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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.

Partial delivery of cargo: the consignee is entitled to act against the carrier

The Court of Appeal of Milan recently held that the general rule consisting in the recognition of the right of action for damages to cargo exclusively in favour of the consignee who asked the carrier for delivery (art. 13 CMR and art. 1689 of the Italian Civil Code), also stands in case of  partial delivery. The right of action is, in fact, transferred to the consignee upon delivery (or upon request of delivery) and it is irrelevant that delivery then only takes place partially, being the obligation of delivery an indivisible obligation.

The ECJ on the meaning of “complaint in writing” in the Montreal Convention

Article 31 of the Montreal Convention requires, in case of loss or damage of baggage, that a complaint “in writing” is made within 7 days, failing which “no action shall lie against the carrier”.

In the context of proceedings before the Finnish Supreme Court, the question arose whether a complaint made by phone by the passenger and recorded in writing by the air carrier would satisfy the requirement of art. 31 of the Montreal Convention.

The ECJ, in a judgement issued on 12 April 2018 (case C-258/16, Finnair v. Fennia), having noted that the Montreal Convention aims to “an equitable balance”, held that the requirement of art 31 of the Montreal Convention is satisfied if a complaint is recorded in the information system of the carrier or when, with the knowledge of the passenger, a representative of the carrier has recorded the declaration of loss made orally by the passenger either on paper or electronically.

Judgment of the EU Court of Justice on the nature of the intermediation service of Uber

With judgment dated 20th December 2017, in proceedings n. C-434/15, the EU Court of Justice ruled that the service provided by Uber is an intermediation service, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers that use their own vehicle and persons who wish to make urban journeys. Uber services must be regarded as being inherently linked to a transport service and, accordingly, must be classified as “a service in the field of transport” within the meaning of Article 58(1) TFEU. Consequently, such a service must be excluded from the scope of Article 56 TFEU, Directive 2006/123 and Directive 2000/31.

Visiting Attorney Program at SLM

On 4 December 2017, Karl Depypere, from Antwerp (Belgium) started a two weeks visit at Studio Legale Mordiglia in the Genoa offices. Karl is an attorney at Roosendaal Keyzer, a Belgian law firm with a long standing relationship with Studio Legale Mordiglia. During his visit, he was involved in some cases and had the chance to familiarise himself with Italian procedure. He got aquainted with the way Italian law firms and the Genovese shipping market work and hosted a seminar titled “The Flinterstar – First steps in handling a Belgian Collision case”.

Diritto del Commercio Internazionale

Marco Lopez de Gonzalo published an article on Diritto del Commercio Internazionale vol. 2/2017 entitled “Intellectual property and punitive damages before the Eurpean Court of Justice”.

Marco Lopez de Gonzalo also published on vol. 3/2017 of the same journal an article entitled “The Italian Court of Cassation changed opinion on punitive damages”.