Spain does not have exclusive courts specialised in maritime and shipping matters.

However, within the Spanish civil jurisdiction there are two types of courts at present. These are First Instance Courts and Mercantile Courts. All maritime and shipping matters are to be adjudged by the Mercantile Courts. In line with Article 86 bis.1 of the Organic Law of the Judiciary, Mercantile Courts have exclusive competence over those claims related to the application of maritime law and other mercantile matters (including corporate law, insolvency law, carriage in general, etc).

On 2 January 2025, Spain enacted Organic Law No 1 of 2025 regarding Measures to Improve the Efficiency of the Public Justice Service which is not yet in force. One of the main changes introduced by Organic Law No 1 of 2025 will essentially be that the Mercantile Courts will be dissolved, and Mercantile Divisions will be established in their place. They will have jurisdiction to adjudicate cases involving the application of the Maritime Law. This change is expected to come into effect on 31 December 2025.

Common claims filed before the Mercantile Courts are:

• cargo claims;
• collisions;
• claims arising from ship construction or repair contracts;
• contractual disputes;
• stevedore damages to the ship or the cargo; and
• marine insurance disputes.

Ship arrest is another common application dealt with by the Mercantile Courts.

However, salvage and emergency towing claims, may be heard before the Maritime Arbitration Conseil (an administrative body) if salvors and ship-owners agree to that. In the absence of such an agreement and following the Second Additional Disposition of the Spanish Shipping Act 2014 (the “SSA”), Mercantile Courts would also have jurisdiction to hear salvage and emergency towing claims. Until the Maritime Arbitration Conseil’s Regulation is enacted, the Conseil’s functions will be exercised by the Central Maritime Courts (an army body).

Claims related to labour issues, such as seafarers’ claims related to their employment contract, labour rights and personal injury affecting crew and others, are subject to the jurisdiction of the labour courts according to Article 9.5 of the Organic Law of the Judiciary.

Cases concerning marine sanctioning proceedings derived from breach of maritime regulations (the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution from Ships (MARPOL), etc), port dues and/or against the Spanish Maritime Administration are heard by the Contentious Administrative Courts in line with Article 9.4 of the Organic Law of the Judiciary.

Royal Decree No 1737 of 2010, approves the Regulation that establishes the inspections of foreign vessels in Spanish ports. These inspections are carried out to ensure compliance with international and EU Conventions and Regulations for the safety of life at sea, marine and environmental protection, and life and work standards for seafarers, within the framework of the Memorandum of Understanding of Paris (the “Paris MOU”).

The competent authority for foreign vessel inspections is the Ministry of Transport and Sustainable Mobility through the Harbour Master Offices in each port.

Groundings and wreck removal outside internal waters are also subject to the powers of the Ministry of Transport and Sustainable Mobility through the Harbour Master Offices, whereas grounding and wreck removal within internal waters are subject to the relevant Port Authority. In both cases, the competent authorities have the power to request salvage or wreck-removal operations from the owner or its insurer.

If owners or insurers do not comply with this request, the competent authorities are empowered to sink the vessel or remove the wreck at the owner’s/insurer’s expense, without the possibility of claiming limitation of liability. Authorities would have a lien on the recovered property and can sell it to recover the costs incurred.

In order to prevent marine pollution, the Harbour Masters and Port Authorities are empowered to visit, inspect and arrest vessels within Spanish jurisdictional waters and to initiate judicial actions or any other action they deem necessary to protect the environment.

As a State party to the International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (the “OPRC Convention”), Spain has developed the National Marine Response Plan and the National Shore Protection Plan to prevent and fight pollution at sea and on shore under the powers of the Ministry of Transport and Sustainable Mobility and Coastal Directorate, who will co-ordinate the response to pollution with the assistance of the Spanish salvage public company (SASEMAR), the Army, the police, firefighters, scientific public agencies, etc. The costs of the response will be claimed against the polluter.

Ship registration is regulated by Royal Legislative Decree No 2 of 2011 (the “State Port and Merchant Navy Act”), the SSA and Royal Decree No 1027 of 1989, that regulates ship registration and the Maritime Registry.

All vessels in Spain must be entered on two registries of different natures:

• the Marine Administrative Registry; and
• the Registry of Movable Goods, where ownership, mortgages and encumbrances will be registered.

The Marine Administrative Registry is the responsibility of the Ministry of Transport and Sustainable Mobility and is located in the different Harbour Master Offices. The Marine Administrative Registry provides for the registering of ships through a list system that depends on the activity to be performed by each ship. However, the Registry of Movable Goods, is the responsibility of the Ministry of Justice.

It is worth mentioning the Special Registry of Ships and Shipping Companies of the Canary Islands (the “REBECA”), which provides for important tax allowances and corporate benefits.

Under the Spanish State Ports and Merchant Navy Act, only individuals or companies domiciled in Spain or in any of the European Economic Area (EEA) countries, provided that they have a representative within Spanish territory, can own a Spanish-flagged vessel. For companies domiciled outside the EEA, the Spanish flag is only accessible if the vessel is registered under the REBECA.

Title to ownership (sale contract) will be in writing and ownership will be acquired with the delivery of the vessel after the contract of sale purchase. However, in order to register the ownership of the vessel, the sale contract needs to be contained in a public deed.

Vessels under construction are registered in list nine of the Marine Administrative Registry. List nine is a temporary registration for these vessels. Once the construction has finished, the vessel is registered in the appropriate list according to the purpose of the vessel and the temporary registration is closed.

Vessels under construction can also be registered in the Registry of Movable Goods. Registration in the Registry of Movable Goods is compulsory when the vessel under construction is subject to a mortgage.

Temporary registration of vessels under the Spanish flag is permitted when a foreign-flagged vessel is under a bareboat charterparty and the charterer has its domicile in Spain. The temporary registration will last for the duration of the charterparty.

Spanish-flagged vessels chartered by a person domiciled outside Spain may also be temporarily registered in the country of the charterers for the duration of the charterparty.

However, Spain does not permit a dual registration. Vessels registered in Spain may only fly the Spanish flag. Temporary registration of a foreign vessel in Spain will only take place after the Registry is satisfied that the vessel has been suspended from its original flag.

The constitution, modification or cancellation of a mortgage or encumbrance on a vessel must be recorded in the Registry of Movable Goods which is the responsibility of the Ministry of Justice. The mortgage agreement may be granted by means of a private contract or a notarial deed. The mortgage agreement must identify:

• the parties;
• the loan guaranteed by the mortgage;
• the date of payment of capital and interest;
• the description and identification of the vessel;
• the value of the vessel (if two or more vessels are mortgaged);
• the amount for which each vessel is mortgaged; and
• any other contractual provision to which the parties have agreed.

The Registry of Movable Goods and the Maritime Registry are public. Any one may obtain information from their records by applying to the Registry and paying the fees required for that information.

Spain is a State party to the 1992 International Convention on Civil Liability for Oil Pollution (the “CLC Convention”), the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (IOPC Fund) and the 2003 Supplementary Fund Protocol and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (the “Bunker Convention”).

Owners’ and interested parties’ civil liability in the event of pollution is also regulated by the SSA, although the application of the aforementioned Conventions is preferential over domestic law. Articles 386, 388, 389 and 391 of the SSA implement a strict liability regime for the owner of the polluting vessel, its right to limit liability and its obligation to subscribe a civil liability insurance covering liability for pollution.

As for wreck removal, Spain is not a party to the International Convention on the Removal of Wrecks (the “2015 Nairobi Convention”). Accordingly, wreck removal is regulated by Articles 369 to 383 of the SSA and by Article 304 of the Spanish State Ports and Merchant Navy Act.

Spanish domestic law establishes owners’ direct liability for wreck removal and provides that the administration costs arising from wreck-removal activities are privileged. Owners do not have a right to limit liability under the Convention on Limitation of Liability for Maritime Claims (the “LLMC 76/96”) in line with the reservation made by Spain to this Convention for wreck-removal claims.

Regulation of Collisions

Collisions are regulated by the 1910 Collision Convention and other related Conventions, such as the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in the matter of Collisions or other Incidents of Navigation, made in Brussels in 1952 or the 1972 International Regulations for Preventing Collisions at Sea (COLREGS). In Spanish domestic law, collisions are regulated by Articles 339 to 346 of the SSA.

Regulation of Salvage

Salvage is regulated by the 1989 International Convention on Salvage and Articles 357 to 368 of the SSA.

Setting aside specific liability regimes to be applied in Spain, such as the Hague–Visby Rules, the CLC, the Athens Convention, the Bunker Convention, etc, owners are entitled to limit their liability in line with the 1976 International Convention on Limitation of Liability and its 1996 Protocol. The SSA grants ship-owners and carriers the right to opt for the application of the LLMC 76/96 limit or the applicable specific limit.

Articles 392 to 405 of the SSA also regulate the limitation of liability and state the LLMC 76/96 is the applicable regime.

Articles 403 to 405 of the SSA regulate the owners’ right to establish a limitation fund. The limitation fund must be constituted by placing the amount of the limitation (including the 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.

The Maritime Labour Convention (the “MLC”) has been in force in Spain since 20 August 2013 with the publication of the instrument of ratification in the Spanish Official Gazette. Spain has also enacted Royal Decree No 357 of 2015 to incorporate Directive 2013/54/EU of the European Parliament and of the Council, of 20 November 2013, concerning certain flag state responsibilities for compliance with and enforcement of the MLC.

The Spanish Statute of Workers is also applicable to seafarers working aboard Spanish vessels. 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, irrespective of whether the carriage is contracted under a bill of lading, to the Hague–Visby Rules.

Regulation of the carrier’s liability for loss, damage or delay under the SSA can be found in Articles 277 to 285 of the SSA.

However, the First Final Disposition of the SSA provides that the SSA will adapt to the Rotterdam Rules if these come into force in the future. Consequently, it is expected that, if the Rotterdam Rules enter into force in the future, all carriage of goods by sea contracts will be subject to their regime.

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 jurisdiction 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 compensates the cargo interest and subrogates into its position. Subrogation entails the assignment of the title to sue in favour of the insurer.

A carrier may be liable for partial or total loss or damages to the cargo and for delays. The carrier’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.

The carrier’s liability for delay will be limited to two and a half times the amount of freight charged for the affected cargo, with the maximum limit equivalent to the freight charged for the complete cargo.

The right to limit liability does not apply in the case of wilful misconduct or gross negligence of the carrier.

Carriers are entitled to opt for the aforementioned limitation of liability regime or to apply the limitation of liability regime under the LLMC 76/96.

The carrier can establish a claim for damages against the shipper for misdeclaration of cargo, as established in Article 260 of the SSA. Other remedies are the right to discharge the cargo in certain circumstances and the right to destroy it in the case of dangerous goods (Article 232 of the SSA). As of January 2023, no relevant judgment on these SSA provisions has been published.

The time bar to file a claim for lost or damaged cargo is one year. This time limit applies to both contractual and tort claims.

The Hague–Visby Rules provide that this time bar can be extended by agreement of the parties (ie, a time extension). The time bar cannot be interrupted by a letter of demand to the respondent. If the claim is not filed within that one-year period or within the time extension, the action is time-barred.

However, under Article 286 of the SSA, and notwithstanding the remission to the provisions of the Hague-Visby Rules, it is not clear whether this one-year time bar will be considered interruptible by a letter of demand or whether it will require the claimant to obtain a time-extension agreement. There are appeal court judgments suggesting that the one-year time bar is not interruptible if the carriage is governed by a bill of lading as a contract, but this will be a matter for the Supreme Court to rule on.

Spain is a State party to the International Convention on Arrest of Ships signed at Geneva on 12 March 1999 (the “1999 Arrest Convention”) that came into force on 14 September 2011.

The domestic law that covers ship arrest in Spain is Article 470 et seq of the SSA and the provisions regulating general conservatory measures in Article 721 et seq of the Spanish Code of Civil Procedure.

Spain is a State party to the International Convention on Maritime Liens and Mortgages signed at Geneva on 6 May 1993 (the “Lien Convention”) that entered into force in Spain on 5 September 2004.

Furthermore, Article 122 et seq of the SSA, also provides that maritime liens be governed by the Lien Convention.

Accordingly, and as established in Article 4.1 of the Lien Convention, the following claims are considered liens:

• claims for wages and other sums due to the Master, officers and other crew members with respect to their employment on the vessel, including repatriation costs and social insurance contributions payable on their behalf;
• claims with respect to loss of life or personal injury, whether occurring on land or water, in direct connection with the operation of the vessel (with the exception of Article 4.2(a) and Article 4.2(b));
• claims for reward for the salvage of the vessel;
• claims for port, canal and other waterway dues and pilot dues; and

• claims based on tort arising out of physical loss or damage caused by the operation of the vessel, other than loss of or damage to cargo, containers and passengers’ effects carried on the vessel (with the exception of Article 4.2(a) and Article 4.2(b)).

Following Article 124 of the SSA, any other possible liens (outside the Lien Convention) recognised under domestic law, EU Regulations or any other international treaty applicable in Spain would have lower rank than mortgages and other registered charges.

The Spanish government is currently considering amending the SSA to include claims related to ships’ supplies and to ships’ repairs, done in Spanish ports, as maritime liens.

According to Article 4.1 of the Lien Convention, Spain will recognise a maritime lien for indemnities for injuries to crew members.

Spain differentiates between maritime liens and maritime claims.

Maritime claims are all those claims, listed in Article 1(1) of the 1999 Arrest Convention, that enable a claimant to arrest a ship. This not only includes the maritime liens of the Lien Convention but also other claims.

A maritime lien is a claim that “follows” the vessel. Liens are considered “actions in rem”, and therefore they enable the arrest of a ship and/or the enforcement of a claim on the ship, regardless of any potential change of ownership/register number or flag.

A vessel can be arrested in Spain by alleging before Spanish courts any of the following maritime claims listed in Article 1 of the 1999 Arrest Convention:

• loss or damage caused by the operation of the ship;
• loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;
• salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;
• damage or threat of damage caused by the ship to the environment, coastline or related interests, measures taken to prevent, minimise, or remove such damage, compensation for such damage, costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken, loss incurred or likely to be incurred by third parties in connection with such damage, and damage, costs, or loss of a similar nature to those identified in this sub-paragraph;
• costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;
• any agreement relating to the use or hire of the ship, whether contained in a charterparty or otherwise;
• any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charterparty or otherwise;
• loss of or damage to or in connection with goods (including luggage) carried on board the ship;
• general average;
• towage;
• pilotage;
• goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;
• construction, reconstruction, repair, converting or equipping of the ship;
• port, canal, dock, harbour and other waterway dues and charges;
• wages and other sums due to the Master, officers and other members of the ship’s complement in respect of their employment on the ship, including costs of repatriation and social insurance contributions payable on their behalf;
• disbursements incurred on behalf of the ship or its owners;
• insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the ship-owner or demise charterer;
• any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the ship-owner or demise charterer;
• any dispute as to ownership or possession of the ship;
• any dispute between co-owners of the ship as to the employment or earnings of the ship;
• a mortgage or a “hypothèque” or a charge of the same nature on the ship; and
• any dispute arising out of a contract for the sale of the ship.

Accordingly, liabilities resulting from contracts for chartering a vessel provide grounds for a maritime claim.

In order to arrest a vessel under Spanish law, it is necessary that its owners or demise charterers have in personam liability for the maritime claim. Exceptions to this principle are maritime liens. When a claim is a maritime lien, the claimant may arrest the offending vessel, even if its owner or demise charterer is not liable in personam for the claim.

Bunker supply to a vessel is considered a maritime claim and the bunker supplier (contractual or actual supplier) can arrest the vessel for unpaid bunkers by virtue of Article 1(1)(l) of the 1999 Arrest Convention, provided that these bunkers were purchased by the ship-owner or by the demise charterer.

Bunkers ordered by a charterer would not enable the claimant to arrest the vessel following Article 3(3) of the 1999 Arrest Convention, as a claim for unpaid bunkers is not considered a lien and does not create an in rem action against the vessel. However, in cases in which the terms and conditions of the actual supplier establish a direct action against the ship-owner or demise charterer and these terms and conditions have been accepted by the Master by signing the “bunker receipt”, Spanish courts have agreed to arrest the vessel. Without the acceptance of the Master which would be binding on the owner, the charterer cannot bind the vessel by ordering bunkers.

The arrestor must appoint a court agent (also known as a procurator) and must be assisted by a lawyer in the arrest proceedings. The court will require a notarial power of attorney (POA) evidencing that appointment. If the power of attorney is issued before a foreign public notary, it will need to be legalised.

Under the SSA, a mere allegation of the maritime claim would suffice for the arrest application. However, it is advisable to submit prima facie evidence of the claim with the arrest petition. Any document submitted to the court must be translated into Spanish. Free translations of both the POA and evidence will suffice for this purpose.

In practice, the arrest petition, including the POA and any other document, will be presented electronically by the procurator, via the e-official system of the Spanish Ministry of Justice, to the court. Accordingly, the documents will be presented as copies.

The SSA requires that the arrest petitioner provide counter-security, prior to the court enforcing the arrest, which will amount to a minimum of 15% of the maritime claim. This counter-security is provided to guarantee possible damages in the case of wrongful arrest. In most cases, the counter-security requested by Spanish courts is limited to 15% of the maritime claim and is only occasionally increased when the court considers that there are other relevant factors that may give rise to the need to set a higher guarantee (eg, passenger vessels or when the vessel to be arrested is subject to a regular line). The Spanish government is proposing to amend the SSA so that there is no minimum security amount required, leaving the determination of the amount at the complete discretion of the judge.

The 1999 Arrest Convention is not applicable to bunker or freight arrest. It is only applicable to ship arrest.

The regulation of arrest of bunkers or freight falls within the provisions regarding conservatory measures of the Spanish Code of Civil Procedure. These provisions not only require that the claimant provide counter-security but also that they present a prima facie case of claim (fumus boni iuris) and proof of the periculum in mora, or danger in delay. In practice, since a bunker arrest entails detaining a vessel without a claim against its owner or maritime lien, Spanish courts are reluctant to agree to bunker arrest.

Any other ship owned by the debtor, also known as a sister-ship, can be arrested under Spanish Law in line with Article 3(2) of the 1999 Arrest Convention, as referred to in Article 475 of the SSA. Accordingly, a court may arrest not just the offending ship, but also other ships owned by the company liable for the claim, provided that the company was the owner or demise charterer of the offending ship when the claim arose.

Other ways to obtain security would be regulated by the provisions for conservatory measures in the Spanish Code of Civil Procedure and would include the attachment of assets (other than a vessel) or rights, injunctions, etc.

The first and quickest option to release an arrested vessel is by placing security before the court:

• the type of security (eg, letter of undertaking (LOU) of a protection and indemnity insurance (P&I) club) can be agreed with the arresting party and this agreement should be respected by the court; and
• if an agreement on the security is not possible, in order to release the vessel, security must be placed before the court through any of the means specified in the Spanish Procedural Law. This would include a cash deposit, or an unconditional and unlimited in terms of duration bank guarantee issued by a first-class Spanish bank. A P&I club LOU will not be admitted by the Spanish courts if the arresting party has not agreed to do so.

The second way to obtain the vessel’s release involves disputing the arrest order on the basis that it is a wrongful arrest, ie, that it does not comply with the requirements of the 1999 Arrest Convention. This second possibility takes longer than the first (several weeks or even months), because the court will schedule a hearing prior to deciding on the issue.

The third possibility would involve the arresting party not complying with their obligation to commence and file the proceedings on the merits before the competent court/arbitrator within the period of time granted by the Spanish court. This period is usually 20 to 90 days and will depend on where the competent court is located. If Spain has jurisdiction, the period will only be 20 days. The period starts counting from the date that the arrest order was notified to the owners (usually via the Master or ship agents and served by the court via the Harbour Master).

Under Spanish law, the arrest does not give the claimant the legal right to seek direct enforcement against the vessel.

The procedure for judicial sale of the arrested ship is subject to the commencement of recognition (when the judgment or award has been issued by a foreign ie, non-European jurisdiction or international arbitration) and enforcement proceedings of the final judgment or award on the merits of the claim.

The enforcement proceedings of a national or recognised foreign judgment or award against any asset located in the Spanish territory is regulated by the Spanish Code of Civil Procedure and the subsequent judicial sale of the vessel is regulated by Articles 480 to 486 of the SSA which mandate the observance of the Lien Convention provisions and the Spanish Procedural Rules.

Under Article 636.3 of the Spanish Code of Civil Procedure, the court will order the sale of the vessel through a public auction, which may be conducted either by a specialised body or directly by the court. Within the framework of the court proceedings, the parties involved, namely, the claimants/creditors and the debtor, retain the option to reach an agreement regarding the sale of the vessel. However, this agreement must be approved by the court and accepted by any third party holding an interest in the vessel.

The order granting the judicial sale of the vessel must be served to:

• the authorities and vessel’s registrar of the flag state;
• the registered owner;
• the holder of a nominative mortgage or charge duly recorded; and
• any holders of mortgages/charges duly recorded, maritime lien, hypothèques that put the court/authority on notice of them.

Provided that the recipients of such notifications are known, the aforementioned service containing all particulars of the auction (place, date, proceedings, circumstances, etc) will be made in writing at least 30 days before the date of the auction.

Any holder of a maritime lien can appear in the auction proceedings to safeguard, defend, or assert a third-party preference claim.

Upon the sale of the vessel at public auction, all the mortgages, hypothèques, charges, maritime lines and claims will be cancelled.

The sale of the vessel can be delegated to a specialised body, which is usually a Port Authority or a broker.

During the arrest, the vessel must be maintained by the arrested party. Spanish courts will not require the arresting party to pay the costs of maintenance of the vessel during the arrest. Furthermore, the port where the vessel is retained will look after the safety of the port and may take, at the ship-owner’s expense, measures to guarantee such safety.

Ranking of Claims

First, and pursuant to Article 386 of the SSA, the following costs and expenses take preference over the list of liens contained in the Lien Convention:

• any wreck-removal expenses that must be settled to the Spanish Maritime Authorities; and
• the cost and expenses arising out of the ship-arrest proceedings and her subsequent sale. These costs include maintenance of the vessel and those crew wages accrued from the moment the arrest is in place, and any other sums as referred to in Article 4.1(a) of the Lien Convention.

Second, any remaining funds will be distributed, according to their preference ranking set out in the Lien Convention, up to their full and final settlement.

Lastly, any possible remaining balance (after all credits have been paid) will be returned to the owner.

Maritime liens, according to the Lien Convention, take priority over registered mortgages.

Spain has insolvency laws which regulate the reorganisation or liquidation of a company in financial distress that are similar to Chapter 11 proceedings in the United States.

Mercantile Courts are competent to adjudge insolvency matters as well as maritime matters.

Once bankruptcy protection has been requested and bankruptcy proceedings initiated, a court cannot enforce against any asset owned by the debtor outside the bankruptcy proceedings. Accordingly, any individual enforcement will be stopped.

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 proceedings 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 Procedural Law.

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 Convention relating to the Carriage of Passengers and their Luggage by Sea of 13 December 1974 (the “Athens Convention”) and of the 2002 Protocol 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 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 EU 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 Athens 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 member state.

Domestic laws

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 international 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. Therefore, 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.

Time Limit to File a Claim

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 EU Regulations or the SSA.

This two-year period may be interrupted and renewed by a letter of demand or by acknowledgement of liability.

Limitations on Liabilities Available to the Owners in Respect of a Passenger’s Claim

Carrier’s liability for the loss suffered as a result of the death or personal injury to a passenger is limited to 400,000 SDR per person on each distinct occasion.

In case of death of or personal injury to a passenger as a result of a shipping incident, the carrier will be liable up to 250,000 SDR, unless they prove 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 will also be 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 on the passenger.

Spain has not exercised the option to increase the limits of liability in the case of death or personal injury.

Liability of the carrier for the loss of or damage to cabin luggage is limited to 2,250 SDR per passenger, per carriage. Liability of the carrier for the loss of or damage to vehicles, including all luggage carried in or on the vehicle, is limited to 12,700 SDR per vehicle, per carriage. For other types of luggage, liability will not exceed 3,375 SDR per passenger, per carriage.

A deductible amount, not exceeding 330 SDR for a vehicle and 149 SDR for other luggage, may be agreed between the carrier and the passenger.

The limits of liability may be increased by agreement between the carrier and the passenger.

Would claims for indemnities for personal injury of a passenger be recognised as a maritime lien or a maritime claim?

Spain has ratified the Lien Convention, which establishes, in Article 4.1(b), that claims in respect of loss of life or personal injury occurring in direct connection with the operation of the vessel, will be secured by a maritime lien on the vessel. This provision includes all personal injury or loss of life claims arising from the Athens Convention. However, a claim either in tort or contract for loss or damage to passengers’ effects is not recognised as a maritime claim.

Both claims for loss or life or personal injury and claims for loss or damage to passengers’ effects would be considered maritime claims following Article 1.1(b) and Article 1.1(h) of the 1999 Arrest Convention, which is in force in Spain.

Validity of Jurisdiction Clauses Stated in Bills of Lading

Subject to the provisions of international conventions in force in Spain and EU Regulations, which prevail over Spanish domestic law, the SSA establishes that, jurisdiction clauses in bills of lading, whether to a foreign jurisdiction or foreign arbitration, are considered null and void unless they are negotiated separately and individually.

Furthermore, even in cases where the shipper named in the bill of lading may have negotiated separately and individually with the carrier a clause submitting any dispute to a foreign jurisdiction or international arbitration, Article 251 of the SSA establishes that the conveyance of the bill of lading to the consignee implies the conveyance of all the rights and actions of the shipper except for any arbitration or jurisdiction agreement, which requires the express and written consent of the transferee or holder of the bill of lading.

Exceptions to the foregoing are those submission clauses that refer any dispute under a bill of lading to the jurisdiction of a court of a member state of the EU. These clauses are considered valid between the parties to the contract of carriage, shipper/consignee and carrier, even if not separately and individually negotiated, based on Article 25 of Regulation (EU) No 1215/2012, of 12 December 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

A recent ECJ Judgement dated 25 April 2024 (in the cases C-345/22 to C-347/22) has confirmed that jurisdiction clauses in bills of lading are enforceable under EU law if validly agreed by the shipper and the carrier. The validity of these clauses is governed by the law of the member state whose courts are designated in the clause. For a jurisdiction clause to be enforceable against a third party, such as the consignee, the latter must have subrogated in all rights and obligations of the shipper under the contract of carriage. The determination of whether such subrogation occurs must be judged by the national law applicable to the contract, as determined by private international law. Furthermore, the ECJ has established that Spanish courts must disregard Article 251 and Article 468 of the SSA when in conflict with Article 25 of Brussels I-Bis.

In line with the above findings, the Court of Appeals of Pontevedra, who had to apply Spanish law to determine the effects of the conveyance of the bill of lading to a consignee, conceded in its judgment dated 16 September 2024, that Article 25 of Brussels I-bis eliminates the requirement for the consignee and third-party holder of the bill of lading to express their consent individually and separately.

Validity of Law Clauses Stated in Bills of Lading

Law clauses stated in bills of lading are recognised by Spanish courts and are enforceable against both the shipper and the holder of the bill of lading. Having said this, the fact that a bill of lading remits to a foreign legislation does not imply that the analysis of the validity of a potential foreign jurisdiction or international arbitration clause should be made from the perspective of such a law (eg, the Judgment by the Court of Appeals of Barcelona No 1463 of 2019 dated 23 July 2019).

If an action is brought before a Spanish court, the court will apply Spanish conflict of law provisions to determine the validity of the jurisdiction clause. If the court decides that Spain is competent to hear the matter, the Spanish court may and will apply the provisions of a foreign legislation (to the merits of the claim) if the parties have agreed to that legislation. It will be for the parties to provide evidence of the content of that legislation for the Spanish court to apply. This is usually done by means of two sworn affidavits issued by jurists.

An international arbitration clause incorporated into a bill of lading will have to be separately and individually negotiated by the shipper and the consignee to be valid. To date, there are no definitive judgments addressing the implications of Article 251 and Article 468 of the SSA in the specific context of international arbitration clauses included in bills of lading.

However, it must be noted that the SSA only requires individual and separate negotiation of a submission clause when they pertain to international jurisdiction or arbitration. It does not impose this requirement for domestic jurisdiction or arbitration clauses, suggesting that in principle these clauses should be considered valid between a carrier and the consignee. However, there is no consolidated case law to this effect yet. Furthermore, even if in principle a domestic jurisdiction or arbitration clause is considered to be valid against the shipper, this does not necessarily extend to the holder of the bill of lading and the question yet to be answered by Spanish courts is whether a domestic jurisdiction or arbitration clause will also need to be negotiated separately and individually by the holder of the bill of lading to be valid towards them.

The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is applicable in Spain for international arbitration.

Spain has also enacted Law 60 of 2003 (the “Arbitration Act”) for domestic arbitration and for international arbitration, which adapts the UNCITRAL Model Law on International Commercial Arbitration.

Following the 1999 Arrest Convention on the arrest of ships, a ship may be arrested in Spain for the purpose of obtaining security, notwithstanding that, by virtue of a jurisdiction clause or arbitration clause in any relevant contract, or otherwise, the maritime claim is to be adjudicated in a state other than Spain. Article 474 of the SSA also confirms this principle.

However, if the vessel is arrested in Spain, Spanish courts will be considered to have jurisdiction over the claim unless the parties validly agree or have validly agreed to submit the dispute to a court of another state which accepts jurisdiction, or to arbitration.

Spain does not have a dedicated domestic arbitration institute specialising in maritime claims. Parties seeking arbitration therefore typically engage the general arbitration services provided by the Arbitration Courts of the Chambers of Commerce or other non-specialised arbitration institutions. The Spanish Maritime Law Association is currently promoting arbitration in maritime matters in collaboration with the Madrid International Arbitration Centre (the Iberoamerican Arbitration Centre or CIAM-CIAR). The CIAM-CIAR is an arbitral institution that offers an independent international dispute resolution service.

When a claim is prosecuted in Spain in breach of a foreign jurisdiction or arbitration clause, the defendant may file a motion to dismiss for lack of jurisdiction (a “Declinatoria”). The time bar to file such a motion is ten working days from the date of service of the claim. Once the Declinatoria has been filed, the deadline to present points of defence is stalled and will only resume after the court’s ruling, if it dismisses the motion. Upon receipt of the motion, the court will give the claimant five working days to file a response and will make a ruling after examining both parties’ arguments.

Spanish Tax Lease System

The Spanish tax lease system is currently regulated by Law No 16 of 2012 (the “Spanish Corporate Income Tax Law”), which came into force on 1 January 2013.

The Spanish tax lease system is basically a system of accelerated and anticipated depreciation of assets acquired through financial leasing, including any kind of sea transport vessel (passengers, tugs, fishing, dredgers, barges, platforms, boats/yachts, etc), manufactured inside or outside Spain, provided that:

• it is not manufactured in series/mass; and
• its manufacturing period is at least one year.

This new tax lease system is not subject to prior approval by the Spanish Tax Administration.

Tonnage Tax in Spain

The Spanish tonnage tax regime is an alternative tax system to the regular rules of taxable profit determination for the companies that usually produce a tax benefit for the taxpayer.

This regime is a tax system for (qualifying) shipping companies to calculate their shipping-related profits for corporation tax purposes. The shipping-related profits are calculated based on the tonnage of the (qualifying) ships used in the company’s shipping trade.

The tonnage tax system in Spain is regulated by Law No 27 of 2014 (the “Spanish Corporate Tax Act”). This tax system is voluntary and subject to previous authorisation by the Spanish Directorate General for Taxation.

The main requirements to be met by the shipping companies and their vessels in order to be taxed on the bases of a tonnage tax system are the following.

Qualifying companies:

• must be registered in any of the Spanish Shipping registries (including the REBECA);
• their business activity must include shipping management of owned and chartered vessels; and
• they must conduct the technical and crew management of the vessels themselves and assume the responsibility derived from the nautical operation of the vessel(s) and ISM Code (IMO Resolution A 741) completely.

Qualifying ships:

• must be operated from Spain or any EU member state; and
• must be seagoing vessels for sea transport, carriage of goods or passengers, rescue vessels and other services that must be rendered at sea (tugs and dredgers have some specific requirements).

This system will not apply:

• if all vessels are not registered in Spain or any other EU member state;
• if the vessels are intended, directly or indirectly, for fishing, recreational or sports activities; and
• if certain circumstances derived from or in connection with particular EU Regulations occur at the same time at the shipping company.

The REBECA

Finally, for those shipping companies whose vessels are registered in the REBECA, Spanish Law No 19 of 1994 for the modifications of the Canary Islands’ economic regime and tax system establishes together with other tax advantages such as bonuses in social security and others, a corporate tax rebate of 90%.

Under Spanish law, in line with Article 1105 of the Spanish Code of Civil Procedure, non-performance of a shipping contract in maritime law, such as late delivery, non-arrival of a chartered vessel, or slow cargo operations, may be excused as force majeure if caused by extraordinary, unforeseeable and unavoidable events, such as severe weather, natural disasters or similar events. Additionally, under the rebus sic stantibus principle, fundamental and unforeseeable changes in maritime circumstances altering the contractual equilibrium may justify seeking modification, withdrawal or termination of the contract.

Spain has implemented IMO 2020, which limits the sulphur content of fuel oil used on board ships from 3.5 to 0.5% mass by mass (“m/m”). The Authorities responsible for enforcing sulphur-content limitations are the Directorate General of the Merchant Navy (the “DGMM”) and the Harbour Master Offices that are subordinated to the DGMM.

According to Articles 10 and 11 of Royal Decree No 61 of 2006 (as amended by Royal Decree No 290 of 2015), there are two limits:

• a limit of 0.10% m/m for vessels within Spanish ports or operating in territorial waters and exclusive economic zone (EEZ) waters within the Emission Control Areas (ECAs); and
• a limit of 0.5% m/m for territorial waters and EEZ waters outside the ECAs.

However, Spain, does not have any ECAS at the present time. The current limit is therefore 0.10% m/m for vessels at Spanish ports and 0.5% m/m for vessels operating in Spanish territorial waters or in waters within the Spanish jurisdiction.

Should a Harbour Master detect an infringement of the aforementioned limits, normally in the course of a port state control inspection, a sanctioning proceeding will be initiated against the Master and ISM Manager of the vessel and this proceeding may result in a penalty up to a maximum of EUR120,000.

The Spanish marine authorities are very active in monitoring sulphur contents in marine fuel oils and penalties have already been imposed for limits being breached.

Spain implements all EU and UN trade sanctions and does not have an autonomous sanctions regime.

The trade sanctions adopted by the EU are implemented and/or adopted through national measures. The national competent authorities are responsible for establishing internal sanctions in the case of violation of restrictive measures, granting exceptions, receiving and co-operating with other member states and acting as a liaison with the sanctions’ committees. The competent authorities in Spain are the Secretariat of Commerce and the Secretariat of Treasury, both belonging to the Ministry of Economic Affairs and the Secretariat of Taxes, belonging to the Ministry of Finance and Civil Service.

Spain has not published its own list of sanctioned individuals and entities and refers to the EU and UN lists.

As an EU member state, Spain has implemented all of the sanctions imposed by the EU upon Russia and Belarus that complement and extend the sanctions imposed between 2014 and 2020 and which were based on EU Regulation 833/2014 of 31 July 2014.

The war in Ukraine and Spain’s enforcement of trade sanctions have compelled Spanish companies to source suppliers and loading ports outside Russia, increasing costs and prompting cancellations or renegotiations of supply, affreightment and logistics contracts. In Spanish chartering practice, Ukraine and Russia are designated war risk areas, leading to amendments in charterparties to exclude these regions from trading limits. Standard clauses, such as BIMCO Conwartime 2004 for timecharters and BIMCO Voywar 2004 for voyage charters, are commonly incorporated to address these risks.

Additionally, the conflicts affecting the Suez Canal, by causing route changes to entering the Mediterranean from the west, have led to an increase in transshipment traffic at western Mediterranean ports, including ports in Spain. This has caused port congestion problems causing delays and claims thereof. Certain Spanish ports, such as Las Palmas and Algeciras, have experienced an increase in bunkering operations as a result of the new routes implemented to avoid the Suez Canal.

One of the topics that could be of interest and that is not covered in previous sections is the possibility of a direct action against P&I clubs under the SSA.

Under Spanish Law, a direct action against a civil liability marine insurer is possible under the Criminal Code in terms of civil liability derived from a criminal offence and in general for maritime risks in civil matters by the SSA. The SSA considers that any clause in a compulsory marine insurance contract that restricts a third party’s (the victim’s) right to direct action is null and void. The question to be decided is whether this provision extends to P&I clubs, which are regularly subject to the “pay to be paid” rule and establish the application of English law in their rules.

At present, there are no definitive and clear precedents under the SSA. However, there are some judgments that, in obiter dicta, suggest that P&I clubs may be subject to a direct action (eg, a judgment issued by Mercantile Court No 3 of Vigo dated 16 January 2018) and some others that have accepted the direct action by application of the principles of the SSA (Judgment of the Labour Court No 10 of Bilbao dated 16 September 2016 and confirmed by the judgment of the Labour Section of the High Court of Justice of the Basque Country dated 27 June 2017), but the issue has yet to be judicially settled.