The Shipping Law Review: Spain
Commercial overview of the shipping industry
Spain has the largest coastline of all the European Union countries (8,000km)2 and offers a strategic position for communication between continents and seas, being located between the Atlantic Ocean and the Mediterranean Sea.
As at 31 July 2020, the Spanish merchant fleet comprised 216 (110 registered under the Spanish flag) vessels with 5,007,712 gross tonnage (GT) and 4,823,126 deadweight tonnage.3 In recent years, the Spanish ports have achieved historic records in terms of freight traffic with more than 500 million tonnes (564,607,618 in 2019) and more than 37 million passengers transported (37,338,914 in 2019). More than 2,500 people work 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 Convention for the Control and Management of Ships' Ballast Water and Sediments 2004 (the Ballast Water Management Convention) entered into force. A new rule introduced by the International Maritime Organization (IMO), known as IMO 2020, came into force on 1 January 2020. This rule obliges vessels to use fuel oil with a maximum sulphur content of 0.5 per cent mass by mass compared to the previous limit of 3.5 per cent as a measure to reduce emissions of sulphur oxide, a substance that contributes to environmental pollution and the destruction of the ozone layer. This new rule was made compulsory following an amendment to Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL).5
Despite the covid-19 crisis and the difficulties that it entailed, eight new ships will be built between 2020 and 2021. They will bring the Spanish controlled fleet tonnage over 5.2 million GT.6 The private Spanish shipbuilding sector is mainly devoted to exports. It has an excellent international reputation thanks to the quality and tradition of construction, and guarantees high standards in highly technologically sophisticated ships, such as those that provide support to offshore oil rigs, oceanographic research vessels and factory ships. In 2019, Spain was the second-largest shipbuilding country in the European Union, slightly behind the Netherlands, and the ninth in the world. 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. The Court of Justice of the European Union (CJEU) held that the European Commission was right when asserting that the Spanish tax lease system represented illegal state aid.7
Yachting is also an important business sector in Spain. In 2018, the yachting market increased by 3.3 per cent with 5,545 new registries, of which 4,034 were vessels intended for private use.8 Although the figures are positive, the increase is smaller than in 2017. The charter market evidences this tendency. There were 1,508 registrations in 2018, which is a decrease of 6.5 per cent in relation to 2017. These figures show a stabilisation of the market.9
There was a 9.65 per cent increase in recreational boat registrations in 2019 (6,080) compared to 2018 (5,545). Of the total registrations, 4,518 were for vessels intended for private use, while the charter market recorded 1,562 registrations, 3.58 per cent more than the previous year. This reflects a new buoyancy in a market that experienced a fall of 6.5 per cent in 2018.10
Spanish maritime industry and covid-19
The covid-19 crisis has had a major effect on all industries. Order INT/270/2020, published in 2020, prohibited non-essential voyages, among other things. Since the beginning of the pandemic, the Spanish government has exempted workers engaged in freight transport from the bans. As a result, Order TMA/374/2020 was published, which specifies which documents are required for the crew members of ships to be recognised as such. Two other legal rules warrant attention: Order TMA/309/2020 makes the inspection of ships conditional on the existence of a state of emergency and Order TMA/419/2020 imposes restrictions on pleasure craft and cruise ships with passengers. However, as the situation improves, the regulations will be less strict.
General overview of the legislative framework
Spanish shipping law is mainly regulated by Act 14/2014, of 24 July 2014, on Maritime Navigation (the Maritime Navigation Law (MNL)). It aims to provide uniformity, avoiding the former 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. Nonetheless, it also rules on issues not covered by international conventions, supplementing them.
The second main legal framework for shipping law in Spain is Royal Legislative Decree 2/2011, of 5 September 2011, which approves the Consolidated Text of the State Ports and Merchant Marine Law (SPMML), and covers core public law issues. Other significant rules are Act 22/1988, of 28 July 1988, on Coasts and Royal Decree 1027/1989, of 28 July 1989, on Flagging Out and Ship Registration.
As an EU Member State, regulations and directives issued by the European Union are applicable in Spain directly or through the Spanish law that transposes them. Similarly, the case law of the CJEU determines the construction and enforcement of domestic law.
There is currently a draft law to amend the Consolidated Text of the SPMML and the MNL.11 It will introduce several new features, of which the most relevant are that:
- Spanish residents whose yachts are registered under the flag of other states will also be subject to Spanish regulations on safety and protection of the marine environment;
- the registration of yachts will undergo reforms; and
- in an important development for the shipping sector, and following the recommendation of the Spanish Maritime Law Association, the requirement to deposit counter-security (presently a minimum of 15 per cent) to arrest vessels will be abolished.
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. 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 contrary to EU law; in particular, the case law of the CJEU.
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. Notwithstanding, Article 337 sets up a two-year period in relation to claims for damage, loss or delay under port handling contracts. Article 438 establishes the same period regarding insurance contracts.
Contractual time bar periods for actions where the law does not provide for a specific time limit shall be 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, of 23 December 2003, on Arbitration, modelled on the UNCITRAL Model Law on International Commercial Arbitration (1985), and Act 5/2012, of 6 July 2012, on Mediation in Civil and Commercial Matters. There is no specialist legislation for maritime disputes. Mediation is not often used in Spain.
iii Enforcement of foreign judgments and arbitral awards
Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation) shall be applied by courts of all EU Member States. It removed the exequatur procedure. Nonetheless, the interested party can apply for refusal of recognition of a judgment.
The effectiveness of choice-of-court agreements does not depend on the parties' domicile. According to Article 25 of the Brussels I bis Regulation, the chosen court shall have jurisdiction unless the agreement is null and void because of its substantive invalidity under the law of the Member State.
The European legislator wanted to end the 'Italian torpedo' (the term used to describe a tactical abuse of process in cross-border disputes to defeat a jurisdiction agreement). Article 31.2 of the Brussels I bis Regulation orders that a court other than the one agreed by the parties should 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 an EU Member State can bring the procedure to an end when a court of a third state has given a judgment relating to 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 Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention).
The time bar period for the recognition and enforcement of judgments and awards is five years.
Shipbuilding contracts are ruled by Articles 108 to 116 of the MNL. These rules are voluntary. Nonetheless, an exception is established in the case of wilful misconduct or gross negligence of the builder. The contract must always be in writing. In the event of a discrepancy between the construction contract and the technical specifications, the former shall prevail over the latter, and the technical specifications over the blueprints.
The delivery of the vessel transfers ownership and risk.
The MNL outlines the consequences of delay. Indemnities apply to delays of more than 30 days and a right exists to cancel the contract for delays of more than 180 days without a justified cause. The Spanish Supreme Court held a subcontractor liable for the delay in providing the technical information required by the shipbuilder.12 Although it delivered the materials on time, the delay in providing the technical documentation prevented the shipyard from fulfilling its obligations.
ii Contracts of carriage
Under the title '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 mutandis to bulk contracts, multimodal contracts, chartering a ship for purposes other than the 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 of the MNL shall be applied imperatively 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.
The MNL deals extensively with the duties of the shipowner (carrier) and the charterer, laytime and demurrages, maritime transport documents, early termination of the contract and liability for loss, damage or delay.
The carrier has a lien on the goods to guarantee the right to remuneration. It includes the freight, delays and other expenses arising from the carriage as well. It lasts while the carrier has possession of the goods and for 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 of lading or the consignment note establishes that the freight is payable at destination.
Regarding the documents, the law stresses that the bill of lading is a negotiable document of title. Sea waybills are not. Although they serve as evidence of the delivery of the goods to the carrier, they are not securities. Article 267of the MNL orders the application of the rules on bills of lading to multimodal or combined transport documents.
Another development is Royal Decree 131/2019 of 8 March 2019, which regulates the activities of ship consignors and shipping agencies, previously regulated exclusively by sparse mentions to the ship's agent in the MNL and the SPMML.
iii Cargo claims
The International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 1924 (the Hague Rules) and the Protocols to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968 (the Hague-Visby Rules) and 1979 govern the liability of the carrier regarding 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. The difference is relevant because 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 regime.
The MNL sets out rules regarding identification of the carrier (Articles 207, 249 and 278). It also allows the insurer that has paid compensation under the insurance policy to subrogate in the insured's rights and actions against the liable party. Moreover, the person who has suffered damage may bring a direct action against the civil liability insurer.
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 or she is not the shipper, unless he or she has accepted the clauses individually and separately. However, the validity of this rule is uncertain because it could be considered incompatible with EU 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 1976 (the LLMC Convention). Spain has ratified this and the MNL establishes some supplementary rules. Spain has implemented the increase to the liability limits agreed by the IMO Legal Committee in 2012.
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 on the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention)) or to other specific clauses.
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 International Convention on Civil Liability for Oil Pollution Damage 1969, replaced by the 1992 Protocol (the CLC Convention), the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (the Fund Convention) and the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (the Bunker Convention) are part of the Spanish legal system.
i Ship arrest
Ship arrest in Spain is governed by the International Convention on Arrest of Ships 1999 (the Arrest Convention 1999), Chapter II of Title IX of the MNL and Act 1/2000, of 7 January 2000, on Civil Procedure (the Civil Procedure Law). According to Spanish law, the Convention also applies to arrests 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 may arise from the request. The court fixes the sum of the guarantee, but it must be at least 15 per cent of the amount of the maritime credit alleged. The Spanish Association of Maritime Law is assessing the possibility of promoting the modification of the MNL to suppress the limit of 15 per cent and set an alternative method (i.e., at the discretion of the judge). If the aforementioned draft amendments of the MNL are passed, this requirement would be abolished.
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, of between 30 and 90 days, for the claimant to prove the commencement of the substantive proceedings against the debtor. If no such proof is presented, the arresting court must 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 1993 (the Maritime Liens and Mortgages Convention), 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 that has 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 notify the authorities of the registries concerning the vessel, the owner of the ship and the holders of registered mortgages or encumbrances about the sale.
The ship will be sold by public auction to the highest bidder or through a specialist company. Generally, 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 and legal force and come from different 'legislative' powers. First, Spain has ratified the United Nations Convention on the Law of the Sea 1982 (UNCLOS), some of whose articles deal with maritime safety, and the International Convention for the Safety of Life at Sea 1974 (SOLAS) and its Protocols.
Second, the European Union has passed several laws on maritime safety. Essentially because of the oil spill accidents involving the Erika and the Prestige, the Single European Act included provisions regarding maritime and air transport to protect the environment.
With the aim of protecting the environment, Spain has approved laws that transpose and supplement the European directives:
- Royal Decree 877/2011, of 24 June 2011, on common rules and standards for ship inspection and survey organisations and the corresponding activities of the Maritime Administration;
- Royal Decree 210/2004, of 6 February 2004, establishing a monitoring and information system on maritime traffic; and
- Royal Decree 1617/2007, of 7 December 2007, 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 responsible to the Ministry of Transport, Mobility and Urban Agenda. There are two main laws. The first is the Regulation on inspection and certification of civil ships (Royal Decree 1837/2000), which establishes the legal framework of ship inspection and surveys, and is essential for Spanish ships. Its purpose is to control the fulfilment of the security requirements of international conventions (i.e., SOLAS, the International Convention for the Prevention of Pollution from Ships 1973 (as modified by the Protocol of 1978) (MARPOL (73/78)), the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (the STCW Convention) and the International Labour Organization (ILO) conventions). It covers the vessel's whole life, from the construction process until scrapping or sinking.
The second key law is Royal Decree 1737/2010, which applies to foreign ships that navigate in Spanish waters. It aims 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, annually, the number of ships assigned priority levels I and II that have been assigned to its area according to the Paris Memorandum of Understanding on Port State Control 1982. All vessels that arrive at a Spanish port will be assigned a risk profile. The Ministry of Development establishes the vessels that will be inspected according to their risk profile. If the inspection reveals serious deficiencies, the Maritime Authority will ordain that the vehicle be immobilised or operations stopped. This situation will continue until the deficiencies have been addressed. Nonetheless, the decision may be appealed before the Directorate General for Merchant Shipping.
As mentioned above, Order TMA/374/2020 establishes the documentation accrediting the status of ships' crews to facilitate their movement, to ensure the provision of maritime transport services during the covid-19 pandemic.
Between January and November 2020, 17 foreign ships were detained in Spain, classified as follows:
- four multipurpose ships;
- four chemical tankers;
- one bulk carrier;
- one container-carrying vessel;
- two livestock-carrying vessels;
- one roll-on/roll-off (Ro-Ro) cargo ship and one Ro-Ro passenger ship;
- one dredger vessel;
- one tugboat; and
- one classified as 'other special activities'.13
Two other relevant laws on this issue are Royal Decree 1185/2006 relating to maritime radio communications on board Spanish civil ships and Royal Decree 877/2011 on common rules and standards for ship inspection and survey organisations and 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.
The Vessels Section of the Movable Goods Register is a private law register that provides legal certainty to individuals' relationships regarding ships. The purpose is the registration of a 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 is administrative in nature. It aims to allow Spain to fulfil its duty to control the vessels to ensure maritime security. Hence, the key data of ships and their modifications should be registered, along with data concerning the ownership and rights in rem. Regarding shipping companies, all legal persons that operate a merchant ship should register. In both cases, registration is compulsory.
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 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 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 large number of laws with different scope, legal force and origin. Spain is a signatory of UNCLOS and, therefore, has a duty to protect and preserve the marine environment (Article 192). To fulfil this duty, 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 1969 (the Intervention Convention) and the International Convention on the Control of Harmful Anti-Fouling Systems on Ships 2001 (the Anti-Fouling Convention).
Spain has also ratified MARPOL (73/78), the aim of which is to prevent marine oil pollution. Following MARPOL, the Spanish legislator passed Royal Decree 1381/2002, of 20 December 2002, on port reception facilities for waste generated by ships and cargo residues. Other conventions ratified by Spain are the CLC Convention, the Fund Convention and the Bunker Convention. The Spanish government approved Royal Decree 1892/2004, which establishes some enforcement rules regarding the CLC Convention.
Protection of the environment is also a main priority for the European Union, especially after the Erika and Prestige oil spill disasters. Hence, the European Union has undertaken several policies and approved laws that are also part of the Spanish legal system. These establish that EU Member States are responsible and competent to protect the marine environment, which can be damaged as a result of human activities, global warming and natural disasters. Member States should take the necessary measures to preserve, protect and restore marine ecosystems.
As a consequence, Spain has passed certain laws to transpose EU directives or to supplement EU legal rules. Act 41/2010, of 29 December 2010, on the Protection of the Marine Environment, which transposes the Marine Strategy Framework Directive,14 has become the general framework for marine environment protection in Spain. Its aim is to achieve or preserve 'good environmental status' of the marine environment.
The tool to achieve this objective is the correct planning of human activities within the marine environment. This is carried out through the maritime strategies that have been fixed by Royal Decree 1365/2018 of 2 November 2018. These are planning tools that establish the general framework on which all sectoral policies and administrative actions must be based. As a result, any activity that affects the marine environment must have the approval of the competent ministry. Royal Decree 79/2019, of 22 February 2019, lays down the compatibility criteria and the procedure for report processing.
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, although these have a subsidiary nature as international conventions have primacy. The two main principles the Articles follow are 'prevention at source' and 'the polluter pays', which mandatorily impose civil liability insurance regarding pollution damage to the coast and navigable waters and grant victims a 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 types of polluting conduct. Pollution can also be a crime. The Spanish Criminal Code 1995 devotes Articles 325 to 337 bis to this subject.
Finally, other general rules 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 2016) and Act 26/2007, of 23 October 2007, on Environmental 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 1910 (the Collision Convention 1910), the International Convention for the Unification of Certain Rules relating to Civil Jurisdiction in Matters of Collision 1952 (the Collision Convention 1952) and the International Regulations for Preventing Collisions at Sea 1972 (COLREGs) are part of the Spanish legal system. Articles 339 to 346 of the MNL refer to and supplement them. Spanish law clarifies the definition of collision, as it applies it to cases in which damage occurs because of an incorrect manoeuvre in navigation but without contact between ships. 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. 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 1989 (the 1989 Salvage Convention) and its Protocols. The MNL has some provisions that supplement the Convention. For instance, they specify what is and what is not salvage.
The MNL grants the rescuer a withholding right on 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 of the MNL 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 situation, 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).15 The removal and recovery of shipwrecks or goods from shipwrecks should be distinguished. The first appertains to public law. The MNL establishes certain obligations on the owners and captains of vessels that have sunk or been wrecked in Spanish maritime areas, such as to inform the administration, beaconing and preventing pollution. The recovery of wrecks falls under private law, 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 recovery of state ships that are sunk or wrecked. The current legal regime owes much to the Nuestra Señora de las Mercedes case.16 Finally, Spain has also ratified the Convention on the Protection of the Underwater Cultural Heritage (2001).
vi Passengers' rights
Spain has ratified the Athens Convention and its Protocols, which govern international and national contracts of carriage, as the MNL refers to it. The MNL also contains some provisions regarding other issues of the relationship, such as the seaworthiness of the vessel, interruption of the voyage, the lien on the luggage or the termination of the contract. Article 300 requires 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 Spain is an EU Member State, Regulations (EC) No. 392/2009 and (EU) No. 1177/2010 also apply. The former establishes the liability and insurance regimes regarding the carriage of passengers; essentially, it is based on the Athens Convention. As a consequence, the Spanish government approved Royal Decree 270/2013, of 19 April 2013, which regulates the accreditation certification of the carrier's civil liability insurance. The latter focuses on the rights of passengers. It forbids discrimination on grounds of nationality or disability, establishes the consequences of cancellation or delay of a trip, and imposes information duties on the carrier and the handling of complaints.
Passengers who have the status of consumers enjoy the protection of the Consolidated Text of the General Consumer and User Protection Act (Royal Legislative Decree 1/2007), which, among other things, 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).
Several Royal Decrees were passed in 2019, including Royal Decree 733/2019, the purpose of which was to implement Directive (EU) 2017/2110, regarding inspections of vessels used to transport passengers, and Royal Decree 724/2019, which regulates the registration of individuals travelling on board passenger ships.
vii Seafarers' rights
The Spanish seafarers' regime combines several international and domestic laws. Spain has ratified most of the ILO conventions that govern the criteria that seafarers should meet; for instance, the STCW Convention 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, which 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 the national level, the two main laws are the Workers' Statute (Legislative Royal Decree 2/2015) and the MNL. The scope of the former is general 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, at Chapter III of Title III, also applies to seafarers. The aim is to coordinate the provisions for administrative and mercantile seafarers because labour issues are governed by the Workers' Statute. Hence, Articles 156 to 164 of the MNL establish the requirements that the seafarer should meet to be part of the crew. Articles 165 to 170 govern their qualifications and the control and inspection of Spanish ships on this topic.17 Finally, Articles 171 to 187 relate to the captain or master.
Finally, it is worth remembering that ships and shipping companies enrolled in 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 process, it decided not to repeal the SPMML but to merge it with the MNL in the future. Thus, Final Provision Nine of the MNL authorises the government, within three years, to consolidate into one Maritime Navigation Code these two laws and all the international conventions in the sphere of the Law of the Sea. Nearly seven years have now passed and no substantial changes are expected.
The main modifications to Spanish maritime law in recent years have had 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 of Mestre Abogados. Carlos Górriz is a professor at the University of Barcelona and a consultant at Mestre Abogados.
7 C-128/16 P, European Commission v. Kingdom of Spain and Others.
12 Judgment of the Supreme Court 52/2021, 4th February.
14 Directive 2008/56/EC.
15 Articles 376 to 383 have been developed by Royal Decree 371/2020, of 18 February 2020, which approves the Regulation of Maritime Extractions.
16 Nuestra Señora de las Mercedes, a Spanish frigate, was sunk off the south coast of Portugal on 5 October 1804 during the Battle of Cape Santa Maria.
17 In 2020 the Spanish Supreme Court held that the captain's insufficient qualification excludes insurance coverage when it is the cause of the loss (Judgment 160/2020, 10th March).