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.

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.

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.

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.

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.

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.