Spain
Shipowner Eligibility
Law 27/1992 provides that the flagging and registration of civil ships can be obtained by physical persons resident, and legal persons domiciled, in Spain or countries of the European Union. In the latter case, the physical or legal person must appoint a representative in Spain.
About the Flag
Spain is a parliamentary monarchy and a member of the EU, OECD, NATO, UN and the IMO. With both Atlantic and Mediterranean coastlines, it is situated in southwestern Europe, to the southwest of France. Its official language is Castilian Spanish; however Catalan, Basque and Galician are also official languages in the relevant autonomous regions. The capital is Madrid. While there is a central government, Spain is divided into Autonomous Regions with certain administrative and legislative powers. Spain has a civil law system, with some autonomous regions having their own particular codes. The King is the Head of State. The Prime Minister is the Head of the Government. There is a bicameral assembly. The monetary unit is the Euro.
Spain’s major trading partners include the EU member states and the US. The main exports include cars and trucks, manufactured goods, foodstuffs and machinery. Spain has a long maritime tradition, beginning in the great age of European exploration. The Merchant Navy Office, the governing body of Spanish shipping, is responsible for the Maritime Register of Ships and the Mercantile Register (Maritime Section). Spain has also had a second register in the Canary Islands since 1992.
The main legislation applicable to the registration of ships is Decree 1027 of 28th July 1989 on the Flagging and Registration of Ships and the Maritime Register (“Decree 1027/1989”), and Law 27 of 24th November 1992 on State Ports and the Merchant Navy (“Law 27/1992”). Ships have to be entered on two registries of a different nature and scope:
a) The Maritime Register of Ships. This register is a public, administrative document, which is maintained in the headquarters of each provincial Merchant Navy Office. There is also a central register, administered by the general directorate of the Merchant Navy Office. They also hold a register of Ship-owning companies, in which all natural or legal persons who own or operate ships must be registered.
b) The Mercantile Register. This register is primarily intended to be a register of natural and legal persons. However, according to the transitional provisions of the Rules of the Mercantile Register of 1996, until such time as a register of movable property is established, ships must be entered on this registry in accordance with the relevant provisions of the Mercantile Register Regulations 1956. Inscription in this register has implications regarding the application of the Commercial Code and other legislation. Registration is compulsory and subject to prior registration with the Maritime Register of Ships. It requires production of a certified copy of the ship’s registration with the Maritime Register and of the document of title to the ship, which must be in the form of a public deed or a document produced by a competent authority or functionary.
Company Formation
The most important pieces of legislation applicable to companies in Spain are the Commercial Code, Law 19/89 of 15th July 1989, Decree 1564/1989, which contains the redrafted text of the Public Limited Companies Act, and Law 2/1995 of 23rd March 1995, which sets out the rules regarding limited companies. Among the different corporate forms recognised by Spanish law, the public limited company and the limited company predominate. Both are required to file annual accounts, although these must only be audited in certain cases, only applicable to public limited companies. To establish a company, it is necessary to grant a public deed before a Notary Public. The company must also be registered in the Mercantile Registry corresponding to the company’s registered office. One percent of the share capital of the company must be paid prior to its entry in the registry, in settlement of Transfer Tax and stamp duty.
No restrictions are placed on the establishment of a company using foreign capital and there are no nationality requirements for board members. The sole shareholder company is recognised. The deed of incorporation will include the company statutes, which must contain certain mandatory provisions.
Nationality
Companies legally established under Spanish law and having their registered office in Spain are deemed to be of Spanish nationality, irrespective of where they were established. Companies having their main operational headquarters in Spain are deemed to be legally resident in Spain.
Public Limited Companies
The most important legislation is the Redrafted Text of the Public Limited Companies Act (RDL1564/1989 of 22nd December 1989), the Limited Companies Act (2/1995 of 23rd March 1995) and the rules of the Mercantile registry.
Share capital is represented by shares, and there is no members’ personal liability for company debts. The share capital must be wholly subscribed and at least 25% of the subscribed registered capital must be paid up, irrespective of the type of contribution. Shares may be registered by a physical document or through account entries. There ownership must be registered in certain circumstances: if required by the statutes, if the free transfer of certificates is restricted, or if the face value is not fully paid up. Registered and certificated shares must be recorded in a register of shares issued by the company. The transfer of shares must generally be effected before a commissioner of oaths (a Notary Public or broker) and must be recorded in the register of shares.
Limited Companies
Law 2/1995 of 23rd March came into force on 1st June 1995. The Limited Company is the preferred form for small and medium-sized companies. It allows the owner more freedom and autonomy, its costs are lower and it requires a smaller amount of share capital. The capital is then divided into shares. These cannot take the form of shares or certificates, nor can they be represented by an account entry, but must be wholly paid up when issued. Shares that do not include voting rights are not recognized.
Shares are freely transferable among members of the company, spouses, ancestors and descendants, and among other companies in the same group, unless prohibited by the company statutes.
Taxation
All residents, both natural persons and companies, must pay tax on the whole of their worldly income. Non-residents are subject to taxation only on income accrued or paid in Spanish territory. Company tax and income tax are both levied under a unitary system under which any income is aggravated and is subject to tax. This is applied at a fixed rate in the case of Company Tax (30-35%) and at a progressive tax in the case of Income Tax (approx. 20% to 48%). Capital gains tax is levied at a fixed rate. Relief in respect of double taxation (when the same income is taxed both in Spain and overseas) may be available if a Double Taxation Treaty has been signed by Spain and the other country concerned.
Registration and Documentation
There are two different procedures for registration:
“Matriculación:” This registration is available for ships built in Spain for Spanish shipowners. After registration, these ships will be governed by Spanish maritime law. They will benefit from the privileges granted by the law, and will be entitled to use the Spanish flag (ss. 2, 14 of Decree 1027/1989). In the case of ships built in Spain, requests for provisional registration must be filed before the Maritime Register in the maritime province in which the shipyard is located, by producing the approved building project and Title. The application is jointly presented by the builder and the shipowner to the Head of the Merchant Navy in the province, who then transfers it to the Merchant Navy Office.
A permit to launch the vessel and to carry out the official tests must be requested from the Provincial Head of the Merchant Navy or, when the vessel’s tonnage is over 100GT, from the Merchant Navy Office itself. After passing the official tests, the applicants can apply for the provisional roll: a book in which the ship’s crew and characteristics and her mandatory certificates are recorded. The application for the provisional roll must be accompanied by the public deed of ownership, a copy of the results of the official tests and various certificates regarding tonnage, summer and winter free-board, seaworthiness etc. The provisional roll is valid for three months (although this period can be extended), or for a fishing season or round voyage. Applications for final registration must be accompanied by:
• A certified copy of the public deed of delivery of the ship by the builder, and
• A certificate issued by the Merchant Navy Office stating the value of the vessel
Once registered in both the local and central register, a certificate to obtain registration in the Mercantile Register will be issued, together with a Patente de Navegación (certificate of registry), which is issued by the Central Registry to the Master via the civil service of the relevant maritime province.
“Abanderamiento:” This procedure is for foreign ships imported into Spain. It also applies to salvaged ships, and to ships purchased in a judicial sale. In the case of imported ships, the owner must first apply for a “pasavante” or temporary permit. This is issued by the Spanish Consulate in the country of origin and is valid for six months. In this period, the voyage to Spain must be completed and the application for registration submitted.
The application is submitted to the Merchant Navy Office. The documents that must accompany the application are:
• A form signed by the applicant together with a public document evidencing the import of the ship
• Ownership title to the ship or the charterparty in the case of provisional abanderamiento
• Certificate of deletion from the registry of origin
• Certificate evidencing payment of customs duties
• Proposed name of the vessel.
All documents must bear the apostille of the Hague Convention of 5th October 1961, or be legalised by the Spanish Consulate.
Spanish vessels wishing to provisionally use a foreign flag must obtain an optional permit from the Merchant Navy Office. In these cases, an additional application for the permit must be filed with the charter party.
Once the vessel is registered, the Owner will receive the “Patente de Navegación”, which will authorise her to sail under the Spanish flag.
The procedure for registration in the Mercantile Register is contained in the Regulations of the Mercantile Register of 1956. Registration is requested by the Owners of Spanish ships flying the Spanish flag, by submitting the relevant deeds of building, transfer and alteration, and a declaration of ownership and restrictions, mortgages and charges.
Vessels under construction and vessels newly built may be registered. When acquired by transfer, the transaction must be formalised in a public deed, which is annexed to a certificate previously issued by the Navy Commander’s office and to an authorization of the Under-Secretary of the Merchant Navy.
Bareboat Charter Registration
In the case of bareboat charters, the flag will be obtained through the provisional flag granting procedure (see above). Validity of the provisional flag is restricted to the period prescribed in the cancellation certificate. The required documents are:
A form signed by the applicant together with an official document evidencing the import of the ship.
The charter party.
A certificate evidencing deletion from the original register.
A document proving payment of customs fees.
The proposed name of the ship.
Documents evidencing compliance with security standards prescribed by Spanish law and by international conventions signed by Spain.
Vessel and Yacht Eligibility & Survey Requirements
There are no age restrictions on vessels. However, they are subject to survey by the Survey Service of the Merchant Navy Office, and therefore must have the compulsory certificates regarding safety construction, hull and machinery, GRT and NRT and class.
Crewing
The relevant legislation is contained in the Commercial Code, the Decree on Professional Qualifications for the Merchant Navy of 4th September 1981 and subsequent Orders of 2nd June 1982 and 18th April 1983, the Decree on Higher Education for the Civil Navy of 4th December 1980 and the International Convention of 7th July 1978 on Training, Qualifications and Watch Standards for Seamen. The Master and Chief Officer must be Spanish citizens and be suitably qualified. The remaining officers must be citizens of the European Union and meet the existing requirements on training, master’s recruitment, medical examination, social security payments in Spain or country of origin, etc.
The crew may consist of citizens of the European Union. The main provisions governing crews are included in the Work Conditions in the Merchant Navy Act (Order of 23rd December 1952) and in Law 27/1992.
Mortgages
To be fully effective in administrative terms, the Merchant Navy Office or delegate authority at the provincial level must be informed of the creation, alteration or discharge of charges, encumbrances and mortgages.
Mortgages on vessels are governed by Decree 1027/1989 and the Mercantile Register Regulations of 1956 (arts. 145-190) and 1996 (DT13). Mortgages on ships must be in writing, and can be in the form of a public deed, a document signed by a broker or a simple private document. However, if granted to secure a current account or bearer certificates, the mortgage must be granted in a public deed. Mortgages must be entered on the Mercantile Register of the province in which the vessel is registered. Registered mortgages confer on the mortgagee all rights inherent in this type of security, such as preference over ordinary creditors of the mortgagor, and the right to follow the mortgaged property in order to obtain repayment of the credit notwithstanding a change of ownership. However, some creditors will have preference over the mortgagee: for example the State, provincial or municipal authorities and creditors for pilotage and port fees and for unpaid wages. The limitation period for an action to request the sale of the mortgaged vessel is ten years. In principle, mortgages of ships granted in foreign countries should be formalised before a Spanish consular official. However, the Mercantile Register Regulations 1956 acknowledge registration of mortgages granted before the competent foreign authorities in accordance with the legislation of the foreign country.
Fees
The performances of the Registers of ships and shipping companies governed by Article 75 and Fifteenth Additional Provision of Law 27/1992, will result in the perception of the following rates, in amounts approved by Law 24/2001 and amended annually by the State Budget Act.
• Fee: € 0.172302 per unit tonnage. Minimum € 17.27.
• Lowest rate: € 0.172302 per unit tonnage. Minimum € 17.27.
• Administrative proceedings intermediate rate
• First rate. Administrative action, at the request of a party, lead sheet notation on seat € 17.23
• Second rate. Certifications parte, seat back sheets for each € 6.892115
• Rate third. Simple copy the contents of the records € 17.23
Payment of the fee shall be made in cash, or billed in collaborating depository Ministry of Finance, in the standard form " 790025_______ "to be facilitated by the dependence of the Directorate General of Merchant Marine where service is requested .
When a request is made by a resident from abroad, payment of the fee may be made by bank transfer to the following account:
Headline Ministry - Overseas rates
Account number: 0182 2458 10 0200000489
BBVA Bank
Contact
Contact Point / Spain
Dirección General de la Marina Mercante
C. de Ruiz de Alarcón, 1, 28014 Madrid, Spain
Phone 0034 91 597 9269
Fax 0034 91 597 9235
Email pbip.dgmm@mitma.es
Stockholm Agreement 96
IMO Convention 48
* IMO amendments 91
* IMO amendments 93
SOLAS Convention 74
SOLAS Protocol 78
SOLAS Protocol 88
LOAD LINES Convention 66
LOAD LINES Protocol 88
TONNAGE Convention 69
COLREG Convention 72
CSC Convention 72
CSC amendments 93
SFV Protocol 93
STCW Convention 78
STCW-F Convention 95
SAR Convention 79
STP Agreement 71
STP Protocol 73
IMSO Convention 76
INMARSAT OA 76
INMARSAT amendments 94
INMARSAT amendments 98
IMSO amendments 2006
IMSO amendments 2008
FACILITATION Convention 65
MARPOL 73/78 (Annex I/II)
MARPOL 73/78 (Annex IV)
MARPOL 73/78 (Annex V)
MARPOL Protocol 97 (Annex VI)
London Convention 72
London Convention Protocol 96
INTERVENTION Convention 69
INTERVENTION Protocol 73
CLC Convention 69
CLC Protocol 76
CLC Protocol 92
FUND Convention 71
FUND Protocol 92
FUND Protocol 2003
NUCLEAR Convention 71
MARPOL 73/78 (Annex III)
PAL Protocol 76
PAL Protocol 90
PAL Protocol 02
LLMC Convention 76
LLMC Protocol 96
SUA Convention 2005
SUA Protocol 2005
SALVAGE Convention 89
OPRC Convention 90
HNS Convention 96
OPRC/HNS 2000
BUNKERS CONVENTION 01
ANTI FOULING 01
BALLASTWATER 2004
NAIROBI WRC 2007
HONG KONG CONVENTION
HNS PROT 2010
Cape Town Agreement 2012
SUA Convention 88
SUA Protocol 88
IMO Conventions
Status of Conventions Spain
IMO Convention 48 x
SOLAS Convention 74 x
SOLAS Protocol 78 x
SOLAS Protocol 88 x
SOLAS Agreement 96
LOAD LINES Convention 66 x
LOAD LINES Protocol 88 x
TONNAGE Convention 69 x
COLREG Convention 72 x
CSC Convention 72 x
CSC amendments 93
SFV Protocol 93 x
Cape Town Agreement 2012 x
STCW Convention 78 x
STCW-F Convention 95 x
SAR Convention 79 x
STP Agreement 71
Space STP Protocol 73
IMSO Convention 76 x
INMARSAT OA 76 x
IMSO amendments 2006
IMSO amendments 2008 x
FACILITATION Convention 65 x
MARPOL 73/78 (Annex I/II) x
MARPOL 73/78 (Annex III) x
MARPOL 73/78 (Annex IV) x
MARPOL 73/78 (Annex V) x
MARPOL Protocol 97 (Annex VI) x
London Convention 72 x
London Convention Protocol 96 x
INTERVENTION Convention 69 x
INTERVENTION Protocol 73 x
CLC Convention 69 d
CLC Protocol 76 x
CLC Protocol 92 x
FUND Protocol 76 x
FUND Protocol 92 x
FUND Protocol 2003 x
NUCLEAR Convention 71 x
PAL Convention 74 d
PAL Protocol 76 d
PAL Protocol 90 d
PAL Protocol 02 x
LLMC Convention 76 d
LLMC Protocol 96 x
SUA Convention 88 x
SUA Protocol 88 x
SUA Convention 2005 x
SUA Protocol 2005 x
SALVAGE Convention 89 x
OPRC Convention 90 x
HNS Convention 96
HNS PROT 2010
OPRC/HNS 2000 x
BUNKERS CONVENTION 01 x
ANTI FOULING 2001 x
BALLASTWATER 2004 x
NAIROBI WRC 2007
HONG KONG CONVENTION x
x= ratification
d=denunciation