This country-specific Q&A provides an overview of Shipping laws and regulations applicable in Italy.
What system of port state control applies in your jurisdiction? What are their powers?
The Port State Control system in Italy is governed by the IMO and ILO applicable international conventions, the Memorandum of Understanding on Port State Control signed in Paris on 26 January 1982 and the legislation, the provisions of which are in line with the guidelines set out in the Paris MOU.
Italian Legislative decree no. 53 dated 24/03/2011, implemented the European Directive 2009/16/EC of 23 April 2009 on Port State Control. This system of rules deals with the implementation of effective control procedures for non-Italian-flagged ships that call at national ports concerning compliance with international and EU legislation on the safety of navigation, maritime transport, maritime workers, ships and port facilities.
In addition, Legislative decree no.67, dated 07/05/2015, implemented EU Directive 2013/38/EU and adapted the regulations for on-board controls of vessels to the innovations introduced following the ratification of the International Maritime Labour Convention regarding the compliance with working and living conditions of the crew.
The inspection activity is carried out by special “Port State Control Units” belonging to the Italian Coast Guard. The controls concern both the structural conditions of the ships, including the examination of all certificates and documents required by the applicable IMO and ILO conventions, and compliance with working and living conditions of the crew and the embarked passengers.
Ships that do not comply with these Regulations and EU legislation are subject to measures ranging from the obligation to remedy the deficiencies before the ship’s departure or within a time established by the authority, up to, in the most serious cases, arrest and detention of the ship, access refusals and prohibitions to sail. The ship can be stopped in port until the deficiencies found have been remedied, if living and working conditions on board represent a clear danger to the safety or health of seafarers.
Are there any applicable international conventions covering wreck removal or pollution? If not what laws apply?
In Italy, the process for the ratification of the Nairobi International Convention on the Removal of Wrecks of 2007, has not been yet completed. The Convention provides a set of uniform international rules aimed at ensuring the prompt and effective removal of wrecks located beyond territorial seas, making shipowners financially liable and requiring them to take out insurance or provide other financial security to cover the costs of wreck removal. It also provides States with a right of direct action against insurers.
In absence of Italian ratification, the matter is exclusively governed by the Italian Code of Navigation article 73, which provides that Italian Maritime Authorities may issue orders of wreck removal whenever they deem the wreck may cause a danger or an obstacle to navigation in ports, bays, canals, or territorial waters. The provision establishes an obligation upon the owner to provide for the removal of the wreck at his own expense. If the owner does not comply with the order within the set deadline, the Authority has the power to remove ex officio and sell the wreck on behalf of the State. For ships of gross tonnage over three hundred tons, if the proceeds from the sale are not sufficient to cover the costs, the owner is obliged to pay the difference to the State.
As to the applicable international conventions covering pollution, Italy has ratified the following:
the International Convention for the Prevention of Pollution from Ships (MARPOL); the Civil Liability Convention 1969 (CLC) and the relevant 1992 Protocol; the Bunker Oil Convention 2001 on civil liability resulting from marine pollution caused by residues of fuel used for the propulsion of ships; the 1971 Convention establishing the International Fund for compensation for oil pollution and its 2003 Protocol as to a supplemental fund for a third level of compensation in the event that the extent of the damage exceeds the limit assigned to the fund; and with regard to the nuclear material transport, the Paris Convention of 29 July 1960 on Third Party Liability in the field of Nuclear Energy, supplemented by the Brussels Convention of 31 January 1963.
Furthermore, in Italy a very important system of rules is provided by the Environmental Code, enacted by the Legislative Decree 3 April 2006, No. 152 and the law on the defence of the sea no. 979, dated 31.12.1982.
What is the limit on sulphur content of fuel oil used in your territorial waters? Is there a MARPOL Emission Control Area in force?
The use of heavy fuel oil, gas oil and marine fuels in the territory and territorial waters is regulated by Directive (UE) 2016/802.
Since Italy is a member of the European Union, Directive (EU) 2016/802 therefore applies and a maximum of 0.10% sulphur fuel is to be used in port. As Italian waters are outside of the Emission Control Areas defined under MARPOL Annex VI Regulation 14 (and the EU Directive) a fuel sulphur limit of 0.50% applies to vessels outside of ports from 1 January 2020, pursuant to IMO 2020.
Are there any applicable international conventions covering collision and salvage? If not what laws apply?
Italy ratified the 1910 Brussels Collision Convention in 1913. In addition, the Italian Code of Navigation provides a legal system for collision and salvage in line with the rules set out in the Convention.
The Convention sets out a system of rules covering the compensation due for damages caused to the vessels, where a collision occurs between sea-going vessels or between sea-going vessels and vessels of inland navigation belonging to contracting States. An example of the alignment of the Italian Code of Navigation with the Convention is Art. 482 which provides that in case the collision is accidental, if it is caused by force majeure, or if the cause of the collision is left in doubt, the damages are borne by those who have suffered them, as provided by Art. 2 of the 1910 Convention.
Applicable international conventions are also the 1952 Brussels Conventions on civil and penal jurisdiction in matters of collisions and the 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREG).
With regard to salvage, the 1989 London Convention was ratified in Italy in 1996 and had a profound impact because it applies to any hypothesis of salvage at sea, when the judicial or arbitration proceeding is established in Italy. The rules of the 1989 London Convention replace those of the Italian Code of Navigation which are inconsistent with it. Today, the area is governed by the London Convention, whilst the provisions of the Italian Code of Navigation operate on a residual basis for cases not covered by the Convention.
Is your country party to the 1976 Convention on Limitation of Liability for Maritime Claims? If not, is there equivalent domestic legislation that applies? Who can rely on such limitation of liability provisions?
In Italy the 1976 Convention on Limitation of Liability for Maritime Claims has not been ratified yet.
However, Legislative Decree n. 111 of 28.06.2012, issued as the enactment in Italy of European Directive 2009/20 on compulsory insurance for marine claim liability, presumes the application of the system of limitation for maritime claims established by the Convention- to owners of ships of three hundred gross tonnage or more (the benefit of the limitation is provided not only for the registered owner but also for “any other person”, such as the bareboat charterer, responsible for the operation of a seagoing ship). For vessels under 300 GRT4, it remains in place the regime of the Italian Navigation Code providing a limitation fund equal to the value of the vessel after the event but in no case lower than one fifth or higher than two fifths of her value before the event. Since Italy has not adopted the Convention yet, it can be argued that the new regime of limitation, for vessels of 300 GRT and over, may be considered in force as an Italian internal regulation. A problem would, however, arise here since the 2012 Decree does not provide for a new limitation procedure in substitution for that of the Code of Navigation to be applied to the new limitation system.
It is urgent that the Italian Legislator intervenes to complete the Convention ratification.
If cargo arrives delayed, lost or damaged, what can the receiver do to secure their claim? Is your country party to the 1952 Arrest Convention? If your country has ratified the 1999 Convention, will that be applied, or does that depend upon the 1999 Convention coming into force? If your country does not apply any Convention, (and/or if your country allows ships to be detained other than by formal arrest) what rules apply to permit the detention of a ship, and what limits are there on the right to arrest or detain (for example, must there be a “maritime claim”, and, if so, how is that defined)? Is it possible to arrest in order to obtain security for a claim to be pursued in another jurisdiction or in arbitration?
Italy is not a party to the 1999 Convention on Arrest of Ships. However, Italy is party to the seminal 1952 Arrest Convention. The 1952 Arrest Convention was ratified in Italy with law no. 880 in 1977.
For claims arising out of delayed, lost or damaged cargo, receivers can arrest the vessel or a sister-ship, to secure their claim.
According to the 1952 Arrest Convention, vessels flying the flag of a Contracting State can be arrested only in respect of those maritime claims listed under art 1 (1) of the Convention: in such a case, claimants have only to discharge the burden to prove the prima facie existence of a maritime claim.
Vessels flying flags of non-Contracting States can be arrested in Italy also for claims other than maritime claims if the applicant demonstrates a prima facie case on the merits and, in addition, a genuine and reasonable need to secure the claim.
To the extent that the above basic requirements are satisfied, it is not uncommon for vessels to be arrested in Italy as security for a claim to be pursued in another jurisdiction – as is the case in most developed marine jurisdiction.
For an arrest, are there any special or notable procedural requirements, such as the provision of a PDF or original power of attorney to authorise you to act?
In terms of court procedure rules, the original power of attorney is required in order to file an application for arrest of the vessel by the appointed lawyers.
In case the power of attorney is issued abroad, it has to be notarized and then apostilled or otherwise legalized.
What maritime liens are recognised?
Maritime liens are determined either under art. 2 of the 1926 Brussels Convention on maritime liens and mortgages (applying to vessels flying flags of Contracting States) or in compliance with art. 552 of the Italian Code of Navigation (applying to vessels flying the Italian flag): the list of recognized maritime liens is the same under both rules.
Is it a requirement that the owner or demise charterer of the vessel be liable in personam? Or can a vessel be arrested in respect of debts incurred by, say, a charterer who has bought but not paid for bunkers or other necessaries?
There is not a requirement that the owners or demise charterers of the vessel are liable in personam. According to the prevailing trend of decisions by Italian Courts, a vessel can be arrested in respect of claims against demise, time or voyage charterers falling within the list at art. 1 of the 1952 Arrest Convention which arise in respect of that vessel.
A claim for unpaid bunkers against charterers can lead to arrest of a vessel as well.
Are sister ship or associated ship arrests possible?
Arrest proceedings concerning a maritime claim may be brought against a sister-ship vessel, provided that the conditions set out in art. 3 of the 1952 Arrest Convention arise.
Italian Courts are instead quite reluctant to allow arrests of “associated ships”.
Does the arresting party need to put up counter-security as the price of an arrest? In what circumstances will the arrestor be liable for damages if the arrest is set aside?
As a matter of standard practice, Italian Courts do not generally require the arresting party to put up any countersecurity when ordering the arrest of a vessel. However, the Courts may require the arresting party to put up countersecurity in exceptional cases when the lawfulness of the arrest may be in doubt (e.g. when the documents supporting the arrest application are disputed and their validity is strongly questioned).
The arresting party may become liable for damages if the arrest is later set aside in circumstances where the Owners of the arrested vessel are able to prove a tortious claim on the ground of wrongful arrest caused by bad faith or negligence.
How can an owner secure the release of the vessel? For example, is a Club LOU acceptable security for the claim?
Under the Italian Civil Procedure Code, Owners can apply to the Court to release a vessel from arrest without prejudice to the underlying dispute or claim/defence.
The vessel is released from arrest if the Owner pays into Court an amount covering principal, interest and costs.
Alternative security forms generally acceptable to Italian Courts are first class bank guarantees and insurance bonds, as well as LOU issued by leading P&I Clubs.
Describe the procedure for the judicial sale of arrested ships. What is the priority ranking of claims?
The application for the sale of an arrested ship may be filed either whilst proceedings on the merits are still pending (if the vessel is deteriorating in value) or when final judgement or award is issued.
The vessel is sold via a public auction under the control of the competent Court which determines the minimum purchase price by appointing experts (brokers or naval engineers).
Direct sale of the vessel is not allowed, save for in exceptional circumstances.
Bidders must provide the Court with an undertaking to pay the purchase price.
The proceeds from the sale of the vessel are then distributed to all claimants which filed an application demanding distribution.
The ranking priority is:
costs and expenses in relation to the sale;
claims secured by maritime liens;
claims secured by mortgage;
claims secured by statutory lien;
all other claims.
Who is liable under a bill of lading? How is “the carrier” identified? Or is that not a relevant question?
The sea carrier issuing a B/L is the party liable in case of loss or damage to the goods listed in the B/L.
The sea carrier is usually identified in the bill of lading, which must be signed by an authorised representative (usually ship agents or Master). In this regard, when the Master or the agent signs the bill of lading and the document does not show any ‘carrier’ name or reference, Italian jurisprudence usually identifies the registered Owner of the vessel as the sea carrier.
Therefore, the correct identification in a B/L of the sea carrier is a critical concern whenever the party issuing the B/L is not the Owner. For example, these circumstances may arise when the ship is under a charter party, or when the sea carrier has entered into a Slot Agreement with another shipping operator such as a NVOCC, such that the B/L is issued by that demise charterer instead of by the Owner.
Is the proper law of the bill of lading relevant? If so, how is it determined?
The proper Law of the bill of lading is usually indicated in the clause governing Law and Jurisdiction on the back of the document.
In the absence of a valid express Law and Jurisdiction Clause, the proper Law will be identified through the relevant Conflict of Law rules (Italian Conflict Law is L. n. 218/95) by the Judge in charge of the case.
Are jurisdiction clauses recognised and enforced?
Under Italian Law an express jurisdiction clause included in a bill of lading is usually recognised and enforced. According to Italian case law (Italian Supreme Court n. 731/2005, n. 3568/2011) the Law and Jurisdiction clause is valid, and it can be enforced, even if the bill of lading incorporating such clause has not been signed by the holder of the bill of lading. Italian courts acknowledge that the issuance of a bill of lading including a Law and Jurisdiction clause reflects a commercial use allowed by international practice and is well known to companies operating in the field of sea carriage.
What is the attitude of your courts to the incorporation of a charterparty, specifically: is an arbitration clause in the charter given effect in the bill of lading context?
The Italian Courts usually recognise the effects of an arbitration clause in a charter party (see Court of Ravenna 16 February 2017, Italian Supreme Court n. 6787 / 92; 3029/2002).
According to Italian case-law guidelines, an arbitration clause included in a charter party is binding also upon third parties which are not party to the charter party, which principle extends to a bill of landing which incorporates a charter party, which in turn contains an express/valid arbitration clause. In this regard, Italian Courts require the following conditions: the bill of lading shall indicate a perfect reference (“per relationem perfectam“) to the charter party and a specific reference to the arbitration clause. The mere reference to the general conditions of the charter party is not enough to recognise and enforce the arbitration clause in the bill of lading context.
Is your country party to any of the international conventions concerning bills of lading (the Hague Rules, Hamburg Rules etc)? If so, which one, and how has it been adopted – by ratification, accession, or in some other manner? If not, how are such issues covered in your legal system?
The Hague-Visby Rules entered into force on 22nd November 1985 and is currently the only applicable international convention concerning bills of lading. Under Italian Law, the Hague-Visby Rules apply every time a bill of lading – suitable to be construed as a “document of title” – has been issued. The Hamburg Rules and Rotterdam Rules have not been ratified by Italy.
Is your country party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? If not, what rules apply? What are the available grounds to resist enforcement?
Italy has been a party to the 1958 New York Convention since 31st January 1969. The Convention is fully in force in Italy without reservation according to the national Law no. 62 dated 19 January 1968.
The Convention is applied by the Italian Courts and the enforcement of a foreign arbitration award is proceeded with according to the Italian Code of Civil Procedure (art. 839-840).
The enforcement of a foreign arbitration award take place before the Court of Appeal which is competent in respect of the place of the defendant. In case of a foreign defendant, the Court of Appeal of Rome is the competent court.
The procedure of recognition to obtain the enforceability of the foreign award in Italy usually takes from one to three months.
The defendant can oppose the enforcement order only for procedural reasons but not challenging the merits of the matter. In those proceedings, the Court of Appeal can consider the compliance with the general requirements for the recognition only.
Once the enforceability of the foreign award is granted, the defendant can also challenge the enforcement procedure according to Italian Civil Procedure rules.
Please summarise the relevant time limits for commencing suit in your jurisdiction (e.g. claims in contract or in tort, personal injury and other passenger claims, cargo claims, salvage and collision claims, product liability claims).
In Italy there are two kind of time limits to bring an action: i) prescrizione, a time limit governed by the law which can be interrupted by a written claim, with the effect that the same time limit period commences again; ii) decadenza, a time limit governed by the law which means that a court action has to be commenced within the time bar term, and only an agreement between the parties can extend the time limit period.
The right to claim is usually subject to the prescrizione time limit. The claimant has ten years to bring an action, but the term can be interrupted by a written claim.
Furthermore, there are specific time limits for different kind of claims: five years for tort claims as personal injuries, products liability, medical negligence; five years for claims related to dealings between companies; five years for claims for recovering legal interest due, as well as claims related to salaries or annual payment; two years for vehicle casualty claims and insurance matters; according to the Italian Code of Navigation, six months for damage to cargo occurred during transportation between Italian ports, and six months also for passengers claims (damages, losses and injuries); two years for latent defects claims (from the discovery of the defect; the notification of the latent defect must be done within sixty days of the discovery, failing which the claim would be time barred); two years for claims against shipbuilders for latent damages from the delivery of the ship; one year (or eighteen months in case the carriage starts or ends outside Europe) from the day the goods arrived or should have arrived at destination for general transportation; six months for ship carriage between Italian ports under the Code of Navigation (or one year in case the place of discharging is outside Europe or the Mediterranean); one year (or eighteen months as above) for combined transportation; two years for the reward or salvage compensation, from the date of conclusion of salvage operations; one year for time-charter claims from the expiring date of the contract or after the end of the last voyage; and one year for voyage charter-party claims from the end of the voyage; two years for collision claim from the date of the casualty.
Other claims are subject to the time limit decadenza of: one year, after delivery of goods or the date on which they should have been delivered, for action by cargo interests according to the Hague-Visby Rules.
What restrictions, if any, has your jurisdiction imposed on crew changes in the wake of the Coronavirus pandemic?
During the COVID-19 pandemic, various restrictions were introduced for Italian seafarers, sometimes obliged to extend their service onboard ships because of the well-known difficulties replacing crew all over the world. At the same time, it was necessary to perform the change over from ships on which Italian and foreigner shipowners operated to comply with international regulations on safety, health and welfare.
Due to government-imposed restrictions, the change of crew members was critical during 2020 and, in some case, Maritime and Local Authorities did not allow the replacement of crew members in Italian ports. It also happened that before embarkation, the Authorities did not accept sanitary certificates issued by crew members’ country of origin. The result was the request for COVID 19 tests and quarantine periods.
In general, Italian and EU crew members were allowed to embark/disembark according to procedures and safety measures adopted by the government (such as body temperature measurement, personal distancing, hygienic measures, mandatory use of face masks and cleaning and disinfection, etc.). For non-EU crew members, the changes were allowed on emergency basis to be confirmed case by case, also in case of injury or sickness and always with the above safety measures.
In case of no COVID 19 symptoms, private transportation is used to arrange crew embarkation and disembarkation (always with face masks, body temperature checks, personal distancing, etc.). In some ports, signature of self-declaration forms, VISA and further documentations are required for disembarkation. In case of COVID 19 symptoms, crew members are disembarked by means of appropriate emergency procedures and special equipment, with further care provided at dedicated COVID 19 hospitals.
Does your system of law recognize force majeure, or grant relief from undue hardship? If so, in what circumstances might the Covid-19 pandemic enable a party to claim protection or relief?
Italian law does not strictly recognize the principle of undue hardship. However, it is possible that, due to peculiar reasons and occurrences, parties to a contract may be excused non-performance relying on force majeure and hardship:
Force majeure is described as a natural or man-made occurrence which is unforeseeable and irresistible, which renders impossible the performance of a contractual or an extra contractual obligation.
Hardship protects the party which may be disadvantaged in case of circumstances or events – which could not reasonably be avoided or overcome – or render the performance of the obligation more onerous than could have been foreseen at the time of the conclusion of the contract. In such a case the parties have to negotiate alternative ways to fulfil the obligation; in lack of an alternative, the original contract can be terminated.
During the COVID-19 pandemic, Italy decided to furnish various general monetary support to different categories, or tax aids, but not contractual tools. Therefore, the potential protection for the debtor needs to be ascertained by the Court or by the parties by way of contractual re-negotiation, which appears to be a sort of duty to re-negotiate (i.e. temporary reduction of the rent for rental agreements).
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