The Barcelona Court of Appeal handed down judgementon 30th June 2021, discarding the retroactive application of the Spanish Shipping Act (2014), highlighting that direct action does not constitute a procedural right, but of a materialnature, so the relevant moment when considering the application of the possible direct action of the injured party (a sailor who suffered injuries in a fishing vessel) against the P&I under the SSA (art. 465) is that of the time when the event occurred (prior to the entry into force of the SSA), and not the date of the filing of the claim.
This ruling, however, seems to open the door to direct actions against P&I Club if the event that gives rise to the claim occurred after the entry into force of the SSA (under the provisions of its art. 465). This question is not yet settled if (a) once looks at the wording ofarticle 465, which does not refer to P&I insurance but to civil liability insurance and, (b) in light of the case law established by the Supreme Court (after the “SEABANK” case of 2003).
It is worth noting that the reform of the SSA that is currently under discussion provides that the direct action against a P&I is to be only possible when the rules of the P&I so determine, or when it is provided for by an international Convention in force in Spain or by a regulation of the European Union.
Link to the judgement:
https://www.poderjudicial.es/search/AN/openDocument/3c335bcc3c871776/20210902