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CHANGE IN SPANISH JURISPRUDENCE CONCERNING THE FIGURE OF SHIP AGENT.

With the introduction of Law 62/1997, dated 26 December 1997, which modifies the Spanish Law of Ports and Merchant Marine 27/1992, a legal basis was established for a change concerning the figure of ship agent. After repeated calls for a change in doctrine from the sectors most affected by the old legislation (Code of Commerce 1885) and its interpretation by the Spanish Courts, this modification has been gradually applied in court decisions.

There seems to be a change in the interpretation of the figure of ship agent to an agent who contracts on behalf of a third party and, therefore, cannot be liable for the acts of the sea carrier since the ship agent and sea carrier are no longer considered the same figure. There are some recent decisions from the Court of Appeal of Barcelona (judgements dated 03.07.98, 06.07.99, 20.07.99, 23.12.99 and 01.02.00) and from the Court of Appeal of La Coruña dated 21.09.99, that provide a first step in this evolution.

Owners should now be more observing as they could directly receive at their own address a claim against them from a Spanish Court (summons), giving them between nine and twenty days to answer the lawsuit in Spain and provide all the defence documentation. Claimants could have even decided to request from the Court, together with their lawsuit, the arrest of the vessel when calling to any Spanish port in order to secure the seizure of goods.

The most recent of the aforementioned judgements, the decision of the Court of Appeal of Barcelona dated 01.02.00, states the following in its ratio decidendi:  «the ship agent is dedicated, professionally and in the name of the owner, to carry out administrative and technical work related to the vessel’s stay at the port where the ship agent performs his activity. In the performance of his activities the agent will be linked to the owner by a relationship which can take different forms;  from a branch office to a commissioner or agent (…)».

Continuing this judgement, «the reform of article 73.2 of the 27/1992 Law of Ports and Merchant Marine by Law 62/1997, dated 26 December 1997, (…) has arisen from the technically evident need to adapt the interpretation of article 586.2 of the Commercial Code to reality, as stated in article 3 of the Civil Code. This more accurate interpretation, repeatedly requested by doctrine, exempts the ship agent from liability for damages that cannot be attributed to him, even though they may be attributed to the owner, as the consideration of both as equally liable was the result of a legal construct which was not appropriate to the functions of either entrepreneur, the type of relationship that links them and the principle of liability for the acts of third parties ».

It should also be noted from this judgement that «…. the link between the agent and the owner being correctly defined as that of a commission or agent’s, depending on the circumstances of the case, the agent’s liability for the acts of the owner should be denied, unless the agent contracted the transport nomine proprio, no alieno, according to the general rules of indirect representation».

From the above judgements, we can see that an absolute change will be slow and will not take place until the same decision is finally pronounced by the Spanish High Court. When this happens, the change in interpretation will not seem so new and innovative to the other Spanish Courts of Appeal and there will be an homogenisation of the doctrine. Whereas some Courts of Appeal such as Barcelona and La Coruña regularly apply the new interpretation, other Courts of Appeal still follow the obsolete principle of considering the liability of the agent equal to that of the owner or charterer (e.g. judgements of the Court of Appeal of Alicante dated 13.02.98, Court of Vizcaya of 01.02.99, Court of Appeal of Málaga of 26.10.99).

From the above, we can conclude as follows:

1. Article 586.2 of our Commercial Code of 1885, which equalizes the ship agent with the owner, has become obsolete.
2. The 1997 modification to the 27/1992 Law of Ports and Merchant Marine clearly states that the ship agent acts on behalf of the sea carrier –unless otherwise clearly expressed and indicated-, therefore no liability can be attributed to the ship agent for another party’s acts.
3. The articles concerning the contract of commission –articles 244 and following of the Commercial Code- and the new Law 12/92, dated 27 May 271992, on Agency Contract, are also applicable.

As a result, claims should not be addressed to the ship agent simply because the agent may be easily located in Spain, but to the real liable party, although this may mean it is difficult to claim from an owner/carrier at a foreign address or in a country of a flag of convenience.