The Role of the Notary in Maritime Law

That is why today we bring you, thanks to an enquiry made by a client, the intervention of the Notary in Maritime Law proceedings, especially the one related to the “Deposit and sale of goods and luggage in maritime transport”.

Following the enactment and entry into force of Law 14/2014 of 24 July “on Maritime Navigation”, the possibility is introduced for the Notary to intervene in various proceedings in the field of Maritime Law, traditionally considered to be of voluntary jurisdiction and which were initially entrusted solely to judges. Subsequently, the Law on Voluntary Jurisdiction, Law 15/2015, of 2 July was enacted, which further develops everything related to proceedings in the field of voluntary jurisdiction and which is applicable to this proceeding in part of its processing.

Despite the limited regulation of this file in the Law, it is necessary to take the following into account:

In accordance with the provisions of article 512 of the Maritime Navigation Law, this procedure can be processed when: "the recipient does not pay the freight, the passage or the expenses related to its transport or does not present themselves to collect the carried goods, as well as when the transport cannot be completed due to a fortuitous circumstance arising during the journey, which makes its continuation impossible, illegal or prohibited” and when the charter party itself allows the procedure to be interpreted as applicable according to the law governing it.

Taking the above into account, for the processing of this file a series of requirements must be met for the Notary to accept the request, they are:

1. That the law applicable to the charter party contract empowers the carrier to initiate this file or procedure.
2. That the recipient has not paid the freight, passage or related expenses or does not appear to collect them.
3. Or, when the transport cannot be completed due to an unforeseen fortuitous circumstance.

These requirements must be proven to the Notary by documentary means, otherwise the request will not be accepted.

The party entitled to request the Notary to be the actual carrier or the contractual carrier, but it could also be requested by the freight forwarder or their agent.

Now, regarding territorial jurisdiction, the Law does not limit this in any case, so in principle any Notary could be competent, but we consider that for legal logic, proximity, and also due to the impossibility of a Notary from outside the city of Barcelona travelling there, a Notary in Maritime Law in Barcelona should be competent, taking into account that in the vast majority of cases, the goods will be deposited in the Port of Barcelona.

Among the documentation to be provided and according to the provisions of article 513 of the Law, it shall be the following:

1. Copy of the bill of lading, transport contract or travel document.
2. The identity of the recipient that must be requested.
3. The invoices pending payment, whether for freight, passage and other expenses to be claimed.
4. The description of all goods (which must be correctly identified) and their value.

Once all the documentation has been presented to the Notary in Maritime Law and a request is made by the entitled party, the notary shall immediately demand payment from the recipient in accordance with the provisions of article 514 of the Law, the latter having a non-extendable period of 48 hours from the notification to provide sufficient guarantee.

In the event that the procedure is not halted because what has been previously mentioned does not occur, it continues its course, with the Notary ordering the valuation of the goods by a competent appraiser and, in turn, the deposit of the goods, which as a general rule will be within the same port for customs reasons.

Likewise, it will be within the competence of the Notary in Maritime Law to arrange the sale of the goods, either by a person or entity specialised for these purposes or directly by public auction, since the Law does not regulate the sale procedure and leaves it to the discretion of the Notary to decide on this matter, so the Notary must take all precautions and ensure that the sale is carried out with all the required guarantees; for this, they must primarily take into account what is established in the Notarial Law and its Notarial Regulation as well as in the Law of Voluntary Jurisdiction regarding the auction.

When it comes to invoicing and settlement, the three concepts involved in the processing of this file must be taken into account, that is, the Notice and Notification Report, the Deposit Report and the Auction Report, as well as all the documents attached to the main file and the consultations to the Mercantile Registry if applicable. Therefore, making an estimate, the entire processing of the file should be between approximately 800 euros and 1000 euros.