The performance of port operations by a terminal operator is usually regulated by the concession deed, which sets out their nature, scope and duration.
It is not rare, however, that a concessionaire applies for an authorisation to have the scope of its activities extended, or that a Port or Maritime Authority issues an order requiring a concessionaire to carry out different activities in the interest of the port.
Suffice it to think, just by way of example, of the case where a concessionaire is required by public authorities to make available part of the docks granted in concession to allow the docking of ships for trades different from those authorised (which often happens with cruise shipping services, or with Ro/Ro vessels, which, when the designated piers are filled up, may end up being "redirected" to concessionaires who are not routinely engaged in such services).
Whenever this occurs, one should concern oneself about the consequences of any risks associated with the new activities carried out.
Regardless of the level - more or less high – of such risks, the operator concerned should verify whether the instruments adopted for mitigating its liability are still such as to ensure adequate coverage.
Particular attention should therefore be paid to the impact that any new risk can have in terms of insurance coverage and the organisation, management and control models under Legislative Decree No. 231/2001.
Starting with the latter, so-called “models 231” are now adopted by almost all port operators, serving an “insurance” purpose in a broad sense.
They are indeed the only instrument for protecting oneself from liability which, in case of certain offences, can be directly ascribed to the companies concerned, triggering both pecuniary sanctions (up to 1,500,000 Euros) and disqualifying orders (such as, without limitation, the prohibition to carry out business activities and the suspension of permits and concessions, which may even lead to revocation of the same).
The governance model introduced by the above-mentioned legislative decree protects, in legal terms, any operator who adopt and duly keeps it in place (in other words, the adoption and update of such model prevents liability on the part of the terminal operator, fixing liability only on the actual wrongdoer).
With respect to harbours, the main risks are primarily associated with environmental, health and workplace safety offences.
In our industry, few activities are as risky as handling a freight dock that is temporarily used as an area for loading and unloading cars and passengers from and to a ferryboat or –even worse– cruise passengers.
Failure in adopting suitable standard safety measures involves, in principle, criminal liability on the part of a concessionaire for offences that are prosecuted on a negligence standard, with the result that mere oversights or errors can give rise to liability (i.e., even in the absence of wilful misconduct).
Therefore, those who have not yet adopted model 231, or, even if so, fail to update it as a result of changes in the terminal’s operational system, will be exposed to great risk.
Thus, the first step to be taken is to identify and assess risks (risk assessment) and then adopt any procedures needed to prevent damage events, which – as noted above – are detrimental to both third parties and the operator concerned.
This, we repeat, should be done also in the event that the scope of activities of a concessionaire gets extended, as this obviously involves additional liability.
The same reasons lead us to examine the impact of the circumstances under examination from an insurance perspective.
Any significant modification of the risk originally presented at the inception of the insurance contract will indeed require the execution of a specific addendum/endorsement.
This is why, as a rule, insurance policies describe insured risks in a very precise manner, relying on the representations released by the insured party (which is statutorily bound to provide true and complete information) at the time of entering into the insurance contract.
It is no coincidence that Article 1898 of the Italian Civil Code requires the insured party to give “immediate notice to the insurer of any change increasing risk”, so that insurers may be able to withdraw from contract or obtain an increase in the insurance premium.
Failure to give notice as above may even prevent payment of compensation in the event that, being aware of the increase, the insurer would not have entered into the insurance contract.
In less serious cases, a decrease in compensation is in any event applied based on the ratio between the premium paid and the (higher) premium that would have been paid if the insurer had been aware of the increased risk.
A further event that can suggest the need to take action is when a terminal operator, on its own initiative or when required by a Port or Maritime Authority, ends up being engaged in activities not originally envisaged in the concession deed.