Inglés

Arizon Abogados SLP wins maritime cassation appeal against DGMM.

 

The Spanish Supreme Court have ruled against a large fine imposed to Swedish ship owners ordering its reduction by 45%.

The large amounts charged by the Spanish Port State Authorities on account of breaches of maritime safety law by the ships calling at the many Spanish ports have resulted in much controversy and criticism especially since the Prestige’s disaster.

Last 8 of July the Spanish Supreme Court issued a judgment which rendered null the amount of the fine imposed by the Spanish Merchant Marine Directorate to a Swedish ship owner, ordering the amount to be reduced by about 45%.

The Supreme Court has taken three years to take a final decision in the appeal lodged by the ship owners and the Master of the ship which P&I Club instructed Dr. Arizon after the fine was imposed to the vessel. This was an appeal against the Madrid Superior Administrative Court which in turn had upheld the decision of the Spanish Merchant Marine Directorate which had earlier endorsed the fine imposed by Las Palmas Harbour Master to the owners and the Master of the vessel tanker MTB.

The facts giving rise to the fine occurred as follows; on the 7 Feb. 2003 the Master of MTB requested the pilot’s assistance to enter the port of Salinetas (Las Palmas). The Master complied with all usual procedures to approach and enter the port but at the berthing area the pilot did not turn up timely. The Master, after waiting for the pilot, decided to complete the berthing manoeuvre without him. Following the completion of the ship operations at Salinetas the Master asked the port authority for a pilot to assist the ship to leave the port. She left Salinetas without incidences. However, the ship was detained by the Spanish Port Authorities at her subsequent call at the port of Huelva. Administrative proceedings were commenced against the vessel on the grounds that the Master’s conduct had severely breached maritime safety law at Las Palmas; a fine was fixed against the owners and the Master for 180.030,00 EUR which had to be guaranteed before the ship could leave the port of Huelva.

The Harbour Master decision was appealed by the Master and after four years the owners reached the highest instance under Spanish Law, the Supreme Court. The arguments run on the appeal, included, inter alia, that the provision used to impose the fine was not sufficiently clear to prosecute this case, and that the fine could not be imposed on the highest level as the circumstances evidenced that the Master did not act deliberately but to mitigate the fact that the ship was waiting at the berthing area without assistance. The State Attorney representing the Spanish Administration had a strong position against the arguments put forward by the ship owners and the Master but the Supreme Court has accepted the appellants’ argument declaring the fine null in respect to its quantity and reducing same to 100.000 EUR.

This decision is good news for the international shipping community as, it is suggested, that the Spanish Administration and the lower Courts are often perceived by shipping operators in these types of cases as collecting agencies rather than appropriate tools to set and enforce a good and reasonable policy. This decision sets clarity in an area of law where maritime cases rarely reach the Supreme Court.

Felipe Arizon acted for the ship owners and the Master.

 

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