Yearbook Maritime Law 1984

pag. 265
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    1. Statutes

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.