18-11-2008  
Seminar
   
"Chartering (demurrage), sale of goods and claims in marine accidents"
11 September 2008
Palazzo San Giorgio, Sala dei capitani
Genoa

Our partners Pietro Palandri and Paolo Manica attended, as speakers, this seminar sponsored the Ship's Agents Association. Pietro Palandri spoke about the cargo interests' point of view in respect of marine accidents and the rights and remedies pertaining to cargo interests. Paolo Manica presented a paper on the clauses "reachable on arrival, always accessible" in connection with demurrage.
   
   
  04-09-2008  New single text of law on health and safety at work
   

The Legislative Decree no. 81 dated April 9, 2008 has come into force, except for some specific rules on assessment of risks which will come into force on January 1, 2009. This Decree contains the new Single Text of rules on protection of health and safety at work. The Single Text is a full revision, re-arrangement and rationalization of provisions ruling risks for health and safety at work. Besides more precisely determining the parties falling under the rules on health and safety at work (with special regard to the definition of worker, indicated as the person who, regardless of the type of labour contract concerned, carries out an activity, whether or not against a salary), the Single Text specifies general obligations lying upon the single parties, and fixes new rules on the devolution of functions for the apportionment of tasks and liabilities in the organization of a firm. The Legislative Decree has also reformed the system of sanctions applicable to infringements of rules on prevention and safety at work, by providing for an articulated system of offences at the charge of individuals and extending the corporate bodies’ liability (under Legislative Decree no. 231/01) for the crimes of manslaughter or serious or very serious culpable personal injuries committed in breach of safety regulations.

New single text of law on health and safety at work
   
   
  06-02-2007  Anti-pollution services
   

Judgment of the Tribunal of Genoa 9.10.2005


A shipowner refused to pay the “anti-pollution patrol” fees charged by the licensee of the anti-pollution services in the port of Genoa. The licensee obtained a Court Payment Order which the shipowner opposed on the ground that he did not request the anti-pollution service, hence he had no contractual obligation to the licensee.
The Tribunal of Genoa referred to the EC Court of Justice the issue of the consistency with the European rules of the Italian law relied upon by the licensee to demand payment. The Court of Justice held that a national law whereby a Member state, through a licensee, performs a “mandatory” anti-pollution patrol and charges the port customers accordingly is not inconsistent with European rules.
The case was then returned to the Tribunal of Genoa which, having considered the Court of Justice’s decision and the relevant reasons, found that the licensee’s claim is in essence a tax claim: therefore, it must be collected according to the tax collection procedure and not by recourse to the civil court.

   
   
  06-02-2007  Bill of Lading - Delivery without presentation
   

Judgment of the Tribunal of Genoa 2.8.2005


The shipper claimed that the carrier delivered the goods to the consignee without presentation of the original bill of lading which was still in the shipper’s hands. The bill of lading stated as “consignee” the receiver to whom the goods had actually been delivered and was claused “not negotiable unless issued to order of”.
In the circumstances, the Tribunal, having found that the bill of lading was a “not negotiable” instrument, held that the carrier was entitled to deliver the goods to the person stated to be the “consignee” even without presentation of the original bill of lading.

   
   
  06-02-2007  Ship arrest
   

Order of the Tribunal of Naples 28.3.2006


The manager of a pleasure boat applied to the Tribunal of Naples for an order of arrest of the boat to secure his claim for unpaid management fees agreed on a lumpsum basis. The claim included heads of claim falling in the definition of “maritime claim” under Art. 1.1. of the 1952 Brussels Convention on Arrest of Ships and other heads of claim outside this definition. Therefore, the Judge had to decide whether, under the Convention, an arrest to secure claims which are only partly “maritime claims” could be granted. The Tribunal of Naples, also relying on French precedents, found in the affirmative and, therefore, granted the order of arrest.

   
   
  06-02-2007  Carriage of goods by sea
   

Judgment of the Court of Cassation 6.6.2006, no. 13253


This case involved damage to a machinery occurred after discharge and carriage to a depot outside the port area as it was being handled for loading on a trailer.
The Court confirmed its well-established rule that multimodal carriage, even where the sea carriage is dominant, is governed by the Civil Code and not by the Hague-Visby Rules and/or the Code of Navigation.
The Court added the clarification that the definition of “sea carriage”, governed by the Hague-Visby Rules and/or the Code of Navigation, must be interpreted to include both the pre-loading operations (Art. 3.1 and 3.2 of Hague-Visby Rules) and the unloading and delivery operations as long as delivery takes place immediately after discharge or, anyway, without any operation (such as the transfer of the goods to another depot outside the port area) rather than the mere custody of the goods by the carrier in the port area.

   
   
  05-02-2007  Liner shipping conferences
   

Regulation (EC) No. 1419/2006


By the Regulation (EC) No. 1419/2006 the block exemption for liner shipping conferences introduced by the Regulation (EC) No. 4056/86 has been abolished.
Despite bringing some limitation to competition, the conference agreements benefited from the block exemption on the ground that the negative effects of the limitation to competition would be counterbalanced by the positive effects of freight stability and service quality.
The Regulation (EC ) No. 4056/86 providing for such block exemption from the antitrust legislation had been repeatedly disputed by shippers’ associations, and the EC institutions (Commission and First Instance Court) had interpreted it quite strictly.
As widely outlined in the whereas of the Regulation (EC) No. 1419/2006, the liner shipping conferences no longer fulfil the conditions for exemption which, therefore, should be abolished.
As a result, the liner shipping agreements limiting competition remain subject to the general rules of Art. 81 and 82 of the Treaty and of the Regulation (EC) No. 1/2003.

   
   
  05-02-2007  Air transport
   

Regulation (EC) No. 2111/2005


The Regulation (EC) No. 2111/2005, which has completely come into force on 16 January 2007, addresses two different issues both aimed at ensuring a high level of protection for passengers from safety risks.
Firstly, Articles 3-9 of the Regulations contain rules on the establishment and publication of a Community list (so called “Black List”) of air carriers which are subject to an operating ban in the Community, based on common criteria. Each Member shall communicate to the Commission the identity of the air carriers which are subject to an operating ban in its territory; the Commission shall, on the basis of the common criteria, include such air carriers in the Community list.
Articles 10-13 provide for the air carriage contractor to inform the passenger of the identity of the operating air carrier. Where the identity of the operating air carrier is not yet known at the time of reservation, the air carriage contractor shall ensure that the passenger is informed of the name of the likely operating air carrier. In such case, the air carriage contractor shall ensure that the passenger is informed of the identity of the operating air carrier as soon as such identity is established. The air carriage contractor shall also ensure that the passenger is informed of any change of the operating air carrier as soon as possible.

   
   
  05-02-2007  Transport by sea - Cabotage
   

Judgment of the Court of Justice EC 6 April 2006
Agip Petroli Spa v. Capitaneria di Porto di Siracusa


This judgment addresses the issue of the definition of “international voyage” in relation to Art. 3.3. of the Regulation no. 3577/1992 on freedom to provide maritime cabotage services.
This rule, as an exception to the preceding paragraph 2, provides that for cargo vessels over 650 gt carrying out island cabotage, when the voyage concerned follows or precedes a voyage to or from another State, all matters relating to manning shall be the responsibility of the State in which the vessel is registered (flag State), instead of the State in which the vessel is performing the cabotage (host State).
The Court of Justice held that the international voyage may be a voyage in ballast too, with no cargo on board, provided always that it is not a sham voyage in ballast for the mere purpose of circumventing Art. 3.2.
It is for the national court to verify any abusive action: in particular, the court will have to find whether the essential aim of the international voyage in ballast is to avoid the application of Article 3.2 of Regulation, in favour of Article 3.3.

   
   
  05-02-2007  Marine and air labour
   

Judgment of the Constitutional Court 7.11.2006, no. 354


The subject matter of this case was the constitutionality of Art. 373 and 937 of the Code of Navigation which provide that the time-bar for marine and air labour claims are shorter than the time-bar applicable to ordinary labour claims and, moreover, starts to run from the date the labour relationship ceased.
The Constitutional Court found that, despite the regulation of marine and air labour has increasingly neared the ordinary labour regulation, the special feature of marine and air labour justifies the different time-bar regime which does not amount to a violation of the equality principle under Art. 3 of the Constitution.

   
   
  05-02-2007  Air transport
   

Judgment of the Court of Justice EC 10 January 2006
IATA v. Department of Transport


The High Court of Justice of England and Wales referred to the Court of Justice the issue of the validity of the Regulation (EC) No. 261/2004 on compensation and assistance to passengers in the event of denied boarding, cancellation or long delay of flights, on the ground of inconsistency with the 1999 Montreal Convention. This issue had been raised by IATA and ELFAA (the low-fare airlines association) in a case against the English Department of Transport. It is noteworthy that the only area where the Regulation and the Montreal Convention may interfere is the air carrier’s liability for delay. However, according to the Court of Justice their respective provisions work on different levels and are not inconsistent in that the Convention establishes a compensation for damages subject to evidence of (i) a breach by the air carrier and (ii) existence and quantum of the damage, whilst the Regulation entitles the passenger to some remedies (supply of meals and refreshments, hotel accommodation and re-routing) because of the mere delay regardless of the cause of the delay and of the economical damage actually suffered by the passenger.

(For further details please see the comment by M. Lopez del Gonzalo in Diritto del Turismo, 2006, 165)

   
   
  08-09-2006  Article
   

"The Approach of the Italian Courts to Damages in Crew Death and Personal Injury Claims" by Maurizio Mazzocchi

This article appeared in the September 2006 Special Edition on Personal Injury of the Standard Bulletin published by The Standard Steamship Owners’ Protection & Indemnity Association (Bermuda) Limited.
   
   
  08-06-2006  Article
   

“The International Comparative Legal Guide to: Commodities and Trade Law 2006 – Italy Chapter”  by Marco Lopez de Gonzalo and Aldo Mordiglia

"This article appeared in the 2006 edition of The International Comparative Legal Guide to: Commodities and Trade Law; published and reproduced with kind permission by Global Legal Group Ltd, London"
   
   
  24-03-2006  Seminar
   

The Chamber of Commerce of Genoa with the collaboration of Studio Legale Mordiglia, organises on 24.3.2006 at Palazzo della Borsa of Genoa, a Seminar on the following subject:

 

THE STRATEGIC ROLE AND THE LEGAL REGIME OF THE LIBERALIZATION OF TRANSPORTS IN EUROPE

The papers will be the following:

The actual access to cabotage by European carriers, the public service duties, the subsidies to public service carriers.

Speaker: Mr. Luis de San Simon - San Simon Duch, Lawyer in Madrid

 

  • THE LIBERALIZATION OF CARRIAGE BY ROAD IN ITALY (download pdf)

From the mandatory tariff system to the regulated liberalization.

Speaker: Mr. Marco Lopez de Gonzalo -Studio Legale Mordiglia, Professor at Milan University.

 

Progress towards “Open Skies” and current thinking on State aid in Europe.

Speaker: Mr. Jonathan Lux - Ince & Co. London

 

The European directives on carriage by rail and access to the rail infrastructures.

Speaker: Mr. Enrico Mordiglia -Studio Legale Mordiglia, Lawyer in Genoa

 

  • LIBERALIZATION OF TRANSPORT MARKET AND HARMONIZATION OF LIABILITY RULES IN EUROPE (download pdf)

The new draft rules on multimodal transport currently under consideration by the European Commission and their potential effects on freedom in the transport market.

Speaker: Avv. Filippo Lorenzon - Institute of Maritime Law - University of Southampton
   
   
  03-10-2005  Seminar
   

MARPOL – A practical guide to minimizing risk
Villa delle Peschiere
Genoa, 15 September 2005
Organized by the P&I Club The Standard at
the office of P.L. Ferrari of Genoa

Paper by Michele Mordiglia on the topic:
“ MARPOL VIOLATIONS:THE ITALIAN POSITION”

The MARPOL Convention 1973 for the prevention of pollution caused by ships and the Protocol 1978 to the Convention, ratified by Italy respectively with the Laws 29/9/1980 n. 662 and 4/6/1982 n. 438, were exposed in some cases to the risk of being in conflict with the Italian domestic law in the matter of discharge at sea or disposal ashore of polluting substances.
In the Italian climate where the problem of “pollution” is quite felt, both as a result of the efforts made by the environmental associations, and a particular attention by “media” and a certain punitive attitude of our Authorities, it was the task of the Court of Cassation to solve the apparent conflicts between MARPOL and domestic law.
By judgement dated 24/6/1998 the penal United Sections of the Supreme Court held that the MARPOL Convention, Annex I, as special law, prevails over the domestic Law n. 979/82 on the “Defence of the sea”, whereas they decided that the discharge at sea of polluting substances, under the strict rules imposed by MARPOL, does not amount to the crime as provided for by art. 16, 17 and 20 of the law n. 979/82.
Again, in the matter of disposal of bilge waters in the Italian ports, the Court of Cassation clarified the limits between the domestic law and the MARPOL Convention, thus excluding that a conflict between one law and the other may arise.
By judgement dated 12/2/2003 the Supreme Court held in fact that the MARPOL prescriptions, Annex V, according to which the bilge waters produced by ships are not to be classified as wastes, are not applicable whenever the above waters are disposed in the Italian ports’ areas, being in that case applicable the domestic Law n. 22/97, which classifies the bilge waters produced by ships as “dangerous wastes”.
As far as the penalties imposed by the MARPOL Convention for violation of the relevant prescriptions are concerned, art. 4 of MARPOL 1973 refers to the provisions of the laws of the Contracting State having jurisdiction on the violation and the same art. 4, par. 4, provides that the penalties prescribed by the laws of such State must be particularly severe, to dissuade the potential offenders from committing any violation.
For further information, please contact Michele Mordiglia by telephone (+39 010 586841) or by fax (+39 010 532729) or by e-mail (michele.mordiglia@mordiglia.it)

   
   
  17-10-2005  Judgment
   

Judgment of the Court of Justice EC 14 October 2004
Maersk Olie & Gas A/S v. Firma M. de Haan en W. de Boer


This decision addresses the issue of the interrelation between proceedings on the merits of damages resulting from a marine incident (damage to a pipeline) filed in Denmark by the victim of the damage and the liability limitation proceedings (under the 1957 Brussels Convention) brought by the allegedly liable shipowner in The Netherlands.
In answering the questions posed by the submitting court, the Court ruled that:
- there is no lis pendens within the terms of Art. 21 of the 1968 Brussels Convention (now Art 27 of the Council Regulation EC no. 44/2001) between proceedings on the merits and liability limitation proceedings because they do not involve the same cause of action; the question as to whether these may be related actions under Art. 23 Convention (now Art. 28 Regulation) is left open by the Court;
- the decision ordering the establishment of a liability limitation fund is a judgment within the terms of Art. 25 Convention (now Art. 32 Regulation);
- a decision to establish a liability limitation fund, in the absence of prior service on the claimant concerned, cannot be refused recognition in another Contracting State on condition that it was duly served on or notified the defendant in good time.

   
   
  12-10-2005  Decision
   

Partial unconstitutionality of Art. 423 of Code of Navigation
Constitutional Court decision no. 1999 of 26 May 2005


Art. 423 of Code of Navigation provides for a maximum liability of the carrier of goods by sea in the amount of ITL 200,000 (now € 103.29) for freight unit. According to the prevailing court decisions, this limitation was applicable even in case of gross negligence of the carrier.
In the past, Art. 423 had already been scrutinized by the Constitutional Court with regard to the inadequacy of the quantum and the absence of any mechanism of revaluation of the limitation amount. The Court, however, had overcome these objections (decisions no. 410/1987 and 71/2003) for the reason that the shipper may avoid such limitation by declaring the value of the goods.
Instead, in the decision no. 199 of 26 May 2005, the Court has declared that Art. 423 is unconstitutional where it does not rule out the limitation in case of fraud or gross negligence of the carrier. Particularly, the Court has ruled on the necessity for uniformity of the carriage by sea regime with that of carriage by air (Art. 952 Code of Navigation) and carriage by road (Law. no. 450/1995) where, indeed, the carrier cannot benefit of any limitation of liability in case of fraud or gross negligence.
On the other hand, the Court seems to justify the difference from the rules on international carriage whose trend is towards an increase of the limitation amount counterbalanced by fewer cases of exclusion of the right to limit.

   
   
  10-10-2005  Book
   

"Civil Jurisdiction and Carriage by Sea"
by Marco Lopez de Gonzalo


The recently published book "Civil Jurisdiction and Carriage by Sea" (Milan, Giuffrè, 2005) by Marco Lopez de Gonzalo, partner of the firm, addresses the jurisdiction rules in the 1968 Brussels Convention and the Council Regulation (EC) No. 44/2001 with particular focus on their practical application in connection with the specific features and requirements of the contracts of carriage by sea.
The subjects of the book include the domicile of shipping companies, the determination of the place of performance of contractual obligations and of the place where the harmful event occurred in matters relating to tort, the jurisdiction rules in international conventions on transportation and arrest of vessels, the relevance of related actions, forum shopping, the choice of jurisdiction clauses in bills of lading.

   
   
  05-10-2005  Multimodal carriage
   

Multimodal carriage – Court of Cassation decision no. 2898 of 14.2.2005


In the decision no. 2898 of 14 February 2005 the Court of Cassation confirmed the ruling on multimodal carriage held in previous decisions (see, for example, Cass. 29.1.1998, no. 8713) and shared by the vast majority of lower courts.
According to such ruling, multimodal carriage by sea and land, even where the carriage by sea is absolutely prevailing, does not fall within the scope of the Hague-Visby Rules (which apply to carriage performed by sea only) and is therefore subject to the Civil Code rules.
The practical consequences of this ruling are remarkable as under the Civil Code rules the carrier enjoys neither excepted perils nor package limitation.
The Court of Cassation decision highlights, once more, the inadequacy of the rules on each transport mode as opposed to the reality of modern international carriage.

   
   
  03-10-2005  Legislation
   

Regulation (EC) No. 261/2004 on air transport


On 17 February 2005 the Regulation (EC) no. 261/2004 on compensation and assistance to passengers in the event of (i) denied boarding, (ii) cancellation or (iii) long delay of flights has entered into force.
The previous Regulation no. 295/91 on overbooking has been repealed by the new Regulation.
Regulation no. 261/2004 applies to:
(a) passengers departing form an airport located in a Member State;
(b) passengers departing from an airport located in a third country to an airport situated in a Member State, if the operating air carrier of the flight concerned is a Community carrier.
It is noteworthy that the Regulation applies to liner and charter flights as well as to flights included in a package tour.
In case of overbooking, the air carrier shall first call for volunteers to surrender their reservations in exchange for agreed benefits.
If boarding is denied to passengers, the air carrier shall (i) pay them compensation n an amount depending on the flight distance, as provided in Art. 7, and (ii) offer them the choice between reimbursement of the ticket price or re-routing to their final destination, (iii) assistance in the airport (meals and beverages, hotel accommodation transfer).
In case of cancellation of a flight too, passengers are entitled to (i) compensation, (ii) offer of reimbursement or re-routing, (iii) assistance.
If delay occurs, passengers are entitled to assistance and, if the delay exceeds five hours, to reimbursement or re-routing.
The Regulation no. 261/2004 does not provide for compensation for delay, but the air carrier's liability for delay is governed by the 1999 Montreal Convention.
The Regulation applies without prejudice to:
- passengers' right to further compensation (for example, loss of enjoyment) from the air carrier or other subjects (for example, tour operators);
- tour operators' right of redress against the air carrier.
Art. 14 of the Regulation provides for the air carrier's obligation to inform passengers of their rights.

   
   
  03-10-2005  Legislation
   

New Italian legislation on yachting
Law 8 July 2003, no. 172 and D. Lgs. 18 July 2005, no. 171


The main law on yachting (Law 11 February 1971, no. 50) has undergone may amendments and additions over the years. Lastly, Law no. 172 of 8 July 2003 has introduced significant alterations amongst which, in particular, the possibility to register mega yachts (pleasure boats over 24 metres in length) used in commercial business (chartering) in the International Registry with resulting substantial tax benefits.
The actual application of this legislation was subject to the issue of safety and nautical qualification regulations which were indeed promulgated in July-August 2005.
Law no. 172/2003 provided also for delegation to the government for the drafting of a new Code of Yachting aimed at reorganizing the whole subject (after all the partial amendments made over the years) and implementing the EC Directive no. 2003/44. This delegation has been realized by the D. Lgs. no. 171/2005.
The new Code of Yachting defines "yachting" as navigation "for sporting or recreation purposes and not for profit", but it indeed expressly allows the commercial use of the pleasure boats by chartering.
The Code regulates, inter alia: the classification of the various types of pleasure boats, the registration, the qualification to navigation and the trading of these units (also in relation to the technical features and safety requirements), the maximum number of passengers and minimum number of crewmembers, the marine licences, the third party civil liability and the duty to insure (by referring to the rules on vehicles circulation for both these aspects), the charterparties (by rules which are autonomous from those of the Code of Navigation), the brokerage business, the administrative sanctions.

   
   
  19-07-2005  European Enforcement Order for uncontested claims
   

On 21 October 2005 the EC Regulation Nr. 805/2004 creating a European Enforcement Order for uncontested claims will be applied in Italy as well as in all European Countries, including UK, except Denmark. The Regulation text in Italian is available on the web site

www.europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=IT&numdoc=32004R0805&model=guichett

and the English version on

www.europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32004R0805&model=guichett.

The Regulation applies to judgments, Court settlements and authentic instruments on uncontested claims.

A definition of uncontested claims is given in the Regulation itself.

The Regulation provides for the abolition of exequatur for the judgments which have been certified as a European Enforcement Order in the Member State of origin.

The implementation of the EC Regulation nr. 805/2004 is an important development for the achievement of a more effective and swift justice in case of uncontested claims.

   
   
  05-04-2005  Seminar
   

Seminar on "Personal injury issues for Italian Shipowners", Genoa, 31 March 2005


Our partner Maurizio Mazzocchi was one of the expert speakers at the seminar on "Personal injury issues for Italian Shipowners" held in Genoa on 31 March 2004 at P.L. Ferrari's office. The seminar was sponsored by Charles Taylor & Co Ltd.

Mazzocchi lectured on Italian personal injury law update and participated in the case study on an incident involving an Italian fast ferry with associated personal injury and loss of life of passengers and crew.

The other speakers were Jeremy Grose, David Roberts and John White-Thomson from Charles Taylor, Maria Pittordis from Hill Taylor Dickinson and Paolo Cavanna from Costa Crociere.

The seminar focused on the Athens Convention: its present regime and the impact of the 2002 Protocol, with particular emphasis on its implications for Italy, the Club's and shipowners' perspective.

   
   
  21-03-2005  Delayed delivery of goods
   

Delayed delivery of the goods and damage by loss of chance (Judgment Tribunal of Vicenza 15.11.2004, no. 1788)
The Tribunal of Vicenza recently decided (judgment no. 1788 of 15.11.2004) an interesting case involving a claim for damage by loss of chance in connection with a contract of carriage.
The shipment consisted of a cargo of furniture intended to be the sample to submit a tender for a supply contract with the European Commission. The delivery of the goods was delayed, beyond the deadline of the call for tenders, hence the shipper was excluded from the invitation to tender.
Firstly, the Judge held that although the delivery date stated in contract of carriage could not be considered as a deadline entitling to terminate the contract, delivery beyond that date was certainly a breach of contract. Breach of contract gives rise to liability for damages which, in this case, amounted to damages by loss of chance represented by failure to participate in the call for tenders.
The Judge recalled the authority of the Court of Cassation according to which "the chance is a separate asset that can legally and economically be the subject matter of autonomous assessment", with the result that its loss " amounts to an actual and present damage". However, the same authority is to the effect that there is a "chance" in the above meaning, and its loss may entitle to damages, only as long as "based on a likelihood standard, to be assessed on probability terms, there is evidence of a reasonable likelihood for a favourable outcome to occur".
The above having premised, the Judge dismissed the claim for damages by loss of chance on the ground that the claimant failed to prove a reasonable likelihood to win the call for tenders: the claimant did not provide evidence of the number of the other participants, who and on what terms won the call for tenders, what the claimant's tender was and whether it fully complied with the invitation to tender rules.
   
   
  21-03-2005  Carriage of goods by road
   

Carriage of goods by road – Form of contract – Constitutional Court judgment no. 7 of 14.1.2005
By the judgment no. 7/2005 the Constitutional Court declared the illegitimacy, as conflicting with the equality principle under Art. 3 of Constitution, of the rule that provided for the nullity of contracts of road carriage concluded in writing, but lacking the details of the entry in the hauliers register and of the licence to carry goods on behalf of third parties. This nullity entailed that the compulsory fares (so called "forked fares") were not applicable.
The sanction of nullity of contracts lacking the above details had been introduced by a paragraph added to Art. 26 of Law no. 298/1974, by Law no. 162/1993. Afterwards, Law no. 256/2001 clarified that contracts concluded verbally were to be considered as valid, with the result that the sanction of nullity applied only to contracts concluded in writing, but lacking the above details.
The Constitutional Court on one hand found that the rule was to no effect to fight unauthorized business, on the other hand ruled that there was an unreasonable difference of treatment between the haulier who would conclude a contract verbally (thus avoiding any formal fulfilment and control) and the haulier (possibly fully compliant) who would conclude a contract in writing, but omitting the required details, and would therefore suffer the unfair disadvantage resulting from the inapplicability of the compulsory fares.
   
   
  09-11-2004  Nationality condition for ship registration
   

Court of Justice judgment 14 October 2004
(Case C-299/02, Commission v. Kingdom of the Netherlands)

By this judgment the Court of Justice declared that the Kingdom of the Netherlands failed to fulfil its obligations under Articles 43 EC and 48 EC on the right of freedom of establishment by adopting and maintaining in its legislation rules requiring nationality condition to register ships in the Netherlands.
These rules provide that a ship may be registered in the Netherlands when it is owned by a company established in a Member State in which (i) two thirds of the capital are owned by EU entities and the majority of the directors are EU nationals or (ii) all the directors are EU nationals, and in which (iii) the day-by-day management is carried out by EU nationals.
The Court found that these rules, on one hand, restrict the freedom of establishment by Members State companies and, on the other hand, are not justified by the necessity to ensure effective control (as required by articles 91 and 94 of the 1982 Montego Bay Convention) on ships registered in the Netherlands.
It should be reminded that under Italian law, article 143 of the Code of Navigation entitles EU entities to register their ships in Italy without any further nationality condition. For non-EU entities, it is required that the ship operation be carried out by a stable organization established in Italy with management entrusted to Italian or EU individuals or companies.


   
   
  29-09-2004  Montreal Convention of 28 May 1999
   

Entry into force of the Montreal Convention of 28 May 1999


Following the ratification by the European Union also on behalf of its member States, the Montreal Convention on the Unification of Certain Rules for International Air Carriage of 28 May 1999 has come into force in Italy on 28 June 2004.
The Convention applies to carriage of persons, baggage and cargo.
Liability for damages to persons not exceeding 100,000 SDRs for each passenger is strict; for damages exceeding that amount, liability is unlimited, but the carrier shall be exonerated from liability if he proves that such damage was not due to the negligence or other wrongful act or omissions of the carrier or his servants or agents.
The carrier is liable for checked baggage, unless he proves that the damage resulted from the inherent defect, quality or vice of the baggage. In case of unchecked baggage, the carrier is liable if the damage resulted from his fault or that of his servants or agents. Liability is limited to 1,000 SDRs per baggage.
Liability for loss of or damage to cargo is strict, with four causes of exoneration: (i) inherent defect, quality or vice of the cargo; (ii) defective packing; (iii) an act of war; (iv) an act of public authority. Liability is limited to 17 SDRs per kilo.
The Convention applies to damage by delay too, and provides that the carrier is liable unless he proves that he has taken all measures that could reasonably be required. Liability for baggage and cargo is limited as above, whilst in the carriage of persons is limited to 4,150 SDRs.
The right to claim shall be extinguished if an action is not brought within a period of two years. The method of interruption of this time limit shall be determined by the law of the court seized of the case.
Article 33 states alternative courts having jurisdiction over actions for damages.


   
   
  06-09-2004  Anti-suit injunctions
   

European Court of Justice
Judgment 27 April 2004 – Turner v. Grovit


In this important decision the Court of Justice has addressed the difficult issue as to whether the so-called "anti-suit injunctions" are compatible with the 1968 Brussels Convention and now the Regulation no. 44/2001.
These "injunctions" are granted by the English Courts to prohibit a party from commencing or continuing legal proceedings before a court in another Contracting State which may violate English jurisdiction or arbitral clauses or may otherwise be regarded as "oppressive and vexatious" as against the defendant who may validly rely on the English jurisdiction. The interpretation question submitted by the House of Lords to the Court of Justice involved this latter case only, but the decision seems to be in general terms.
The Court of Justice ruled out that the "anti-suit injunctions" are compatible with the Brussels Convention (now, all the more reason for, with Regulation no. 44/2001) either, in general terms, for conflict with the principle of equivalence and mutual trust among Contracting States' legal systems, or, more particularly, because the remedy provided for by the Convention to avoid multiplicity of proceedings is that of lis pendens under which the court first seized prevails and is competent to decide over its own jurisdiction.

   
   
  03-09-2004  Seminar
   
Seminar
Ports and airports among Regions, State and European Union
Milan, 9 July 2004
sponsored by Bocconi University, State University of Milan, University of Genoa, University of Pavia

Paper by Marco Lopez de Gonzalo
"Separation between business, market regulation and infrastructure handling in ports and airports"


The issue of separation between operations of different nature, which are subject to different antitrust rules, is common to other areas of Community Law (for instance, gas, electric power, railways) so as to amount to a general principle.
Separation can serve different purposes: on one hand, it can prevent disguised and crossed public subsidies; on the other hand, it can avoid conflict of interest situations.
Furthermore, separation can take different forms: from mere accounting separation to actual (corporate or handling) separation.
In the port business, Law no. 84/1994 has introduced a clear-cut separation between control, which is the Port Authority's responsibility, and supply of terminal services which is forbidden to the Port Authority. The aborted EU Directive project provided for a less strict application of the separation rule thus allowing the Port Authority to supply terminal services on condition of separate accounting.
Another case of separation is that between terminal services and temporary labour supply under article 17 of Law no. 84/1994, as amended by Law no. 186/2000.
In the airport business, EU Directive no. 96/67 and the relevant Italian implementation rules provide for a softer separation as they allow the airport authority to supply handling services on condition of separate accounting.

For further information, please contact Marco Lopez de Gonzalo by telephone (+39 010 586841) or by fax (+39 010 562998) or by email (marco.lopez@mordiglia.it)

   
   
  02-09-2004  The domicile of shipping companies
   

Marco Lopez de Gonzalo
The domicile of shipping companies
Diritto del Commercio Internazionale, 2003, 457

The topic of this article is the determination of the domicile of shipping companies for the purpose of the rules on jurisdiction contained in the EU Regulation 44/2001.
The 1968 Brussels Convention did not define "domicile". Instead, article 60 of the Regulation defines the domicile of companies as the place where they have their (i) statutory seat, or (ii) central administration, or (iii) principal place of business.
For the purpose of the determination of the law applicable to companies' organization and management the statutory, rather than the effective, seat seems to prevail (particularly after the Centros decision); however, references to these seats appear to be equivalent for the purpose of jurisdiction given the necessity to protect third parties' reliance.
The article then considers some of the relevant factors for the determination of the effective seat of shipping companies. In the absence of authority by the European Court of Justice on this issue, helpful directions to this end can be gathered from the Italian case law under article 46 Civil Code and article 9 Bankruptcy Law.
Finally, the article addresses the possibility (which, except for special cases, seems to be ruled out) to use in respect of ship-managers and ship-agents the rule on jurisdiction for branches, agencies and other establishments contained in article 5(5) of the Regulation.


For further information on this topic or for a copy of the article, please contact Marco Lopez de Gonzalo by telephone (+39 010 586841) or by fax (+39 010 562998) or by email (marco.lopez@mordiglia.it)

   
   
  03-03-2004  ISPS Code
   
By a resolution dated 12.12.2002, IMO adopted new provisions to amend the Annex to the SOLAS 1974 Convention (chapter XI.1 and XI.2) Said provisions, called "measures to enhance the maritime security", include the ISPS Code International Ships and Port Facilities Security Code), which provide a set of active and passive security measures that the ships will have to comply with. The Code is divided in two parts: part A, containing binding provisions, and part B, containing recommendations to apply the security measures. The Code applies to ships and port facilities engaged on international voyages.
Security Measures
Every Ship Company shall:
- appoint a Company Security Officer, with the task to conduct the assessment of the security of the ships of the Company, to prepare for every ship a specific security plan (or to ensure that the plan is prepared by a recognised security organization), to submit the plan for approval to the Administration and to verify the implementation of the Security Plan by the ship’s crew.;
- appoint a Ship Security Officer, responsible for the security of the ship and the implementation of the Security Plan by the ship’s crew;
- prepare a Ship Security Assessment for every ship, which will include survey of: existing security measures, key shipboard operations important to protect, possible threats to key operations, identify weakness of the ship;
- prepare a Ship Security Plan, to submit for approval to the Administration or to the Recognised Security Organization designated by the State, which must list the procedures and operations to protect the security of the ship and its operations;
The Ship Security Plan must be carried onboard the ship.
The Ship Security Plan must provide for drills and exercise to be conducted at least every three months. Written records of ship’s drills and exercise shall be kept onboard the ship.
The Security Plan, prepared and approved by the Company, shall be implemented. The Administration (or RSO) will verify the initial implementation and will issue the International Ship Security Certificate, for a period which shall not exceed five years. The Certificate must be kept onboard the ship.
The Code provides that since 1st July 2004 for the ships whose Certificate has not yet been issued and until said issue, the Administration shall issue a Interim International Security Certificate, 6 months valid. The Code will come into force the 1st July 2004.
Further to the IMO resolutions, the EC Commission prepared a Proposal for a Regulation, which provides the harmonised implementation of the ISPS Code to the Member States, and also introduces the following provisions:
a) after defining the international shipping and domestic shipping (including the shipping between Member States), the Proposal provides that the Code shall apply also to the passenger ships engaged in domestic shipping;
b) taking into fully account the recommendations contained in part B of the Code, the Proposal provides that Member States shall conform to some of the recommendations (which are listed) “as if they were mandatory”
The Proposal is currently subject to the approval of the Parliament.

   
   
  08-01-2004  In memory of Aldo Mordiglia
   
The exercise of Lien on cargo at Ravenna
in the years between 1960 and 1975

by Carlo Lobietti - lawyer in Ravenna and former Partner and friend of
Aldo Mordiglia



1) Article 437 of the Code of Navigation provides that, in case of short-payment of freight, the ship's Master may be authorized by the Judicial Authority of the place of discharge to deposit or, if necessary, to sell as much cargo as required to cover freight and demurrage, unless the Receiver deposits an amount corresponding to the Carrier's claim.

The provision issued in the matter of total or partial carriage of cargo on a determined vessel, must be considered applicable by way of analogy (Article 1 of the Code of Navigation), to every type of sea carriage and also to non-payment of demurrage, regardless of freight. As concerns the sale of goods, the state of necessity required in legal matters (leaving therefore unprejudiced any contract term in favour of the Carrier contemplating sale to counterbalance the debt) clearly treats such sale as a remedy, which implies that the lien is established on or transferred to the sale proceeds, which are deposited in lieu of the sold cargo.

As concerns the cause justifying the sale, the broad-brush character of the law provision affirming the necessity of a remedy without further specifications, allows to consider it applicable not only in case of risk of physical deterioration of goods (owing to their natural perishableness) but also vis-à-vis the possible loss of economical value, when preservation costs might exhaust or significantly decrease the value of goods.

Owing to its procedural character, the rule is applicable irrespective of both the Law ruling the obligation to be warranted and the Law ruling the right of warranty itself.


2) Throughout the long period (late fifties - early seventies) in which the insufficiency of available berths and discharging facilities adequate to the traffic increase - especially regarding cereals in bulk - compelled the ships to face long lasting standby periods, both in Ravenna and in other various Italian ports, a number of questions arose in the matter of laytime and demurrage. Owing to the influence of various factors, liens on cargo were frequently exercised at Ravenna.

Disputes, mainly concerning demurrage accrued or due to accrue on discharge, generally arose from the relationship between Carriers and receivers, third bearers of Bills of Lading, and seldom from the relationship between Shipowners and Charterers, ruled by the Charter Party governing the contract of carriage.

Often the failure to recall, or the imperfect reference to, the Charter Party in the Bill of Lading made it impossible to oppose to Receivers the substantial rules on carriage in the matter of laytime and demurrage agreed by the Shipowners and Charterers, and thus also the lien could not be enforced as right of detention contemplated by the Charter Party in favour of the Shipowner/Carrier, so that it became necessary to resort to Law provisions. In such cases, the Charter Party clauses, and thus also the lien clause, would be applicable only if Receivers were also the Charterers or their assignees, and if the Bill of Lading was endorsed "for discharge" only.

In case of short-payment of freight, obviously excluding any possibility of action on the cargo when "freight prepaid" Bills of Lading were issued, in cases where freight was payable at destination instead, even if no indication in that respect was set out in the document, it was presumed that freight was due, and thus the credit was considered enforceable in respect of the third party receivers, bearers of the Bills of Lading and the corresponding right as well was deemed to be enforceable upon the cargo. The determination of freight as set out in the Charter Party could, however, be valid in respect of the third party - under the provisions on assignment - within the limits of current market values only.

More delicate was the determination of laydays in respect of a third party, and thus also of demurrage if any. In the absence of an agreement opposable to a third party, in fact, the provisions of the Code of Navigation on laydays and demurrage became applicable (see Articles 444-449 of the Code of Navigation). As concerned determination of the demurrage rate, in proportion to the ship's capacity, such Articles recalled local usages and, since usages at the various Italian ports were heterogeneous in that respect, it was deemed equitable to adopt the usage of the port of unloading (Ravenna), which contemplated a rate of Lire 100 for every ton of the ship's NRT. This amount underwent a gradual depreciation in the long run of time. This provision, however, only applied when the carriage was ruled by Italian Law, which was applicable only when the contract provision in that respect was incorporated in the Bill of Lading or, when the carriage was effected by an Italian flag ship. If instead the carriage was ruled by a foreign Law in respect of a third party, such Law was applicable and the result was the adoption of an equitable determination, again on the basis of average market values.

To protect the freight and/or demurrage claims thus determined, the judicial deposit was arranged according to Art. 437 of the Code of Navigation.


3) However, also in order to enforce a lien (contemplated by the Charter Party or directly by the liner Bill of Lading), it being impossible to discharge and have the cargo stored with an out of Court procedure in the absence of the so-called "Captain's warehouse" under public administration, the protection of the Shipowner/Carrier's interest called - also to execute the lien under the contract - for the procedure under Article 437 of the Code of Navigation.

Thus the lien practice was applied in a wide range of cases, in that it extended - in accordance with contract provisions on the object of the lien granted to the Shipowner/Carrier - to the protection of other rights connected with the freight and/or demurrage claims as contemplated in the Charter Party or in Bills of Lading, such as the right to refund of unloading and storage expenses accrued on deposited goods. Furthermore, the practice was applied not only to liens provided for in contracts of carriage, but also to liens in favour of the Shipowner under Time Charters. Since the Shipowner's position was made identical to the Carrier's position in the Charter Party, the presupposition underlying the rule and arising from the contractual right of detention and not from a privilege, allowed the application of the institution by way of analogy.


4) In judicial actions, same as in the procedure of conservative seizure, the deposit was authorized by Court Order, and, on Receivers' petition, another Court Order authorized the release of goods from arrest against deposit of a sum of money corresponding to the amount in dispute.

After hearing the parties, again pursuant to Receivers' petition, a Court Order was also issued for the different determination of the cargo quantity covered by the Order authorizing the deposit, as a consequence of a different determination of the price or pursuant to the occurrence of facts such as partial payments effected in the meantime, resulting in the reduction of security.

At that stage, no decision could be taken on the grounds and extent of the claim, in security of which the deposit had been requested, since the merits could only be dealt with in ordinary proceedings before the competent Court, instituted either by receivers challenging the Carrier's claim, or by the Carrier aiming to the security enforcement.

The remedy under Article 437 of the Code of Navigation, though being no doubt similar to the conservative seizure, was not considered a special form of arrest, but a special typical provision and, as such, was not considered subject either to validation proceedings or to the deadline fixed by Article 675 of the Code of Civil Procedure. Failing a judicial action, in fact, the deposit was subject to the same time bar of the claim, of which it constituted an "adminiculum actionis".

The President of the Tribunal, authorizing the Master to effect a judicial deposit, ordered the third trustee to with-hold, on behalf of the ship, the portion of cargo discharged under security. It so happened, however, that the Companies running private warehouses often stated to have no facilities available for goods lying in judicial bond, spaces having already been booked by Receivers, or raised other reasons or pretexts. Then the Master applied to the Court again for authorization - under Article 437 of the Code of Navigation - to sail for the nearest port and unload there the part of cargo to be deposited at the premises of parties prepared to accept them. Usually, facilities were found rather quickly and the original Court Order could be executed in Ravenna.

In case of demurrage disputes, Receivers instructed the custodian or trustee holding the cargo discharged for their account to keep a part of it, in order to cover the demurrage under dispute, in the joint name of Master and Receivers. Such joint deposit was then replaced by a bank guarantee on the same terms or subject to an enforceable Court judgment. Thus the bank guarantee came to be, in most cases, the usual way to prevent the Carrier from applying to Article 437 of the Code of Navigation and to avoid the exercise of lien.


5) Whereas, failing an agreement, the decision on the enforceability of the bank guarantee could only be made by judgment, or the precautionary deposit of goods under Article 437 of the Code of Navigation allowed the possibility of an out of Court sale of the goods.

Article 437 of the Code of Navigation, in fact, although not being based on a privilege of the Carrier but only on a right of cargo detention, which could not, however, be exercised on board according to Law, but only in the special form of a deposit authorized by the Court, brought about the consequence of avoiding the Carrier's loss of the cargo detention and preserving the Carrier's privilege, determined by the detention or the actual situation of the goods.

It being acknowledged that the Carrier enjoyed both the special maritime lien on shipped goods (Article 561 no. 4 of the Code of Navigation) and the civil right of possession of same (Article 2761 of the Civil Code), the Carrier was allowed to effect the sale of the deposited goods, after an order of payment served upon the debtor, in the form contemplated for enforcement of the lien (Article 2797 of the Civil Code).

Challenging the order and thus starting an action on merits, the debtor had the possibility of lifting the lien by depositing the amount under dispute. After expiry of the deadline for the opposition, this was however no longer possible, it being held that the unchallenged order would amount to a preclusion "pro iudicato", as concerns the existence of the credit.


6) A particular situation involving some problem of coordination in the rules was when, on ship's arrival for discharge, the Carrier was not given the original Bill of Lading by the Consignee, who remained unknown and untraceable.

Firstly, also in cases which did not concern the carriage of goods covered by a Bill of Lading on liner terms, the absence of duly authorized landing contractors who might take delivery of the goods did not allow the Carrier to exercise the right granted to him by Article 454 of the Code of Navigation, and thus to be released from his obligation. Also in cases of discharge on liner terms it was necessary to resort to application, by way of analogy, of the provisions covering the carriage of partial or total cargoes on a determined ship as per Article 450 of the Code of Navigation which, recalling the general provisions on transports set out in Articles 1686 and 1690 of the Civil Code, which in their turn refer to Article 1514 of the Civil Code in the matter of sale/purchase as concerns the deposit formalities, confer the Carrier the faculty to effect deposit or, in case of quickly perishable goods, sale of not withdrawn goods. It ensues that, in the absence of public deposit premises in the port area, the Carrier had no other alternative but to deposit the goods in other appropriate premises as decided by the Praetor Judge.

When, as it often happened, freight or demurrage had accrued on the goods, in order not to give up possession of goods through the deposit (release) and consequent loss of the lien under Article 2761 of the Civil Code and of the lien under Article 561/4 of the Code of Navigation after expiry of the 15 days' deadline from discharge as per Article 564, it became necessary for the Master to apply to the President of the Tribunal in accordance with Article 437 of the Code of Navigation, to keep in bond, as security for freight and demurrage, a portion of the goods to be deposited, but the relevant Court Order could obviously be issued only in case the goods were still on board. After the deposit effected for account of the party concerned according to Articles 450 of the Code of Navigation and 1514 of the Civil Code, the Carrier, in fact, would only have had the remedy of the conservative seizure, solely to preserve the lien under Article 561/4 of the Code of Navigation, though such remedy would have been ineffective towards the third bearer of the Bill of Lading, if not operated on the title representing the goods (Article 1997 of the Civil Code).

Thus, after having given notice through the Shipagents to the Receiver, if known, or to the notify party indicated on the Bill of Lading, and having complied with the formalities contemplated by port usages, the Carrier and the ship's Master on his behalf applied to the President of the Tribunal for authorization to effect the deposit care of a single private trustee, considered suitable and trustworthy, of the goods covered by the Bill of Lading not produced to them for redelivery, up to a quantity appropriate to secure the outstanding freight and demurrage, for account of the Carrier and, as concerned the cargo balance debited with unloading and storage expenses, for account of the interested party, i.e. at disposal of those entitled thereto.

   
   
newsletter