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Trends and developments

Are there any notable trends or recent legal developments in your jurisdiction’s shipping industry?

The most relevant legal development is the new Maritime Navigation Act (14/2014), which sets out Spanish maritime law in a single text. The act merges the Maritime Navigation Act and the National Ports and Merchant Navy Act and regulates:

  • the legal status of the vessel;
  • shipping and ancillary contracts;
  • maritime incidents;
  • marine insurance;
  • regulations on procedural law; and
  • the novel public certification file.

It also includes a section on public law. The law represents a step forward, but is still new, so its full impact will not be known until the high courts begin to apply it. The law is aligned with the international treaties which Spain has signed and which are self-executing, hence demonstrating a tendency towards uniformity of maritime law.

Registration

Eligibility

Which ships are eligible for registration in the national shipping register(s) and which parties may register ships?

Sub-seabed mining platforms, high sea tugs, merchant and passenger vessels, fishing vessels and ancillaries, vessels at the port's service, recreational private and charter crafts, state ships and construction vessels are all eligible for registration through a list system, the Double Administrative Registry and the Registry of Movable Goods.

The Registry of Ships establishes as an eligibility requirement that the registrant be a natural or legal person which is residing or domiciled in Spain or another European Economic Area member state, provided that, in this case, it assigns a legal representative in Spain. For recreational or sports crafts or those with merchandising purposes, residency is not required; assignment of a legal representative in Spain is adequate. It is also accepted that Spanish civil crafts may provisionally fly the Spanish flag abroad, as well as foreign craft in Spain.

Procedure

What are the procedural and documentary requirements for registration?

The registration procedure begins by filing a registration request with the Department of Merchant Marine accompanied by:

  • the title deed or rental contract;
  • the drop registration certificate from the country of origin; and
  • proof of payment of the corresponding taxes.

Ships under construction must first be registered in the list of ships under construction. Once they have been inspected, the launch will be authorised and the ship will be assigned a call sign and included in the final list. After the ship’s official trial, the roll certificates and clearance certificates will be delivered.

Grounds for refusal

On what grounds may a registration application be refused?

An application may be refused if the required documentation is not delivered. Further, registration may be refused for a Spanish vessel subject to inspection by the ruling state at port if a preliminary administrative investigation shows that:

  • the vessel has three firm detentions within the past 36 months; or
  • the vessel is 18 years old or more and has two firm detentions within the past 36 months.

The same requirements apply to denying permission to fly the Spanish flag to ships from other registries.

Advantages

Are there any particular advantages of flying your jurisdiction’s flag?

Spain operates the Special Registry for Ships and Naval Companies, headquartered in the Canary Islands. The registry establishes beneficial social and tax incentives, and holds the registrations of more than 90% of the Spanish merchant fleet. Access to this registry is limited to civil merchant vessels of more than 100 gross tonnage excluding fishing vessels.

The main advantage of the registry is that it forms a white list under the Paris Memorandum of Understanding, a fact that is extremely relevant in terms of finance. The tax lease system for acquiring ships is considered to be legal, and the registry system provides a significant level of safety for judgment creditors, which can register their mortgages in the Registry of Movable Goods.

Liens and mortgages

Registration

How are encumbrances such as maritime liens and mortgages registered in your jurisdiction and what are the effects of registration?

Spain signed the Geneva Convention 1993 on maritime liens and mortgages, as well as setting out its own regulations in the Maritime Navigation Act.

Only credits specified under the Geneva Convention and which follow the ship will be accepted, even if the ship has undergone a change of ownership and has been granted priority over ships already registered. A new lien for fleets has been established when it is possible to determine which ship gives rise to the lien for salary appropriations

A lien cannot be extended to insurance compensation for loss or damage to the ship, or for compensation derived from boarding.

Naval mortgages, purchase and sale, lease and other types of contract may be registered, as may the registration of attachments and any other encumbrances on the ship. 

Securable claims and priority

What claims can be secured by maritime liens and what is the order of priority?

Maritime working credits (eg, salaries, compensation, social security quotas owed by the ship and repatriation expenses):

  • have a lien over the fleet;
  • enjoy special preference over claims accrued from the seizure or enforcement of the ship; and
  • are first in the priority order.

Credit applies to personal damage (either contractual or extra-contractual) that takes place on board the ship or is directly related, with the exception of damage resulting from hydrocarbons or dangerous substances with radioactive or toxic properties, as these are subject to their own judicial regimes (ie, the Civil Liability Convention, the International Convention on Civil Liability for Bunker Oil Pollution CLC and the Carriage of Hazardous and Noxious Substances by Sea Convention).

Credit also applies to rescue under a contractual or extra-contractual relationship for the compensation payable for the ship's rescue in ‘no cure no pay’ operations. Rescue prevails over any other maritime liens.

Harbour credits apply and can be of either:

  • a contractual nature (eg, fees, canons, practices, manoeuvres, mooring and removal of remnants); or
  • an extra-contractual nature (eg, the cause and effect relationship between the ship’s use and damage to goods either on land or at sea).

Harbour credits take fourth place on the priority list; harbour credits derived from the execution of a transport contract are excluded. 

Extinguishment

Under what circumstances are maritime liens extinguished?

A maritime lien is extinguished once the one-year statute of limitations expires, unless the ship has been arrested as a precaution or there has been enforcement through forced sale. A lien can also be extinguished due to mutual agreement or satisfaction.

Foreign liens

Are foreign liens recognised in your jurisdiction?

Yes, through a recognition procedure and the enforcement of a foreign order in Spain.

Transfer and assignment

Which rules govern the transfer and assignment of liens, mortgages and other encumbrances?

The conveyance of a mortgage is regulated by the mortgage regulations of the Maritime Navigation Act. The conveyance contract must be recorded in a public deed, with notice given to the debtor, and must be registered in the Registry of Movable Goods. In cases of insurance compensation, the conveyance of maritime credits with liens does not automatically involve the conveyance of the liens or any substitution credits that may arise due to boarding, common failure or another cause. Maritime liens attach to a ship without needing to be publicly registered. They follow the ship through any change of ownership, plate or pavilion, and enjoy preference over mortgages, other charges or encumbrances entered in the registry.

Arrest

Grounds for arrest

Under what circumstances can a ship be arrested in order to secure a claim against it?

A maritime creditor may request the court to detain a vessel if it proves:

  • a credit foreseen under Article 1 of the International Convention on Precautionary Arrest of Ships;
  • the cause behind the detention; and
  • its ability to seize the ship.

Further, if the debtor and owner or the ship’s operator are the same, a deposit must be paid.

Can a ship be arrested to secure a non-maritime claim?

The Maritime Navigation Act allows for the arrest of Spanish ships or foreign ships that have not signed the Convention of Preventive Arrest (Geneva 1999) for credits other than maritime credits.

Can a ship be arrested to secure a claim against a sister ship?

In practice, it is acceptable to arrest another ship or ships that may belong to the party liable for the maritime credit and which, at the time when the credit appeared, owned the ship for which the credit arose or which was the bareboat lessee, charterer for a term or charterer for a boat's trip, unless the credit refers to credits related to the ship’s ownership or possession.

Procedure

What are the procedural and documentary requirements for seeking arrest of a ship?

The procedure begins with a request from the arresting party to the competent mercantile court to consider the matter, or a request to the harbour where the ship is or at which it is expected to arrive. No documented evidence is required, but a deposit must be paid. Once the arrest has been agreed, notice will be delivered in the fastest way possible – usually through a fax to the harbour master, who will take the necessary measures for the arrest of the ship.

In accordance with convention rules, the arresting party has between 30 and 90 days to ratify the arrest if the competent jurisdiction is not Spanish. Once notice of the arrest has been delivered, the arrested party may free the ship if it offers a satisfactory guarantee to the arresting party. In addition, the arrested party has the right to:

  • oppose the arrest (based on a claim of non-maritime credit allegation or a lack of or insufficient deposit provided by the arresting party);
  • arrest a ship susceptible to impediment, rearrest the same ship or arrest another ship for the same maritime credit; and
  • establish a fund for liability limitation.

The settlement of damages and prejudice is guaranteed:

  • when reviewing opposition to the arrest based on illegality or an unjustified arrest (eg, review of the opposition to arrest or the dismissal of the original claim);
  • on request or presentation of an excessive guarantee to lift the seizure order (eg, the cost or time derived from the excess, non-acceptance of the protection and indemnity (P&I) insurance letter of undertaking or postage of guarantee by the court); or
  • if the arresting party fails to ratify the arrest in due time.

Security

What security must the arresting party put up in order to secure arrest of a ship and how is this security calculated?

The guarantee provided by the arresting party must be at least 15% of the claimed credit, although this may be revised by the court at the request of the arrested party, provided that this is justified in accordance with:

  • the ship’s size;
  • the cost of its attendance; and
  • whether if it has scheduled service, is loaded or has contractual commitments. 

What security can the arrested party provide for release of an arrested ship?

Under the Civil Procedural Law, once notice of the arrest has been delivered the arrested party may free the ship if it offers a satisfactory guarantee (cash or surety) or if there is an agreement between both parties which is sufficient for the arresting party (a letter of guarantee or letter of understanding issued by a P&I club or a surety bond).

Judicial sale of ships

Procedure

What is the legal procedure for the judicial sale of ships in your jurisdiction?

This is regulated by the procedural law or administrative rules for auction tenders of movable goods subject to public registration and the International Convention on Maritime Liens and Mortgages 1993. Judicial sale is accepted in three cases:

  • to disqualify the ship from sailing;
  • to satisfy the secured creditors; and
  • to compensate the state where the ship has been abandoned.

Foreign sales

Under what circumstances are foreign sales recognised?

Foreign sales must be in writing in order to be entered in the Registry of Movable Goods, and in order to have effect against third parties they must be formalised through public deed. Pursuant to Spanish law, for the recognition and execution of mortgages and encumbrances these must be entered in the public registry of the country where the ship is registered, so that such registry may be consulted by the public and copies of the registration may be obtained. The entry must include the name and address of the person guaranteed, the amount and the date. 

Limitation of liability

Eligibility

What parties may limit liability for maritime claims?

The following may limit liability:

  • the shipowner, which includes the charterer, the naval manager and the actual shipowner of a maritime navigation ship;
  • the salvager, which includes any party that provides rescue and salvage operation services;
  • parties for whose actions, omissions or negligence the owner or salvager may be liable; and
  • a party ensuring civil liability.

If another beneficiary of the right to limit is or may be considered liable for the claims, it can make use of the right to limit liability.

For what claims can liability be limited? Are any claims explicitly exempt from the limitation of liability?

The claims for which liability can be limited are set out in the Maritime Navigation Act, which complies with the London Convention (76/96), as follows:

  • personal or material damage to harbour works, including:
    • waterways that may have been produced while on board or may be directly linked to the ship's use or salvage operations, or derivative prejudice; or
    • any damage that may arise due to the exploitation of the ship of either a contractual nature (eg, damage caused to the passengers, luggage or merchandise carried) or an extra-contractual nature (eg, maritime accidents that may have an effect on people or things);
  • prejudice resulting from delays in the transport of merchandise, passengers and luggage;
  • prejudice derived from damage to non-contractual rights directly caused by the exploitation of the ship or salvage operations (these are the pure financial losses); and
  • the costs and expenses of reducing the damages and prejudice incurred by third parties other than those will the right to limit liability provided that they will benefit therefrom, unless they have been adopted through a contract with the liable party.

The following claims are not subject to limitation:

  • claims derived from rescue and salvage operations, or contributions to the general average claims of a contractual nature with insurance coverage limited to the value of what was rescued;
  • claims derived from losses caused by hydrocarbon contamination;
  • claims subject to the national legislation or an international convention that governs or prohibits the limitation of liability for nuclear losses;
  • claims against the owner of a nuclear ship related to nuclear losses;
  • claims promoted by the employees of the owner or the salvager related to the ship or rescue and salvage operations, provided that the employment contract does not provide the right to limit liability; and
  • claims from the harbour authority foreseen under the rules for the removal of ships.

Limits

What limits are set for eligible claims?

Personal damages

The following limits apply to personal damages:

  • ships under 300 tons – 1 million special drawing rights (SDR);
  • ships of up to 2,000 tons – 2 million SDR; and
  • ships bigger than 2,000 tons – 2 million SDR fixed plus:
    • for ships between 2,001 and 30,000 tons, 800 SDR per ton;
    • for ships between 30,001 and 70,000 tons, 600 SDR per ton; and
    • for ships of more than 70,001 tons, 400 SDR per ton.

Personal damages to passengers  To calculate personal damages to passengers, the amount set by international conventions and EU rules is multiplied by the number of passengers that the ship is authorised to transport. The limits are as follows:

  • For injury to or death of passengers:
    • if the event is related to navigation, up to 250,000 SDR; and
    • if it is not related to navigation, up to 400,000 SDR, provided that the passenger proves the transporter’s guilt or negligence.
  • Loss or damages to the luggage in the cabin – 2,250 SDR per passenger and transport.
  • Loss or damages to vehicles including the luggage being transported in them – 12,700 SDR per vehicle and transport.
  • Damages or loss of valuable goods under the transporter's custody – 3,375 SDR per passenger and transport, unless there is another agreement.
  • Material damages:
    • ships under 300 tons – 500,000 SDR;
    • ships up to 2,000 tons – 1 million SDR; and
    • ships bigger than 2,000 tons – 1 million SDR fixed plus:
      • for ships between 2,001 and 30,000 tons, 400 SDR per ton;
      • for ships between 30,001 and 70,000 tons, 300 SDR per ton; and
      • for ships of more than 70,001 tons, 200 SDR per ton.

Limitation funds

What rules and procedures govern the establishment of limitation funds?

This is governed by the London Convention 76/96 and the Maritime Navigation Act. In order to limit liability, a limitation fund must be established in accordance with each category of damages (personal, passengers and material loss) plus interests. This right expires after two years. The limitation procedure must be accompanied by certain documents related to:

  • the ship;
  • calculation of the amount;
  • the creditors; and
  • the parties which provide a deposit to the court or a bank guarantee.

A guarantee letter issued by a protection and indemnity club may be used only if all parties agree and the judge accepts this rather than a deposit or bank guarantee. The procedure is regulated by the Maritime Navigation Act. The mercantile courts are competent to hear the case and the fund must be established within 10 days of the procedure claiming liability.

Precautionary measures may be lifted once the case has been admitted by the judge. A surveyor will be appointed to finalise reports on the assets, liabilities and settlement, which will then be approved by the judge.

How are liability funds distributed?

The settlement rules are based on the principle of par condition creditorum (ie, equality among creditors). Thus, the amounts resulting from the calculation of the liability limits in the fund will be distributed among the creditors in proportion to the amount of the admitted claims. Claims for death or injuries and claims from the maritime administration or harbour are prioritised. Immediate subrogation is foreseen in favour of the liable person, its insurer or any other third party that may have paid compensation standing to a limitation fund before its distribution. 

Carriage of goods

International conventions

Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?

Spain has signed the Brussels Convention 1924 and the Protocols of 1968 and 1979 (the Hague-Visby Rules and the Rotterdam Rules are still not in force).

Carrier’s responsibility

What is the official extent of the carrier’s responsibility for goods?

The carrier is liable for the partial or total loss of the merchandise, damages, total or partial failure and delayed return in accordance with the agreed terms.

Contractual limitation of liability

May parties contract out of any legal provisions governing cargo liability?

The liability regulation is legal and coercive. It cannot be avoided by contractual clauses which try to minimise or cancel liability in prejudice of the bearer of the right to receive the merchandise. Nonetheless, such clauses, if agreed within the freight policy and if they do not involve indemnity for wilful misconduct or fault from the carrier's side, will be of value only in relations between the carrier and the charterer. The aggravation of liability in favour of the loader is accepted in accordance with the Hague-Visby Rules. If indemnity of the carrier's liability is accepted, it will have limited liability.

Title to sue

Who has title to sue on a bill of lading?

The signature of the shipper or its agent must appear on the bill of lading; if it is undersigned by the captain, it will be understood to be done so on behalf of the carrier. If the person acting as shipper is not sufficiently identified, it will be understood to be signed by the shipowner.

Time bar

What is the time bar for cargo claims?

Actions arising from the charter contract expire one year after the date of delivery to the receiver or the date on which they should have been delivered. This term can be extended, reduced or interrupted.

In relation to claims under declaratory regulations, the term of claim and the term of expiration must be differentiated. Regarding the term of claim, the loss or damage must be notified in written to the shipper or its agent on the next working day following delivery, if it does not become apparent within three working days of delivery. Notice is unnecessary if a joint inspection has taken place. If there was a delay, the notice regarding the damage must be officially claimed within 10 working days after delivery. Failure to notify or delayed notification modifies the presumption of delivery and does not preclude the exercise of action.

Definition of ‘carrier’ and ‘goods’

How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?

A difference is established between the contractual shipper (freight forwarders, forwarders and any other party which commits to taking care of the transport) and the effective shipper (the shipowner or charterer of the ship). They will be jointly liable for the claims.

There is no definition of ‘merchandise’. The law prohibits the shipment of merchandise as opposed to the contracted merchandise, defining this as an illegal shipment. Dangerous merchandise must be declared by the shipper and accepted by the carrier, and if it encounters risk, it may be unloaded, destroyed or transformed into harmless goods. The transport of animals is treated differently in regard to the shipper's liability, constituting negligence. 

Defences available to carrier

Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?

The perils of the sea defence is linked to the cause for indemnity and is subject to a restrictive and objective interpretation. Its origin does not depend on the conduct of the carrier or its ancillaries. A specific procedure exists which the law defines as sea protest due to incidents during the voyage and which is carried out before a notary public.

In its defence, the carrier may cite:

  • the lack of navigability of the ship;
  • a nautical fault;
  • fire;
  • sea perils;
  • force majeure;
  • acts of war;
  • arrest;
  • an act or failure of the loader of the merchandise;
  • a reduction of volume or weight;
  • its own or hidden defects;
  • insufficient packaging;
  • saving lives, goods or the marine environment; or
  • any other issue that is not an event or the shipper's fault.

The carrier must prove its diligent performance.

Third parties

What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?

The carrier's agents need not present the same defence as the carrier. However, in solidarity against the loader, they can use in their favour all of the same exceptions as the carrier may use.

Deviation from route

Under what circumstances is deviation from the agreed route allowed?

Deviation from the agreed route is allowed to save lives or for any other reasonable, justified cause that does not derive from the lack of navigability of the ship.

Claims against shipper

What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?

The charterer has retention rights over the merchandise for the payment of freight, delays and transport expenses. The retention right may be used only against the charterer which is the receiver, unless the transport document requires the payment of freight at destination. In relation to freight governed by time, this will apply only to merchandise belonging to the charterer. In the transport with knowledge of shipping, the retention right may be used only in respect of the receiver that is also the charterer, and can be used against third parties only when such power is expressly stipulated within the knowledge of boarding.

The charterer may also deposit or sell merchandise to comply with the payment of freight and other expenses linked to:

  • the transport;
  • failure to collect the merchandise; or
  • failure to complete the voyage due to circumstances arising during the voyage which made it impossible, illegal or prohibited to continue.

Multimodal carriage of goods

How is multimodal carriage regulated in your jurisdiction?

The Maritime Navigation Act states that multimodal carriage is equivalent to transport with knowledge of shipping.

Marine accidents

Collision and pollution

What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:

(a) Collision?

Collision is governed by the Maritime Navigation Act, which refers to the Brussels Convention 1910 on the unity of certain rules as regards boarding and other conventions on the same issue (eg, the International Regulation to Prevent Boarding in the Sea).

(b) Oil pollution?

Oil pollution is governed by the Maritime Navigation Act and two conventions (the International Convention on Civil Liability for Oil Pollution Damage 76/92 and CFC 76/92), as well as other conventions to which Spain is a signatory. The liability regulations fall on the shipowner or the holder of the jacket platform. An almost objective system is established. Spanish membership of the European Union imposes higher requirements and higher quality regarding the construction of ships and imposes liability on whomever causes the pollution in line with the principles of prevention at source and polluter pays. Indemnity is foreseen only due to inevitable force majeure. Therefore, parties must take out insurance against civil liability for contamination.

(c) Other environmental damage caused by a ship?

Civil liability is also foreseen for damages caused by radioactive or nuclear substances.

Salvage

What is the legal regime governing salvage and general average?

With regard to salvage, the Maritime Navigation Act refers to the International Convention on Maritime Salvage (London 1989) in terms of risk and useful results. The act regulates salvage contracts but imposes only a requirement to act with the necessary due diligence in order to avoid or reduce damage to the environment; otherwise, the contract is left to the will of the parties. If the returned result is useful, entitlement to an award is limited by the ship's value and the value of the goods rescued, and the award must be distributed between the shipowner and the contributors. A right to retention over the ship and the rescued goods is also established provided that it does not constitute a guarantee.

With regards to general average, the contribution and absence of formalities are established. A retention right over the merchandise is established provided that the liability to contribute is not guaranteed. Private liquidation is accepted in the absence of procedures before a notary public. The parties are free to agree how to take care of the liquidation; in the absence of an agreement, the York-Antwerp Rules apply.

Places of refuge

What framework governs access to places of refuge for ships in distress?

The maritime administration may impose requirements and conditions on the entry into safe havens of potentially polluting ships in order to guarantee the safety of people, maritime traffic, the environment and goods. The competent authority is the general director of the merchant navy; at present, no specific safe haven ports or the constitution of a guarantee is required. 

Wreck removal

What rules and procedures apply to the removal of wrecks in your jurisdiction?

These are regulated by the Law of State Ports and Merchant Navy. In the scenario of a ship sinking, the procedure is administrative and subject to appeal. The port authority will require owners, shipping agents, charterers, consignees or insurers to start the removal and will determine where the cargo, fuel, remains or the refloated ship will be placed within the established term, as well as the guarantees or safety measures that must be taken in order to prevent new sinking. For reasons of urgency, the port authority can demand the adoption of measures, potentially at the expense of the forced parties. If the port authority’s orders are not complied with, the authority can use execution mediums to remove the sunk ship, its fuel or the load on board. In all cases, the owner or shipping agent must pay the expenses. If the amounts accrued due to the removal are not paid, the port authority can dispose of the wreckage, taking its costs out of the sum raised by the disposal.

Under what circumstances can the authorities order removal of wreckage?

If the wreckage affects port activity or poses a serious risk to people, goods or the environment, the port authority will require owners, shipping agents, charterers, consignees or insurers to remove the wreckage and determine where the cargo, fuel, wreckage or the refloated ship may be placed, within the term fixed, as well as the guarantees or safety measures that must be taken to prevent a new sinking. 

Insurance

Mandatory coverage

What maritime risks must be covered under the law and what is the mandatory level of coverage?

Maritime insurance is regulated in the Maritime Shipping Act and the Insurance Contract Act, allowing freedom of contract. Maritime insurance can cover:

  • ships, boats and naval artefacts, even those under construction or scrapped;
  • freight;
  • cargo;
  • the civil responsibility derived from the exercise of navigation; and
  • any other asset interests exposed to the maritime navigation risks.

The Maritime Shipping Act establishes mandatory civil liability insurance for:

  • passenger vessels transporting more than 12 passengers;
  • nautical charter contracts;
  • damage due to contamination derived from ships, boats and naval artefacts; and
  • pleasure ships.

In addition, the Law on State Ports and the Merchant Navy requires shipping companies to hold insurance covering the civil liability which they could incur during operation of their ships. The mandatory insurance requirement stems from the applicable international conventions – in particular, the International Convention on Civil Liability for Oil Pollution Damage 1992 and the International Convention on Civil Liability for Bunker Oil Pollution Damage.

Insurable risks and ships

What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?

The risks typically covered by insurance contracts are:

  • voyage or time-charter ships;
  • cargo; and
  • civil liability that establishes direct action against the insurer.

Maritime insurance covers navigation risks, subject to certain exclusions. The other risks typically covered in a maritime insurance contract are loss of freight insurance and loss of rent insurance. Under maritime insurance contracts, the following ships are insurable:

  • merchant ships in all their modalities;
  • fishing ships;
  • pleasure ships and vessels with the option of boat race coverage; and
  • naval artefacts.

Subrogation rights

What is the legal regime governing marine insurers’ subrogation rights?

The subrogation of the insurer’s rights is regulated in the Maritime Navigation Law, which establishes that once compensation has been paid by the insurer, it will be subrogated in the rights and actions corresponding to the insured until the limit of the compensation against whoever is liable for the accident. The insurer will be incapable of performing the rights to which it has subrogated in detriment of the insured. In case of concurrence of the insurer and the insured with the responsible third party, the return obtained will be distributed between them in proportion to their respective interests. The exemption from liability of the third party causing the damage, as agreed by the insured or the policy holder with the third party, is not opposable to the insurer, unless the exemption was expressly accepted by it and included in the policy. 

Jurisdiction and dispute resolution

Competent courts

What courts are empowered to hear maritime cases in your jurisdiction?

According to the Law on the Judiciary, the mercantile courts have exclusive competence to hear matters of maritime law.

Exclusive jurisdiction and arbitration clauses

Under what conditions will exclusive jurisdiction and arbitration clauses in shipping contracts be held as valid?

The jurisdiction and arbitration clauses are valid only if they have been expressly accepted without prejudice to the international conventions valid in Spain and EU regulations. Therefore, the clauses to submit to a foreign jurisdiction or arbitration abroad will be found void and considered inapplicable, provided that it is not part of the European Union and contained in the contracts of use of the ship or the auxiliary contracts for navigation, as long as these have not be negotiated individually or separately. Recent judgments have held that when there has been a transmission of the contracts or subrogation of the insurer, it is considered that there is no subrogation in the jurisdiction or arbitration clause.

Maritime arbitration

What is the general state and prevalence of maritime arbitration in your jurisdiction?

Arbitration is accepted in Spain as an alternative to ordinary jurisdiction, and arbitration submission agreements are valid. Arbitration offers advantages such as the specialist knowledge of arbitrators, confidentiality and a less strict procedure.

Recognition and enforcement

What regimes govern the recognition and enforcement of foreign judgments and arbitral awards?

This is regulated under Article 523 of the Civil Procedure Law. The Brussels Regulation (1215/2012) highlights that judicial resolutions dictated in a member state and which have executive force will also have executive force in other member states without a declaration of enforceability, and may be executed in those member states as if they were national resolutions

The Spanish courts directly apply treaties with bilateral and multilateral recognition and the execution of foreign judgments and arbitral decisions.

Marine security

Legal regime

What regime governs the imposition of security measures on ships and in port facilities?

If the wreckage affects port activity or poses a serious risk to people, goods or the environment, the port authority will require owners, shipping agents, charterers, consignees or insurers to remove the wreckage and determine where the cargo, fuel, wreckage or the refloated ship may be placed, within the term fixed, as well as the guarantees or safety measures that must be taken to prevent a new sinking. 

Security officers

What rules apply to the qualification and conduct of security officers on ships and in port facilities? Are armed guards allowed on ships?

The port security officer and port staff with specific protection functions must have adequate training in maritime protection in order to perform their functions and the necessary qualifications or certificates to act as protection officers.

The port’s custody competence is attributed to the Spanish Civil Guard through Law 2/1986 on Law Enforcement.

Royal Decree 1628/2009 provides that safety on board ships carrying the Spanish flag outside Spanish territorial waters and in situations posing risks to people and goods can be guaranteed by security staff through the use of adequate weapons in order to meet protection and prevention goals. 

Security information

What rules govern the provision of security information to port authorities?

Royal Decree 1617/2007, which establishes measures for the improvement of the protection of ports and maritime transportation, regulates the supply of protection information to the port protection authority and corresponding maritime captain before the entry of a ship into port. This information should be provided at least 24 hours before the ship enters the port. The port protection authority will deny port entry to any ship which does not supply this information, unless the ship is exempt from the supply of such information.