I COMMERCIAL OVERVIEW OF THE SHIPPING INDUSTRY
Spain has the largest coastline of countries in the European Union (8,000km)2 and offers a strategic position in the communication between continents and seas, as it is located between the Atlantic Ocean and the Mediterranean Sea.
At 1 January 2018, the Spanish merchant fleet comprised 119 vessels with 2,301,681 GT and 1,860,148 DWT.3 In 2017 Spanish seaborne trade increased by 6.4 per cent. According to the Spanish Minister for Public Works and Transport over the past year more than 150,000 ships dedicated to maritime transportation docked at Spanish ports. Likewise, in recent years the Spanish ports have reached historic records in terms of freight traffic with more than 500 million tonnes (559,989,681 in 2018) and more than 32 million passengers transported. Over 2,500 people are working in the Spanish Maritime Administration.4
Most recently, the shipping industry has been assuming the stricter environmental regulations as its own challenge. In 2017, the Ballast Water Management Convention entered into force. In April 2018, the IMO agreed to reduce carbon dioxide emissions from ships to 50 per cent of 2008's levels by 2050.
With regard to the shipbuilding industry, the sector has overcome the crisis suffered over the past few years.5 In 2017, 35 new vessels worth a total of €813 million were ordered. This was an increase of 20 per cent in terms of number of new orders and a 30 per cent increase in terms of budget.
The private Spanish shipbuilding sector is mainly devoted to exports. It has an excellent international reputation thanks to its construction quality and tradition, and guarantees high standards in highly technologically sophisticated ships such as those that provide support to offshore oil rigs, oceanographic research vessels, factory ships, etc. Currently, Spain is the second largest shipbuilding country in the European Union, slightly behind Holland. Shipbuilding activity in Spain is concentrated in the industrial areas of Galicia, Asturias and the Basque Country.
Nonetheless, 2018 brought bad news for the Spanish shipbuilding sector, as the European Court of Justice held that the European Commission was right when asserting that the Spanish tax lease system represented illegal state aid (C-128/16 P, European Commission v. Kingdom of Spain and Others).6 The Spanish (corporate and value added) tax laws allowed maritime shipping companies to benefit from a 20 to 30 per cent price reduction when purchasing ships constructed by Spanish shipyards. The European Commission held that this system was contrary to Article 107.1 TFEU (decision of 17 July 2013) and ordered Spain to recover the unpaid taxes. The Spanish Kingdom, a financial enterprise and a shipyard company applied seeking the annulment of this decision. In a judgment of 17 December 2015, the General Court granted the appeal. Essentially it asserted that the Commission had not adequately identified the beneficiaries of the aid. By contrast, the Court of Justice of the European Union held that the Commission had correctly enforced the state aid prohibition. In its judgment of 25 July 2018 the Court considered that the Spanish tax lease system was selective, because it differentiated the operators: only some of them could benefit from a tax reduction when acquiring a ship from Spanish shipyards. The others were excluded.
Yachting also represents an important business sector in Spain. According to ANEN,7 in 2017 the yachting market increased by 9.4 per cent with 5,275 new registries, of which 1,570 were charter yachts. In fact, the charter market grew significantly in 2017, at a rate of 24.7 per cent. The recreation boats market continued to increase during 2018 but, according to ANEN, has slightly declined as at January 2019.
II GENERAL OVERVIEW OF THE LEGISLATIVE FRAMEWORK
Spanish shipping law is mainly regulated by the Act 14/2014 of 24 July on Maritime Navigation (the Maritime Navigation Law or MNL), in force since 25 September 2014.8 It aims to uniformity, avoiding the past dual provisions that existed on matters ruled on differently by international conventions and domestic legislation. Hence, it normally refers to the former conventions and applies them to domestic cases too. In addition, the MNL provides content to the room that international treaties leave to the Member States.
The second main legal framework for shipping law in Spain is Royal Legislative Decree 2/2011 of 5 September, which approves the Consolidated Text of the State Ports and Merchant Marine Law (SPMML). It covers core public law issues. Other significant rules are Act 22/1988 of 28 July on Coasts – modified by Law 2/2013 of 29 May – and Royal Decree 1027/1989 of 28 July on Flagging Out and Ship Registration.
As a Member State, regulations and directives issued by the EU are applicable in Spain. Similarly, the case law of the Court of Justice of the European Union and its judgments condition the construction and enforcement of the domestic law.
III FORUM AND JURISDICTION
As a general principle, the commercial courts are competent in (private) maritime issues. Nonetheless, the MNL has given competence to notaries public to deal with some maritime proceedings, such as proof of incidents, liquidation of general average, deposits and sale of cargo and luggage for payment of freight, loss, theft or destruction of the bills of lading, and sale of damaged cargo.9
Article 468 establishes that clauses of submission to a foreign jurisdiction or arbitration abroad are not valid if they have not been negotiated. The interpretation and application of this provision raises doubts, because it could be considered that it is contrary to EU law and, in particular, the case law of the European Court of Justice.
Foreign applicable law must be duly proved through an affidavit signed by two lawyers on its content and validity.
The MNL usually establishes a specific time bar for the issues it rules. The most frequent term is one year. For instance, one year is the term for actions arising from charter parties, towing contracts, nautical lease contracts or to demand contribution to a general average. Notwithstanding, Article 337 sets up a two-year term in relation to claims for damage, loss or delay under port handling contracts. Article 438 establishes the same term regarding insurance contracts.
Contractual time bar periods for actions where the Law does not provide for a specific time limit shall be of five years. For non-contractual actions, the general time bar is one year from the date on which actions could have been brought.
ii Arbitration and ADR
Arbitration and mediation are ruled by Act 60/2003 on Arbitration, modelled on the UNCITRAL Model Law 1985, and Act 5/2012 on Mediation in Civil and Commercial Matters. There is no specialty for maritime disputes. Mediation is not often used in Spain.
iii Enforcement of foreign judgments and arbitral awards
Regulation 1215/2012 shall be applied by courts of all Member States, including Denmark. One of its main novelties is that the exequatur procedure has been removed. Hence, the enforcement of a judicial decision of another Member State shall be immediate. To be considered authentic the requirements are a copy of the judgment that meets the requirements and a certificate of the court of origin stating that the judgment has executive force. Although the exequatur is no longer necessary, the interested party can apply for refusal of the judgment's recognition.
Secondly, the effectiveness of choice-of-court agreements does not depend on the parties' domicile. According to Article 25, the chosen court shall have jurisdiction, unless the agreement is null and void due to its substantive invalidity under the law of the Member State.
Thirdly, the European legislature wanted to bring an end to the 'Italian torpedo' abuse (a party to a dispute would bring an action in a Member State court, usually that had a reputation for being slow, in order to frustrate or delay the main procedure before the court that had competence according to a jurisdiction agreement). Article 31.2 orders the courts different from the one agreed by the parties to stay the proceedings until the court seized on the basis of the agreement declares that it is not competent.
Unlike its predecessor, the Brussels I bis Regulation deals with lis pendens and res judicata in third states. Hence, courts of a Member State can bring the procedure to an end when a court of a third state has a given a judgment relating the same action and it is capable of recognition and enforcement in the European Union.
Regarding the recognition and enforcement of foreign arbitral awards, Spain has ratified the New York Arbitration Convention 1958.
The time bar period for the recognition and enforcement of judgments and awards is five years.
IV SHIPPING CONTRACTS
Shipbuilding contracts are ruled by Articles 108 to 116 of the MNL. These rules are voluntary, in the sense that they are only applied when the parties have not otherwise agreed. Nonetheless, an exception is established in case of wilful misconduct or gross negligence of the builder (Article 113.4).
According to Article 109, the contract must always be made in writing. In the event of discrepancy between the construction contract and the technical specifications, the former shall prevail over the latter, and the technical specifications over the blueprints.
Delivery of the vessel will transfer ownership and risk.
The MNL outlines the consequences of delay. Indemnities apply to delays over 30 days and a right to cancel the contract for delays over 180 days without a justified cause.
ii Contracts of carriage
Under the title of 'On charter parties' (Articles 203 to 286), the MNL rules the contract of carriage of goods by sea. It is a broad regulation that comprises essentially the time charter, the voyage charter and the carriage of specific merchandise in the bill of lading. Although the Spanish legislature focused on these three issues, Articles 203 to 286 can also be applied mutatis mutandi to bulk contracts, multimodal contracts, chartering a ship for purposes other than carriage of goods, and sea waybills.
Whereas the provisions on the carriage of goods are mainly dispositive, the liability regime is mandatory. Articles 277 to 285 shall be imperatively applied to the carrier's liability for loss, damage or delay. Nonetheless, Article 277.1(2) excludes charter parties, regarding exclusively the relationship between the owner and the charterer. Therefore, the legal liability regime in the case of charter parties is revocable, on condition that there is no wilful misconduct or gross negligence by the shipowner.
The MNL deals extensively with the duties of the shipowner (carrier) and the charterer, laytime and demurrages, maritime transport documents, the early termination of the contract and the liability for loss, damage or delay. For instance, there are specific rules on the seaworthiness of the ship, the empty charter, the freight for lost or damaged goods, guarantee letters and electronic bills of lading, and the liability of the carrier for delay.
The carrier has a lien on the goods to guarantee his or her right to remuneration. It includes the freight, delays and other expenses arising from the carriage, as well. Such right lasts while the carrier has the possession of the goods and 15 days thereafter. It allows the carrier to withhold the goods until the amounts due are paid or to request their sale through a notary public. The Law distinguishes between the charterer and third parties. It does not allow the carrier to exercise the lien against a consignee other than the charterer unless the bill or lading or the consignment note establish that the freight is payable at destination (Articles 237 and 238).
Regarding the documents, the Law stresses that the bill of lading is a negotiable document of title. It may be in paper format or on an electronic medium. On the other hand, sea waybills are non-negotiable documents. While they serve as evidence of the delivery of the goods to the carrier, they are not securities. Article 267 orders the application of the rules on bills of lading to multimodal or combined transport documents.
iii Cargo claims
The Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Brussels, 25 August 1924) and its Protocols govern the liability of the carrier regarding the loss, damage and delay when a bill of lading has been issued and transferred to a third party. Nonetheless, it is important to distinguish between international and domestic carriage. The Hague-Visby Rules apply directly to international operations, but only through the MNL when the transport takes place between Spanish ports (Article 277.2). The difference is relevant because the Spanish law has supplemented the Hague-Visby Rules. For instance, it sets out the liability for delay and establishes a limitation of two-and-a-half times the freight payable for the goods. Another difference is the nature of the time bar. Although both laws establish a one-year time bar, Spanish courts consider the Hague-Visby Rules as a limitation period. Hence, proceedings cannot be suspended and shall be assessed by the judge of his or her own motion. The MNL qualifies the period as prescriptive.
The MNL also has some rules regarding the identification of the carrier. If the bill of lading does not provide sufficient information, Article 249 presumes that it has been signed on behalf of the ship operator. Secondly, the contractual carrier and the effective carrier are joint and severally liable. Article 278 identifies the former with the carrier's intermediaries as well as the charterer of the ship and the latter with ship operators. Lastly, if the time or voyage charterer issues a bill of lading to third parties, he and the shipowner shall be jointly and severally liable for loss, damage or delay (Article 207).
The MNL allows the insurer that has paid compensation pursuant to the insurance policy to subrogate in the insured's rights and actions against the liable party (Article 437.5). Moreover, the damaged person may bring a direct action against the civil liability insurer (Article 465).
The consignee should give the carrier a written notice of loss, damage or delay. Regarding the first two facts, the consequence of the lack of notice is an iuris tantum presumption that the carrier has delivered the goods as described in the bill of lading. Although nothing is expressly said regarding the delay, the lack of notice prevents the claiming of compensation.
According to Articles 251 and 468 of the MNL, the jurisdiction and arbitration clauses do not bind the acquirer of the bill of lading, when he is not the shipper, unless he has accepted them individually and separately. However, the validity of this rule is uncertain, because it could be considered incompatible with EU law and with the CJEU's case law.
iv Limitation of liability
The Spanish legal regime on limitation of liability is based on the 1996 Protocol that amends the Convention on Limitation of Liability for Maritime Claims (London, 19 November 1976). On the one hand, Spain has ratified it; on the other, the MNL refers to it and establishes some supplementary rules. In particular, it establishes the proceedings that should be followed to limit liability (Chapter IV of Title IX).
Title VII of the MNL may be applied to all kinds of judicial procedures. Nonetheless, shipping companies may prefer to invoke the application of other specific regimes, corresponding to a particular contract to use of the ship (i.e., the Athens Convention regarding the carriage of passengers) or due to other specific clauses.
It is worth noting that preference is given to maritime and port authorities, except over death or bodily injury credits. Shipping companies claiming the right of limitation before Spanish courts should constitute a limitation fund. Competence lies with the mercantile courts.
The 1992 Civil Liability Convention (1992 CLC), the 1992 Fund Convention (1992 Fund) and the International Convention on Civil Liability for Bunker Oil Pollution Damage of 2001 (2001 Bunker) are part of the Spanish legal system.
i Ship arrest
Ship arrest in Spain is governed by the International Convention on the Arrest of Ships (Geneva, 12 March 1999), Chapter II of Title IX of the MNL and Act 1/2000 of 7 January on Civil Procedure (the Civil Procedure Law). The Convention also applies to arrest of ships flying the flag of a state that is not party to it.
The claimant must file an application requesting the arrest of the ship, alleging the right or rights claimed and explaining the cause that gives rise to them, as well as a general power of attorney for litigation. The competence lies with the courts competent to hear the main claim, or the courts of the port where the vessel is located or where it is expected to arrive. The claimant must also offer a guarantee to respond to the damages, losses and costs that the request may arise. The court fixes the sum of the guarantee, but it shall be at least 15 per cent of the amount of the maritime credit alleged. It may review the quantity of its own motion.
The court issues the arrest order and notifies it to the harbour master of the port who, with the help of the maritime authorities, should adopt the necessary measures to detain the ship. When the Spanish courts are not competent to hear the substantive case, the arresting court will establish a term, between 30 and 90 days, for the claimant to prove the commencement of the substantive proceedings against the debtor. If such proof is not presented, the arresting court shall order the release of the ship or the cancellation of the provided guarantee.
ii Court orders for sale of a vessel
Forcible sale of ships in Spain is governed by the International Convention on Maritime Liens and Mortgages (Geneva, 6 May 1993), Chapter III of Title IX of the MNL and the Civil Procedure Law. It can be done through judicial or administrative proceedings.
As a general rule, the holder of the claim against the ship or the shipowner, declared as such by a final judgment or arbitral award, may request the sale of the vessel. Competence lies with the court with jurisdiction in the location of the vessel. The court will make a valuation of the vessel and request a certificate of liens and encumbrances, since creditors can attend the judicial sale and exercise their right of priority (third-party rights). In addition, the competent court or the administrative authority will inform about the sale to the authorities of the registries related with the vessel, to the owner of the ship and to the holders of registered mortgages or encumbrances.
The ship will be sold through public auction to the highest bidder or through a specialised company. As a general rule, the mortgages and encumbrances registered shall be considered cancelled. The sales outcome will first be used to pay the procedural costs and expenses arising from the judicial or administrative proceedings. The remainder will be distributed among creditors according to the Maritime Liens and Mortgages Convention. If any amount is left, it shall be delivered to the owner.
The Spanish rules on maritime safety are a heterogeneous and dispersed set of laws that have different scope, legal force and come from different 'legislative' powers. First of all, Spain has ratified the United Nations Convention on the Law of the Sea, some of whose articles deal with maritime safety, and the Convention for the Safety of Life at Sea (SOLAS Convention) and its Protocols.
Secondly, the EU has also passed several laws on maritime safety. Due essentially to the accidents of Erika and Prestige, the Single European Act included provisions regarding maritime and air transport in order to protect the environment.
With the aim of protecting the environment, Spain has approved some laws that transpose and supplement the European directives:
- Royal Decree 877/2011 of 24 June on common rules and standards for ship inspection and survey organisations and for the corresponding activities of the Maritime Administration;
- Royal Decree 210/2004 of 6 February establishing a monitoring and information system on maritime traffic; and
- Royal Decree 1617/2007 of 7 December on measures for the improvement of the protection of ports and maritime transport.
ii Port state control
The competence to control ships' security lies with the Subdirectorate General for Maritime Security, Pollution and Inspection, integrated in the Directorate General for Merchant Shipping that depends on the Ministry of Development. There are two main laws. The first is the Regulation on inspection and certification of civil ships (Royal Decree 1837/2000). It establishes the legal framework of ship inspection and surveys, and is essentially for Spanish ships. Its purpose is to control the fulfilment of the security requirements of international conventions (i.e., SOLAS, MARPOL, STCW/95 and the ILO Convention). It covers the vessel's whole life, from the construction process until scrapping or sinking.
The second key law is Royal Decree 1737/2010. It applies to foreign ships that navigate in Spanish waters. Its aim is to substantially reduce the number of vessels that breach safety and security rules. Spain undertakes to inspect all the vessels that have been assigned priority level I and, on an annual basis, the number of ships, assigned priority levels I and II, that have been assigned to its area according to Paris MoU. All vessels that arrive at a Spanish port will be assigned a risk profile. The Ministry of Development will establish the vessels that will be inspected according to the risk profile. If the inspection reveals serious deficiencies of the vessel, the Maritime Authority will ordain its immobilisation or the detention of the operations. This situation will remain until the deficiencies have been addressed. Nonetheless, the decision may be appealed before the Directorate General for Merchant Shipping.
During the first two months of 2019, six foreign ships were detained in Spain. Three were general cargo, one was a container, another a high-speed passenger craft and the last was a chemical tanker. During 2018 the total number of detained ships was 31.10
Two other relevant laws on this issue are the Regulation relating maritime radiocommunications on board Spanish civil ships (Royal Decree 1185/2006) and Royal Decree 877/2011 of 24 June on common rules and standards for ship inspection and survey organisations and for the corresponding activities of the Maritime Administration.
iii Registration and classification
It is often said that Spain operates a double registration system: the Vessels Section of the Movable Goods Register and the Ships and Shipping Companies Register. Nonetheless, there is a third registry that is very important in practical terms: the Special Registry for Ships and Naval Companies, located in the Canary Islands.11
The Vessels Section of the Movable Goods Register is a private law register. It depends on the Ministry of Justice. Its aim is to provide legal certainty to individuals' relationships regarding ships. The purpose is the registration of the ship's property and rights in rem, encumbrances, judicial and administrative seizure, lease contracts and other situations that are legally determined. As a general rule, registration is mandatory for ships that fly the Spanish flag.
The Ships and Shipping Companies Register has an administrative nature. It consists of a central register, located in the Directorate General for Merchant Shipping, and peripheral registers, placed in the Maritime Authorities. Its aim is to allow Spain to fulfil the duty to control the vessel's fleet for the purpose of ensuring maritime security (Article 94.3 of the Law of the Sea Convention). Hence, the key data of the ships and their modifications should be registered, along with data related to the ownership and rights in rem. Regarding shipping companies, all legal persons that operate a merchant ship should register. In both cases, the registration is compulsory. Moreover, it is necessary for the vessel to fly the Spanish flag.
Theoretically, the Vessels Section of the Movable Goods Register and the Ships and Shipping Companies Register are coordinated (Article 66 MNL).
The Canary Islands Special Registry is an instrument to fight against flags of convenience and prevent the flight of national fleet to countries that have more lax labour and tax laws. It is administrative, optional and secondary, as only the vessels and enterprises appearing in the Ships and Shipping Companies Register can register. In addition they must meet the requirements provided by the Additional Provision 16.4 of the Consolidated Text of the Spanish Harbours and Merchant Shipping Law. The ships registered in the Canary Islands Special Registry fly the Spanish flag and are subject to the Spanish jurisdiction and the control of public administration, but they enjoy tax and employment benefits.
iv Environmental regulation
The Spanish marine environment regime is highly complex, because it includes a huge number of laws with different scope, legal force and origin. Spain is a member of the Law of the Sea Convention. Hence it has a duty to protect and preserve the marine environment (Article 192). To fulfil it, Spain has ratified several international conventions, some of which come from the IMO, including the International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties (Brussels, 1969) and the International Convention on the control of Harmful Anti-fouling Systems on Ships (London, 2001).
Spain has also ratified MARPOL 73/78, whose aim is to prevent marine oil pollution. Following MARPOL, the Spanish legislature passed Royal Decree 1381/2002 of 20 December on port reception facilities for waste generated by ships and cargo residues. Other conventions ratified by Spain are 1992 CLC, 1992 Fund and 2001 Bunker. It is worth mentioning that the Spanish government approved Royal Decree 1892/2004, which establishes some enforcement rules regarding the first convention.
Protection of the environment is a main concern of the European Union too; especially after the Erika and Prestige disasters. Hence, the EU has undertaken several policies and approved some laws that are also part of the Spanish legal system. As a consequence, Spain has passed some laws in order to transpose directives or supplement EU legal rules, such as Act 41/2010 of 29 December on Protection of the Marine Environment. It incorporates Directive 2008/56/EC into domestic law, and it has become the general framework for marine environment planning.
Regarding the Spanish domestic laws, the MNL devotes Chapter V of Title VI to civil liability for pollution. Articles 384 to 391 rule civil liability for all kinds of maritime pollution. They have a subsidiary nature, as international conventions have primacy. The two main principles they follow are 'prevention at source' and 'the polluter pays'. It mandatorily imposes a civil liability insurance regarding pollution damage to the coast and navigable waters and it grants victims direct right of action against the insurer.
Concerning administrative liability, the State Ports and Merchant Navy Law and the Coastal Law typify and punish several polluting conducts. But pollution can also be a crime. The Spanish Criminal Code 1995 devotes to this subject Title XVI of Book II (i.e., Articles 325 to 337 bis).
Lastly, there are other general rules that deal with pollution and liability, such as the Consolidated Text of the Integrated Prevention and Control of Pollution (Legislative Royal Decree 1/2016 of 16 December) and Act 26/2007 of 23rd October on Environment Liability.
v Collisions, salvage and wrecks
Spain has a double regime regarding collisions and salvage. On the one hand, it has ratified the most important international conventions. On the other, the MNL devotes Chapters I and III of Title VI to these two 'navigation accidents'.
The Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (Brussels, 1910), the International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision (Brussels, 1952), and the Convention on the International Regulations for Preventing Collisions at Sea (London, 1972) are part of the Spanish legal system. Articles 339 to 346 of the MNL refer to and supplement them. Among other novelties, they have put an end to the doctrine established by a judgment of the Supreme Court from 17 January 1992. It held that the shipowner could not benefit from the limits of liability when the collision constituted a crime. Secondly, Spanish law clarifies the definition of collision, as it applies it to cases where damage is caused due to an incorrect manoeuvre in navigation but without contact between ships. Thirdly, the provisions on collision do not apply to the parties bound by a charter party, passage or employment contract. The laws of these relations govern the liabilities of the parties. Lastly, when the ship operators of the collided vessels are to blame, they share joint and several liability regarding third parties.
Spain has signed the International Convention on Salvage (London, 1989) and its Protocols. Although the MNL has some provisions on this subject, they merely supplement the Convention. One of the main concerns of the Spanish legislature was to determine which assistances constitute salvage and give rise to bounty. Hence, the MNL devotes some rules to specify what is and what is not salvage.
The MNL grants the rescuer a withholding right upon the ship and the goods salvaged until the bounty is paid or a sufficient guarantee is constituted. Competence lies with the civil jurisdiction. Nonetheless, the parties can submit their dispute to an administrative maritime arbitration system. Although, theoretically, salvage is a private law issue, Article 367 gives competence to Maritime Authorities to intervene in salvage operations performed within the Spanish maritime areas when it is necessary to protect the safety of navigation, human life at sea and the environment. In this case, the rescuer can have a right to the bounty, but the sum shall be deposited directly at the Exchequer.
The MNL also rules shipwrecked and sunken goods (Articles 369 to 383). The removal and the recovery of ships or goods wrecks should be distinguished. The first appertains to public law. The MNL establishes some obligations on the owners and captains of vessels that have sunk or been wrecked in Spanish maritime areas, such as to inform to Administration, beaconing and preventing pollution. The recovery of wrecks belongs to the private law realm, except for state ships and goods. Although the general rule is that the owner maintains the property, in some cases the state has a right of appropriation.
The MNL has reduced the interventionism of the Spanish Administration, although it still grants an important role to the Navy in the case of the recovery of state ships that are sunk or wrecked. The current legal regime owes much to the Nuestra Señora de las Mercedes case. It was a Spanish frigate sunk by British Navy in 1804. In 2007 an American company found it and tried to recover it without mentioning that it was a state ship. The dispute was finally won by Spain. Lastly, Spain has also ratified the Convention on the Protection of the Underwater Cultural Heritage (2001).
vi Passengers' rights
Spain has ratified the International Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1973 (PYE/PAL) and its Protocols. It governs international and national contracts of carriage, as the MNL refers the regime of liability to it. Nonetheless, the Law does not just refer to PYE/PAL; it also contains some provisions regarding other issues of the relationship, such as the state of seaworthiness of the vessel, the interruption of the voyage, the lien on the luggage or the termination of the contract. It is worth highlighting that Article 300 orders the effective carrier to subscribe a liability insurance for death or bodily harm to the transported passengers. It also grants the victims a direct right of action against the insurer.
As a Member State of the European Union, Regulations 392/2009 and 1177/2010 apply in Spain too. The first one establishes the liability and insurance regimes regarding the carriage of passengers. It is essentially based on the PYE/PAL. As a consequence, the Spanish government approved Royal Decree 270/2013 of 19 April, which regulates the accreditation certification of the carrier's civil liability insurance. Regulation 1177/2010 focuses on the rights of passengers. It forbids discrimination on grounds of nationality or disability; it establishes the consequences of cancellation or delay of the trip, and it imposes information duties on the carrier and the handling of complaints.
Passengers that have the status of consumer enjoy the protection of the Consolidated Text of the General Consumer and User Protection Act (Royal Legislative Decree 1/2007). Among other things, this Law governs package travel. Article 162 holds organisers and retailers liable for the correct compliance with obligations deriving from the contract (carriage, accommodation and other services not ancillary to them). It renders irrelevant whether the obligations had to be performed by organisers and retailers or by third parties.
vii Seafarers' rights
The Spanish seafarers' regime combines several different international and domestic laws. Spain has ratified most of the ILO Conventions that govern the criteria that seafarer should meet, for instance, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW 78/95) and the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F/95).
The most significant convention ratified in recent times is the Maritime Labour Convention 2006. As is well known, it establishes the minimum working and living standards for all seafarers. The instrument of ratification is dated 28 December 2009 and the Convention entered into force on 20 August 2013.
At national level, the two main laws are the Workers' Statute (Legislative Royal Decree 2/2015) and the MNL. The first one has a general scope and rules the relationship between workers and employers. Hence it governs the relationship between seafarers and shipowners. Nonetheless, there are other special legal rules in this field, some of which transpose European directives.
The MNL also applies to seafarers as Chapter III of Title III rules the crew. The aim is to coordinate the administrative and mercantile seafarers' provisions, because labour issues are governed by the Workers' Statute. Hence, Articles 156 to 164 establish the requirements that the seafarer should meet in order to be part of the crew. Articles 165 to 170 govern their qualifications and the control and inspection of Spanish ships on this topic. Lastly, Articles 171 to 187 deal with the master.
Finally, it is worth remembering that ships and shipping companies enrolled on the Canary Islands Registry enjoy a lighter labour legal regime, as they have some tax and employment benefits.
Originally, the Spanish legislature wanted a Maritime Navigation Code that contained all shipping law. During the legislative prcocess, it decided not to repeal the State Ports and Merchant Navy Act at that time, but to merge it with the MNL in the future. Thus, final provision nine of the MNL authorises the government, within the term of three years, to consolidate into one Code these two laws and all the international conventions in the sphere of the Law of the Sea. However, four years have passed and no substantial changes are expected.
In recent years, the main modifications to Spanish maritime law have their origin in the European Union. It is likely that this will continue in the future. It will be interesting to see how Brexit will affect maritime law and international trade.
1 Anna Mestre is the managing partner and founder of Mestre Abogados and Andrés Candomeque is a partner at the firm. Carlos Górriz is a professor at the UAB (Universitat Autonoma de Barcelona) and a consultant at Mestre Abogados.
6 Commission Decision No. 2014/200/EU of 17 July 2013 on the aid scheme SA.21233 C/11 (ex NN/11, ex CP 137/06) implemented by Spain – Tax scheme applicable to certain finance lease agreements also known as the 'Spanish Tax Lease System' (OJ 2014, L 114, p.1).
8 An English translation can be found at http://www.mjusticia.gob.es/cs/Satellite/Portal/1292427275074?blobheader=application%2Fpdf&blobheadername1=Content-Disposition&blobheadervalue1=attachment%3B+filename%3DAct_14_2014__dated_24th_july__on_Maritime_Navigation_.
9 Title X of the Spanish MNL.
11 On 31 December 2017, 318 ships were registered, representing 2.418.249 gross tonnage. See The Special Registry of Ships and Shipping Companies of the Canary Islands, Ministerio de Fomento, 2018, page 16, available at https://www.fomento.gob.es/recursos_mfom/comodin/recursos/20180320guidelinesrebeca2018v1.pdf.