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SPAIN – NEW DOMESTIC LAW RULING VESSEL TRAFFIC MONITORING AND INFORMATION SYSTEM AND IMPOSING NUMEROUS CONDITIONS ON THE GRANTING OF PLACES OF REFUGE INCLUDING THE PROVISION OF HUGE FINANCIAL GUARANTEES

On 15 February 2004 Royal Decree 210/2004, a new law ruling vessel traffic monitoring and information system in Spain, came into force. This regulation incorporates EU Directive 2002/59/CE drawing up plans whereby ships in distress may, if the situation so requires, be given refuge in their ports or any other sheltered area in the best conditions possible. These plans include the provision of adequate means and facilities for assistance, salvage and pollution response.

This regulation is in principle applicable to ships of 300 gross tonnage and upwards carrying dangerous and/or polluting cargo, and shall not apply to:

• Fishing vessels, traditional ships and recreational craft with a length of less than 45 metres. To this vessels however, it will be applicable from art. 17 to 25 of this RD
• Bunkers below 5000 tons, ships´ stores and equipment for use on board ships.
• Warships, naval auxiliaries and other ships owned or operated by a public authority and used for non-commercial public service.

Key technological progress has been made in the area of on-board equipment allowing automatic identification of ships (AIS systems) for enhanced ship monitoring, as well as voyage data recording (VDR systems or “black boxes”) to facilitate investigations following accidents. According to its article 6 such equipments are compulsory on board ships calling at Spanish ports, either in national or international voyage. The data provided by a VDR system can be used both after an accident to investigate its causes and preventively to learn the necessary lessons from such situations. 

Compulsory notification prior to entry into a Spanish port:

• The owner, operator, agent or Master of a ship bound to a Spanish port shall notify the information as set out in the first paragraph of Annex I (identification of vessel and of cargo) to the competent port authority, at least twenty-four hours in advance; or at the time the ship leaves the previous port, if the voyage time is less than twenty-four hours; or if the port of call is not known or it is changed during voyage, as soon as this information is available.
•  Ships coming from a port outside the EC and bound to a Spanish port carrying dangerous or polluting goods shall comply with the notification obligations of article 13, which establish: The operator, owner, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods coming from a port located outside the EC and bound to Spain or its territorial waters shall, at the latest upon departure from the loading port or as soon as the port of destination or the location of the anchorage is known, if the information mentioned in Annex I (2&3) is unavailable at the moment of departure, notify the information indicated to the Harbour Master in which the first port of destination or anchorage is located.

Details of the information to be notified to the Harbour Master, which details will be provided by the shipagent to the vessel, are in summary:

• Cargo information: correct technical names of the dangerous or polluting goods, address from which detailed information on the cargo may be obtained, … .
• General information: ship identification, port of destination, for a ship leaving a port in a   Member State, ETD from the port of departure,… .

It is important to note that the non-compliance with the requirements of this Royal Decree can be typified as an administrative infraction as per our 27/1992 Spanish Ports and Merchant Marine Law, which has been recently modified by Law 48/2003. In practice this means that Sanctioning Proceedings will be initiated by the Harbour Master against owners, operators and / or Master, who will adopt the detention of the vessel as a preventive measure to guarantee the payment of the possible sanction.

PLACE OF REFUGE: This legislation also establishes that the Spanish Maritime Administration shall draw up in two years time, plans to accommodate in the waters under Spanish jurisdiction ships in distress. Such plans will contain the necessary arrangements and procedures taking into account operational and environmental constraints, to ensure that ships in distress may immediately go to a place of refuge subject to authorisation by the competent authority.

Although the General Director of Merchant Marine is the competent authority to give the permission to a vessel to enter into a Spanish Place of Refuge on a case by case basis, its exercise can be delegated to the Harbour Master where the vessel is.

In order to enter into a Place of Refuge, a financial guarantee can be requested by the Harbour Master to pay any forthcoming costs of damages, if any, to ship’s operator, the shipping company or cargo interests. The guarantee will be requested when  certain circumstances of take place (i.e. when there is risk for the vessel of fire, explosion, failure, collision, pollution, grounding … or other situation which can risk life of people or damage the marine environment or natural resources). When the guarantee can not be immediately formalised because it is a bank holiday or non office hours, a cheque can be initially presented, or even a bond or guarantee with the same effects, at the discretion of the General Directorate of the Merchant Marine, which will be then substituted. The guarantee will be returned if there have not been any damages nor costs.

It should however be noted that despite the amounts of the guarantees have been reduced a 50% before the approval of this regulation, they continue to be very high as in a situation of a medium tank vessel carrying oil the amount of Euro 7 millions can be requested, amount which is ten times more than the value of the vessel plus her cargo and up to 2.5 millions in the rest of vessels. From INDECO we have already approached different Spanish maritime associations to see possibilities that a Club Letter of Undertaking is accepted by port authorities in situations where a port of refugee is needed. We are aware that ANAVE not only is also proceeding accordingly but they are also trying that the amount of the guarantees are reduced.