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11 September 2019
In May 2019 a luxury maxi yacht flying the UK flag was loaded on board a vessel in Antigua in order to be transported to Genoa.
The yacht's owner had previously entrusted a UK-based forwarding agent to make the necessary arrangements for the carriage. A booking note was concluded for this purpose between the yacht's owner and the forwarding agent, which was subject to English law and English High Court jurisdiction.
In turn, the forwarding agent concluded a voyage charterparty with the disponent owner of an ocean vessel, pursuant to which the disponent owner undertook carriage of the yacht from Antigua to Genoa. Stowage of the yacht on deck was allowed and a number of provisions were stipulated between the parties about the lashing of the yacht and the relevant cradle on the ship's deck. The voyage charter contained a provision that any disputes arising therefrom were subject to arbitration in London with English law to apply. A straight sea waybill was also issued mentioning the yacht's owner as nominee.
The right of the disponent owner of the ocean vessel to employ its ship derived from a long-term time charterparty concluded with the registered owner, which was also subject to arbitration in London and English law.
During the voyage, the vessel encountered bad weather close to the Balearic Islands and the yacht fell into the sea and capsized.
After monitoring the yacht for a while, the ocean vessel resumed its journey towards Genoa where it delivered the other yachts that were still on board.
Shortly after the ocean vessel's arrival in Genoa and due to the fact that the ship's captain had denied on-board access to the surveyors briefed by all parties involved, the UK forwarding agent filed an application with the Tribunal of Genoa and requested the appointment of a court surveyor to:
Each interested party briefed their lawyers and surveyors but reserved the right to dispute the Tribunal of Genoa's jurisdiction to decide the above application.
The tribunal provisionally granted the application and appointed a court surveyor who immediately started his operations.
In the meantime, the yacht was located and successfully towed to the port of Palma.
A preliminary question arose during survey operations of whether the court surveyor, pursuant to the Tribunal of Genoa's preliminary order, was empowered to travel to Palma and extend his survey operations to the lost yacht.
Following a hearing requested by the ocean vessel's registered owners, the court explained that Italian court surveyors are entitled only to carry out assessments of goods in Italian territory.
The Tribunal of Genoa examined the case's main legal question following the deposit and exchange of written pleadings of all lawyers appointed on behalf of each party.
The question at stake was whether the Italian tribunal had jurisdiction to appoint a court surveyor and order survey operations to take place in Italy, notwithstanding that the merits of the dispute were not subject to Italian jurisdiction but to arbitration in London (as per the relevant clauses in the voyage and time charterparties).
The Tribunal of Genoa issued its decision in July 2019 and affirmed that its jurisdiction was limited to appointing a court surveyor and ordering survey operations to take place in Italy.
According to the tribunal, the fact that the merits of the dispute were to be decided in London pursuant to the relevant arbitration clauses contained in the contractual documents did not deprive the Italian courts' jurisdiction to order inspection and survey operations on goods located in Italy.
In reaching the above conclusion, the Tribunal of Genoa relied on an Italian Constitutional Court precedent according to which an Italian judge remains empowered to appoint a court surveyor and order survey operations in Italy, notwithstanding the agreement of the parties to submit the dispute to arbitration. Similar to arrest proceedings, applications for survey operations can be presented to an Italian court as long as the goods to be inspected are located in Italy.
An obvious objection can be made against the Tribunal of Genoa's decision (ie, the abovementioned precedent was issued exclusively in respect of an agreement for domestic arbitration and not international arbitration).
However, according to the Tribunal of Genoa, Italian jurisdiction (for the purpose of collecting evidence by appointing a court surveyor) can be affirmed not only when the merits of dispute are subject to Italian courts or Italian arbitrators, but even in the event that the parties have chosen a different jurisdiction to decide the merits of their dispute (eg, in this case, arbitration in London).
The Tribunal of Genoa's decision is certainly important; however, it is likely to be challenged in other cases pursuant to a well-established Supreme Court of Cassation principle according to which agreements between parties to choose a certain jurisdiction (eg, arbitration in London) deprive the Italian courts not only of jurisdiction on the merits of a dispute, but also of jurisdiction on any connected legal proceedings, including the acquisition of evidence.
For further information on this topic please contact Maurizio Dardani or Luca Di Marco at Dardani Studio Legale by telephone (+39 010 576 1816) or email (email@example.com or firstname.lastname@example.org). The Dardani Studio Legale website can be accessed at www.dardani.it.
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