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Montreal Convention: increase of liability limits

On April ICAO (International Civil Aviation Organization) started a review process, ended on September 30th, with the aim of increasing various liability limits set by the 1999 Montreal Convention.

Article 22 of the Montreal Convention provides the air carrier’s liability limit in the event of delay for baggage and goods.

Paragraph 1, with reference to the transport of persons, has brought the liability limit from 4 150 to 4694 SDRs (Special Drawing Rights) per kilo.

As to the transport of baggage the carrier’s liability, in case of destruction, loss, deterioration or delay, has been increased from 1000 SDRs per passenger to 1131.

Paragraph 3 instead, in relation to the transport of goods, has brought the liability limit from 19 SDRs to 22.

The aforementioned limits will come into effect from 28th of December 2019.

Below the official ICAO communication:

https://www.icao.int/secretariat/legal/Pages/2019_Revised_Limits_of_Liability_Under_the_Montreal_Convention_1999.aspx.

The ECJ on jurisdiction in relation to passengers’s claims against air carriers

The ECJ has recently been called to consider the issue of jurisdiction in relazione to claims by passengers against air carriers comprising booth the standardized sums payable in case of delay or cancellation of flights under Regulation 261/2004 and compensation for pecuniary and non-pecuniary damages under the 1999 Montreal Convention.

With judgement 7 November 2019 (case C-213/18) the Court held that each head of claim must remain subject to its own jurisdiction rules, namely

i) claims under Regulation 261/2004 fall within art. 7.1 of Regulation 1226/2012

ii) claims under the Montreal Convention are subject to art. 33 of the Montreal Convention (which, being a “special rule”, takes precedence over Regulation 1215/2012.

The ECJ also stated that (contrary to the view consistently held by the Italian courts) art. 33 of the Montreal Convention deals not only with jurisdiction as between States, but also with the territorial competence of national courts.

Limitation of shipowners’ liability and constitutional issues.

The issue of the compatibility of the limitation of shipowners’ liability with the Italian Constitution was raised in the context of proceedings before the Court of Appeal of Palermo. The proceedings concerned the limitation in respect of a ship with a gross tonnage of less than 300 t. and were therefore governed by artt. 275-276 of the Italian Code of Navigation (rather than Decree no. 111/2012, incorporating the limitation figures of the LLMC). The claimants argued that the relevant provisions of the Code of Navigation were in contrast with the Italian Constitution because i) there was an unreasonable reduction of the compensation payable to the injured parties, ii) there was no justification for the different treatment of ships with different tonnage, iii) the right to limitation would be lost in case of gross negligence or wilful misconduct of the owner only (and not also of his servants or agents). The Court of Appeal dismissed all the complaints and declined to refer the matter to the Constitutional Court, stating that the provisions of the Code of Navigation on limitation of shipowners’ liability are a reasonable compromise between conflicting interests and, as such, in line with Italian Constitution.

ANIMP Seminar – Milan, 7 November 2019

On 7 November 2019, ANIMP (National Association of Industrial Plant Engineering) organised a seminar entitled “Sustainable and green transport: we accept the challenge!” in San Donato Milanese (MI). Marco Lopez de Gonzalo gave a presentation on the legal principles of sustainability in transport, while Enrico Salvatico has been a moderator for the day. A summary of the event can be found here.

Untying the knot of Italian ship arrest law

Michele Mordiglia, partner of the Mordiglia Law Firm and member of the IR Global network, published an article on Trade Winds magazine, in which he analyzes the issue of arrest of ships in accordance with Italian law. Here the link and the comment published on Trade Winds along with the full article: https://www.tradewindsnews.com/legal/1810055/untying-the-knot-of-italian-ship-arrest-law; Trade Winds, 19 June 2019; Trade Winds, IR Global, 3 June 2019.

The West Tankers judgment is still “good law” after the recast of Brussels I Regulation?

Marco Lopez de Gonzalo, partner of Studio Legale Mordiglia, published an article on the recent Nori Holdings v. Bank Otkritie case, regarding the role of the anti-suit injunctions as protection of arbitration proceedings, raised before English courts for the first time after the entry into force of Regulation (EU) n. 1215/2012. In fact, with the introduction of the aforementioned Regulation, and in particular with its recital 12, we were led to wonder if something had changed in the context of the exclusion of the arbitration pursuant to art. 1.2.b), with reference to the admissibility of anti-suit injunctions, so as to question again the conclusions reached in this regard by the Court of Justice with the West Tankers judgment, issued when the previous Regulation 44/2001 was in force. With the sentence “Nori Holdings”, Mr. Lopez highlighted in his article how the English High Court has nevertheless confirmed what was held in the “West Tankers” judgment, empathizing the essential steps, including in particular the fundamental principle of mutual trust between the jurisdictions of the Member States, stating that the West Tankers judgment “remains an authoritative statement of EU law”.

COSTA CONCORDIA F.A.Q. – Propeller of Monaco

On Thursday 16 May 2019, Pietro Palandri, partner of Mordiglia Law Firm, will give a lecture at the Propeller Club of Monaco entitled: “Costa Concordia FAQ“, related to the tragic accident occurred at Giglio Island on January 13th 2012. The event, arranged by Propeller Club of Monaco, will see the participation of numerous representatives of the maritime world.

Blue Economy Summit 2019

On 13 and 14 May 2019, the “Blue Economy Summit – II edition” will be held in Genoa. Studio Legale Mordiglia has been a sponsor of this event since its first edition (www.besummit.it ). During the session “Technological evolution: development of open innovation and start up paths” on Tuesday, May 14, in the Hall of Representation of Palazzo Tursi, Marco Lopez de Gonzalo will give a lecture on “Maritime law and technological evolution: the case of autonomous ships”.

Tort claim against the actual carrier: the claim is subject to the same regime applicable to the contractual carrier

SLM recently assisted a shipowner sued by a cargo insurer who claimed the reimbursement of the salvage compensation, amounting to euro 6 million, paid by the insurer in favor of the salvor who assisted the vessel and the cargo after a fire broke out in the engine room. The Tribunal of Genoa with judgement dated 22.1.2019 rejected the claim declaring it time barred. The Tribunal held that the claim in tort against the actual carrier (shipowner) other than the contractual carrier was subject to the same regime, the Hague Visby Rules, governing the liability of the carrier including the one year time bar period. Such decisions was rendered on the basis of a non-recent decision of the Court of Cassation, according to which the HVR applies both to the actual and the contractual carrier, and under the Himalaya clause included in the bill of lading which gave the shipowner the benefit of all contractual and law provisions applicable to the carrier.

Master degree course on Marine and Transport Insurance (MASMET)

On 19th September 2018, Mirko Scapinello and Filippo Pellerano gave a lecture during the master degree course on marine and transport insurance (MASMET) organized by the Genoa University in cooperation with various operators and practitioners in the shipping market. The lesson, which has taken place at P. L Ferrai & Co. premises in Genoa, focused on the interactions between the insurance covers in the context of big casualties like the Costa Concordia and the Norman Atlantic.