6. Derecho de Transporte

Agenda for Introduction to DM

• Introduction to DM
• Spaces
• Subjects
• Vessel
• Maritime transport contracts
• Maritime freights
• Transport in CE regime
• INCOTERMS
• Documentary credit
• Land transport and passenger contracts
• Land transport
• Passenger transport

Diagram of Maritime Spaces and Activities

• Activity: Navigation
• Space: "maritime spaces"
• Legal relations
• Vehicle: ship
• People

Transversal Nature of Maritime Law

• International Law
• International Private Law
• Commercial Law
• Labor Law
• Administrative Law
• Criminal Law
• Maritime Navigation Law

Sources of Maritime Law

• International maritime conventions and EU regulations (IMO, IMC, UNCITRAL) - Uniformity
• Maritime legislation
• Common law
• Maritime customs and usages
• International jurisprudence, rules, forms, and model contracts

Maritime Legislation

• Law 14/2014, of July 24, on Maritime Navigation
• Royal Legislative Decree 2/2011, of September 5, which approves the Consolidated Text of the Law of Ports of the State and the Merchant Marine
• Regulations:
  • Registration, flagging, and registration of ships
  • Ship inspection and certification

Auxiliar Contracts of Navigation

• Managing naval preferences
• Consignment of vessels
• Port operations
• Damage to the ship
• Salvage
• Maritime security
• Vessel responsibilities
• Limitation of liability
• Insured interests
• Covered risks
• Obligations and indemnities of the parties
• Jurisdiction standards and competence
• Preventive seizure
• Judicial sale
• Vessel specialties
• Certification of maritime documents
• Vessel usage contracts
• Multimodal transport
• Passenger transport
• Towage
• Maritime nautical lease

Maritime Navigation Spaces

• High seas
• Continental shelf
• Exclusive Economic Zone (200 nautical miles)
• Contiguous Zone (12 nautical miles)
• Territorial sea (12 nautical miles)
• Inland waters
• Base line

Subjects of Navigation

• Shipowner: holds the ownership of the vessel
• Charterer: responsible for hiring all or part of a vessel
• Ship's crew: responsible for the operation
• Port authority: authorities within the coastal areas
• Maritime agents: act representing the interests of the shipowner or charterer.
• Freight forwarder: in charge of the cargo's transport.
• Maritime organization: associations that manage the interests of the maritime sector
• Other entities: (Classification societies, governmental and private institutions)

Subjects of Navigation: (a) Initiators

• Shipowner : person who owns the ship
• Charterer: responsible for hiring all or part of a vessel
• Agent: acts on behalf of the shipowner or charterer
• (b) Subjects in charge of navigation on behalf of others)
• Crew: the group of people working on the vessel
• Captain: the person in charge of the vessel
• Technical staff : person managing technical operations
• Commercial staff : person handling commercial matters

Vessels

• Ship status
• Rights of guarantee: mortgages and privileges
• Property rights : sale and construction
• Contract objects : transport, freights, and auxiliary services

Registral System

• Dual system:
  • Registration register (legal-public/administrative)
  • Register of movable property (legal-private/commercial)
  • Ship registration in specific maritime jurisdiction, for
    • Safety measures ,crew qualification, and disciplinary measures
  • Nationality and flag flying rights
  • Diplomatic protection and consular services
  • Activities in territorial sea by the flag State (fishing, dredging, or recreational)

International Panorama

• Operations:
  • Denmark and Switzerland (30%)
• Financing & Insurance:
  • UK and Scandinavia
• Construction:
  • Korea and China (72%)
• Workers:
  • China, Philippines, and Indonesia (60%)
• Ownership:
  • Greece, Japan, and China (48%)
• Registration:
  • Panama, Liberia
• Demolition:
  • India, Bangladesh, and China (92%)
• Port Terminals:
  • Rotterdam, Singapore, and Hong Kong (50%)

Maritime Cargo Transport Contract

• Contract typology
• Applicable Law
• Documents
• Obligations of the parties and liability
• Causes of exoneration and limits of liability
• Claims and protests

Contract Typology and Structures

• Freight contract - charterer
• Time (charterer-shipowner assumes the cost of ship management) or voyage (charterer -shipowner assumes the cost and responsibility of the ship)
• CE regime transport of goods (partially regulated - autonomy of the parties) - object of the contract: goods
• Passenger transport (totally regulated - mandatory rules)

International Trade/Port Activity Relationships

• Buyer
• Seller
• Shipper
• Carrier

Inland transport contract

• Characteristics
  • Objective, fungible, consensual, reciprocal, and onerous
• Legal regime
  • National: 15/2009, 16/87
  • International: 1956 (CMR)
• Personal elements
  • Carrier
    • Sub-carrier
    • Forwarder
  • Shipper
  • Receiver
• Documents
  • Carriage contracts
• Liability

Carriage contracts and documents

• Charterparty (types of charters and agents involved)
• The Bill of Lading: evidence of reception and contract of carriage, its use as a document of title
• Seawaybill: non-negotiable document suitable for various multimodal transport
• Obligations
• Claims and disputes - remedies
• Period of liability vs. period of custody

Documentary Sales (Credits)

• Diagram of the process: buyer, seller, bank relationship

Advantages of Documentary Credits

• Advantages for Buyers
  • No payment obligation until all conditions are met
  • Using extended credit terms
  • Discount negotiation potential
  • Improved credit rating
• Advantages for Sellers
  • Payment guaranteed before shipment
  • Higher payment security level
  • Prevents order cancellation
  • Improved liquidity

INCOTERMS

• International commercial terms: set of international rules that determine the mutual obligations of sellers and buyers
• Risks, costs, and responsibilities

Carrier's Obligations (Origin)

• Making the ship available - Remedies
• Seaworthiness (Cargoworthiness)

Carrier's Obligations (During Voyage)

• Unjustified delays in departure
• Deviations from the route for justified reasons
• Care of the goods (custody)

Carrier's Obligations (End of Voyage)

• Delivery to the holder of the B/L or consignee
• Evidence (prima facie) of delivery
• Storage of goods if delivery is refused

Liability Period vs. Custody Period

• Carrier liability during the transport period (loading to discharge)
• Domestic laws (limitation of liability or damages)
• Exoneration reasons under HVR
• Rights of the parties

Claims, Prescription, and Legitimacy

• Reservations of the recipient
• Manifest damages vs. hidden damages
• Prescription term: one year
• Legitimacy

Jurisdiction for Maritime Disputes

• Competent courts
• Maritime transport boards