SPAIN Law and Practice Contributed by: José Antonio Domínguez, Mikel Garteiz-Goxeaskoa, Enrique Ortiz and Irantzu Sedano Beitia, Aiyon Abogados SLP
• if the arresting party fails to initiate the proceedings on the merits in due time before the competent court or in arbitration, as set forth in Article 730.2 of the Spanish Procedural law; and • if the claim on the merits is dismissed in full, as provided by Article 745 of the Spanish Procedural law. 6. Passenger Claims 6.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Passenger claims in Spain are regulated by interna - tional conventions, European regulations and domes - tic laws. International Conventions Spain is a member state of the Athens Convention and the 2002 Protocol to that Convention, which provide a liability and insurance regime for passenger claims and their luggage. They apply to international carriage when the ship is flagged in a state party, the contract of carriage has been made in a member state, or the place of departure or destination is in a state party. EU Regulations The European Union has adopted Regulation (EC) 392/2009 of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents. This Regulation expands the provisions of the 1974 Ath - ens Convention, as amended by the 2002 Protocol, to domestic carriage within member states for ships of Classes A and B when: • the ship is flying the flag of a member state; • the contract of carriage has been made in a mem - ber state; or • the place of departure or destination is a member state. Domestic Laws The contract of carriage of passengers by sea is reg - ulated by Articles 287 et seq of the SSA. The SSA applies to both international and domestic carriage of passengers and their luggage by sea and provides, in Article 298, that carriers’ liability shall be regulated by the 1974 Athens Convention, as amended by the
Protocols to which Spain is a party, the Regulations of the European Union and the SSA. The Spanish Constitution establishes that interna - tional conventions duly ratified by Spain and Euro - pean regulations are not only directly applicable, but they also prevail and take preference over domestic law in the event of conflict. Therefore, while the three sources of law are currently directed to the 1974 Ath - ens Convention, as amended by the 2002 Protocol, this has not always been the case, and conflict of law rules may have to be considered when deciding the The time limit for any action for damages arising out of the death of or personal injury to a passenger, or for the loss of or damage to luggage, is two years. This time limit is the same for actions under the Athens Convention, the European Regulation or the SSA. This two-year period may be interrupted and renewed by a letter of demand or by acknowledgement of liabil - ity. Limitations on Liabilities Available to the Owners in Respect of a Passenger’s Claim A carrier’s liability for the loss suffered as a result of the death of or personal injury to a passenger is limited to 400,000 SDR per person on each distinct occasion. In the death of or personal injury to a passenger as a result of a shipping incident, the carrier shall be liable up to 250,000 SDR, unless the carrier proves that the incident resulted from an act of war, hostilities, civil war, insurrection or force majeure, or was wholly caused by an act or omission by a third party with the intent to cause the incident. If and to the extent that the loss exceeds this limit, and up to a limit of 400,000 SDR, the carrier shall be further liable unless the carrier proves that the incident occurred without their fault or neglect. For death or personal injury not caused by a shipping incident, the carrier will be liable if the incident was due to the fault or neglect of the carrier. The burden of proof lies with the passenger. applicable law in the future. Time Limit to File a Claim
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