Dardani Studio Legale updates
Quiet enjoyment letters in lease financing transactions
Dardani Studio Legale- Shipping & Transport
- Italy
- 02 June 2021
In the context of lease financing transactions, it is not uncommon for the financier (registered owner) to refinance part of the transaction by recourse to third-party lenders, concluding a loan agreement which is typically secured by a mortgage over the vessel. Under Italian law, a charterer's right to enjoyment of a vessel receives a certain level of protection even if nothing is specifically agreed by the parties and no letter of quiet enjoyment is issued.
Limitation of shipowners' liability
Dardani Studio Legale- Shipping & Transport
- Italy
- 12 May 2021
The concept of limitation of a shipowner's liability is well known in maritime law and is generally the same across many maritime jurisdictions. However, the government's failure to ratify the Convention on Limitation of Liability for Maritime Claims 1976 and its Protocol of 1996, coupled with an unclear amendment to the regime set out by the Code of Navigation, suggests that Italy may have forgotten the importance of the limitation regime.
Exercise of maritime liens on cargo to secure credits for freight and demurrages
Dardani Studio Legale- Shipping & Transport
- Italy
- 24 February 2021
The Civitavecchia Tribunal recently considered a vessel owner's application to exercise a maritime lien on a quantity of coal carried on board the vessel to secure its freight balance, demurrages and expenses towards the charterer after the charterer applied to open insolvency proceedings. The decision was based on two precedents of the Genoa Court and reinforces the principles that under Italian law, a lien on cargo can be placed under the authority of only the local courts.
Supreme Court rules on defence of lack of jurisdiction due to state immunity
Dardani Studio Legale- Shipping & Transport
- Italy
- 23 December 2020
The Supreme Court recently ruled in a case concerning the defence of lack of jurisdiction due to state immunity claimed by Rina SpA in the matter concerning the sinking of the Al-Salam Boccaccio 98. The decision contains precise guidance as to immunity from jurisdiction with regard to the classification and certification of ships, thereby making it improbable that any such defence will be successfully pleaded in the future by a classification society before an Italian court.
Supreme Court rules on apportionment of salvage reward among shipowner and cargo interests
Dardani Studio Legale- Shipping & Transport
- Italy
- 21 October 2020
The Supreme Court recently issued a significant decision on the apportionment of a salvage reward among a shipowner and cargo interests. The decision has confirmed the principle already expressed in previous Supreme Court judgments that the shipowner is liable towards the salvor for an entire salvage reward, subject to recourse action by said shipowner against the cargo interests. However, the Supreme Court's conclusions are debatable, as is its interpretation of Article 497 of the Code of Navigation.
Immunity of jurisdiction defence rejected in compensation claim
Dardani Studio Legale- Shipping & Transport
- Italy
- 15 July 2020
The Court of Genoa recently referred a jurisdictional immunity claim to the European Court of Justice for a preliminary ruling on whether it should decline to hear the case on the basis of said immunity exception or whether it must apply the EU Brussels Regulation. The case concerned a compensation claim by survivors and relatives of the deceased of a ferry accident.
Ship sale and purchase transactions and acquisition of business assets: recent developments
Dardani Studio Legale- Shipping & Transport
- Italy
- 06 May 2020
Italian law includes no specific rules concerning the sale of ships. As such, the general rules on the sale of movable assets apply. However, should the purchase of a ship qualify as an acquisition of business assets, certain mandatory rules of law apply. In two recent judgments, the Rome Court of Appeal held that the mandatory rules regarding the transfer of business assets do not apply to sale and purchase agreements concerning a single ship.
Supreme Court upholds Agrigento Criminal Court decision in Sea-Watch 3 case
Dardani Studio Legale- Shipping & Transport
- Italy
- 08 April 2020
The Supreme Court recently upheld the decision of the Agrigento Criminal Court in the Sea-Watch 3 case. The appeal decision has given a clear and straightforward interpretation of the concept of 'place of safety' in search and rescue operations: the rescuing vessel cannot be deemed a place of safety.
Sea Watch 3: can coastal states limit right of innocent passage?
Dardani Studio Legale- Shipping & Transport
- Italy
- 29 January 2020
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.
Decision on shipbrokers' informative obligations
Dardani Studio Legale- Shipping & Transport
- Italy
- 06 November 2019
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.
Tribunal of Genoa examines jurisdiction issue in pre-trial proceedings regarding court surveyor's appointment
Dardani Studio Legale- Shipping & Transport
- Italy
- 11 September 2019
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.
Back to formalities: recap fixture held insufficient evidence of charter contract
Dardani Studio Legale- Shipping & Transport
- Italy
- 03 July 2019
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.
Genoa Court of Appeal confirms decision on limitation of carrier's liability under Hague-Visby Rules
Dardani Studio Legale- Shipping & Transport
- Italy
- 20 February 2019
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.
Supreme Court rules out vicarious and strict liability of receiver for road carrier violations
Dardani Studio Legale- Shipping & Transport
- Italy
- 07 November 2018
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.
Supreme Court rules on construction of 'as she lies' clause in sale of second-hand vessel
Dardani Studio Legale- Shipping & Transport
- Italy
- 22 August 2018
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.
Pro rata rule and apportionment of salvage reward between co-salvors
Dardani Studio Legale- Shipping & Transport
- Italy
- 23 May 2018
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.
Better late than never: long-awaited reforms to Nautical Code introduced
Dardani Studio Legale- Shipping & Transport
- Italy
- 14 March 2018
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.
Nautica e Fisco booklet sets legal and fiscal developments in nautical industry
Dardani Studio Legale- Shipping & Transport
- Italy
- 13 December 2017
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.
Italian International Registry will soon be open to all EU-flagged ships
Dardani Studio Legale- Shipping & Transport
- Italy
- 04 October 2017
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.
Court addresses demurrage claim under voyage charterparty
Dardani Studio Legale- Shipping & Transport
- Italy
- 06 September 2017
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.
