We have already dealt with this issue in our Newsletter Bulletin of October-November 2016.
In particular, after mentioning the distinction between stevedoring companies operating on public docks and terminal operators, we then wondered whether, upon completion of its dock works in a public port, a stevedoring company is allowed or not to leave its own operational equipment on State-owned property.
We were led to deal with this subject by a ruling by the Public Prosecutor (Procura della Repubblica) of Massa which stated that – upon completion of work – any operational equipment shall be immediately removed from public port areas, otherwise Article 1161 of the Italian Navigation Code shall apply (Occupancy without entitlement), which means a Public Prosecutor might even order the immediate seizure of such equipment.
In particular, according to the Public Prosecutor of Massa, “the only practicable solution to be lawfully entitled to leave any equipment in the port area without incurring the liability regime under Article 1161 of the Navigation Code is to obtain a concession for occupancy or an order in lieu thereof”.
In a nutshell, the above view can be summarized as follows: stevedoring companies must obtain a concession for dock areas under Article 18 of Law 84/94 in order to be able to leave their operational equipment upon completion of port operations.
The Criminal Supreme Court has recently ruled on this in second instance, stating the following principle: authorisations granted under Article 16 of Law 84/94 can neither be deemed equivalent nor in lieu of concessions under Article 18 of the aforesaid law. As a consequence, the occupancy of State-owned property without holding a concession (other than authorisation under Article 16 of Law 84/94) amounts to occupancy without entitlement and is therefore subject to criminal sanctions.
In light of the Supreme Court’s statements, it should first be noted that to require a stevedoring company to become, as a matter of fact, a terminal operator in order to be allowed to carry on its business may at first sight seem “unfair”; on the other hand – as correctly pointed out by the Supreme Court – a person who manages and runs a business like a terminal operator, assuming responsibility for costs and expenses, cannot be equated to a person who uses State-owned property without incurring any equivalent costs.
Indeed, to allow a stevedoring company to carry out the loading and unloading of ships with Lo/Lo systems, i.e. by means of cranes, leaving such operational equipment on public docks on completion of port operations, might involve such company – as a matter of fact – being allowed to operate in competition with terminal operators, who, instead, are subject to strict obligations in terms of equipment, personnel, safety and security models, ordinary and extraordinary maintenance of the area granted under concession, etc., not to mention the payment of concession fees and the investments needed to obtain and maintain concessions.
Also in light of the above “extra-legal” considerations, the ruling of the Italian Supreme Court, besides problems that could arise from a not-totally-clear statutory provision, would seem to convey the right approach to the issue.
That being said, we reiterate that a response from the Ministry for Infrastructure and Transport would be highly desirable in order to definitely clear up the uncertainties that still surround this delicate issue and provide greater certainty for both operators and public authorities.