The procedure for dealing with the abandonment of vessels in various port service areas is regulated by Article 302 of the recast text of the Law on State-Owned Ports and the Merchant Navy, which determines that the ownership of a vessel abandoned in a port service area is transferred to the state in which the port is located.
In this sense, vessels that remain docked, moored or anchored in the same place within the port for more than three months without appreciable external activity or the payment of fees or tariffs shall be considered abandoned and declared so by the port authority board of directors.
In order to make a declaration of abandonment, the prescribed process must be followed and the shipowner, captain or consignee must be heard in accordance with the Law on the Legal Regime of Public Administrations and Common Administrative Procedure (30/1992).
Once the abandonment has been declared by the port authority board of directors, the matter will proceed through either:
- sale of the vessel by public auction – the proceeds of the sale must be deposited with the Public Treasury, after the deduction of credits accrued in the port's favour by the corresponding fees and port charges and the costs of the proceedings; or
- sinking of the vessel (when required for reasons of maritime safety because of the vessel's status).
When the sale involves a non-community vessel, the following rules must be observed:
- The sale will be considered a release for the consumption of goods and therefore must follow the required procedures for the import of the same goods; and
- Taxes in connection with the import will be included in the sale price. Such disposal shall be communicated to the relevant customs administration and the special taxes department of the State Tax Administration Agency.
Since Spain is not party to the Nairobi International Convention on the Removal of Wrecks, which has been in force since April 2015, the sinking or wrecking of vessels is covered by Article 369 of Chapter IV of Title VI (Navigational Accidents) of the Shipping Act – which has been in force since September 2014 – and the recast text of the Law on State-Owned Ports and the Merchant Navy, particularly Article 302 onwards.
The relationship of the owner and salvor to the shipwrecked or sunken vessels or other goods is governed by the international rules of salvage, except in cases involving cultural heritage items situated underwater, which are governed by specific implementing regulations.
In this regard, masters and operators of vessels that are shipwrecked or sunken within Spanish maritime areas must notify the maritime authorities of such events pursuant to the terms of the Shipping Act and the Law on State-Owned Ports and the Merchant Navy.
The maritime authorities shall proceed of their own motion to inform the owners of vessels and other damaged property of their location, so that they may take urgent measures to protect their interests.
In order to avoid any navigation risks, operators and owners of shipwrecked or sunken vessels must immediately take any action to prevent pollution that is necessary to safeguard Spain's interests. To that end, they must comply with the instructions and orders issued by the maritime authorities.
Ownership of shipwrecked or sunken vessels or other goods is not affected by the sole fact of the shipwreck or sinking. They will therefore not be deemed abandoned unless this is the specific will of the owner. The owners of such vessels and goods may also dispose of them or abandon them to the insurer where appropriate.
However, the state shall acquire the ownership of any vessel or asset that is shipwrecked or sunken in its internal or territorial waters once three years have elapsed since the shipwreck or sinking, except for state vessels and goods. Moreover, it shall also acquire the ownership of Spanish-owned vessels or goods that, once the three-year term expires, are located in the exclusive economic zone or the high seas.
The three-year term will stop the moment that extraction of the vessel or asset is requested, provided that the extraction is commenced within the term granted. The three-year term will recommence if the extraction work is suspended or the term granted for such work expires.
For further information on this topic please contact Alfonso de San Simón at San Simón & Duch by telephone (+34 913 579 298) or email (firstname.lastname@example.org). The San Simón & Duch website can be accessed at www.lsansimon.com.
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