SPAIN Law and Practice Contributed by: Verónica Meana, José Antonio Domínguez, Enrique Ortiz and Mikel Garteiz-goxeaskoa, Aiyon Abogados
4.12 Damages in the Event of Wrongful Arrest of a Vessel A court will order the arresting party to pay for damages or costs caused by the arrest and to run with all legal costs in three scenarios. These are: • if the arrest is in dispute and after the hearing it is finally lifted by the arresting court, as set out in Article 741.2 of the Spanish Procedural Law; • if the arresting party fails to initiate the pro - ceedings on the merits in due time before the competent court or in arbitration, as set out in Article 730.2 of the Spanish Procedural Law; and • if the claim on the merits is dismissed in full, as set out in Article 745 of the Spanish Proce - dural Law. 5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims International Conventions and Domestic Laws Applicable to the Resolution of Maritime Passenger Claims Passenger claims in Spain are regulated by international conventions, EU Regulations and domestic laws. International conventions Spain is a State party to the 1974 Athens Con - vention relating to the Carriage of Passengers and their Luggage by Sea of 13 December 1974 (the “Athens Convention”) and of the 2002 Pro - tocol to that Convention (the “Protocol”). The Athens Convention and the Protocol provide a liability and insurance regime for passenger claims and their luggage and apply to interna -
tional 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 EU has adopted Regulation (EC) 392/2009 of 23 April 2009 on the liability of carriers of pas - sengers by sea in the event of accidents. This Regulation expands the provisions of the Ath - ens Convention, as amended by the 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 member state; or • the place of departure or destination is a The contract of carriage of passengers by sea is regulated 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 will be regulated by the Athens Convention, as amended by the Protocol which Spain is a party to, EU Regulations and the SSA. The Spanish Constitution establishes that inter - national conventions duly ratified by Spain and EU Regulations are not only directly applicable, but they also prevail and take preference over domestic law in the event of conflict. There - fore, while the three sources of law are currently directed to the Athens Convention, as amended by the Protocol, this has not always been the case, and conflict of law rules may have to be considered when deciding the applicable law in the future. member state. Domestic laws
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