Not many novelties may be found in last year legislative Italian
production, since many statutes were meant to complete complex
framework started before. On this line, several decrees containing
technical provisions to align Italian law to EEC and international
uniform rules have been issued. Among them, quite a number of
provisions on carriage by sea of dangerous goods, and new dispositions
on procedure to get the tonnage certificate for ships longer than 24
meters (President Decree 2.2.1984, # 46).
State Financial contributions by Italian Government to several sectors
suffering from the deep economical maritime crisis were granted by
another group of statutes. Among them, Law # 396 of July 27th, 1984 has
extended validity to the dispositions of Law # 598, 599 & 600
of
1982 which had put the basis to sustain the Shipbuilding Industry.
Interventions in favor of ship-owners have later been set by Statute #
848 of December 11th, 1984.
The Parliament has also issued statutes in order to stop the deep
crisis of Italian harbors. Law # 468 of August 13th, 1984 set urgent
measures to cope with the difficult situation, while Law # 859 of
December 20th, 1984 provided the financial resources to relief them
from their debts.
In order to save the "Flotta Lauro" from the deep crisis which lead the
Neapolitan company under "State Controlled Administration", a new Law
(the third one, # 618 of September 28th, 1984) has given a new
Governmental contribution to the company.
Law # 381 of July 27th, 1984 has set urgent provisions in order to save
the environment; Decree of November 20th, 1984 has established a
fishing reserve along the Italian territorial sea long.
On international carriage by sea, the Italian Parliament authorized (on
June 12th, 1984, # 243 & 244) the Government to ratify the
protocols signed in Bruxelles on February 23rd, 1968 and December 21st,
1979 (Visby Rules) modifying the Brussels Convention of 1924 on Bill of
Lading.
2. Case Law
a) Arbitration
Two interesting decisions of "Corte di Cassazione" on
international arbitration ruled by the New York Convention of 1958,
which, even if not directly dealing with maritime law, have a great
importance in this world Wide spread kind of proceeding. The first one
(January 19th, 1984, # 465, Dir. mar. 1985, 302, annotated by LA CHINA)
has punctualized the peculiar proceeding of enforcement of foreign
arbitral awards in Italy, where Italian Courts can not re-open the
trial on the merit of the cause. It has also been stated that formal
requirements on arbitration clause are demanded only to the uniform
rules of the New York Convention.
The second decision (February 21st, 1984, # 1234, Dir. mar. 1985, 39)
has confirmed this last Consolidated position and has solved some
questions on the applicability of the Conventional rules.
b) Insurance
The Appeal Court of Florence (March 9th, 1984, Dir. mar. 1985, 354) has
dealt with a sea carriage in container insured under Institute Cargo
Clauses - All Risks, and has stated some new principles on the burden
of proof of damages.
A peculiar case following an illegal vessell arrest made by police
authority of an African Country has been solved by "Corte di
Cassazione" (October 25th, 1984, # 5437, Dir. mar. 1985, 45, annotated
by BALESTRA). Costs sustained by owners to free the ship by illegal
arrest has been considered covered by the Institute War and Strike
Clauses - Hull, and the relevant claim recoverable from underwriters as
"value debt".
In another case, "Corte di Cassazione" (January 2?th, 1984, # 651 Dir.
mar. 1985, 308) has confirmed the limits of the rules on terms of the
starting of prescription and has stated some rules on the burden of
proof relevant to damages due to devaluation in favor of the creditor.
c) Work
Quite interesting the decision of Pretura of Trieste (April 5th, 1984,
Dir. mar. 1985, 112, annotated by ENRICO LUCIFREDI) on the discharge of
a master. It has been stated the specialty of this kind of job, and any
master's behavior which may diminuish the unconditional trust in him of
the owners has been considered as sufficient and legal cause for
dismissing him.
Pretura of Genoa (March 9th, 1984, Dir. mar. 1985, 384) has confirmed
that ship agents can not be considered as employees of the owners.
d) Carriage
The Appeal Court of Milan (March 23rd 1984, Dir. mar. 1984, 890) has
rendered an interesting decision on a case about a coJJect
freìght relevant to a maritime carriage. When not paid by
the
consignee, the carrier has the right to get the freigt from the
shìpper, even if he has not exercised his lien on goods.
Then,
in this case, the lien is only a faculty of carrier and not a condition
to get paid from shipper.
On Brussels Convention of 1924 on Bill of Lading, a recent decision of
"Corte di Cassazione" (Aprii 27th 1984, # 2643, Assicurazioni, II,
1985, 10, annoted by FERRARINI) has come to contradict the commonly
accepted principle (now explicitly set by the Visby rules) that
liability limit can not be applied in case of willful misconduct of the
carrier. In this decision, dealing with an unauthorized carriage of a
container on deck, the court has also substantially followed the new
principles set by Visby rules (not in force in Italy yet) on liability
limitation for containers, and has calculated the amount of limit
referring once again to the price of gold on the free market.
Again on Brussels Convention, another judgment (Corte di Cassazione,
March 5th, 1984, n. 1536, Dir. mar. 1985, 312) has confirmed that terms
set by article 3, para 6 to bring suit against the carrier is a
forfeiture and not prescription, but may be extended by agreement of
parties.
The decision # 6298 of "Corte di Cassazione" (December 3rd, 1984 Dir.
mar. 1985, 317, annotated by BALESTRA) has dealt for the first time
with applicability of Brussels convention of 1924 to bills of lading
released for a carriage in bulk connected with a charter party, and
between parties of this last contract. The answer has been negative,
since it has been stated that only the charter party may rule such kind
of carriage between carrier and charterer. The same decision has also
dealt with terms to bring suit against the carrier under Italian
Navigation Code.
Court of Milan (March 13th, 1984, Dir. mar. 1984, 910) has once again
repeated the exact definition of forwarding agent, which is often
confused, in Italian Law, with the contractual carrier.
Court of Leghorn (October 15th 1984, Dir. mar. 1985, 372, annotated by
VINCENZINI) has stated that Certificates released by the U.S. Federal
Grain Inspection Service are not conclusive as to the quality of goods,
which can be proved even by any other mean. This decision, the first in
Italy on the matter, is very important because it is contrary to the
different principle commonly accepted by English courts.
3. Bibliografy
On Maritime insurance, FERRARINI, "Le
assicurazioni marittime", 2nd
vol., Giuffrè, Milano, 1984 has come to complete a work
which
has already become a classical on the subject. This further part deals
with the new contractual forms recently adopted, as such as 1983
edition of the Italian
Standard Form for Goods Insurance, and the last
Institute Clauses.
MIGLIORINO, "Il recupero
degli oggetti storici ed archeologici sommersi
nel diritto internazionale", Giuffrè, Milano,
1984 gives a
long
waited and up-to-date survey of the international rules relevant to the
submerged archeological and historical objects.
On the continental shelf and its increasing problems, DEL VECCHIO,
"Zona economica
esclusiva e stati costieri", Le Monnier, Firenze, 1984,
provides a detailed exposition of the last developments of
international law.
5C0VAZZI, "La pesca
nell'evoluzione del diritto del mare", II volume,
Giuffrè, Milano, 1984 offers the recent history on the
evolution
of fishing in maritime law.
The last work of CARBONE, "Le regole di responsabilità del
vettore marittimo", Giuffrè, Milano, 1984 is an interesting
survey on the liability rules of maritime carrier, updated with the
most recent case law on the matter.
A comprehensive and detailed analysis of contribution to general
average is given by TULLIO in his last study, titled "La contribuzione
alle avarie comuni", Cedam, Padova, 1984.
Last but not least D'ALESSIO, "Nazionalità'
della nave",
Jovene,
Napoli, 1984 covers the several problems arising on nationality of ship.
Gustavo Romanelli - Enzo
Fogliani.
[*] N.B: Content of this page is
updated at 10 March 1986.
