Читать книгу Estudios de derecho marítimo. Libro en homenaje a la memoria de José Luis Goñi Etchevers - José Carlos Fernández Rozas - Страница 37

Although both Spain and Italy are parties to the 1989 Salvage Convention, provisions on salvage are also contained in their respective domestic legislation.

With Law 14/2014 of 24 July on Navegación Maritima, published the following day and entered into force the 25 September 2014, Spain effected a full reform of its domestic legislation, which was based on the 1885 Code of Commerce (Book III articles 573-869), from time to time updated with the incorporation of international conventions and also with a number of domestic regulations.

This new Spanish maritime legislation is significant as it contains all the provisions on maritime law⁸, thus being more like a code than a law, and is oriented towards uniformity. In fact it encompasses all international maritime conventions which are in force in Spain.⁹

Notably, art. 2 of the preamble states:

“…Esta vocación de uniformidad conlleva el propósito de acabar con la criticada dualidad de regulaciones existente en muchos ámbitos de esta materia, en los que, por una parte, España ha ratificado distintos convenios internacionales y, por otro, contamos con una legislacón propia que, en muchos casos, no se ajusta a los mismos.”

And art. 2.2 of the Law:

“En todo caso, para la interpretación de las normas de esta ley se atenderá a la regulación contenida en los tratados internacionales vigentes en España y la conveniencia de promover la uniformidad en la regulación de las materias objeto de la misma.”

However Law 14/2014 does not incorporate the full text of the international conventions and contains provisions which modify those in the international conventions or constitute an addition to what provided therein.¹⁰

This has been noted when reviewing the articles on salvage, as it will be considered hereinafter.

Spain denounced the 1910 Salvage Convention the 10 January 2005, whilst in the process of ratifying the 1989 Salvage Convention.

As provided in its art. 19, the 1910 Salvage Convention remains in force in a State party for one year from the denunciation.

The 1910 Salvage Convention remained therefore in force in Spain until 10 January 2006, shortly before the entry into force of the 1989 Salvage Convention.

There was therefore a short period of time (10-27 January 2006) with no international convention on salvage in force in Spain.

Italy has not denounced yet the 1910 Salvage Convention, possibly as it forgot to make this formal step which deprives a convention of its validity in a State party.

Therefore the 1910 Salvage Convention apparently is still in force in Italy. However there is no doubt that only the 1989 Salvage Convention is applicable, as a consequence of a law authorizing its ratification and execution, and also as a matter of “jus superveniens”.

The Italian domestic legislation on salvage is contained in the Code of Navigation of 1942, which consists of a total of 1331 articles. It is named Code of Navigation because its part I, (art. 15-686), after 14 articles on preliminary provisions, deals with maritime and inland navigation, whilst part II (art. 687-1078) contains provisions on air navigation. Part III follows with criminal and disciplinary provisions and there are then separate regulation acts with implementation rules on maritime navigation (art. 1-543) and on inland navigation (art. 1-171).