All posts by Pietro Mordiglia

ANIMP

Enrico Salvatico has been appointed as President of the ANIMP (Italian Association of Industrial Plant) Logistics, Transport and Freight Forwarding Department for the four-year period 2018-2022.

ANIMP is a meeting point for companies and professional experts of plant design and installation e represents an important landmark for the supply chain.

Among the associates there are EPC (Engineering, Procurement and Construction) Contractors, small and medium companies providing materials, services, placement and assembly, end-users, University professors, professional experts and scholars, all of them dealing with the design and construction of industrial plants, major works and infrastructures.

For further information please visit www.animp.it.

Terrorist attack at Bardo Museum in Tunis: Tour Operator not liable for terrorist attack

SLM recently assisted a cruise company sued by the victims of the terrorist attack occurred during the shore excursion at the Bardo Museum of Tunis on 18th March 2015. The Tribunal of Turin with judgment dated 12.11.2018 and the Tribunal of Verona with judgment dated 24.12.2018 rejected the claims for damages submitted by the victims holding that (i) the duty of care of the Tour Operator required him to consult and follow the official information available on the website of the Ministry of Foreign Affairs, but no more than that (and in the instant case no specific warning has been published by the Ministry) and (ii) the terrorist attack was an unforeseeable and unavoidable event entirely beyond the control of the Tour Operator, for which the Tour Operator could not accordingly be blamed.

Insurance compensation and compensation for damages: non-cumulation rule

By judgement n. 12565/2018, the United Sections of the Italian Court of Cassation held that insurance compensation and compensation for damages aim at same compensatory functions and, therefore, they cannot be liquidated together. Payment of the indemnity, by the damaged party, determines a corresponding reduction of its claim for compensation against the damaging party, that can no longer be claimed. Furthermore, the takeover of the insurer, according to art. 1916 of the Italian Civil Code, takes place automatically, following the payment of compensation for that damage for which the third party is responsible. The takeover, in particular, does not require any prior communication from the insurer regarding its intention to succeed in the rights of the insured against any third party.

Application and lawfulness of the clauses “Claims made” for matters relating to insurance.

By Judgement n. 22437 of 24th September 2018 the United Section of the Court of Cassation held that, for matters relating to insurance, the clauses “claims made” are an exception from the typical insurance of civil liability outlined by art. 1917 cod. civ. paragraph 1. Such insurance coverage does not operate in relation to all claims for damages, arising during the period of execution of the contract, but under the condition that, during the period of policy’s operation, a request for compensation takes action by the injured third party and also that such request is forwarded by the insured party to the insurer. Nevertheless, in order to assess the lawfulness of a “claims made” clause, it is necessary to consider overall the matter brought before the court, its impact on reporting obligations, the correspondence between insurance premium and assured risk and the existence of a withdrawal clause during the employment relationship.

Implementation of the EU Directive on package travel and linked travel arrangements

By Legislative Decree dated 21.5.2018 no. 62 Italy has implemented the EU Directive 2015/2302 of the European Parliament and of the Council on package travel and linked travel arrangements. The Legislative Decree modifies the provisions of Italian Law on Tourism (contained in Legislative Decree n. 79/2011) in light of the provisions of the Directive and contains the sanctions applicable to the organizer and the seller of package travel and linked travel arrangements for the violations of the provisions of the Legislative Decree. The Decree will enter into force on 1.7.2018.

Reform of the Italian port system – A new step forward

The Italian Legislative Decree no. 232/2017, concerning “corrective and supplementary provisions to the Legislative Decree no. 169/2016” for the reform of the Italian port system, entered into force on 24th February 2018. The new Legislative Decree develops various issues of the Italian port system, thus completing the reform of the Italian Law no. 84/1994 already started by the Italian Legislative Decree no. 169/2016. In particular, the above Decrees provide for a significant simplification of administrative proceedings and rationalization of the Port Authorities system.

New Pleasure Yacht Code

On 13th February 2018 the new Legislative Decree 3.11.2017 no. 229, revising and completing the previous Legislative Decree 18.7.2005 no. 171 “Pleasure Yacht Code”, entered into force. The Code, aimed to coordinate and balance the discipline governing the navigation of pleasure yachts and to simplify the relevant administrative procedures, for both leisure and commercial yachts, contains provisions to intensify the protection of the marine environment, the safety of navigation, the safety of life at sea and introduces new professional figures, including that of pleasure yachts broker.

Twenty-third EMLO annual conference

On 2 – 3 November 2017, the  twenty-third EMLO (European Maritime Law Organization) annual conference (“Global Alliances: Policy considerations, Brexit and Competition Law”) will be held in Hamburg at CARLS an der Elbphilharmonie and NRV Yacht Club. Marco Lopez de Gonzalo, with a presentation on Shipping Finance, will attend the conference as speaker. A summary of the event can be found here.

Airport handling and contract for third parties’ benefit

By judgement no. 21850 issued on 20th September 2017, the Italian Court of Cassation held that the relationship among the air carrier, handling operator and cargo interests does not give rise to a contract for third parties benefit, thus excluding the existence of a contractual relationship between the handling operator and cargo interests. The Court based its decision on the assumption that the handling operator must be qualified just as a carrier’s servant, so that the contractual liability for loss of and/or damage to the goods can be claimed to the carrier only. As a carrier’s servant, the handling operator is subject to the 1999 Montreal Convention and can take advantage of the same exemptions and limitations of liability which are provided in favor of the air carrier.

On-line contracts and agreements for the choice of jurisdiction

By judgement no. 21622 issued on 19th September 2017, the Italian Court of Cassation held the validity of an agreement for the choice of jurisdiction referred to in a link contained in an e-mail purchase order. Said judgement is in line with the recent EU Court of Justice case law, according to which this way of concluding agreements for the choice of jurisdiction complies with Art. no. 23 of (EU) Reg. Brussels I, pursuant to which “any communication by electronic means which provides a durable record of the agreement shall be equivalent to writing”. The Court of Justice therefore clarified that the insertion of said agreements in general terms and conditions that can be downloaded through the access to a web site does not prevent the parties to print and save the text of their agreement before the conclusion of the contract, thus allowing its durable record. The judgement of the Italian Supreme Court is going to have significant effects also on tourism and transport of passengers, where the on-line conclusion of contracts is getting very frequent.