Shipping 2021 Comparisons

Last Updated February 24, 2021

Contributed By Nctm Studio Legale

Law and Practice

Authors



Nctm Studio Legale is a leading independent Italian law firm in terms of dimensions, quantity and relevance of transactions covered, with more than 250 professionals, 65 partners and five offices, both in Italy and abroad (Milan, Rome, Brussels, London and Shanghai). Nctm's shipping department has become synonymous with being one of the most important “ports of call” in Italy for any port, marine, and/or shipping logistics-related legal issues. Today, in the maritime and logistics industry, operators of the great liners tend to integrate all their supply chains under the same control. Nctm’s capacity to handle different legal issues in the different segments of the logistics business is the firm's significant point of strength with its clients. Nctm also regularly advises Italian and international companies, banks, and financial institutions on matters related to shipping and aviation finance, structured finance, lease or sale and leaseback, and contracts for the use of ships and aircrafts.

In Italy, there are no maritime or shipping courts. Shipping disputes are submitted to and settled by civil courts. This is in line with Article 589 of the Italian Navigation Code, according to which disputes regarding maritime accidents are to be submitted to the territorially competent court. In any event, the courts of the main maritime districts usually have divisions specialised in shipping matters. 

With regard to maritime labour disputes, recent judgment No 5739 of the Italian Supreme Court of 3 March 2020 has confirmed that the standard criteria for identification of the territorially competent court (under Article 413 of the Italian Code of Civil Procedure) do not apply, as reference must be made to the special criteria under Article 603 of the Italian Navigation Code, which provides for two territorially competent courts: (i) the court of the place in which the maritime labour relationship was established, performed or ceased, or (ii) the court competent for the district in which the vessel is registered. This is because it is now generally accepted that, in the hierarchy of Italian legal sources, maritime labour law is lex specialis (see Article 1 of the Italian Navigation Code), thus overriding provisions that are of a general nature (lex generalis). In light of this principle, not only is the material discipline of maritime labour law significantly different from ordinary labour law, but special procedural rules also apply in order to determine the territorial jurisdiction of the court in charge of maritime labour disputes.

Italy is a party to the Paris Memorandum of Understanding on Port State Control signed on 26 January 1982 (the Paris MoU). Pursuant to the Paris MoU, each contracting State must maintain an effective system of port state control to ensure that foreign merchant ships calling at or anchored off a port of its State comply with certain international standards. These provisions have been endorsed by Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009, which was transposed into the Italian law system by Legislative Decree No 53 of 24 March 2011.

Moreover, at a national level, the relevant Italian authorities in charge of port state control are local Harbour Masters. Such activities are also co-ordinated by the 6th Division of the Italian General Command of the Harbour Master Corps Office (Comando Generale del Corpo delle Capitanerie di Porto). Generally, the powers of these authorities in Italy include notification of deficiencies, verification for the rectification of deficiencies, inspections, and formal prohibitions to sail, as well as refusal of access and detentions. More specifically, according to Articles 578-584 of the Italian Navigation Code, Italian authorities responsible for Port State Control activities have the power to conduct administrative investigations aimed at determining the causes and liabilities arising out of any marine casualty.

Finally, pursuant to Article 73 of the Italian Navigation Code, if the wreck of a vessel is considered to be a danger or hindrance to navigation, the Italian Harbour Master concerned may order the owner to carry out the removal of the wreck, at his or her own expense, while fixing a deadline for the removal. However, if the owner fails to comply with such an order or if an urgent situation occurs, the Harbour Master may proceed autonomously with the wreck removal and the owner will still remain liable for the related costs.

The Italian Navigation Code regulates the registration of vessels and the Italian Ministry of Transport (MIT) authorises, on a case-by-case basis, vessel registration into both of the available registries, which are, respectively, the Domestic Register (or First Register) and the International Register (or Second Register). The Domestic Register is the main Italian register, in which all the major vessels are registered. The ship-owner interested in registering a vessel in the First Register must comply with specific nationality requirements as set out in the Italian Navigation Code. The International Register, regulated by Italian Law No 30/1998, was established in order to contrast the considerable flagging-out of Italian vessels and, conversely, to attract back to the Domestic Register the consistent tonnage registered in foreign registries, especially under “flags of convenience”. The International Register is divided into three sections, in which merchant vessels employed in international trade can only be entered subject to the MIT’s authorisation.

The registration of a vessel in the International Register is indeed subject to prior ministerial authorisation under Article 1 of Italian Law No 30/98. Once the required documentation is duly filed, the Harbour Master's Office of the relevant Maritime Administration will effect the registration of the vessel in the International Register. The registry is maintained and updated by the very same Maritime Administration.

The only party allowed to apply to register a vessel in Italy is the owner, who can be either a private or public entity. In general terms, Article 143 of the Italian Navigation Code provides that a vessel shall be validly registered in Italy if, inter alia, it: (i) is at least 50% owned by an Italian or European person; or (ii) is owned by a non-EU person or entity that directly manages the vessel through a branch in Italy. Therefore, as previously clarified, foreign ownership is permitted; registration of vessels in Italy is in fact allowed for all EU ship-owners.

However, currently, ship-owners from non-EU countries can register a vessel in Italy coming from a non-EU registry only if they have a permanent establishment in Italy. Alternatively, non-EU ship-owners can register a vessel in Italy by suspending the flag of the foreign underlying register and chartering it on a bareboat basis to an Italian or EU ship-owner. Moreover, vessels that are still under construction are registered in a separate Registry for Ships under Construction, according to Article 234 of the Italian Navigation Code. In this regard, it should be noted that registration is made in the name of the buyer or the builder, depending on who holds title in the construction of the vessel. Finally, for the sake of completeness, it must be clarified that both the declaration of commencement of construction and the related ship-building agreement must be registered.

In principle, Italian law excludes temporary registration of vessels (ie, temporary registration of a vessel already registered with a non-Italian registry). However, dual registration is permitted in relation to vessels (i) registered in a non-Italian registry and (ii) suspended from that non-Italian registry following a bareboat charter in favour of Italian or European individuals or entities. In order to register a vessel with the so-called "Bareboat-in Registry", certain documents are required, including the bareboat charter agreement, a tonnage certificate issued by the Italian Ship Register, evidence that the charterer complies with the nationality requirements set out in Article 143 of the Italian Navigation Code and an application to the Bareboat-in Registry for a certificate of nationality. When employed in international traffic, bareboat-chartered ships under “temporary suspension of flag” can be registered with Section III of the Italian International Ship Registry established pursuant to Law No 30 of 27 February 1998 (the authorisation, granted by the Italian Ministry of Transport, is subject, inter alia, to a trade union agreement).

Mortgages over Italian-flagged vessels must be registered with the Italian Ship Registry held by the Harbour Master’s office at the port of registration of the mortgaged vessel. For the purposes of registration, the deed of mortgage must be executed in the Italian language before a notary public and filed with the competent Harbour Master’s office, together with an application for registration of the mortgage (which must be carefully drafted, since its inaccuracy may affect the enforceability of the mortgage or of certain obligations secured thereby). Multiple mortgages over the same vessel take priority according to the date and time of their registration with the relevant Italian Ship Registry.

It should be noted that, under Italian law, maritime liens over a vessel rank before the mortgages over that vessel, whereas mortgages rank before civil-law liens.

Information relating to ownership of a vessel and any relevant mortgages is publicly available at the Italian Ship Register held by the Harbour Master’s office at the port of registration of that vessel. An excerpt from the Italian Ship Register relating to a vessel can be requested and obtained by any interested individual or entity.

With regard to pollution, Italy is a State party to the following International Conventions:

  • the International Convention for the Prevention of Pollution from Ships (MARPOL Convention 1973/78) and 1997 Protocol;
  • the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 and Intervention Protocol 1973;
  • the International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969 and Protocols 1976 and 1992;
  • the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC Convention), 1990;
  • the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) 1972 and the London Convention Protocol 1996;
  • the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (IFC Convention), 1971 and Supplementary Fund Protocol;
  • the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention), 2001.

Furthermore, in 2014, as a result of several amendments and supplements to the existing Environmental Code (Legislative Decree No 152/2006), Italy adapted its legislation by Legislative Decree No 112/2014 to comply with Directive 2012/33/EU. The Environmental Code imposes a general clean-up obligation on the party liable for pollution of the sea. If this obligation is not met, remediation or depollution is carried out by the public administration, which can claim the relevant costs from the liable party. Recently, Directive (EU) 2019/883 has established a framework against the negative effects from discharges of waste from ships by requiring Member States to provide adequate waste-reception facilities in all ports, including recreational ports and marinas. Member States must bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 28 June 2021.

As for wreck removal, Italy has not ratified the Nairobi International Convention on the Removal of Wrecks 2007. Therefore, Article 73 of the Italian Navigation Code will apply in this matter, which gives broad discretion to Maritime Authorities to issue orders for wreck removal. Regulation (EU) No 1257/2013, which entered into force in 2013 and is applicable from 31 December 2018, sets out new rules on ship recycling by providing common evaluation standards in accordance with the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009, even if the latter has not yet entered into force in Italy.

As far as collision is concerned, Italy is a State party to the following International Conventions:

  • the Convention for the Unification of certain Rules of Law with respect to Collisions between vessels, 1910 (Brussels Collision Convention);
  • the International Convention for the Unification of certain Rules relating to Penal Jurisdiction in matters of Collision or other Incidents of Navigation, 1952 (Collision/Penal Convention;
  • the International Convention on certain Rules concerning Civil Jurisdiction in matters of Collision, 1952 (Collision/Civil Convention);
  • the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs).

As far as domestic law is concerned, whenever the criteria provided for by the Collision/Civil Convention are not applicable, the provisions of the Italian Navigation Code shall apply.

As far as salvage is concerned, Italy ratified the 1989 London Convention on Salvage in 1996 and applies it as a general rule. Therefore, the provisions of the London Convention de facto prevail over the rules laid down in the Italian Navigation Code concerning salvage.

The Convention on Limitation of Liability for Maritime Claims is not formally applicable in this jurisdiction since Italy has not yet ratified it.

However, Italian Legislative Decree 28 June 2012 No 111, implementing Directive 2009/20/EC of 23 April 2009 on the insurance of ship-owners for maritime claims, has provided for a legal system of limitation of liability for ship-owners in accordance with the provisions of the above-mentioned Convention for vessels of 300 GT or more (as far as limits of liability are concerned). At the same time, the provisions of Article 275 of the Italian Navigation Code are applicable for vessels of 300 GT or less. As a general remark, it should be noted that, pursuant to Article 7 of the Italian Navigation Code, ship-owners' liability is ruled by the law of the ship's flag state. 

The procedure for establishing a limitation fund is provided for by Articles 620-642 of the Italian Navigation Code. The Italian Navigation Code provides that a limitation fund must be set by the competent court. The procedure is commenced by the ship-owner, who must apply to the court, providing the relevant documents as required by Article 621. Pursuant to Article 622 of the Italian Navigation Code, the amount of the limitation fund shall be calculated based on: (i) the value of the vessel declared at the beginning of the voyage; or (ii) in the case of an insured ship, the estimated value set out in the insurance policy. The court requires a cash deposit and sets a time limit for its submission (see Article 629 of the Italian Navigation Code).

Italy has ratified the Hague Rules relating to Bills of Lading of 25 August 1924 and the protocols of 1968 and 1979 thereto (the Hague-Visby Rules). The Hague-Visby Rules are a lex specialis overruling the Italian Navigation Code. Conversely, Italy has not ratified the Hamburg Rules and the Rotterdam Rules.

Under Italian law, only the legitimate holder of the original bill of lading is entitled to sue for loss or damage to the cargo.

Article 2049 of the Italian Civil Code and Article 274 of the Italian Navigation Code regulate the ship-owners’ liability for the acts or omissions of the crew.

More generally, the liability regime of a carrier is based on the so-called “fault-based liability scheme”, which means the carrier shall not be liable for loss or damage caused by any of the excepted perils provided for by Article IV of the Hague-Visby Rules.

The ship-owner is liable when acting as either a contractual carrier or an actual carrier. Whenever the ship-owner is the contractual carrier, he or she benefits from the terms and conditions of the bill of lading involving limitations of liability. However, the ship-owner acting as an actual carrier can likewise benefit from the terms and conditions of the bill of lading and, therefore, from the liability limitations provided therein, if the bill of lading contains a properly drafted Himalaya clause.

According to Article III, paragraph 5, of the Hague-Visby Rules and Article 457 of the Italian Navigation Code, the shipper must provide a complete and accurate description of the cargo to the carrier. The shipper must indeed guarantee to the carrier the accuracy of the marks, number, quantity, and weight at the time of shipment, and shall indemnify the carrier against any loss, damage and expense arising or resulting from inaccuracies in such particulars.

The Court of Genoa has confirmed the foregoing, stating in particular that, when maritime transport occurs under FCL (Full Container Load) conditions, the shipper shall be liable for the cargo contained in the container.

For maritime cargo claims, pursuant to Article 438 of the Italian Navigation Code, the limitation period is six months after delivery of the goods or, in the case of a total loss, the date on which the goods should have been delivered or, in the case of carriage of specific goods, the date provided for by Article 456 of the Italian Navigation Code. If either the port of loading or the port of discharge is located outside Europe or Mediterranean countries, the limitation period will be one year. However, whenever the matter is subject to the Hague-Visby Rules, the one-year time bar under Article 3.6 of those Rules shall apply.

Italy has ratified the International Convention Relating to the Arrest of Sea-Going Ships signed in Brussels on 10 May 1952 (the 1952 Arrest Convention), which is therefore applicable in this jurisdiction. Conversely, Italy is not a party to the International Convention on Arrest of Ships signed in Geneva on 12 March 1999. Security over a debtor’s assets can also be obtained in accordance with the general rules set out in the Italian Navigation Code (Articles 682 et seq) and the Italian Code of Civil Procedure (Articles 669 bis et seq). 

Maritime liens are recognised in Italy, with regard to both international and domestic legislation. As regards international legislation, Italy has ratified the International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages 1926. In respect of domestic legislation, maritime liens are enumerated in Articles 552 (liens on the vessel and the charter) and 561 (liens on cargo) of the Italian Navigation Code. The provisions contained in the Italian Navigation Code apply only to vessels flying the Italian flag. The provisions contained in the aforementioned International Convention apply to vessels flying the flag of a State party to that convention. Pursuant to Article 552 of the Italian Navigation Code, the following liens are provided for on a vessel, on the freight for the voyage during which the claim arose, on the vessel's appurtenances and on the freight items earned after the commencement of the voyage:

  • legal costs due to the State or incurred in the common interest of creditors in order to preserve the vessel or for enforcement proceedings, anchorage, lighthouse, port duties and other duties and taxes of the same type, pilotage costs, and costs for custody and maintenance of the vessel after its entry into the last port;
  • claims arising from the employment contract of the Master and the other members of the crew;
  • claims for sums advanced by transport and navigation or consular authorities for the maintenance and repatriation of crew members, claims for compulsory contributions due to social security and welfare institutions for seafarers and inland navigation personnel;
  • indemnities and compensation for assistance and salvage and the sums due for the vessel’s general average contribution;
  • indemnities for collision or other shipping accidents and for damage to the works of ports, dry docks and navigable ways, indemnities for death or injury to passengers and crew and for loss or damage to cargo or luggage;
  • claims arising out of contracts entered into or acts carried out by the Master, within the scope of his or her authority, even if he or she is the ship-owner, for the preservation of the vessel or the continuation of the voyage.

However, according to Article 561 of the Italian Navigation Code, the following liens are granted on the cargo:

  • legal costs due to the State or made in the common interest of creditors for conservative acts on the goods or for enforcement proceedings;
  • customs duties due on the goods at the place of unloading;
  • indemnities and compensation for assistance and salvage and sums due as general average contribution;
  • claims arising from the transportation agreement, including the cost of unloading and the rent of any warehouses in which the unloaded goods are deposited;
  • any amount of capital and interest due for obligations incurred by the Master in relation to the cargo in the circumstances referred to in Article 307 of the Italian Navigation Code.

A vessel can be arrested with respect to the maritime claims set out in Article 1(1) of the 1952 Arrest Convention. If the vessel flies the flag of a State which is not a party to that Convention, it can be arrested in accordance with the general rules of the Italian Navigation Code and of the Italian Code of Civil Procedure (provided that the vessel is owned by the debtor).

A vessel can be arrested in Italy regardless of its owners' personal liability.

Italian Courts usually tend to grant the arrest of a vessel (in a case where a person other than the owner or the demise charterer is liable) if the relevant claim falls within the list of maritime claims set out in Article 1(1) of the 1952 Arrest Convention.

A claim for unpaid bunkers supply falls within the definition of a maritime claim under Article 1(1), letter k, of the 1952 Arrest Convention. As a consequence, a bunker supplier can arrest a vessel in connection with unpaid bunkers. As per the 1952 Arrest Convention, the claimant is the person who alleges that a maritime claim exists in his or her favour. Therefore, the actual supplier can try to arrest the vessel, provided that it is in a position to prove its contractual relationship with one of the vessel’s operators.

As clarified above, Italian courts also tend to grant the arrest of a vessel in a case where a person other than the owner is liable, provided that the relevant claim falls within the list of maritime claims set out in Article 1(1) of the 1952 Arrest Convention. As a consequence, the circumstance where the bunkers are supplied to a chartered vessel and the bunkers were ordered by the charterer (and not by the owner) could have no relevance from a practical standpoint in Italy.

However, it should be noted that this issue – concerning Article 3, paragraph 4, of the 1952 Arrest Convention – is a well-known controversial point of this Convention and there is lack of uniformity in Italian case law regarding the interpretation and application of the aforementioned provision.

In order to arrest a vessel, in the first place it is necessary to submit an arrest application to the judicial authority. To this end, a lawyer must be duly authorised by means of a certified power of attorney, to be produced and filed. For the purposes of authentication, a distinction must be made: (i) powers of attorney issued abroad must be authenticated by a notary public and legalised with an apostille (where necessary); (ii) powers of attorney issued in Italy must be authenticated by a notary public or, if signed before a lawyer, by that lawyer.

Thus, the wet-signed copy of the power of attorney must be attached to the arrest application upon its filing, although, in the case of urgency, a scanned copy may be filed as long as the original is filed promptly. Without prejudice to the foregoing, no further special formalities are required. The court may request a translation of documents written in a foreign language. As far as the security deposit on behalf of the arresting party is concerned, although the Italian Code of Civil Procedure states that courts have the discretion to order the claimant to provide counter security, this is normally not required.

It is possible to arrest bunkers and freight in Italy. Nonetheless, under common practice, arresting the bunker is not a frequent occurrence, since providing evidence on the actual ownership of the bunker, as well as actually carrying out the arrest, involves certain risks and practical issues. In this jurisdiction, it is also possible to proceed with the sale of the cargo pursuant to Articles 437 or 450 of the Italian Navigation Code.

Under Italian law, it is possible to arrest a sister ship. Indeed, according to prevailing Italian case law, pursuant to Article 3 of the 1952 Arrest Convention, a claimant may arrest not only the vessel in respect of which the claim is brought but also any other vessel which is owned by the ship-owner at the time the claim is brought (the so-called "sister ships"). The foregoing does not apply, however, where the arrest is sought in respect of any of the maritime claims referred to in Article 1, letters (o), (p) and/or (q) of that Convention and particularly in the case of disputes relating to title or ownership, disputes between co-owners and claims arising from mortgages or encumbrances. In such cases, only the vessel in respect of which the claim is made may be arrested.

Pursuant to Article 646 of the Italian Navigation Code, the competent court (or the Harbour Master or the Judicial Police in the case of urgency) can issue an order aimed at preventing a particular vessel from leaving the port.

In order to obtain the release of an arrested vessel, it is necessary to challenge the grounds and legitimacy for the arrest order issued by the court to request its revocation. This can be requested, by the owner or any interested party, at a special hearing normally scheduled a few days after the date of the arrest. Under Italian law, in order to obtain the release of an arrested vessel, it is also possible to provide a security deposit for the full amount due in relation to the arrested vessel by (i) depositing such amount in a bank account opened in the name of the competent court and (ii) depositing at the competent court a bank guarantee, to be issued by a leading Italian bank. A Clubs Letter of Indemnity (LOI) or a foreign bank’s bank guarantee could be accepted only subject to the case-by-case evaluations of the competent court.

The procedure for the judicial sale of an arrested vessel is set out in Articles 643 to 686 of the Italian Navigation Code as well as in Articles 483 to 542 of the Italian Code of Civil Procedure. This procedure is strictly supervised by the competent court (the court of the place where the vessel has been arrested). The procedure, aimed at the sale by public auction of the vessel, may be initiated by the plaintiff whenever the latter has an enforceable right, such as a final judgment or the acknowledgement of the debt contained in a notarial deed. However, should the creditor lack such a right, it may commence a proceeding in order to obtain it by securing the credit through the arrest of the vessel.

The maintenance of the arrested vessel falls under the responsibility of the ship-owner, who is the person in possession of the vessel and in charge of its maintenance and operation. Therefore, the ship-owner keeps on taking care of the vessel even during its arrest. However, in special circumstances, such as the abandonment of the vessel, pursuant to Article 676 of the Italian Code of Civil Procedure, the maintenance shall be entrusted to a custodian appointed by the court. The priority ranking of claims is as follows:

  • legal costs related to the entire proceedings for the sale of the vessel;
  • creditors with privileges or maritime liens;
  • mortgagees;
  • unprivileged or unsecured creditors intervening promptly in the proceedings;
  • non-privileged or unsecured creditors not intervening promptly in the proceedings; and
  • all other unsecured claims.

Under a general standpoint, Italian Bankruptcy Law states that, unless otherwise provided by law, as of the day of the bankruptcy declaration, no individual enforcement or precautionary action, including for claims accrued during the bankruptcy proceedings, may be commenced or continued on the assets included in the bankruptcy itself. Notwithstanding the foregoing, Italian case law, in deciding a recent case concerning a claim, supported by a lien, against the bareboat charterer of an arrested vessel, ordered anyway the arrest of the vessel concerned, even though the debtor was a bankrupt company.

The plaintiff may be held liable for damages for wrongful arrest in cases where the claim on which the arrest is based does not exist and where the plaintiff has brought a reckless lawsuit, acting in bad faith.

The resolution of maritime passenger claims is regulated by two pieces of legislation.

  • Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea in the event of accidents, implementing the Athens Convention on the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention) as further amended. Currently, this Regulation sets out key provisions for resolving maritime passenger claims. In this regard, the regime set out by the Italian Navigation Code now has a limited scope of application but still regulates the carriage of people by sea (see Articles from 396 to 418).
  • Regulation (EU) No 1177/2010 concerning the rights of passengers when travelling by sea and inland waterways, which has further enhanced the protection given to passengers and their belongings.

Article 16 of Regulation (EC) No 392/2009 provides that any action for damages arising out of death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be time-barred after a period of two years. However, this time limit may be suspended or interrupted for a maximum period of five years. According to Article 24 of Regulation (EU) No 1177/2010, any passenger covered by the Regulation can make a complaint to the carrier or terminal operator within two months from the date on which the service was performed or should have been performed.

Moreover, Article 25 of this Regulation also provides that, in the event of an alleged infringement of its provisions, any passenger may submit a complaint, in accordance with national law, to the competent body designated as responsible for the enforcement of the Regulation which, in Italy, is the Transport Regulation Authority. It is worth mentioning that Article 418 of the Italian Navigation Code also provides for a specific time-limit period which is, however, shorter than in the other cases (even if its scope of application is now limited to carriages effected on board certain classes of ships only). In fact, any action shall be time-barred after six months or one year if the carriage begins/ends outside the EU or the Mediterranean Sea.

Finally, Article 8 of Legislative Decree No 111 of 28 June 2012 provides that the limitation of liability of the owner of a passenger ship in relation to the death of or personal injury to a passenger is equal to 175,000 special drawing rights multiplied by the number of passengers that the vessel can carry.

Italian courts recognise and enforce law and jurisdiction clauses stated in bills of lading.

Courts in Italy will recognise and enforce a law and arbitration clause of a charterparty incorporated into the relevant bill of lading, provided that the bill of lading contains a specific reference to the charterparty, so as to identify that charterparty precisely (for example, by mentioning the date and place of issue of that charterparty).

Italy ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards through Law No 62/1968. It acceded to the convention on 31 January 1969 and the convention entered into force in Italy on 1 May 1969. Recognition and enforcement of foreign awards are governed by Articles 839 et seq of the Italian Code of Civil Procedure.

Any circumstance in which the relevant claim is subject to a foreign arbitration and/or jurisdiction has no relevance with respect to the arrest procedure in Italy.

There is no domestic arbitration institute that specialises in maritime claims which is active in Italy.

Should the plaintiff act in breach of a foreign jurisdiction or arbitration clause and commence a proceeding before an Italian court, the defendant must raise the objection of lack of jurisdiction of that Italian court in its first defence brief. However, Italian courts cannot grant anti-suit injunctions to prohibit a party from commencing or continuing proceedings in another jurisdiction.

Italian Law No 30/1998 established the so-called “Italian International Register” for ships engaged in international trade. Ships registered within this Register and their operators are granted a corporate tax reduction and other benefits aimed at reducing the labour costs of the registered fleet and safeguarding employment of seafarers.

In doing this, Italy has achieved substantial parity in operating costs with other tax-advantaged jurisdictions typical of this sector.

In so far as it is relevant here, the Italian legislator has provided for the following.

  • A reduction of the taxable amount, relevant for IRES (Italian Corporate Income Tax) purposes, of the income deriving from the use of vessels registered in the Italian International Register (See Article 4, paragraph 2 of Law No 30/ 1998). Moreover, Legislative Decree No 344/2003 has amended the Italian Consolidated Tax Act (TUIR), introducing an optional alternative regime, extremely widespread at international level, providing for a flat-rate scheme called “tonnage tax” calculated on the tonnage value of registered vessels (see Articles 155 to 161 of the TUIR).
  • A tax credit corresponding to the IRPEF (the Italian Tax on Personal Income) that the employer has to pay on the wages of seafarers employed on ships registered in the Italian International Register (see Article 4, paragraph 1 of Law No 30/1998).
  • Exemption from the payment of social security contributions and welfare contributions for seafarers on board ships registered in the Italian International Register. The relevant payment shall be borne by the State (see Article 6, paragraph 1 of the Law No 30/1998).

By Decision C(2020) 3667, the European Commission has authorised, until the end of 2023, the State aid scheme, subject to some amendments to be made to the Italian national legislation by the end of February 2021.

Those amendments include, inter alia:

  • the extension of the benefits of the scheme to all eligible vessels flying an EEA flag; if a shipping company wants to benefit from the Italian International Register regime, at least a large part of its fleet must fly the flag of an EU or EEA State;
  • the application of the special corporate tax reduction for shipping companies to a shipping company’s core revenues from shipping activities, such as cargo and passenger transport, certain ancillary revenues that are closely connected to shipping activities (capped at a maximum of 50% of a ship's operating revenues), revenues from towage and dredging, subject to certain conditions, and bareboat charter-out and time and/or voyage charter-in activities, subject to a number of conditions.

Given the COVID-19 emergency, restrictions on maritime transport have been regulated overall by emergency decrees and specific protocols.

In particular, the several restrictions imposed during 2020 on maritime activities by the Italian Authorities in order to face the current epidemiological crisis can be divided into three different phases, as set out below:

  • measures introducing a prohibition on the free movement of people that resulted in a general lockdown;
  • measures introducing a regime in which the prohibition on movement was not absolute but limited, for example, to movement between individual regions, or imposing a curfew;
  • measures essentially removing restrictions on the movement of citizens within the country, during which a lack of passengers was nonetheless recorded due to the restrictive measures adopted by countries that traditionally attract tourists to Italy, such as the United States and China, which – even during the summer – substantially prevented their citizens from travelling abroad.

As a consequence, all emergency measures enacted by the Italian Government by means of specific Decrees of the Italian Prime Minister have followed these phases. To conclude, crew change was the most crucial issue in Italy throughout the crisis but, undoubtedly, the suspension of all cruise services and the ban for foreign-flag cruise ships to call Italian ports were among the more relevant measures applied since the beginning of the crisis.

The Italian Civil Code does not provide a definition of force majeure. However, Italy recognises the concept and the coronavirus pandemic can be classified as an event of force majeure under Italian law. The Italian Civil Code provides for some institutions whose application presupposes the occurrence of events that can be linked to the concept of force majeure. For contracts subject to Italian law, without prejudice to the relevance of any contractual clauses, reference shall be made, in particular, to the following institutions:

  • supervening impossibility of performance for reasons not attributable to the debtor (Articles 1218, 1256 and 1463 of the Italian Civil Code);
  • supervening hardship in performance (Articles 1467 et seq of the Italian Civil Code).

In any event, a case-by-case evaluation is of course necessary in order to activate the most appropriate remedy as well as in the light of the relevant contractual text.

The EU’s Institutions are working to update a wide range of instruments and adopt new policies to promote the transition to a new economic system and energy and industrial transition. This transition may have a significant impact on the shipping industry, through three main pillars:

  • the European Green Deal;
  • the EU Emissions Trading System (ETS) and carbon pricing;
  • a new industrial strategy moved by crucial investments in transport infrastructure and digitalisation.

Even if the COVID-19 pandemic has shaped the flow of 2020, generating uncertainty and instability worldwide, especially for maritime transport, by means of the Communication “Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak”, the European Commission has provided Member States with a temporary framework to allow them to adopt special aid measures in the context of the COVID-19 pandemic.

The Italian “Piano Nazionale di Ripresa e Resilienza” (PNRR) falls within this framework and aims to achieve, inter alia, economic recovery after the COVID-19 crisis and the creation of an industrial platform suitable for achieving the climate targets that Europe has set itself (zero net emissions by 2050). It should be noted that the attention of the PNRR to the shipping industry further confirms the fact that the Italian Government intends to consider maritime transport and the motorways of the sea as an essential infrastructure of the country, evenly balanced with the railway and road networks.

Nevertheless, the European Green Deal is ongoing and plans to make the EU’s economy “climate neutral” by 2050. To overcome these challenges, Europe needs a new growth strategy where: (i) there are no net emissions of greenhouse gases by 2050; (ii) economic growth is decoupled from resource use; (iii) no person and no place is left behind. Moreover, in such a context, the shipping industry could be included for the first time in the EU Emissions Trading System (ETS), which is an instrument to control pollutant and greenhouse gas emissions at international level through monetary quotation of emissions and trading of emission allowances between states. However, it should be noted that the unilateral introduction of the EU-ETS in the European shipping industry could represent an important obstacle to the renewal of the fleet of several European shipping companies, already weakened by the COVID-19 crisis.

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Law and Practice in Italy

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Nctm Studio Legale is a leading independent Italian law firm in terms of dimensions, quantity and relevance of transactions covered, with more than 250 professionals, 65 partners and five offices, both in Italy and abroad (Milan, Rome, Brussels, London and Shanghai). Nctm's shipping department has become synonymous with being one of the most important “ports of call” in Italy for any port, marine, and/or shipping logistics-related legal issues. Today, in the maritime and logistics industry, operators of the great liners tend to integrate all their supply chains under the same control. Nctm’s capacity to handle different legal issues in the different segments of the logistics business is the firm's significant point of strength with its clients. Nctm also regularly advises Italian and international companies, banks, and financial institutions on matters related to shipping and aviation finance, structured finance, lease or sale and leaseback, and contracts for the use of ships and aircrafts.