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SPAIN – PORTS LAW 48/2003 MODIFYING THE PREVIOUS PORTS LAW 27/1992: REVIEW AFTER ITS ONE YEAR APPLICATION

 
The Spanish new socialist government plans to modify the controversial Law 48/2003, which entered into force on 27 February 2004 and was approved by the popular party. Not only does this law modify the Ports Law 27/1992, but it is largely modelled on the failed European Port Services Directive. Our Ports Law has been object of three modifications in the last ten years and after various discussions in the local shipping sector, it now seems that the socialist government will publish, in year 2006, a new law instead of modifying the Law 2003 as initially informed.

The Law 48/2003 has basically changed the tariff structure for the use of ports facilities, as prices paid are considered to be taxes instead of private prices. This has created chaos and competition between the various ports. As from February 2004, each Spanish Port Authority is free to apply a different amount on taxes, contrary to the previous situation which unified port tariffs.

PORT TAXES. The aims of the law 48/2003 are:

• To adapt the existing economic regime to ensure that ports take on full landlord model and limit themselves to the provision and management of infrastructure, leaving the supply of services solely to the private sector.
• To establish a new tariff structure for state-owned ports, continuing with the principle of financial autonomy.
• The new port law aims at liberalising access to port services.

DETENTION OF VESSELS. With the previous Law 27/1992, it was possible to detain a vessel only as a preventive measure in pollution cases to ensure payment of the possible fine in Sanctioning Proceedings against owners and Master, which cases are contemplated as an infringement in this Ports Law. For all the other cases contemplated as infringements (either small, severe or very severe) in this Law, it was also possible to detain a vessel, but it was however necessary that the Harbour Master first notified the Resolution of Initiation of Sanctioning Proceedings in order to detain the vessel (that is, not as a preventive measure), otherwise the detention could be declared null.

With the Law 48/2003, the detention of a vessel is possible any time during the Sanctioning Proceedings in all those situations which are contemplated only as severe or very severe infringements under the 27/1992 Ports Law. That is, for small infringements, a vessel can not be detained, according to this law. Amongst  severe and very severe infringements, we can find the following incidents: pollution, stowaways, damage to quay, lack of compliance with International Conventions, lack of necessary certificates on board the vessel, all those situations which put in danger the safety of the vessel or her navigation, infringements against marine security as contemplated in the law (lack of compliance with port regulations, sailing without necessary conditions of navigability, etc.), infringements against Dispositions of Maritime Traffic, etc.

The only way to release the vessel continues to be by providing a guarantee which is understood to be sufficient to cover the possible fine. That is, the amount is not determined by the law and will depend on the criteria of the HM or General  Directorate of the Merchant Marine. As regards the types of guarantees accepted, these are cash money, cheques, bank guarantees and treasury bonds (see our Circular 7A/2004 of 15 October 2004). There are however exceptional circumstances where other type of guarantees could be accepted.

Port Authorities are detaining vessels, not only to guarantee the possible fine but also to guarantee the recovery of any costs incurred to fight pollution, to fight fire, to fight against any peril in marine safety, etc.

ABANDONED SHIPS. The new law allows Port Authorities to sell at public auction ships which are berthed or anchored, if they are left with no activity in the ports for a period of 6 months and with outstanding payments of taxes. The declaration of abandoned vessels requires a prior procedure whereby the Owners of the vessel will be able to defend themselves in a hearing. If the vessel is declared abandoned, it will be sold at public auction and the money obtained will go to the Treasury Department. The Spanish port where there is a higher number of abandoned vessels is the port of Las Palmas in the Canary Islands. It should be noted that with this new law 48/2003, the 54 abandoned vessels in the port of Las Palmas are being sold at public auction as from August 2004.

DETAINED VESSELS BY A PUBLIC AUTHORITY IN LEGAL OR ADMINISTRATIVE PROCEEDINGS AND WHICH HAVE NOT BEEN RELEASED BY GUARANTEE. The new law allows Port Authorities to request from the authorities either the sinking or the sale at public auction of a vessel when she represents a potential danger to people or to property or when she causes problems to the port activity.

WITH THIS NEW LAW, SOME OF OUR INDECO CIRCULARS HAVE BEEN MODIFIED AS FOLLOWS :

CIRCULAR 3A/2000 regarding liability of ships agent in respect of cargo. With the new law, the liability of the ship agent in respect of cargo will be that of the ship owner or carrier, unless the Courts consider otherwise as our Code of Commerce equalizes the ship agent with the shipowner. Cargo claims can now be also addressed against the ship agent simply because the agent and the goods are easily located in Spain.

CIRCULAR 6A/2000 regarding general information concerning Spanish ports’ official tariffs is not applicable any more. This is because, as previously advised, each Port Authority may now apply different taxes / rates. It should be noted that there is a new port tax for “general services” by which an additional percentage upon all the taxes applied to the particular vessel (vessel tax, passenger tax, taxes including pilots and port tugs, i.e.) will be charged to the owner or carrier. The abolition of this new tax is however now being discussed by the shipping sector, but it will not be applied in year 2005.

The application of the new law has resulted in a more expensive ship-stay costs, without, as criticised by the shipping sector, necessarily increasing service levels / quality. It is said that in the long run, it will result in an increase of shipping / freight costs.

Should any shipowners or operators have any queries in respect of any of the subjects informed, they should not hesitate to contact us.