CIRCULAR 1A / 2015 – MARITIME NAVIGATION LAW 14/2014
JUNE 2015
THE CHANGES INTRODUCED BY THE NEW MARITIME NAVIGATION LAW 14/2014
The new maritime navigation Law came into force on September 2015. It emerged from the need to coordinate Spanish maritime Law to the International Law, the aim to achieve more legal certainty and to end the contradictions between National and International Law and Conventions.
Its creation also seeks to help in the interpretation of cases where International Law needed to be applied and to open Spanish jurisdiction to maritime claims with jurisdiction clause.
The changes affect very different aspects. The following chart refers to the prescription of right to take legal actions, according to each contract / matter.
In what concerns prescription, we can summarize the changes as follows:
|
SUBJECT |
BEFORE |
WITH MNL 14/2014 |
|
SHIPBUILDING CONTRACT– BREACH OF CONTRACT |
15 years, counted from price payment or from the intention or will to terminate the contract. |
3 years, counted from contract date or from vessel delivery. |
|
INSURANCE CONTRACT |
3 years, counted from the casualty or from the end of contract. |
2 years, counted from date on which legal actions could be taken. |
|
SHIP MORTGAGE |
10 years, from the moment when legal actions could be taken, according to Law 21/1893. |
3 years from date on which legal actions could be taken |
|
VESSEL CHARTERING (BREACH OF CONTRACT) |
Six months from when the vessel was returned, once ended the “time-charter†contract. |
1 year from end of contract or from vessel delivery, if delivery occurred later. |
|
TRANSPORT: LOSS OF / DAMAGES TO CARGO |
1 year from arrival of cargo or from the moment on which cargo should have arrived to its destination. |
CONTRACT BREACH – COMPENSATION FOR LOSS OR DAMAGES:1 year from cargo delivery or from the day on which cargo should have been delivered. TIME TO INSTITUTE PROCEEDINGS (CONTRACT SHIPPER) FOR RECOURSE AGAINST REAL SHIPPER FOR COMPENSATIONS PAID ACCORDING TO ART. 278 MNL:1 year from the day that the compensation was paid. |
|
TRANSPORT: DELAY IN CARGO DELIVERY Â |
1 year |
1 year from cargo delivery or from the day on which these should have been delivered. |
|
FREIGHT |
6 months from delivery of what have caused the freight payment. |
Freight, delays and other transportation expenses: 1 year from cargo delivery or from the day it should have been delivered. |
|
COLLISION |
Two years from casualty date. |
According to Brussels Convention of 1910, two years from casualty date. |
|
POLLUTION |
Tres years from casualty |
According to Convention CLC92, three years from damage date. Same term for compensation actions mentioned in 2001 Bunkers Convention. |
|
PORT TOWAGE |
15 years according to Civil Code, but according to Spanish doctrine, 2 years was accepted.
|
1 year |
|
TOWAGE |
6 months, from delivery of elements towed.
|
1 year |
|
YATCH CHARTERING |
15 years according to Civil Code |
1 year from end of contract or from charterer disembarkation, if this occurred later. |
|
PORT MANIPULATION |
6 months |
Damage, loss or delay claim for cargo handling:2 years from cargo delivery by its operator. In case of total loss, from the day cargo should have been delivered. |
|
GENERAL AVERAGE |
3 years |
Action to demand general average:1 year from the end of the trip or journey on which casualty occurred. The end of journey occurs for each cargo when it is finally discharged. |
|
RESCUE |
3 years |
1989 London Convention:If no judicial or arbitration proceeding has been started, in the term of two years. |
|
VESSEL WRECKS PROPERTY |
According to Law 24 December 1962, the government acquires the property of a vessel if the Owners abandoned it, and it was considered abandoned after a year, if the Owners did not claimed the vessel. |
The State will acquire the property of any vessel or good found shipwrecked or sunken in interior waters or in Spanish waters after three years from shipwreck or sinking. |
The Law also regulates other areas related to the maritime sector, and we present hereunder a resume of those matters which we consider more relevant for international shipping companies that operate in the Spanish Jurisdiction:
|
SUBJECT |
BEFORE |
WITH MNL 14/2014 |
|
JURISDICTION OR ARBRITATION CLAUSE |
Before, according to case law and jurisprudence the clauses were considered negotiated and accepted in the contract signature. |
If the clauses have not been negotiated individually or separately, the addition of these clauses in the contract will no longer be considered a proof of acceptance. |
|
SHIP ARREST |
Guarantee to be presented by claimant requesting the ship arrest was discretional to each Court, and went from 10% to 15%. |
A minimum 15% guarantee of the amount of the maritime lien claimed is to be lodged.Vessel with flags not parties of the Geneva Convention 1999 can be arrested for any kind of lien. |
|
-PROCEEDING TO LIMIT LIABILITY OF MARITIME LIEN, -SEA PROTEST, -CARGO DEPOSIT |
Before, Judicial / Court intervention according to Spanish Commerce Code-Law. |
Now, notary intervention. |
|
PROCEEDING TO LIMIT LIABILITYÂ OF MARITIME LIEN |
Before, no enforceability |
It is mandatory (not required before) to constitute a fund in a ten days term from invocation. |
|
SHIP AGENT |
Legal and direct assimilation of ship agent and Owner (based in article 586 Spanish Commerce Code and article 3 of Transport Maritime Law 1949, no longer in force) regarding cargo carried by sea, holding liable of maritime transportation (for loss, damage and delay in delivery) ship agents.
|
Ship agent will not be liable to cargo receivers of compensation for cargo loss and damages or for cargo delay in delivery.Agents will be liable to Owners for the damages caused by carelessness.Ship agents will be jointly liable of transportation with Owner and Charterer if they sign bill of Lading without the mention that they are acting on behalf of the Owner / Charterer. |
|
COLLISION |
Duplicity of legal framework. Commerce Code and International Convention for Unification of certain rules in Collision matters, signed in Brussels on September 23rd 1910. |
In collisions with mutual negligence, subjective liability criterion is applied, proportional to the degree of guilt of the vessel, according to Convention 1910. The former objective criterion established by Spanish Commerce Code, which shared the damages suffered equally to both vessels, regardless the degree of guilt of each vessel, is no longer applied. |
|
CARGO MARITIME TRANSPORT |
Before, during the 20 days after cargo delivery, this was bonded to freight payment and it was necessary to approach Court to request cargo sale to recover the freight, according to articles 665 and 667 of Spanish Commerce Code. |
Current articles 236, 237 and 238 of the new Law, specifically bond cargo to freight payment, and to other expenses caused by its transportation, but with a term: 15 days after its delivery.This provides the carrier the right to sell and retain cargo when freight is not paid, before a Notary.This retention right and sell by Notary is new and in the future it will not be necessary to approach the Courts in case of freight non payment. |
|
LIABILITY IN DELAY OFÂ CARGO DELIVERY |
No direct regulation. |
Articles 280 and 283 of new law: the direct regulation of liability of carrier in case of delay in cargo delivery. This liability can be limited. |
|
POLLUTION LIABILITY |
Only the Owner was liable of the vessel. The agents, the charterer were not liable. |
The new Law is different to CLC/92 Convention. New Law establishes a wider liability holding liable not only the Owner of the vessel, but also a manager, charterer or any other person legally bonded to the vessel when pollution takes place. (art. 385). |
As you may see, this law is very extense and has tried to cover a vast number of matters that concern the maritime sector. As mentioned above, we have tried to summarize the changes in areas which we considered would be of interest for the international operators that call to Spanish Ports.
It will now be interesting to see the real application of these new regulations by our Spanish Courts and how the Spanish and International Maritime sector will react to its day to day application.
As local P&I Correspondents and Maritime Law Office we remain available should you have any enquiry or require any assistance at any Spanish Ports.
