Spain: Maritime law development


Published: 13 October 2014

The Association is grateful to Muñoz & Montañés Abogados in Valencia for contributing to this update.

The development

Members who trade to and from Spain, whether on a regular basis or on an occasional ad hoc voyage, will be interested to learn of the new Spanish Shipping Act 2014 which came in to force at the end of September this year.

The Act makes a number of changes to the law, and develops other areas further.

In the attached article from Muñoz & Montañés some of the key changes are highlighted for member's reference.

Loss prevention advice

Members are recommended to consider how these changes may impact on their business and their practical side.

Legally significant developments
Of particular interest for instance are changes to the status of Letters of Indemnity, but it is important to note that the mentioned exception in the attached article is not too dissimilar from the position under English law which holds LoIs to be unenforceable if there is no "genuine dispute" over its subject matter, e.g.: a LoI issued for a cargo of clearly rusted and damaged steel which is shipped "clean on board" (see Brown Jenkinson vs Percy Dalton [1957] 2 QB 621).

Equally important are the changes to the terms under which limitation can be invoked, which would be subject to the LLMC 1976 Convention / 1996 Protocol, but from which the liability for wreck removal of the vessel or its cargo are excluded by Spanish law.

As for successfully relying on law and jurisdiction clauses against third party holders of bills of lading, it would appear that the requirements under Spanish law still make it a difficult proposition to successfully force such a party to adhere to clauses it did not directly agree to, i.e.: enforcing a London arbitration clause against the Spanish receiver of a cargo. In this regard the present EU legal position continues to remain disadvantageous to owners and charterers seeking to enforce otherwise clearly incorporated or expressly stated terms in bills of lading.

Practically significant developments
Of significant practical application is the clear demarcation of the authority between the master and the pilot of the vessel, with the master remaining primarily responsible for the safe navigation of the vessel even if under pilotage. Thus a master will need to pay close attention to a pilot's input, and be ready to override it in case the situation requires it for the immediate safety of the navigation underway.

As for the provisions on stowaways, members should expect it to continue to be a challenge to successfully repatriate stowaways by way of disembarkation at Spanish ports, not least because many of these will be from African countries and at present there remains a high degree of caution over such persons following the severe Ebola outbreak in West Africa.