Introduction After many years of discussing drafts, the Spanish Navigation Act finally came into force on 25th September 2014. The Act fulfils the need of embodying, updating and harmonizing the dispersed Spanish maritime regulation, formerly mainly enacted in the Commercial Code dated 1885 but with many other spread references. Even when marine insurance was an important part of the regulation (provisions 737 to 805 of the Commercial Code dated 1885 referred to such a subject), it missed the reference to liability insurance (most likely due to the lack of importance of such a field at the end of the Nineteenth Century). Very shy mentions about liability insurance were contained in the 1960 Regulation (on air navigation), whilst the general principals for the liability insurance – non marine- in Spain was mostly ruled pursuant to the 1980 Spanish Insurance Act. We can affirm that the only mention to a marine liability insurance appeared for the first time in the 1992 Spanish Harbours Act which introduced a legal obligation for ship owners to insure their liability arisen out of navigating and operating vessels, but this regulation lacked certainty. Main aspects of the new regulation The Spanish Navigation Act dedicates 5 provisions (463 to 467) to marine liability insurance in Chapter II, Section 3, “About Civil Liability Insurance”. What is ruled under the cited Section could be highlighted as it follows: Applicability of the Act not only to marine liability insurance. The wording of the Act implicitly foresees to be of application to the cover included in other kinds of marine insurance. Whilst a simple look at the provision might be considering its application to some covers included in hull insurance (in case of collisions), it has been mainly interpreted that the Act does also refer to the cover included in the P&I Rules. Compulsory insurance. The Act, which lacks certainty as regards to clarifying this issue about the compulsory insurance covers, expressly refers to the liability arising out of the marine pollution and to the liability for damages to passengers. Nevertheless, the Act fails to include in the Section the general liability arising out of the use of vessels and also the compulsory liability policy for the use of yachts and crafts. Additionally, the Act makes it compulsory for yachts and crafts charterers to insure liability also in another and spread Section.. Duty of indemnifying. Such a duty for the insurer shall exist since liability arises, i.e., from the moment in which the prejudiced party claims for damages -and not since the loss happens-. Direct action. Expressly ruled in Spanish Insurance Act, it gives the prejudiced party the right to directly claim against the liability insurer. No agreement could be signed by the parties in contrary of this possible direct action. Limit of cover. As it is established in the Spanish Insurance Act, the limit of (amount of) cover established in the policy shall apply. Such a limit is automatically reconstituted in case that a different loss arises within the same period of cover. Exceptions and limitations. The insurer may validly raise the exceptions which are available to its insured and the limitations in quantum against the claims directly brought by a prejudiced party. As stated, the new Act incorporates out of Section 3 other articles referred to civil liability insurance, so the regulation in this specific area is too spread along the whole rule, which does not clarify for the reader who will need to read along the whole Act to establish what the new regulation on marine civil liability is. Conclusions Despite some imprecisions or omissions that may be found throughout the new regulation, it is undoubted that the Act brings not only some light for interpreting this kind of marine insurance which was not covered under any other previous Spanish regulation, but also brings relevant newness when it refers to the possibility of a direct action against the marine civil liability insurer irrespective of any agreement that the parties may sign in the insurance policy stating otherwise.
SPANISH NEW REGUALTION ON MARINE LIABILITY INSURANCE