A leap in legislation

LAST year will be remembered as one of great change for Venezuela's national maritime legislation. It could be said that, almost overnight, its out-of-date and obsolete maritime laws were replaced by a comprehensive set of laws, expected to aid the merchant marine to the benefit of international trade.

The new legal framework, enacted between September and November 2001, includes the Organic Law of Aquatic Spaces, General Law on Merchant Marine, General Law on Ports, Law on Maritime Commerce, Fishing Law, Coastal Law, Law on Maritime Procedures, and the adoption of the 1965 Facilitation Convention.

Significant improvements were also introduced in respect of ship arrest, and maritime liens and mortgages, as the Andean Community adopted Decision 487 on Maritime Guarantees and Arrest of Ships, based on the 1993 International Convention on Maritime Liens and Mortgages, along with the 1999 International Convention of Arrest of Ships.

The Organic Law of Aquatic Spaces (Official Gazette No 37,330 of 22-11-01) reorganises the maritime administration and creates the aquatic jurisdiction, which sets out the general principles governing the shipping and port business throughout the country. The law states that the aquatic authority will rest with the Ministry of Infrastructure through a national body named Instituto Nacional de los Espacios Acuáticos (INEA), based in Caracas, which will exercise its functions locally through the port captaincies.

An important issue prescribed by this law is the creation of the maritime courts. Three superior courts and five courts of first instance are to be located in the main ports, such as Puerto Cabello, La Guaira, Maracaibo, etc. They are expected to be opened before the end of the year, and proceedings will be heard according to the rules of the Law on Maritime Procedures, whose main features are oral and abbreviated proceedings.

The General Law on Merchant Marine and Related Activities (Official Gazette No. 37,321 of 9-11-01) sets up rules for the administrative regime of navigation and seafarers, activities of national ships in domestic and international waters, the general principles applicable to the merchant marine, and the co-ordination of public and private sector involvement. It is important to point out that, for the purposes of this law (Article 17), a 'ship' is deemed to be any floating construction able to sail by water, whatever its classification and dimension. Consequently, in light of the domestic legislation, the term also includes barges as well as any other accessory to navigation.

From an administrative point of view, the shipping registration process has improved, since the dual registration procedure (requiring inscription of documentation before the maritime authority as well as the public registry) was repealed by the new legislation. Therefore, the Venezuelan Shipping Registry, the so-called RENAVE office, is located within the National Institute of Aquatic Spaces (Ministry of Infrastructure), with branch offices in the different port captaincies throughout the country. The Venezuelan registry is fully open to foreign investors, since a ship may be wholly owned by foreign interests. The only requirement is the incorporation of a domestic company but, once again, 100 per cent of the shares may be wholly owned by foreigners.

The Law on Maritime Commerce (Official Gazette No 5,551 of 9-11-01) incorporates into domestic legislation the main international conventions, repealing the old maritime rules inserted in the commercial code. It incorporates the provisions governing aspects of private law, such as maritime jurisdiction, carriage of goods, limitation of liability, arrest of vessels, and salvage, based on the international conventions not yet ratified by Venezuela.

A notable feature of the Law on Maritime Commerce is that dealing with the jurisdiction issue. In light of Article 2, the provisions of the law in question apply to national or foreign vessels and hydroplanes that are within jurisdictional waters of Venezuela. Article 10 states that it pertains to the Venezuelan jurisdiction to hear without derogation whatsoever actions involving contracts of carriage of goods or persons that enter Venezuelan territory. This means that a foreign jurisdiction clause inserted in a liner bill of lading will not be enforceable.

The General Law on Ports (Official Gazette No 37,331 of 23-11-01) seeks to shape a national port system by introducing general principles related to the ports regime and infrastructure, which governs public and private ports nationwide to ensure co-ordination between central and regional governments (states) consolidating a modern and efficient port system.

Title IV of the law introduces provisions related to the liability regime of port operators and port administrators, based on the 1991 United Nations Convention on Liability of Operators of Transport Terminals in International Trade. However, some of the provisions have been reviewed to adjust them to Venezuela's particular domestic port practices, whereas others have been introduced to prescribe situations that the convention does not deal with.

There is no doubt that this new maritime legal framework is an important step for Venezuela, but even more significant will be to see how it works in practice. Maritime lawyers and future maritime courts have a big task ahead. The truth is that, from an old maritime legislation, the country has jumped to a modern one that will hopefully benefit the country's domestic and international trade.