Can a coastal state prevent a ship from exercising the right of innocent passage into its territorial waters to access one of its ports in a maritime distress scenario deriving from rescuing migrants at sea? This question has been the focus of attention due to legislation that the government passed in 2019 in order to restrict such rights and the case of Sea Watch 3, which entered the Italian port of Lampedusa despite a government veto.
A significant recent judgment by the Genoa Court of Appeal examined the extent and nature of the informative duties imposed on shipbrokers under Italian law. The decision applies to shipbrokers the principles outlined by the Italian courts for general brokerage activities (in particular, real estate brokerage for which the case law is richer and more consistent). Consequently, a general and uniform legal framework has been extended to shipbrokers.
A recent Tribunal of Genoa case concerning a yacht lost during carriage examined whether the Italian courts have jurisdiction to appoint court surveyors and order survey operations to take place in Italy where the merits of a dispute are not subject to Italian jurisdiction. According to the tribunal, the fact that the merits of the dispute in question were to be decided in London did not deprive the Italian courts' jurisdiction to order inspection and survey operations on goods located in Italy.
The Tribunal of Milan recently published a judgment analysing a common occurrence in shipping matters where a contract of charter is not incorporated into an agreement duly executed by both parties, but is instead contained in a recap fixture exchanged via email. The decision is noteworthy as it reaches conclusions (significantly different from prevailing Italian case law) which deserve to be carefully considered when concluding charter parties.
A recent Genoa Court of Appeal decision interpreted the principle of the limitation of a carrier's liability under the Hague-Visby Rules. The decision affirms that receivers must give actual evidence of a carrier's knowledge that damage would probably have resulted as a consequence of its reckless conduct in order to claim the exclusion of the carrier's limitation of liability, with no recourse to factual presumptions.
The Supreme Court recently issued a significant decision regarding the joint liability of a carrier, shipper and owner of goods following the carrier's violation of road safety rules under Italian law. The decision is notable, as it gives a clear interpretation of Legislative Decree 286/2005's rules that the fault is the subjective element required to establish the liability of a party in the transport chain where there is a violation of the road safety rules.
The Supreme Court recently issued a decision regarding the sale and purchase of a second-hand vessel – in particular, the construction of the words 'as she lies'. While Italian jurisprudence has historically considered the words a mere standard clause with no legal effects, Italian maritime scholars have confirmed the validity of the clause aimed at contracting out the sellers' guarantee to remedy any hidden defects in the goods being sold.
A recent decision of the Genoa Court of Appeal dealt with two interesting issues arising under the London International Convention on Salvage 1989: whether, for the purposes of fixing a salvage reward, the judge should consider not only the value of the salved vessel, but also that of the cargo on board; and the apportionment of a salvage reward between co-salvors where only one salvor brought proceedings for its remuneration.
One of the final pieces of legislation that the government enacted before the March 2018 general election was the eagerly awaited reform of the so-called 'Nautical Code'. The changes include a new definition of 'superyachts', the introduction of an electronic registration system for yachts and superyachts, a streamlined cancellation procedure for the Italian yacht registry and restrictions to the occasional chartering regime.
The most recent edition of the Nautica e Fisco booklet issued by the Nautical Association Industry and the Revenue Agency covers legal and fiscal developments in the nautical industry, including issues from registration to customs and fiscal matters. In particular, the booklet provides guidelines on exporting a yacht from Italy, value added tax exemptions for the use of yachts in the high seas and the temporary importation regime and refitting services.
The Italian International Registry provides a number of substantial fiscal advantages to shipowners. However, the European Commission recently established an EU pilot procedure against Italy to enquire into the nature of the advantages that Italy has made available to ships registered in the registry. The European Commission's message was taken on board and measures are now being discussed to amend national legislation so that it conforms to EU principles.
The Milan Court of Appeal recently addressed a demurrage claim under a voyage charterparty. The decision dealt with the issue of contract formation and focused on the choice of law provision contained in the charterparty. This case has confirmed that, when so called, the Italian courts are keen and ready to pronounce judgments in line with commercial shipping practice.
In an important decision, the Supreme Court recently established the validity of a forum selection clause contained in a multimodal bill of lading. The judgment is notable as it overturns the main trend in Italian case law on this subject. Before the issuance of the Supreme Court judgment, many lower courts had denied the validity of jurisdiction clauses contained in multimodal bills of lading.
As of January 1 2017, the EU Passenger Liability Regulation applies to Class A ships sailing Italian domestic voyages, as defined under the EU Directive on Safety Rules and Standards for Passenger Ships. Accordingly, such ships can limit their liability, pursuant to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, and must fulfil the relevant compulsory insurance duties.
With Parliament's recent passage of Act 230, the long-awaited reform of the Italian legal regime regulating maritime pilots' liability has now come to fruition. The amendments introduced to the Code of Navigation establish a system based on limitation of liability and compulsory insurance. Pilots' representatives have welcomed the reform.
The Tribunal of Genoa recently issued two decisions dealing with the legal nature of sea waybills. In both decisions the tribunal considered the extent to which the content of a sea waybill is relevant when identifying the parties to the contract of carriage and, consequently, when deciding on the defence of title to be sued.
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. The judgment provides an idea of which credits are assisted by liens and highlights the difference between the rules of law regarding liens and those regarding managers' duties and rights.
Bareboat-in registration in the Italian International Ship Registry has recently been made available to ships from EU registries and ships owned by EU persons or entities, to which access was previously denied. After almost two decades of silence regarding this crucial matter regulating ship registration, the government and legislature are again concentrating their efforts on a strategically important area.
The Tribunal of Genoa recently issued a judgment regarding the corporate structure of a group of shipping companies. In particular, the court considered the liability of a local shipping agent where it was established as a subsidiary of the line carrier and alternatively where it was merely a branch office of the line carrier.
The Supreme Court recently issued a decision concerning the interpretation of Article 3.2 of the Brussels Convention and a free in liner out clause contained in a bill of lading. The case concerned compensation for the loss of and damage to cargo and focused on whether a terminal operator had acted as a servant of the carrier or the shipper and, as a consequence, on the limitation period applicable to the action brought against the terminal operator.