“On International Maritime Conventions, never hurry” (the recent case of Spain)

19 Июл

Испания — первое в мире государство, которое ратифицировало Роттердамские правила, кроме того Испания присоединилась к Женевской конвенции об аресте судов от 12.03.1999, таким образом, можно констатировать, что эта Конвенция набрала достаточное для вступления в силу количество участников, так что вскоре ожидается вступление ее в юридическую силу

1.  Ratification of Rotterdam Rules»

Spain filed the ratification instrument with the depositary U.N. in New York the last 19th January 2011. In doing so, Spain is not only the first ratifying country in the European Union but also in the world. Even, ahead of the United States, the actual “consignee” of the UNCITRAL Convention.

However, such a ratification step made by the Spanish government took place without notice and alert of too many in the country as it was conducted behind doors through the Parliament but in the absence of any public discussion.

The move is, almost in its entirety, due to zeal and skill of the appointed Chairman of the Working Group III at UNCITRAL and masterly led the U.N. travaux preparatoires into shaping the 2009 Convention already well known as “the Rotterdam Rules”.

In the background of the Spanish ratification lies a clear support from the Spanish Shipowners Association (ANAVE) which is consistent with the pro-liner colour of the new Rules and was taken for granted. The views from the Shippers, from the Insurers, from the Forwarders, from the port agents, from the Judiciary were not taken or even sought. Two short seminars were hold by the Fall of 2010, at the Carlos III University (organized by Prof. R. Illescas with the support of the CMI) and at the Spanish MLA respectively. The implications of the ratification are notorious and important to the domestic interests. Spain is no longer a shipowning country and holds no liner services worthy outlining but on domestic routes. It is a country of users of door-to-door transportation, of exporters and importers with heavy commercial reliance on Spanish insurance companies; it is a country with 26 major ports and some containers hubs (Algeciras, Valencia, etc.) which the global carriers trade to and from. It is definitely by no means a country which may welcome a legislation that benefits the Carrier in as much as the Rotterdam Rules do.

Spain is also a country to leave behind a protracted law of the XIX century (the Commercial Code) so to replace its maritime provisions by a General Act of Marine Navigation, which is being examined by the Parliament at present and on the brink of being passed into law. The new Navigation Act is being awaited somehow near anxiously in order to rescue the national caselaw from a bunkerized doctrine, inter alia, of assimilation of the shipagent to the Sea Carrier. Under the new Navigation Act the liability regime for loss of or damage to the cargo responds to the pattern of the Hague-Visby Rules. The passing test of the Navigation Act did not have any link or reference to the ratification of the Rotterdam Rules, wherefore the former shall need be adjusted to the latter when this one comes into force if the Spanish law on sea carriage of goods is not to be twofold, one for the States party to the 2009 Convention and another for the non-parties and for Spanish nationals, as Spain will be bound to denounce the Hague-Visby Rules upon adopting the 2009 Convention.

It is rather surprising that Spain has opted for stepping forward before any other EU country may have done so, even those which signed the Convention (France, Norway, Greece, Denmark, the Netherlands and Poland). It seems that, prudently enough, the EU States were there to “wait and see” which course the own project of Multimodal Transport law in the EU would finally take. The Spanish Government did not care to wait but wanted to run first for the sake of no one knows.

The Spanish Courts will be now confronted with the forthcoming task of dealing with a rather complex and imprecise set of new rules, which divert themselves from the Hague-Visby Rules, while an entirely new body of legislation (the Sea Navigation Act) looms ahead. Litigation in the Spanish Courts during the next couple of decades may not be a healthy nor cheap exercise.

The Spanish ratification of the Rotterdam Rules is a hurried and premature decision, the consequences of which may well prove that the front runner is not always the winner.

2.  Spanish adoption of the Geneva Convention of 1999 relating to Arrest of Ships.

1.      Spain lodged the instrument of adhesion on the 7th June 2002.

2.      The Convention of 1999 will gain international force on the 14th September next after six months following to the tenth ratification or adhesion.

3.      The Convention will be effective in Spain on the 14th September 2011.

4.      Spain made the following reservation at the time of adhesion:

«The Kingdom of Spain, in accordance with article 10, paragraph 1(b), reserves the right to exclude the application of this Convention in the case of ships not flying the flag of a State party».

It is a “reservation of exclusion”, which was impliedly accepted by the other contracting States pursuant to Article 20.5 of the Vienna Convention.

5.      Spain will on the 14th September denounce the previous Brussels’s Convention of 1952 relating to Arrest of Seagoing Vessels.

6.      The denunciation of the 1952 Convention will entail the abrogation of the domestic Act 2/1967 relating to Arrest of foreign vessels.

7.      The combined effect of the Spanish reserve and the simultaneous denunciation of the 1952 Convention may lead to the result that only the vessels flying the flag of the 10 contracting States, as long as no further ratifications or adhesions take place, could be arrested in Spanish ports by a sole allegation of the maritime claim and that all other vessels belonging to non-contracting States will be subject to the ordinary procedure (Civil Process Act 1/2000).

8.      Bearing in mind that most of the current contracting States do not have an accountable merchant tonnage (e.g., Bulgaria, Estonia, Latvia, Syrian Arab Republic, Algeria) Spain would be no longer a suitable forum for obtaining an arrest order (save as for the vessels flying the Liberian flag).

9.      Legislative attempts are being made for filling the gap otherwise than by effect of an international instrument, whose completion is unknown.

10.    Whether or not the Spanish Courts will apply the new Convention 1999 to vessels from non-contracting States despite the diplomatic reservation, is not certain but, indeed, shipowners will have in hand a valuable legal asset for resisting arrest orders emanating from the rules of the new Convention in Spain from the 14 September onwards.

José M. Alcántara

Madrid, 18 July 2011