The Regional Administrative Court of Naples recognised the right for a terminal operator to be indemnified by the Port Authority of Naples (albeit to a very much lesser extent than sought by the terminal operator concerned) due to delay in the execution of dredging works in the port, namely, in the proximity of berths 50 through 55 of the Port of Naples. This represents a real revolution in this kind of disputes, which is likely to impact future similar claims.
The Administrative Court upheld an application filed in July 2014 by a terminal operator who – by virtue of the concession obtained and the business plans submitted to the Port Authority of Naples – claimed damages for financial losses incurred as a result of the non-execution of dredging works nearby the above-mentioned berths and its consequent inability to use part of the property granted in concession (besides the impediment posed to traffic volume increase due to the limited depth of the seabed).
The Port Authority of Naples, despite being required – under both statutory provisions and the three-year business plans approved by it – to fix the gradual silting and elevation of the seabed and solve the draught and port navigability problems arising since 2003, has never performed such works.
While finding the Port Authority’s failure to perform its maintenance obligations and solve the above-mentioned problems, the court also noted that certain factors resulted in slowing down and hindering dredging works. This contributed to significantly reducing the amount of the damages awarded, compared to that originally sought by the terminal operator. Among the main factors hindering the execution of works is the inherent complexity of the technical problems that emerged, certain design and execution problems and weather conditions unfavourable for dredging operations.
The judge further reduced the amount of damages after finding contributory negligence on the part of the terminal operator itself in causing the damage, in light of the circumstance that the terminal operator decided to file an application with the competent court only after several years, contributing - in the court’s view - to causing greater damage.
Among the many aspects addressed in the judgment, two aspects are particularly worth highlighting here.
The case is undoubtedly interesting, as it is the first time that a Port Authority is found liable for “non-performance”, based on substantially equating a concession with a contract entered into by an Authority and a concession-holder giving rise to that typical do-ut-des paradigm that arises at the inception of a contractual relationship (so called “sinallagma”) and continues during its entire term.
Finally, it is worth noting that, in circumstances such as those of the present case, immediate steps should be taken to protect one’s own rights and interests, so as to avoid the risk of being subsequently found liable for contributory negligence in causing the damages for which compensation is claimed (due to delay in seeking judicial relief).
All we need to do now is to await the outcome of any action challenging the decision of the Regional Administrative Court of Campania