SPAIN Law and Practice Contributed by: Verónica Meana, José Antonio Domínguez, Enrique Ortiz and Mikel Garteiz-goxeaskoa, Aiyon Abogados
interests accrued as of the date of the incident) before the competent court or providing security to the court’s satisfaction. Once the fund has been constituted, claimants cannot pursue their claims against any other asset. The constitution of the fund will also give rise to the release of any ship arrest (for the same claim). The release will be ordered by the court in which the fund has been constituted. 2.5 Seafarers’ Safety and Owners’ Liability The Maritime Labour Convention (the “MLC”) has been in force in Spain since 20 August 2013 with the publication of the instrument of ratifica - tion in the Spanish Official Gazette. Spain has also enacted Royal Decree No 357 of 2015 to incorporate Directive 2013/54/EU of the Europe - an Parliament and of the Council, of 20 Novem - ber 2013, concerning certain flag state respon - sibilities for compliance with and enforcement of the MLC. The Spanish Statute of Workers is also applica - ble to seafarers working aboard Spanish ves - sels. It also applies to any general workers. Spain is a member state of the Hague–Visby Rules, which apply to cargo claims under bills of lading. Where the Hague–Visby Rules are not directly applicable, the SSA remits the regulation of the liability regimes for all cargo claims, irre - spective of whether the carriage is contracted under a bill of lading, to the Hague–Visby Rules. Regulation of the carrier’s liability for loss, dam - age or delay under the SSA can be found in Arti - cles 277 to 285 of the SSA. 3. Cargo Claims 3.1 Bills of Lading
However, the First Final Disposition of the SSA provides that the SSA will adapt to the Rotter - dam Rules if these come into force in the future. Consequently, it is expected that, if the Rotter - dam Rules enter into force in the future, all car - riage of goods by sea contracts will be subject to their regime. 3.2 Title to Sue on a Bill of Lading Title to sue under a bill of lading corresponds to the lawful holder of the bill of lading. According to Article 251 of the SSA, valid transfer of the bill of lading entails the transfer of rights and actions to the transferee, with the exception of jurisdic - tion and arbitration clauses. Spanish law allows the assignment of rights, including the transfer of title to the goods and/ or the right to claim for cargo damages. In this regard, one of the most common cases of assignment occurs when the cargo insurer com - pensates the cargo interest and subrogates into its position. Subrogation entails the assignment of the title to sue in favour of the insurer. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages A carrier may be liable for partial or total loss or damages to the cargo and for delays. The carri - er’s liability regime, including limitation, extends to both the contractual and the actual carrier, who are considered to be jointly and severally liable towards the holder of the bill of lading. Unless the nature and value of the goods have been declared by the shipper before shipment, a carrier may limit its liability to an equivalent of 666.67 special drawing rights (SDR) per loss or damaged package or two SDR per kilogramme of gross weight of the goods actually lost or damaged, whichever is the higher.
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