Pursuant to Article 2050 of the Italian Civil Code, “Whoever causes injury to another in the performance of an activity dangerous by its nature or by reason of the instrumentalities employed, is liable for damages, unless he proves that he has taken all appropriate measures to avoid the injury”.
The abovementioned rule of law imposes on anyone performing a dangerous activity to compensate damages arising therefrom. The injurer can exclude his own liability (usually connected to negligence or intent) only if he is able to demonstrate to have adopted all appropriate (technical and organisational) measures to avoid the occurrence of such damages according to the best available technology at the time5.
Hence, to avoid such liability, the perpetrator cannot merely provide evidence of not having violated any legal and regulatory provision or of having been diligent, but – conversely – it shall have to provide positive evidence of having put in place, specifically, all technical measures (even the more advanced and only theoretically possible ones) in order to prevent the occurrence of the harmful event and to guarantee the carrying out of the activity under conditions of maximum safety. This – it should be noted – regardless of the costs that such technical measures may have.
In light of the above, the trend is to include the case of liability provided for under Article 2050 of the Italian Civil Code within the cases of strict liability, that is, within those cases of liability which disregard the verification of negligent behaviour or wilful misconduct of the perpetrator.
Given that – considering this scenario – there would be no benefit in demonstrating the diligence of who performs the dangerous activity, it is easy to understand that in such case the only proof of innocence is represented, in concrete terms, by the so-called unforeseeable circumstance, that is, a wholly exceptional and unpredictable event, able to break completely the causal link between activity and damage.
Since the activity of port terminal operators is characterised by the conduct of operations carried out with the aid of some very complex lifting equipment – as complex are also the lifting and transport operations carried out to load and unload ships – one would have to question how national case law considers such activities with regard to the provisions of Article 2050 of the Italian Civil Code.
Well, Italian case law, even if not recent and limited to few pronouncements, seems to consider the harbour loading and unloading of ships (and more generally all the activities carried out with lifting equipment) as dangerous activities pursuant to Article 2050 of the Italian Civil Code6.
Consequently, harbour operators must pay great attention to the rules laid down by Article 2050 of the Italian Civil Code (also during the conclusion of insurance contracts aimed to cover their liability).
In particular, if we think at the context of port operations, also in light of the continuous improvement of security technologies, it would be right to assume that the operator should always use the Best Available Technologies (also known as “BAT”) in the performance of its activity, at least to try to avoid liability in case of accident.
Considering the apparent restrictive interpretation given by Italian case law to the rules laid down by Article 2050 of the Italian Civil Code, all operators should always evaluate – also in this respect– their equipment, and, besides, pay due attention in choosing the insurance coverage for their liability arising from the performance of an activity that, as we have seen, Italian courts tend to consider as dangerous.
Indeed, the proof of evidence to be exempted from liability in case of accident would consist – as they say in these cases – in a “probatio diabolica”.