A land of individuals

SPANISH people are the proudest individualists in the world. They find collective action difficult. They envy each other. They leave to others things which don't directly affect them that day. But they close ranks against foreigners and they work hard for themselves when they need to get things done. These defining national characteristics are reflected in Spain's maritime law industry. Associations don't flourish, firms are small, partnerships split and reform, lawyers criticise each other, decisions are unpredictable, laws lie unreformed, commercial codes languish in the last century, yet foreign principals get a good service, and foreign firms don't find it easy to pick up work.

Times may be changing, and Spain's lawyers changing with them, but the body of law in the country is in danger of being left behind.

First, the people. Like everything else which earned money, Spain's maritime lawyers used to be clustered in Madrid, and very Spanish-centred. Not any more. There are lively maritime law firms in Algeciras, Cadiz, Barcelona, Bilbao, Las Palmas and Vigo. Oh, and Madrid, of course. Many of these firms are still owned or run by individuals, or by a very small group of partners. But there is a trend, such as with Actio XXI in Bilbao seeking a merger with Tojaero Assoc in Vigo, to reach out and take over other firms and to become more company- than individual-minded. Figaredo & Associados in Madrid is already a largish firm by Spanish standards, and it is in merger talks with the very much larger Garrigues & Andersen.

As for being Spanish-centred, most of the maritime law firms find that over seventy per cent of their work comes from overseas. The Spanish shipping industry is almost dead, and what is left is due to die in 1999 when cabotage is finally lifted. The shipyards are also no longer a big government priority, which is another way of saying the cash tap has been turned off. Work now comes through cargo claims, P&I, arrests and wet work, all involving foreign principals.

Little wonder that most lawyers now speak English, unthinkable a few years ago, and at least two Barcelona law firms - Luis Berenguer and Ignacio de Ros - are actively recruiting foreign lawyers to service foreign clients. And foreign firms are conspicuous by their absence. Stephenson Harwood has a small Madrid office, but there is generally little effort by the big boys who have been attracted to Greece - such as Clyde and Ince - to set up in Spain. The cake is too small and the field too crowded.

The older generation is still there, still in Madrid, and Jose Maria Alcantara is happy to act as the public face of Spanish maritime law. But younger people are coming through, and Jose Felix Perez Tolosa says one of the reasons for founding Actio XXI this year, as a split off from the long-established Fernando Meana Green, was to give a more responsive service and to allow the young generation room to come to the fore.

Second, the issues. None of these can be very urgent, because not much is being done about them. One issue that everybody will discuss is the difference of opinion over how to tackle the inconsistency which arises because all maritime cases go to general civil courts of first instance. There are two broad camps. One group holds out for special maritime courts, the other maintains that maritime lawyers simply need to explain things more clearly to the existing judges.

Pragmatic as always, Barcelona's Catalans have found a middle ground, in which maritime cases go always to the same rooms in the civil courts, thus allowing the judges to build up a knowledge of the field.
The result is an upsurge of maritime work in Barcelona, although some argue that more work is going to all the ports, and Barcelona has surged because of large insurance companies relocating from Madrid to the Catalan city. Either way, the idea of semi-specialised courts is liked by almost everyone, and it could be a model for other Spanish port cities.

Another issue is the question of the law of Ports and Merchant Marine. Under this law, agents can still be held responsible as if they were the shipowner for any claims arising from operation of the ship. Many find this status of equating agent and principal as ridiculous and dangerous, although others support it. The act was recently amended, and heavy political pressure from the ports allowed them to keep their rights to hold the local agent responsible for things that affect the ports' coffers.

There is a debate over the Hamburg Rules, some foot-shuffling over port tariffs, a little elbowing over marine insurance, local difficulties in convincing judges that mutual insurers are not the same as companies and should not be sued directly, as most insurers are in Spain. And there is a degree of muted criticism of the Spanish Maritime Law Association, which could do a lot, but hasn't. It might yet, as it enters its fiftieth year, but it needs to move now if it is to regain credibility.

Luis Berenguer Comas runs a busy law firm in Barcelona. With twelve staff, he counts as a maritime major, and is probably the largest handler of insurance claims in Spain's transport world. Berenguer is a firm believer in keeping shipping disputes in ordinary civil courts. "Shipping is part of the real world, and absolute compartmentalisation is not a good idea. A dispute is a dispute, and our judges follow the law," he says. "I would like to see judges better informed, but in every jurisdiction judges make contradictory decisions which don't seem right to someone." Berenguer is also an exponent of internationalisation. "We have to fight hard to speak English better," he says, and he is happy to point out his English, German and Norwegian staff.

Barcelona-based Ignacio de Ros is another believer in leaving the courts as they are. "I used to believe in the idea of maritime courts," says de Ros. "But now I have seen that the advantage of having twenty-four-hour courts available to us outweighs the difficulties we sometimes have in explaining things to local judges in smaller ports." De Ros has been ruffling local feathers by travelling the world explaining that Spain is a good place to arrest ships, precisely because of the way local courts can be used. He is unapologetic . "I promote Spain as a forum," he says. "It is good for all of us, and I have realised we just have to work harder to explain things if we want the right result." He is also very keen on outreach, and claims all of his work comes from outside Spain."We don't need Spanish lawyers here, we need foreign lawyers who can qualify here and become fluent in Spanish. We want to be the export department of Spanish law," he says.

Also in Barcelona, Jaime Rodrigo de Larrucea has a different view, and a different clientele. "We work for shipowners, ports and terminals, mostly in Spain," he says. He worries about the port laws. "Port laws are a dark area here," he explains. "For instance, the recent Catalan Law of Ports may end up concentrating too much power in the hands of the port president." He has a list of changes he would like, but he is not a member of the law association, and he is pessimistic about speedy change. "There are no votes in maritime matters here in Spain, so there is no interest in reforming the laws," says Rodrigo.

Jose Maria Alcantara is less pessimistic, and has a job list for reform which includes the port law, agency status, the Hamburg Rules and much else. He thinks there is a simple way to update and internationalise Spanish maritime law. "We need to update our commercial laws, and we could do it by adopting conventions directly," explains Alcantara, who is head of Madrid-based AMYA and also president of the Spanish Maritime Law Association. "Conventions have priority over civil law."

One firm which has branched out to serve a mixture of shipping and non-shipping clients is Madrid-based Figaredo & Associados. It is the subject of speculation that it will be swallowed by one of Spain's biggest and most diverse corporate law firms, but for the moment no-one is giving much away.

Tomas Fernandez-Quiros, a partner with Figaredo, says he cannot understand why the big corporates are eyeing the shipping sector. "The market is flat and we don't expect growth," he says. "Shipbuilding may pick up, but shipowning will not grow again and the ports are suffering a lot of competition for traffic. The government needs to reduce port costs." Fernandez would like to see special maritime courts, but he is not holding his breath for any changes. "There has been an amendment to the Marine Insurance Act waiting round the corner for ten years. We need to bring the code of the 1800s up to date," he says, although he does point out many advantages of litigating in Spain, not least of which is cost and certainty over what you can be charged.

Also in Madrid is Fernando Meana Green, one of Spain's longest established P&I specialist lawyers. He has recently suffered a major split in his firm, with a group of partners led by Manolo Gonzalez setting up Actio XXI and retaining the Bilbao office. Meana Green is now rebuilding his practice in Madrid. He dislikes the uncertainty of the civil courts. "Judges sometimes have difficulties with maritime matters, so it is difficult to get consistent decisions, and difficult to explain to English principals why we can't," he says. "It is also difficult to work under English law. Under Spanish law, insurers can be sued directly for civil liability. The courts look at that and go straight for the P&I clubs. I have to explain that P&I is an indemnity, and claims against owners cannot incorporate the club. It can be hard to explain."

Everywhere in Spain there is always someone fighting against the state. The change now is that, occasionally, individuals win. Barcelona-based Francisco Sanchez Jurado says he has been working for receivers of cargo and their agents to reclaim a port tariff, T3, which was illegally applied by order of a minister. "We went to the supreme court, which declared the tax illegal. No-one pays it now, but the port continues to try and charge it. We have to fight each case, and we are fighting to get back tax already paid," he says.

Sanchez laments that the opportunity was not taken during the recent reform of the port laws to sort out the tariffs. "We missed a chance to sort out the port law once and for all. It is still a mess over things like tariffs," he says, although he does not, unusually, think agents get a rough ride. "They are the only people we can touch here. Shipowners come and go," he says. "They have to choose a good owner. It makes sense that the law makes them responsible."

So don't be surprised if you ring a Spanish law office and find yourself talking to a Norwegian. But be prepared for a surprise if you want to use the courts. That's Spain.