A recent Supreme Court judgment addressed the issue of maritime liens and the remuneration of shipping companies' court-appointed managers by adopting a strict interpretation of the maritime liens rules. According to such interpretation, judicial managers should not be considered a company's preferred creditors for their remuneration.
The court appointed two managers as judicial directors of a shipping company in accordance with Article 2409 of the Civil Code as a result of significant irregularities in the company's management by its former directors.
Despite the court's control over the company's affairs, the company became insolvent and was declared bankrupt.
The judicial managers – who had been appointed and rendered their services before the declaration of bankruptcy, pursuant to the procedure foreseen by Article 2409 of the Civil Code – addressed their claim for remuneration to the company.
They claimed that their remuneration credits should be paid in full, as the credits were assisted by a maritime lien pursuant to Article 552 of the Code of Navigation. The managers also stated that such credits should be considered to derive from:
- acts to preserve the debtor's assets; or
- expenditures incurred in maintaining the company's vessels.
The Supreme Court rejected the judicial managers' claim. By addressing the issues in reverse order, the court first held that the managers' remuneration credits could not be considered to derive from expenditures incurred during the vessels' material maintenance, as the expenditures covered by Article 552 of the Code of Navigation are only those that directly relate to vessels.
Further, this rule requires that such expenditures be incurred:
- on the master's order (Article 552(6)); or
- after the vessel enters the last port (Article 552(1)).
Second, and most importantly, the court held that the judicial managers' remuneration credits could not be regarded as deriving from acts to preserve the debtor's assets (as required by Article 552(1) of the Code of Navigation), as such acts are solely those that aim to prevent a debtor from selling or disposing of a company's assets (eg, arrests or attachments of vessels or actions in subrogation).
The court found that the remuneration credits of judicial managers appointed by the court in accordance with the procedure set out in Article 2409 of the Civil Code cannot be included in this category, as the procedure does not aim to preserve a debtor's assets, but at removing irregularities in a company's management.
The Supreme Court judgment is notable, as it provides an idea of which credits are assisted by liens through its strict interpretation of Article 552 of the Code of Navigation.
Further, the court highlighted the difference between:
- the rules of law regarding liens, which are significantly linked to a vessel as a particular asset; and
- the rules of law regarding managers' duties and rights, which concern the general management of a company and do not enjoy the benefit of a lien against a vessel.
For further information on this topic please contact Brian Dardani at Dardani Studio Legale by telephone (+39 010 576 1816) or email ([email protected]). The Dardani Studio Legale website can be accessed at www.dardani.it.
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