Trends and developments
Trends and developments
Are there any notable trends or recent legal developments in your jurisdiction’s shipping industry?
There are no notable trends at present.
Which ships are eligible for registration in the national shipping register(s) and which parties may register ships?
As far as relevant, Law 30/1998 instituted the Italian International Registry for vessels dedicated to international traffic. The law has since been implemented by subsequent legislation.
The Italian International Registry cannot be used to register:
- war vessels;
- state vessels which do not operate in commercial business;
- fishing vessels; and
- pleasure boats.
The registry is divided into the following sections:
- vessels owned by an Italian or EU shipowner as provided by Article 143(1a) of the Navigation Code;
- vessels of new construction or originating from non-EU registries and owned by non-EU shipowners that:
- manage the ships through a permanent establishment located in the Italian territory in which the ship is registered; and
- will bear any liability for the management of the ship before the Italian authorities and third parties; and
- vessels owned by non-EU shipowners provided that the flag of the vessel has been suspended by the foreign register pursuant to Article 145 of the Navigation Code because the owner has bareboat chartered the vessel to an Italian or EU shipowner.
Pursuant to Article 143(1a) of the Navigation Code, a vessel is considered to be an Italian or EU vessel insofar as an Italian or EU individual or company owns more than 12 carats of it.
What are the procedural and documentary requirements for registration?
Shipowners must obtain the Ministry of Transport authorisation prescribed by Law 30/1998 and thereafter deliver the relevant documents to the local harbour master.
In order to be registered, a vessel must:
- be authorised to carry no more than 12 passengers (excluding the crew);
- be furnished with a certificate of class issued by an authorised organisation;
- comply with Security Regulation 95/2005; and
- have a crew that includes at least a captain and two other members who are of Italian or EU nationality and whose members fulfil the requirements provided by Regulation 121/2005.
Ministry Decree 57/2017 introduced a simplified procedure for applying for ministry authorisation. Indeed, applicants can now send the application together with the relevant documentation by certified email.
Grounds for refusal
On what grounds may a registration application be refused?
An application may be refused for lack of requirements.
Are there any particular advantages of flying your jurisdiction’s flag?
- a tax reduction of 80% on the income produced through use of the ship; and
- recognition of a tax credit in relation to the wages paid by the shipowner to the crew.
Liens and mortgages
How are encumbrances such as maritime liens and mortgages registered in your jurisdiction and what are the effects of registration?
Liens are provided by law, particularly by the Navigation Code. A mortgage on a vessel can be agreed only by the parties involved. The mortgage must be agreed in writing and recorded both in the ship’s register and on the nationality certificate of the vessel. After the mortgage has been recorded, it will prevail against third parties.
Italy has ratified the Brussels Convention 1926, which is therefore applicable – although with some reservations.
Securable claims and priority
What claims can be secured by maritime liens and what is the order of priority?
The Navigation Code provides the following liens on the vessel and the freight, in order of priority:
- judicial expenses due to the state, including:
- anchorage tax;
- port duties and other taxes and duties of the same kind;
- pilotage; and
- expenses for the custody and maintenance of the vessel;
- wages due to the captain and other members of the crew;
- sums paid by the competent authorities for crew members and social security;
- salvage rewards and general average contributions;
- costs of collision or other accidents of navigation, as well as for damages to berths and ports, indemnity and compensation for death or injuries to passengers and crew and for damages to or loss of cargo or luggage; and
- credits arising out of contracts or other activities carried out by the captain in order to maintain the vessel or prosecute the voyage.
Liens on goods are provided for the following credits, in order of priority:
- judicial expenses due to the state or sustained in the interest of the creditors for the execution of their credit;
- customs duties on goods due at the destination;
- salvage rewards and general average contributions;
- costs deriving from the contract of carriage, including discharge and storage costs; and
- costs arising out of the obligations contracted by the captain on the goods in exceptional cases provided by the Navigation Code.
Under what circumstances are maritime liens extinguished?
Liens are extinguished if the credit is extinguished. Liens on the vessel are also extinguished after one year from the circumstances indicated in the Navigation Code, excluding liens for credits arising out of contracts or other activities carried out by the captain in order to maintain the vessel or prosecute the voyage, in which case a longer term of 180 days is applicable. Liens on goods are extinguished if the claimant fails to notify the master of the claim or fails to act within 15 days from discharge and before the goods are delivered to third parties in good faith.
Are foreign liens recognised in your jurisdiction?
The Navigation Code provides that maritime liens are regulated by the law of the flag.
Transfer and assignment
Which rules govern the transfer and assignment of liens, mortgages and other encumbrances?
Generally, the lien follows the credit.
Grounds for arrest
Under what circumstances can a ship be arrested in order to secure a claim against it?
Italy has ratified the Brussels Convention 1952 on ship arrest. A creditor can arrest the vessel to which the debt refers and any other vessel owned by the debtor. The creditor must have a maritime claim.
Can a ship be arrested to secure a non-maritime claim?
A ship cannot be arrested to secure a non-maritime claim if the Brussels Convention applies.
Can a ship be arrested to secure a claim against a sister ship?
What are the procedural and documentary requirements for seeking arrest of a ship?
The creditor must file a recourse before the competent court proving the fumus boni iuris (the grounds for arrest). The creditor must not prove the periculum in mora, but must submit evidence to support its request.
What security must the arresting party put up in order to secure arrest of a ship and how is this security calculated?
What security can the arrested party provide for release of an arrested ship?
A bank guarantee or a protection and indemnity insurance letter of indemnity are usually accepted.
Judicial sale of ships
What is the legal procedure for the judicial sale of ships in your jurisdiction?
The judicial sale of a ship is authorised by a judge on demand of the proceeding creditor or any creditor with an executive title. The recourse will be served on the debtor and the other creditors. The judge will then appoint an execution judge and an expert for the evaluation of the vessel. The judge will order the auction sale five days after the expert submits its survey.
Under what circumstances are foreign sales recognised?
Foreign sales are generally recognised unless contrary to Italian public law and order.
Limitation of liability
What parties may limit liability for maritime claims?
Pursuant to the Navigation Code, a shipowner may limit liability for maritime claims. Pursuant to EU Directive (2009/20/EC), enacted with Legislative Decree 111/2012, the shipowner, bareboat charterer and any other party that is responsible for the management of a vessel may limit liability for maritime claims. The decree applies to all vessels with more than 300 tons of gross tonnage and which are in the Italian territorial sea, regardless of the flag.
Italy has not ratified the London Convention on Limitation of Liability for Maritime Claims 1976; nevertheless, the convention applies in Italy to vessels flying the flag of a contracting party. Pursuant to the convention, shipowners, charterers, managers and operators of seagoing ships, as well as salvors, may limit their liability.
For what claims can liability be limited? Are any claims explicitly exempt from the limitation of liability?
Pursuant to the Navigation Code, the shipowner of a vessel with less than 300 tons of gross tonnage may limit its debt for the obligations contracted for the needs of the voyage and for those arising out of actions of the master and the crew during the voyage, excluding those deriving from the shipowner’s wilful misconduct or gross negligence. For all other vessels, EU Directive 2009/20/EC (as enacted) applies.
What limits are set for eligible claims?
Pursuant to the Navigation Code, the limitation of the shipowner’s liability for vessels with less than 300 tons of gross tonnage is a sum equal to the value of the vessel plus freight and any other income generated by the voyage. For all other vessels, the limits provided by EU Directive 2009/20/EC (as enacted) apply.
What rules and procedures govern the establishment of limitation funds?
In so far as the Navigation Code is applicable, the shipowner must apply to the judge and deposit the sum equivalent to its limitation of liability.
How are liability funds distributed?
The sum will be divided between the creditors with the right to join the procedure, in accordance with the graduation of their liens and excluding the participation of any other creditor.
Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
If the contract of carriage is covered by a bill of lading or any similar document of title, the Hague Visby Rules (the Hague Rules as amended by the Brussels Protocol 1968) are applicable to the carriage.
What is the official extent of the carrier’s responsibility for goods?
The contract of carriage is regulated by the law of the flag, unless the parties agree otherwise. The Hague Visby Rules are widely applicable with an extent of liability equivalent to 666.67 special drawing rights per package or unit(s) of account per kilo of gross weight of the goods lost or damaged, whichever is the higher, unless the shipper declared a higher value in the bill of lading. The limitation of liability does not apply if it is proved that the damage resulted from an action or omission of the carrier done with the intent to cause damage or recklessly and with the knowledge that damage would likely occur.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Parties must refer to the Hague Visby Rules.
Title to sue
Who has title to sue on a bill of lading?
The legitimate holder of the bill of lading has title to sue. This is usually the receiver of the goods.
What is the time bar for cargo claims?
The time bar for cargo claims is one year from delivery of the cargo or from the date on which it should have been delivered. However, this period may be extended on agreement of the parties after the cause of action has arisen.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
'Carrier' includes the shipowner or charterer that enters into a contract of carriage with a shipper. 'Goods' includes goods, wares, merchandise and articles of every kind, excluding live animals and cargo, which is stated in the contract of carriage as being carried on deck and is so carried.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
Under the Hague Visby Rules, neither the carrier nor the ship will be liable for loss or damage arising or resulting from unseaworthiness, unless such damage is caused by want of due diligence on the part of the carrier to make the ship seaworthy. Neither the carrier nor the ship will be responsible for loss or damage arising or resulting from:
- the action, neglect or default of the master, mariner, pilot or servants of the carrier in the navigation or management of the ship;
- fire, unless caused by the actual fault or privity of the carrier;
- perils, dangers or accidents of the sea or other navigable waters;
- acts of:
- war; or
- public enemies;
- the arrest or restraint of rulers or people, or seizures under legal processes;
- quarantine restrictions;
- actions or omissions of the shipper or the owner of the goods, its agent or representative;
- strikes, lockouts, stoppage or restraints of labour for whatever cause, whether partial or general;
- riots and civil commotions;
- saving or attempting to save life or property at sea;
- wastage in bulk of weight or any other loss or damage arising from an inherent defect, quality or vice of the goods;
- insufficient packing;
- insufficient or inadequate marks;
- latent defects not discoverable by due diligence; and
- any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier; however, the burden of proof will be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
The same legal defences are available to agents and third parties as are available to the carrier.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
Deviation from the agreed route is permitted in order to save life or goods at sea. Pursuant to the Hague Visby Rules, any deviation in saving or attempting to save life or property at sea, or any reasonable deviation, will not be deemed to be an infringement or breach of the rules or the contract of carriage, and the carrier will not be liable for any loss or damage resulting therefrom.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The shipper will be deemed to have guaranteed to the carrier the accuracy – at the time of shipment – of the marks, number, quantity and weight of goods, as furnished by it. In addition, the shipper will indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
The laws governing each phase of carriage are applicable.
Collision and pollution
What rules and procedures (under both domestic and international law) apply to the prevention of, liability for and remedy of:
The Collision Convention 1910.
(b) Oil pollution?
The rules governing oil pollution are:
- the Convention on Civil Liability for Oil Pollution Damage 1992;
- the Convention on the Establishment of an International Fund for Oil Pollution Damage 1992;
- the Convention on Civil Liability for Bunker Oil Pollution Damage 2001; and
- Law 979/1982 on the defence of the sea.
(c) Other environmental damage caused by a ship?
Law 979/1982 on the defence of the sea.
What is the legal regime governing salvage and general average?
The regime comprises the International Convention on Salvage 1989 and Italian law. The York-Antwerp Rules are also applicable.
Places of refuge
What framework governs access to places of refuge for ships in distress?
The framework comprises:
- Legislative Decree 196/2005 enacting EU Directive 2002/59/EC Establishing a Community Vessel Traffic Monitoring and Information System;
- Law 979/1982 on the defence of the sea; and
- the International Maritime Organisation Guidelines on Places of Refuge for Ships in Need of Assistance (Resolution A.949(23)).
What rules and procedures apply to the removal of wrecks in your jurisdiction?
Article 73 of the Navigation Code establishes that in the case of a ship drowning in port or in the Italian territorial sea, the harbour master can order the wreck removal at the expense of the shipowner if they determine that the ship poses a danger to navigation, and can fix a term for removal.
The Nairobi Convention on Wreck Removal 2007 has not yet been ratified.
Under what circumstances can the authorities order removal of wreckage?
In case of emergency or if the shipowner fails to comply with the harbour master’s order, the latter will provide for the removal and sale of the wreck. Expenses will be attributed to the shipowner’s account.
What regime governs the imposition of security measures on ships and in port facilities?
The imposition of security measures on ships and in port facilities is governed by:
- the Safety of Life at Sea Convention;
- the International Ship and Port Facility Security (ISPS) Code; and
- Italian laws on public security (the national programme on marine security).
What rules apply to the qualification and conduct of security officers on ships and in port facilities? Are armed guards allowed on ships?
Law 130/2011 authorises shipowners to request the service of armed guards on board vessels flying the Italian flag and sailing in areas at risk of piracy where military groups are unavailable to cover the route.
What rules govern the provision of security information to port authorities?
The ISPS Code and EU regulations govern the provision of security information to port authorities.
What maritime risks must be covered under the law and what is the mandatory level of coverage?
The carriage of oil must be covered under the Convention on Civil Liability for Oil Pollution Damage 1992. Pursuant to EU Directive 2009/20/EC for the limited liabilities provided by the London Convention on Limitation of Liability for Maritime Claims, the insurance is mandatory up to the amount of limitation. Italy enacted the directive with Legislative Decree 111/2012; therefore, insurance is compulsory for both Italian and foreign vessels to which the decree applies.
Insurable risks and ships
What other risks are typically covered by marine insurance contracts concluded in your jurisdiction and what ships are insurable?
Marine insurance contracts typically cover:
- hulls and machinery; and
- protection and indemnity insurance liability.
What is the legal regime governing marine insurers’ subrogation rights?
The insurer that paid the insurance indemnity is subrogated by law in its insured rights up to the amount paid and is subject to the same exceptions and limitations as the insured.
Jurisdiction and dispute resolution
What courts are empowered to hear maritime cases in your jurisdiction?
The civil courts are empowered to hear maritime cases in Italy.
Exclusive jurisdiction and arbitration clauses
Under what conditions will exclusive jurisdiction and arbitration clauses in shipping contracts be held as valid?
Pursuant to the New York Convention 1958, arbitration clauses are valid if entered into in writing and signed by both parties. According to the Italian Supreme Court, arbitration clauses in bills of lading do not satisfy this requirement.
Pursuant to the Brussels Convention 1968, a jurisdiction clause is valid if entered or confirmed in writing, or stipulated in another way admitted by commercial practice.
What is the general state and prevalence of maritime arbitration in your jurisdiction?
Maritime arbitration is frequent but not widely used in Italy.
Recognition and enforcement
What regimes govern the recognition and enforcement of foreign judgments and arbitral awards?
The Brussels International Convention 1968 and EU Regulation 1215/2012 govern the recognition and enforcement of foreign judgments and arbitral awards.