This just-ended summer has seen Italian case law introducing new rules for the performance of port operations in Italian ports.
Reference is made in particular to the use of public docks by “non-concessionaire” stevedoring companies, here referred to for clarity as “stevedoring companies” to distinguish them from terminal operators (who on the contrary hold an exclusive concession over dock areas).
More specifically, it is worth recalling that stevedoring companies are statutorily entitled to carry out port operations:
a) at public docks (where client ships are berthed); and
b) at docks leased to terminal operators (where the latter’s clients work).
Indeed, under Italian Port Law No. 84/94, Port Authorities (called “Port System Authorities” since 15 September 2016)
a) are required to make suitable public docks available to stevedoring companies to enable them to work with client ships; and
b) may authorise terminal operators to outsource part of their port operation cycle to stevedoring companies.
In consideration of the above, and having regard to the scenario under a) above, the following question then arises: upon completion of its dock works in a public port, can a stevedoring company leave there its not-easily-movable operational equipment (e.g. big-sixed rubber-tyred cranes), pending further operations (e.g. on the following day)?
Or, again, can a stevedoring company just have its cranes stored to another area not causing hindrance to other operators or hazard to third parties’?
The answer is no. The Public Prosecutor (Procura della Repubblica) of Massa indeed stated that, upon completion of work, any operational equipment (e.g. vertical cranes, forklifts and stackers) must be expeditiously removed from public ports.
Otherwise, Article 1161 of the Italian Navigation Code (Occupancy without title) shall apply, with the consequence that a Public Prosecutor may even order immediate seizure of equipment.
In the case at issue, the seizure of operational equipment (except for a few items) was at a later stage confirmed by the Court of Review, which held as follows: «It is self-evident that, if big-sized equipment is needed for the performance of such activities and, therefore, it is impossible or at least excessively expensive to move such equipment, upon completion of work, to another area which is a not State-owned property or a State-owned property for which a concession for occupancy has been granted, the only practicable solution in order to be - lawfully - able to leave any equipment in the port area without incurring liability under Article 1161 of the Navigation Code is to obtain a concession for occupancy or an order in substitution thereof.»1
The non-practicability of moving big-sized dock cranes to areas located behind docks (due to the high costs and anti-competitive nature of such solution for the whole port system) therefore led both the Public Prosecutor and the Court of Review of Massa to conclude that stevedoring companies should obtain a concession for dock areas under Article 18 of Law 84/94.
One may on the other hand wonder whether, hypothetically, any stevedoring company that needs to leave its own operational equipment at a dock should become a “terminal operator“ for that specific “piece” of land within the port needed for storage purposes and port operations.
Should this be the case, then how could Port Authorities continue to make suitable docks available to non-concessionaire stevedoring companies, as statutorily required?
In such a case, the stevedoring company would find itself in dilemma: to either uselessly move cranes from the dock area to other areas behind it or apply for a concession under Article 18 of Port Law, thus transforming itself into a terminal operator, albeit limited to a very restricted area (i.e. the crane operation area).
In our opinion, Italian stevedoring companies, which are already struggling for a number of reasons, should not be put under useless and harmful burdens, nor should they be forced to transform themselves into terminal operators, because this is not statutorily required, and, furthermore:
1. pursuant to Article 16, paragraph 6, of Law 84/94, «authorisations [issued to stevedoring companies] shall have a term in accordance with the operational plan submitted by the undertaking or, if the authorised undertaking is also the holder of a concession under Article 18, a term equivalent to the term of the concession». The term “if”, in the provision under examination, seems to provide unequivocal evidence that a port operator within the meaning of Article 16 is allowed to remain as such, without becoming a terminal operator within the meaning of Article18. The fact that an undertaking within the meaning of Article 16 of Law 84/94 may become a terminal operator within the meaning of Article 18 is, indeed, only a “possibility” (“if … is also the holder of a concession”), and not certainly an obligation.
2. Article 6 of Ministerial Decree No. 585 of 31 March 1995 (“Rules on the regime for the grant, suspension and revocation of authorisations for the performance of port activities”, implementing paragraph 4 of Article 16 of Law No. 84/94) provides that «the grant of the authorisation is conditional upon the indication of the rates, by good category or service, which will be applied by the applicant and disclosed to the public as well as upon the payment of an annual fee and a deposit, based on the turnover of the applicant company, the operational plans submitted, the space (if any) used for carrying out operations and the level of dangerousness of the goods concerned». As can be seen, the granting of space for performing operations is just a possibility (“if any”). This would seem to confirm that an undertaking within the meaning of Article 16 is allowed to operate (and also leave its equipment in the port area) without having to obtain a concession and “transform itself into” an operator within the meaning of Article 18.
In our opinion, a stance should in any event be taken by the supervising Ministry of Transport on the point raised by the investigating judges of the Court of Carrara – in light of the not-so-clear statutory provisions and non-univocal practices of Port Authorities – in order to ensure more comfort (and uniformity of behaviour) to both operators and public authorities concerned.
We will keep you informed about the progress of these discussions.