The new Shipping Law (14/2014), which took effect on September 24 2014, marks a milestone in Spanish maritime law. It has brought the domestic regime into line with international conventions and EU regulations, and makes Spain one of the few countries in the world in which the vast majority of maritime law is governed by a single statute (for further details please see "New Shipping Law: key players" and "New Shipping Law: key contracts"). This update outlines the law's provisions governing collisions, salvage, shipwrecks and pollution.
Article 339 of the Shipping Law provides that collisions "will be regulated by the International Convention for the unification of certain rules in Collision Matters, signed in Brussels on 23 September 1910".
Hence, in the event of a collision resulting from shared fault, fault-based liability proportional to the degree of responsibility of each vessel will apply, as established in the convention. This replaces the objective criterion set out in the Commercial Code, under which the responsibility for damages previously rested with both vessels, independently of the degree of fault of each.
Articles 357 and following of the Shipping Law govern salvage, which is defined as: "All acts undertaken to help or assist a ship, vessel, or craft, or to safeguard or recover any goods in danger in any type of navigable waters, with the exception of continental waters that are not communicated with sea waters and are not used by maritime navigation vessels."
Salvage is governed by the International Convention on Salvage 1989 and related protocols or reviews to which Spain is a party, as well as by the provisions of the Shipping Law. Law 60/1962 on maritime assistance, salvage, towage and extractions has been expressly repealed, with the exception of the provisions of Title II which relate to jurisdiction and procedure; these remain in force.
Salvage claims fall within the civil jurisdiction, unless the parties agree to submit them to an administrative maritime arbitration system before specialised bodies of the Navy, or unless intervention by the Navy becomes necessary due to the type of salvage concerned (eg, salvage of goods abandoned at sea and of unknown property), or if an agreement is reached to submit the claims to other tribunals.
One innovation is that the relevant bodies of the Navy that deal with salvage operations and remuneration for towage will be the new Council of Maritime Arbitration and the Maritime Arbitration Audit Office. Until these bodies have been established, however, the Maritime Central Court and the Permanent Maritime Court will continue to carry out these tasks in accordance with Law 60/1962.
One important technical improvement - and perhaps the most relevant change in relation to salvage - is the power granted to both the master and the shipowner to sign salvage contracts on behalf of the owner of the goods on board.
Another important change is the acknowledgement of the salvor's right of retention over the salvaged ship and goods where no sufficient guarantee of payment has been given, without prejudice to recourse to potential pre-emptive arrest of those items.
In order to guarantee environmental protection, the Shipping Law regulates the intervention of the Maritime Authority in salvage operations.
The Shipping Law governs the removal of shipwrecks and other items from the seabed. However, these provisions do not apply to cultural heritage items situated underwater in areas contiguous to Spain, within the exclusive economic area and on the continental shelf; these are governed by the Convention on the Protection of Underwater Cultural Heritage 2001, and by other treaties to which Spain is a signatory, as well as by specific legislation.
In accordance with the Shipping Law, shipwrecked or sunken state vessels, together with their remains, equipment and cargo, constitute state public property which is inalienable, is not subject to limitation periods and enjoys immunity from jurisdiction, regardless of when they were lost or where they are located.
The Shipping Law governs civil liability for damages arising from pollution from vessels in cases that are not covered by the relevant international conventions to which Spain is a party (eg, the International Convention on Civil Liability for Oil Pollution Damage 1992 and the Bunkers Convention 2001).
This liability is quasi-strict and limited, and the Shipping Law requires mandatory insurance and provides for direct action against the insurer up to the limit of the insured sum.
The Shipping Law departs from the regime set out in the International Convention on Civil Liability for Oil Pollution Damage 1992 in one respect: it directs liability towards the "shipowner, proprietor or licensee of the vessel at the moment in which the pollution producing event takes place" (Article 385).
The environmental principles of EU law, including the polluter pays principle, are reflected in the regime governing civil liability for pollution under the Shipping Law.
For further information on this topic please contact Luis de San Simon or Mercedes Duch at San Simón & Duch by telephone (+34 913 579 298) or email (email@example.com or firstname.lastname@example.org). The San Simón & Duch website can be accessed at www.lsansimon.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.