Salvage in Spain. What can we expect in the future?
Pursuant to the enactment of the Spanish Navigation Act a year ago, this article sets out our comments on its highs and lows.
The Law deals with Salvage in its articles 357 to 368, and it is also referenced in other provisions within the Act.
The most important aspects can be summarized as it follows:
- The law refers to the International Convention on Salvage, 1989, and therefore material regulation remains the same as before, apart from the procedural aspects.
- The discovery and immediate recovery of goods abandoned at sea shall be considered as Salvage, unless the goods are a product of the sea.
- The law on Salvage is to apply to assistances rendered either by and to warship or other State ships.
- Salvors carrying out the operations ordered or supervised by the public authorities are entitled to an award.
- The award must be paid by all interests linked to the vessel and the salved goods on a pro rata basis, notwithstanding the right of the owner of the salved vessel to pay in full and to claim back against the others involved.
- Unless otherwise agreed, the award will be shared between the owner of the ship (1/3 of the award) and its crew (the remaining 2/3). If the salvor is a tug which is own by a rescue company professionally equipped and specialized for salvage the terms of the contract of enlistment and the bargaining agreements shall apply.
- An award will not be granted in cases where the owner and/or Master of the ship in peril refuses to be salved.
- The salvor shall be entitled to detain the vessel and salved goods under its control.
- The Maritime Administration may intervene in salvage operations in order to safeguard the safety of navigation, human life at sea and the environment against marine pollution, either through private or public entities.
- In case of salvage of a res nullius or dispossessed goods, the Navy shall initiate the appropriate proceedings for Salvage.
The most controversial aspect introduced by the new Act refers to the proceedings to be commenced in order to obtain an award. It is foreseen that a new type of courts (the maritime arbitration councils) will be created, and those will be ruling only if there is a jurisdiction agreement by the parties. Otherwise, the general Commercial Courts will rule on salvage hereinafter.
The new regulation will bring some practical troubles in practice. As an example, the actual Maritime Courts have vast expertise in salvage, whereas the Commercial Courts may not be that qualified and experienced as to decide about Salvage proceedings. The foreseen system will be, in our view, slower due to the fact that many Commercial Courts are collapsed and, most probably, more costly for the parties.
In any case, we shall be happy to have a new and updated regulation according to International Convention on Salvage, 1989.
All procedural aspects will be ruled in a Reglament that we expect to be implemented quite soon. We will circulate an update in due course on the new Salvage proceedings as soon as we have a draft of the new Reglament.