The correct service of summons aims to protect the defendant's right to a defence in a court proceeding, which is guaranteed by Article 24(1) of the Constitution.
Summons to foreign shipowners may be served at the domicile of their Spanish shipping agents under certain circumstances.
Article 271 of the Procedural Act 1881 and Article 155 of the Procedural Law 2000 establish that summons must be served on the defendant at its domicile. Article 155(3) allows the domicile for the purpose of service of summons to be the place where regular professional activity and labour is undertaken.
The Procedural Law 2000 does not expressly allow for the service of summons on foreign companies at the domicile of a Spanish agent, although the case law clarifies this position.
A shipping agent can:
- be the general representative of a shipowner;
- undertake the activities of a general or legal representative; or
- be part of the shipowner's company/group.
In such cases the courts will accept the validity of a service of summons at the shipping agent's domicile, on the basis that this would not weaken the shipowner's right to a defence.
Agent acting on behalf of owner for a specific operation
If a shipping agent is acting on behalf of the shipowner only for the particular operation giving rise to the claim, rather than as its general representative, the courts differ in their interpretation.
A decision of the Sagunto Court of First Instance(1) (July 5 1995) allowed the service of summons on a shipowner at the domicile of its shipping agent. The court held that because the shipping agent was carrying out the legal operations of the transit on behalf of the shipowner, it was logical that the service of summons could be carried out through the shipping agent, in order to expedite proceedings.
Further, in 1996 the Sabadell Court of First Instance warned a shipping agent who repeatedly refused to accept the service of summons on a shipowner that this could be considered a criminal offence (ie, perverting the course of justice).
However, the Court of Appeal of Vizcaya (October 15 1999) held that if a shipping agent represents the shipowner only for the performance of specific functions, it is not empowered to receive a service of summons on behalf of a shipowner. In such cases, it held, summons may only be served at the owner's domicile, in order to guarantee the shipowner's right to a defence.
Following this line of reasoning, the claimant must prove that the shipping agent is a general representative of the shipowner or part of the company's structure, or establish that special circumstances exist, before the summons may be served at the domicile of the shipping agent.
According to case law, summons may served at the domicile of a Spanish shipping agent if it is considered that the defendant (ie, the shipowner) will be informed of the proceedings in time, enabling it to appear before the court and exercise its right of defence.
Therefore, when a shipping agent is a general agent or legal representative of the owner and the service is carried out at its domicile, it cannot reject the summons.
On the other hand, a shipping agent appointed for a specific function may claim that it has not been instructed or empowered to receive any court communications on behalf of the shipowner. The shipowner should inform the shipping agent of this limited representation from the outset. Any service of summons should be rejected immediately. Nevertheless, if service has been accepted, the shipowner must be informed as soon as possible, in order for it to have the full period granted by the Procedural Law to prepare its defence.
For further information on this topic please contact Ainhoa Campàs at Fernando Meana Green & Co Abogados by telephone (+34 91 432 3875) or by fax (+34 91 432 3876) or by email ([email protected]).
(1) Based on resolutions of the Court of Appeal of Valencia (February 20 1989), the Court of Appeal of Barcelona (March 23 1989) and the Court of Appeal of Tenerife (December 4 1989).