In terms of liability for damages caused by marine pollution, it is to be said that Spain is party to the 1992 International Convention on Civil Liability for Oil Pollution Damage (CLC 92) and to the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND 92), both in force in Spain since 1996, and its Protocol of 2003. Spain is also party to the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKERS 2001) signed in London on 23 March 2001. In the case of carriage of goods by sea under a bill of lading, the carrier has the right to limit its liability for damages caused to the cargo pursuant to the Hague-Visby Rules.
The limitation fund
The regulation by the LNM of a detailed procedure to limit the liability constitutes a clear novelty. Pursuant to article 487 et seq. LNM, Commercial Courts are the competent ones to deal with the constitution of the limitation fund. The most remarkable new aspect in the aforementioned procedure for the limitation of liability is the requirement of constituting the fund within a maximum period of 10 days from its invocation. Additionally, civil liability deriving from a criminal procedure will be limited in accordance with the applicable International Conventions. The Courts’ decision declaring the fund duly constituted will be enough to release the vessel and/or assets or other guarantees from arrest/attachment. Said decision will contain the appointment of an adjuster/liquidator of the fund. The liquidator will open three files: creditors’ files; debtors’ files; and proposed rules for the distribution of the fund. Proposal of distribution should be approved by the Commercial Court dealing with the procedure.