Shipping 2026

SPAIN Trends and Developments Contributed by: Albert Prats Ribas and Jordi Mayol Orga, BUFETE A. PRATS

investigation received more than 8,000 public com - ments in its initial phase. In its 19 December 2025 update (published in the Fed - eral Register, Vol 90, No 243, on 22 December 2025), the FMC concluded that, based on the information obtained, the laws or regulations adopted, followed or enforced by Spain “are likely creating general or special conditions unfavorable to shipping in U.S. for - eign trade”. Available countermeasures Section 42106 of Title 46 USC empowers the FMC to adopt various countermeasures when it determines that unfavourable conditions exist. It can: • limit voyages to and from US ports, or the quantity or type of cargo carried (Section 42106 (1)); • suspend, in whole or in part, tariffs and service contracts for transport to or from US ports (Section 42106 (2)); • suspend a carrier’s right to operate under agree - ments filed with the Commission (Section 42106 (3)); and • impose a per-voyage charge, with a statutory limit of USD1 million per voyage adjusted for infla - tion – as of December 2025, the adjusted limit is USD2,304,629 per voyage (Section 42106 (4)). Section 42106 (5) also grants the FMC a residual clause allowing it to take any other action it deems necessary and appropriate to adjust or address unfavourable conditions for maritime transport in United States foreign trade. In addition, Section 42107 allows the FMC to request the Secretary of Homeland Security to deny customs clearance to vessels from a regulated country, and to collect the fees imposed by the Commission. It may also request that ships from the affected country be denied entry to US ports or that ships about to depart from a US port be detained. The FMC’s procedure illustrates the ability of the US regulatory system to respond unilaterally to practices by foreign governments that it considers harmful to its maritime interests. At the time of writing, the Com - mission has not adopted a final determination, having requested additional public comments by 20 Febru -

ary 2026. The eventual adoption of countermeasures would have direct effects on bilateral trade flows between Spain and the United States. Conclusions The restrictions introduced by RDL 10/2025 are for - mally based on the administrative control of foreign trade in defence material, in accordance with the regime established by Law 53/2007 and RD 679/2014, and not on the direct exercise of the powers to restrict access to ports regulated in Article 20 of the LNM. However, the practical effect of the systematic denial of transit authorisations is equivalent: ships carrying goods included in the material scope of RDL 10/2025 cannot make operational stops in Spanish ports. This distinction is essential to understanding the scope of the conflict under analysis. While access to port is subject to the discretion of the coastal State in accordance with internal security criteria, innocent passage through territorial waters is protected against measures that have the practical effect of denying or impeding that right (Article 24.1 UNCLOS). In the specific case of the Strait of Gibraltar, the appli - cable regime is that of transit passage (Articles 37–44 UNCLOS), which establishes a more demanding standard: Article 44 categorically prohibits impeding transit passage. The systematic denial of stopovers in Algeciras could be examined under this standard if it is proven to have a de facto hindering effect on routes that depend on that port to complete transit. The FMC’s reaction highlights a structural tension inherent in contemporary maritime law. The US regu - latory framework, set out in Title 46 USC Chapter 421, prioritises the material impact of certain foreign prac - tices on maritime transport, regardless of their formal compatibility with international maritime law. This functional approach creates a scenario in which sovereign decisions taken in accordance with a State’s domestic law can trigger regulatory responses in other legal systems, including countermeasures with con - siderable economic impact.

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