We decided to further investigate the situation of private areas situated in Italian ports, a situation that is anything but isolated, as we have already mentioned in our previous newsletter. These private areas are generally used for the storage and handling, and sometimes even for the loading and unloading, of goods. Article 16 of Law 84/94 (i.e. the Italian Port Law) governs all these port operations and provides that they can be carried out only upon the issue of a specific authorization from the Port Authority. So we wonder whether this provision also applies to port operations carried out within private areas.
The doubt arises because in many Italian ports the owners of private areas, deeming the Italian Port Law not applicable to said areas, perform, directly or through third parties, port operations without the prior authorization provided for by Article 16 of Law 84/94.
In order to shed some light on the issue, let us analyse Article 16 of the Italian Port Law, which provides in the first paragraph that: «port operations include loading, unloading, transhipment, storage, general movement of goods and of all other types of material, undertaken in the port area». Paragraph 3 states that «the performance of the activities referred to in paragraph 1, directly or on behalf of third parties, is subject to the authorization by the Port Authority or, where not established, by the Maritime Authority».
Moreover, in order to obtain the authorization referred to in the third paragraph of Article 16 of Law no. 84/94, the undertaking is required to prove the fulfilment of certain personal, technical and organizational, financial standing and professionalism requirements. The possession of these requirements is intended to ensure the adequacy of the entity requesting the authorization to carry out the abovementioned activities.
But analysing the scope of the rule, we see that Article 16 of Law 84/94 provides for the application of the same to the port area. So one wonders what are the port area boundaries, what are the powers of the Port Authority in said areas, and what happens if some of them are not state-owned but private areas.
In order to answer this question we must consider two provisions: Articles 6 and 16 of Law 84/94.
The first article, addressing the powers of the Port Authority (destined to become soon the “Port System Authority”), states that the Port Authority carries out «the following tasks… direction, planning, coordination, regulation, promotion and control … of port operations and services, of authorizations and concession grants referred to in Articles 16, 17 and 18 and other commercial and industrial activities carried out in ports and territorial districts». While the second article states that it is applicable to the port area.
It becomes, therefore, imperative to define the two concepts: (i) port district and (ii) port area.
Legal scholars have profusely discussed these two definitions, also in light of the evolution of the general conception of port in recent decades.
Indeed initially there was a static and restrictive interpretation of the port, which referred only to the physically delimited area of the same. The port used to be considered a closed sea area, idle for the berthing of vessels, characterized by the presence of natural and/or artificial elements that constituted its borders.
With the economic development and the European and international influence, the port stopped being considered simply from a local perspective. Following a more dynamic point of view, the port acquired the role of «market», becoming an area in which certain commercial services connected to maritime transport are offered.
The enactment of Law no. 84/94 introduced a more functional concept of port. It specifies that all goods, infrastructure and means are aimed at offering services to the ship and the goods transported by it. If, in fact, the Italian Navigation Code talked generically of «port», the Italian Port Law differentiates: «port», «port area» and «port district».
«Port» means the area dedicated to trade, logistics, industrial and oil production, passenger services, shipbuilding and road and rail infrastructures.
But, the terms that are most relevant here, for the purposes of finding a solution to our doubts, are the following:
- «Port area» meaning a broad area that includes not only the State-owned areas (e.g. docks and storage areas), but also «the infrastructures connected to maritime and port activities located on the seafront within the exterior barriers ... as long as concerned by the port traffic and by the provision of port services». There is, therefore, a more functional understanding of these areas that, in order to be considered within the port area, must be connected to the port traffic and to the performance of port services.
- The «Port district» includes instead «the geographical area, identified and defined by the Ministry of Infrastructure and Transportation, within which the port jurisdiction is exercised. [...] In other words, the stretch of coast inside precise borders (or spots) of the territory made up of maritime State-owned land, of port infrastructures and the waterfront, within which the single Port Authority exercises its (administrative and public) functions i.e. direction, planning, coordination, promotion and control».
From the analysis of Articles 5 and 7 of the Italian Port Law, it is clear how the port area is subject to the planning performed by the Port Authority, while the port district, is the area subject to the jurisdiction of the Port Authority. So one wonders if these two areas coincide or not.
The doctrine states that these areas may differ in their extension, given that the port area could also include areas that are excluded from the port district, exactly because these areas could be functionally connected to the operation of the port facilities.
Indeed, in Italy, warehouses and storage sites are often located in areas surrounding the port, which, moreover, are frequently not State-owned, but still functionally connected to the port itself.
Having said this, it becomes easier to understand the extent of the applicability of Article 16 of the Italian Port Law.
Given that the doctrine includes in the port area also areas and infrastructures that are not State-owned, hence even private areas, it must be concluded that Article 16 of Law no. 84/94 is also applicable to the latter. Please note, that if these private areas are located within the port district they will be subject to the jurisdiction of the Port Authority (shortly the Port System Authority) and consequently to its power of direction, planning, coordination, promotion and control, regardless of the fact that these areas are not State-owned.
From the above one may infer that owners of private areas located within both the port area and the port district, must comply with the rules established by the Italian Port Law and are subject to the Port Authority jurisdiction.
Therefore, one should be warned, that if the owners of these private areas decide to carry out port operations directly without the necessary authorization, or through unauthorized undertakings, they may be subject to administrative sanctions. Moreover, breaching the above rule, in case of injuries to employees, the employer may incur additional responsibilities, since he permitted the performance of port operations by persons not holding the necessary authorization.