the period of validity of the authorisations; the stops and timetables.

These modifications are just some of the new guidelines for action implemented by the European Union to continue promoting cultural exchanges between the contracting parties to this

Pablo Sánchez joins the Aiyon Cádiz office

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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

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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

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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 at EAST MED 2023, Limassol (Cyprus)

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From AIYON we would like to thank COMPORT – Algeciras Port Community for facilitating and organising the attendance of the different companies involved with the port environment of Algeciras to the event organised in Cyprus, the EAST MED EXPO OFFICIAL 2023, which brought together in Limassol different leading companies of the maritime industry.

The partner in charge of the Aiyon Cadiz office, Enrique Ortiz, and our partner of the Aiyon Bilbao office, Zuberoa Elorriaga, attended this interesting meeting together with the rest of the companies of the port area of Algeciras, led by different Cypriot companies linked to port activities. As a sign of the impact of this important event on the city, it was inaugurated by the Mayor of Limassol at a reception held at the Limassol City Hall on Wednesday 19 April.

With over 80 exhibitors from around the world, East Med Marine and Offshore Exhibition continues for the tenth time to provide a first-class opportunity for the marine and offshore sectors for key players and stakeholders to interact and learn about important industry and technology updates.

This event, of international scope, is held every two years in Limassol-Cyprus with the support of the government of the country, whose Minister of Maritime Affairs, Ms. Marina Hadjimanolis, took a personal interest in the services offered by the Port of Algeciras, a reference in the Mediterranean.

For our part, we cannot forget the warm welcome of the Cypriots, who have been very supportive during our trip.

 

AIYON ABOGADOS SLP has been a beneficiary of the European Regional Development Fund (ERDF), whose objective is to achieve a more competitive business fabric and thanks to which it has participated in the action: Visit EAST MED MARINE & OFFSHORE EXHIBITION 2023 to promote its internationalisation. This action took place from 19 to 21 April 2023. To do so, it has had the support of the International Promotion Programme of the Chamber of Commerce of Campo de Gibraltar.

A way of doing Europe

Royal Decree-Law 14/2022 of 1 August and its most significant developments in the field of air transport

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Title II of this Royal Decree-Law contains measures on air transport that “counteract”, two years later, some of the measures that were implemented to reactivate the economy in the face of the impact of COVID-19 established by RDL 26/2020 of 7 July.

One of these measures that were implemented as a result of RDL 26/2020 of 7 July was Article 3, which included the procedure for the incorporation into Spanish domestic law of the Operational Guidelines adopted by the European Aviation Safety Agency (EASA) and the European Centre for Disease Prevention and Control (ECDC) for the management of air passengers and aviation personnel in relation to the COVID-19 pandemic at airports, thus establishing their mandatory nature once they were incorporated.

However, given the good evolution of the degree of immunisation achieved against COVID-19, which has been maintained over time since the RDL was issued, it has been decided to eliminate the obligatory nature of the application of these operational guidelines, which in the European Union were originally created as recommendations for its Member States, in order to give them the mere character of an original recommendation, thus avoiding imposing additional obligations to those required in the European Union.

The main reason for this is the fuller and more complete revival of the holiday tourism sector, as well as a return to highly competitive passenger air transport.

Nevertheless, the intention was to build on and not totally discard a procedure that has been shown to be at least partially effective, to have a permanent instrument for future response to such rapidly spreading diseases as COVID-19 that may emerge. Therefore, Article 9 of this Royal Decree-Law extends the application of the procedure for the adoption of operational guidelines to other public health emergencies of international concern declared by the World Health Organisation which, due to their impact, justify the adoption by the competent bodies of the European Union, or by an international organisation to which Spain is a party, of operational guidelines, guides or recommendations for the management of air passengers, aviation personnel or the use of airports. In other words, we are talking about measures that can only be adopted when there is an international public health emergency declared by official bodies.

It should be noted that the guidelines adopted in accordance with the provisions of this Royal Decree-Law will be called “operational guidelines”, which will have the character or nature of mere recommendations, but that without prejudice to the above, according to Article 10 of this Royal Decree-Law, it is stated that:

“by order of the Minister of Transport, Mobility and the Urban Agenda, following a favourable report from the Minister of Health, the mandatory nature of all the operational guidelines or any of their precepts may be established”.

The scope of application of these operational guidelines shall be both the persons transiting through the airports located in Spanish territory and the companies and personnel carrying out their activity in these facilities, as well as the managers of the airports located in the national territory; airlines and operators operating at these airports, including air taxi and general aviation operations; companies providing ancillary or related services and, in general, all persons transiting through airport infrastructures.

Airport managers and airlines should inform passengers, either through digital means (such as their mobile applications, or via email), the airport public address system, or signage about the preventive measures they have adopted in their case, following the recommendations set out in the appropriate operational guidelines for the future.

Regarding passengers, it should be pointed out that they must collaborate with airport managers, airlines and health authorities in the implementation of the measures of the operational guidelines that affect them. Likewise, they will continue to be obliged to submit to the health controls established by the Ministry of Health and to adopt the preventive measures that are established.

It is for all of the above reasons that we advise air passenger transport operators to be attentive to the new operational guidelines that may be drawn up in the future, in case they are interested in incorporating some of the recommendations that are contemplated internally, and likewise, to make them aware that according to art. 10 of this Royal Decree-Law, these future operational guidelines could become mandatory, so they should also monitor and consider whether, faced with an operational guideline about which there is a rumour that it could become mandatory, they should begin to incorporate it from its initial phase, i.e. when it is still in the nature of a recommendation, in order to be more efficient in its management.

Automated Ports

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Once again, the special edition of “Transporte XXI” on Ports of Spain, in this case in its April 2023 version, collaborated with our office by publishing the article “Automated Ports” prepared by our colleague from Bilbao, Irantzu Sedano.

Irantzu’s article shows how the continuous advances in technology are having a major influence on the automation of ships, as well as on the automation of the ports in which they work. It is a fact that autonomous navigation brings as a direct and main consequence the need for autonomous berths and moorings in ports, thus forcing ports to focus their efforts on this new reality that is getting closer and closer to us, and which undoubtedly cannot be ignored.

This is why most Spanish ports are already automated in many of their functions; in other words, they use advanced technologies to improve efficiency and productivity in their operations, be they loading and unloading, transport and storage of goods, access to the port, etc. Automation reduces operating costs, optimises space, improves the safety of operations, as well as it allows the handling of large volumes of cargo and the reduction of waiting times for ships and lorries in the port.

However, this scenario also poses many legislative challenges, which will have to be tackled prudently and tenaciously to ensure safe and sustainable development of this new maritime reality:

Much of the pre-existing regulation is not adequate to deal with issues related to port automation and needs to be updated or even new specific regulations developed. These include: (i) the pre-existing and traditional security regulations such as ISPS (International Ship and Port Facilities Security), which have been updated to take into account the risks of port and ship automation, cyber security and data protection, etc.; (ii) the IMO recommendations; (iii) ISO standards establishing a framework for information security management; (iv) SAE J3016 standards relating to vehicle automation levels, which have been adapted for use on ships; (v) SNAME (Society of Naval Architects and Marine Engineers) guidelines.

The development of a legal framework should define the liability regime in case of accidents or damage in the context of autonomous systems.

Privacy and data protection regulation is required, in terms of respect for privacy rights and protection of shared personal data.

Modernisation and adaptation of existing workplaces must take place. Automation will undoubtedly reduce the need for human intervention, and it will be necessary to regulate the retraining and relocation of workers whose functions have been automated. Therefore, automation and robotisation will have to coexist with the human factor, provided that adequate measures are put in place to ensure safety, redistribution of tasks and adaptation of the workforce.

The cybersecurity of operations will have to be guaranteed by establishing regulations to always ensure the security of autonomous systems and data protection. It is a reality that malware attacks on automated maritime infrastructures have increased due to this new way of working that has been implemented.

Not only will all operators and competent authorities have to implement state-of-the-art security protocols and systems, but the cyber insurance phenomenon will have to coexist with this new reality, as at the end of the day this will be the only way to transfer the risk of possible cyber security incidents to a third party that will cover us for this eventuality.

In conclusion, as has been the case so far, but now even more so, it will be important that national and international regulatory authorities, the maritime and port industry, and the other actors in the sector, work together to develop an updated legal and regulatory framework adapted to the new realities of the port sector and maritime navigation.

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