There are no maritime or shipping courts in Italy: 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 specialising in shipping matters.

With regard to maritime labour disputes, judgment No 5739 of the Italian Supreme Court of 3 March 2020 has confirmed that the standard criteria for the 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:

• the court of the place in which the maritime labour relationship was established, performed or ceased; or
• the court that is 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 such 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 Italian law by Legislative Decree No 53 of 24 March 2011.

At a national level, the relevant Italian authorities in charge of port state control are local Harbour Masters. These 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 of 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.

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. 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.

At the beginning of 2022, the Ministry of Infrastructure and Transport adopted a ministerial directive aimed at improving safety standards in maritime transport, including through the strengthening of international co-operation.

Finally, in order to reduce administrative detentions aimed at hindering humanitarian operations by NGOs, on 1 August 2022 the EU Court of Justice ruled on a request for a preliminary referral by the Sicily Regional Administrative Court (TAR) stating that vessels carrying out search and rescue operations may only be inspected in the event of “manifest danger to safety, health or the environment” and that, in any case, the “corrective measures” that the port state may take must be “appropriate, necessary and proportionate”.

The Italian Navigation Code regulates the registration of vessels, and the Ministry of Infrastructure and Transport authorises, on a case-by-case basis, vessel registration into both of the available registries – ie, the Domestic Register (or First Register) and the International Register (or Second Register), respectively. The Domestic Register is the main Italian register, in which all the major vessels are registered. A 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, and merchant vessels employed in international trade can only be entered subject to the Ministry of Infrastructure and Transport’s authorisation.

The registration of a vessel in the International Register is 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 register the vessel in the International Register. The registry is maintained and updated by the same Maritime Administration.

The only party allowed to apply to register a vessel in Italy is the owner, which 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 it:

• is at least 50% owned by an Italian or European person; or
• 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.

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. Such registration is made in the name of the buyer or the builder, depending on who holds title in the construction of the vessel. Both the declaration of commencement of construction and the related ship-building agreement must be registered.

In principle, Italian law excludes the 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 that are registered in a non-Italian registry and 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 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 Registry for a certificate of nationality.

When employed in international traffic, bareboat-chartered ships under a “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 of the Ministry of Infrastructure and Transport is subject 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.

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 the 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.

Italy is a State member of the following international conventions:

• the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) and the Protocol of 1997;
• the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, and the Intervention Protocol of 1973;
• the International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969, and the Protocols of 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 of 1996;
• the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (IFC Convention), 1971, and the Supplementary Fund Protocol; and
• the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention), 2001.

As a result of several amendments and supplements to the existing Environmental Code (Legislative Decree No 152/2006), in 2014 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.

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. Legislative Decree No 197/2021 transposing the Directive entered into force on 15 December 2021 and should grant a reduction of the costs normally associated with the reception of waste from ships, including cargo residues. This service is generally compulsory in Italian ports, with a few exceptions, and is generally supplied at a cost that is universally considered abusive by customers.

On 13 October 2022, with a view to define the organisational and co-ordination measures necessary to ensure an adequate response to the severity of pollution, and to reduce and minimise impacts on the marine ecosystem, the Ministry of the Environment and Energy Security (formerly the Ministry for Ecological Transition) adopted Ministerial Decree No 389, aimed at approving the “Emergency response plan for the defence of the sea and coastal areas from pollution due to hydrocarbons and other hazardous and toxic substances”.

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 entered into force in 2013 and has been applicable since 31 December 2018, setting 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 though the latter has not yet entered into force in Italy.

Italy is a State member of 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); and
• 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.

Italy ratified the 1989 London Convention on Salvage in 1996 and applies it as a general rule. Therefore, the provisions of the London Convention 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 Italy as it has not yet been ratified here.

However, Italian Legislative Decree No 111 of 28 June 2012, 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. Pursuant to Article 7 of the Italian Navigation Code, ship-owners’ liability is ruled by the law of the ship’s flag state.

However, legal uncertainty has arisen following the introduction of Decree No 111, reflected also by a court decision holding that the rules of limitation in the Italian Navigation Code are to be extended by analogy to ships over 300 tons, due to the contents of such Decree regarding the entry into force of the provisions of the Convention on Limitation of Liability for Maritime Claims (which has not yet been ratified)

The procedure for establishing a limitation fund is provided for by Articles 620–642 of the Italian Navigation Code, which 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:

• the value of the vessel declared at the beginning of the voyage; or
• 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).

The ILO’s International Maritime Labour Convention (MLC-2006) has been ratified by Italy through Law No 113 of 23 September 2013, including a set of provisions aimed at ensuring sustainable working and living conditions on board ships engaged in international voyages or routes between foreign ports, strengthening health and safety standards in maritime work, respect for fair employment conditions, social security measures and other forms of social protection.

The legislation in force concerning the health and safety of maritime workers and seafarers is quite broad: on the assumption that Legislative Decree No 81 of 9 April 2008 (the so-called Consolidation Act on the protection of health and safety in the workplace, which represents the Italian reference legislation to be complied with in order to ensure the correct levels of health and safety of workers by the employer) does not apply to seafarers due to the non-enactment of the necessary implementing decrees, legislation of a special nature comes to the fore. The following pieces of legislation therefore apply:

• Legislative Decree No 271 of 27 July 1999, applicable to work activities carried out aboard ship;
• Legislative Decree No 272 of 27 July 1999, applicable to work activities carried out in ports; and
• Legislative Decree No 298 of 17 August 1999, applicable to the fishing sector.

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 or 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 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, they benefit from the terms and conditions of the bill of lading involving limitations of liability. However, a 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 for therein, if the bill of lading contains a properly drafted Himalaya clause. In a nutshell, the Himalaya clause is a contractual provision whereby the carrier’s servants and subcontractors (eg, stevedores) can benefit from the same limitations of liability set forth in the bill of lading, although the carrier’s servants and subcontractors are not parties of the relevant contract of carriage.

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 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 resulting from inaccuracies in those particulars. Italian case law (particularly from the Court of Genoa) has confirmed this, stating in particular that, when maritime transport occurs under Full Container Load conditions, the shipper shall be liable for the cargo contained in the container.

Pursuant to Article 438 of the Italian Navigation Code, the limitation period for maritime cargo claims is six months after:

• delivery of the goods;
• the date on which the goods should have been delivered, in the case of a total loss; or
• the date provided for by Article 456 of the Italian Navigation Code, in the case of carriage of specific goods.

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,the one-year time bar under Article 3.6 of the Hague-Visby Rules shall apply, whenever the matter is subject to said Rules.

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, and 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, and indemnities for death or injury to passengers and crew and for loss or damage to cargo or luggage; and
• 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; and
• 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.

The Italian jurisdiction (under both the 1926 Maritime Liens Convention and the Italian Navigation Code) recognises a maritime lien for indemnities arising out of personal injury to passengers or crew.

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 that is not a party to that Convention, it can be arrested in accordance with the general rules of the Italian Navigation Code and the Italian Code of Civil Procedure (provided that the vessel is owned by the debtor).

According to the 1952 Arrest Convention, some maritime claims may give the right to apply for a conservative arrest of vessel, including those arising out of a charterparty. Reference is made in particular to Articles 1(d) (agreement relating to the use or hire of any ship whether by charterparty or otherwise) and 1(e) (agreement relating to the carriage of goods in any ship whether by charterparty or otherwise).

A vessel can be arrested in Italy regardless of its owners’ personal liability. Italian courts usually tend to grant the arrest of a vessel (if 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 bunker 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 previously clarified, 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 were ordered by the charterer (and not by the owner) could have no relevance from a practical standpoint in Italy.

In any event, the courts will be asked to consider the specific factual aspects of each matter to ascertain the contractual relationship, the evidence and the circumstances in which the charterer's claim originated. This very much depends on the specific contractual clauses of the contract of employment of the vessel (time charter/bareboat charter), according to which the charterer is to ask for and pay the bunkers.

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 thereof. In fact, some courts grant the arrest only when the maritime claim is secured by a maritime lien.

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 between:

• powers of attorney issued abroad, which must be authenticated by a notary public and legalised with an apostille (where necessary); and
• powers of attorney issued in Italy, which 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 a scanned copy may be filed in urgent cases, 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. No security deposit is usually required 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.

It is possible to arrest bunkers and freight in Italy, but 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 Italy, it is also possible to proceed with the sale of the cargo, pursuant to Articles 437 or 450 of the Italian Navigation Code.

According to prevailing Italian case law and 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 that is owned by the ship-owner at the time the claim is brought (so-called “sister ships”). This 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 of 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 depositing that amount in a bank account opened in the name of the competent court, and depositing a bank guarantee issued by a leading Italian bank at the competent court. A Club’s Letter of Indemnity (LOI) or a foreign bank’s bank guarantee could be accepted, subject to the case-by-case evaluation of the competent court.

The procedure for the judicial sale of an arrested vessel is set out in Articles 643–686 of the Italian Navigation Code and Articles 483–542 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 is aimed at the sale by public auction of the vessel, and 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.

Maintenance of the arrested vessel is the responsibility of the ship-owner, who is the person in possession of the vessel and in charge of its maintenance and operation. However, in special circumstances, such as the abandonment of the vessel, the maintenance shall be entrusted to a custodian appointed by the court, pursuant to Article 676 of the Italian Code of Civil Procedure.

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.

The 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. However, in a recent case concerning a claim supported by a lien against the bareboat charterer of an arrested vessel, the court ordered the arrest of the vessel concerned anyway, 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.

A leading case (2014 judgment of the Court of Appeal of Genoa) stated that the total amount of damages for wrongful arrest are to be calculated (in that specific case) as the arithmetical average of:

• notional gains that could have resulted from the employment of the vessel on a voyage-charter basis (amount calculated in relation to the number of voyages the vessel could have performed in that period);
• notional gains that could have resulted from the employment of the vessel on a time-charter basis; and
• demurrages that could have been earned during the period the vessel remained under arrest.

The same judgment stated that any such damages had to be calculated on the basis of the market time-charter rate for the period during which the vessel remained under arrest.

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. 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 396–418). 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.
• 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. Under Article 24, 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. 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 being responsible for the enforcement of the Regulation, which in Italy is the Transport Regulation Authority.

Article 418 of the Italian Navigation Code also provides for a specific time-limit period, which is 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 (SDR) multiplied by the number of passengers that the vessel can carry.

It is worth noting that, due to the particular relevance and nature of the claim, Italy recognises a maritime lien for claims arising out of loss of life or personal injury to passengers or crew, which makes the application for conservative arrest of the vessel much easier for the claimant. Such claims are considered by law as priority claims secured by a maritime lien (together with others contained in the relevant provisions) and are preferred to others in case of a forced sale of vessel.

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, in order 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. The 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.

If the plaintiff acts in breach of a foreign jurisdiction or arbitration clause and commences proceedings 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 the employment of seafarers. In doing this, Italy has achieved substantial parity in operating costs with other tax-advantaged jurisdictions typical of this sector.

Insofar as it is relevant here, the Italian legislature 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 that is widespread at an international level, providing for a flat-rate scheme called “tonnage tax” calculated on the tonnage value of registered vessels (see Articles 155–161 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 authorised the Italian State aid scheme, subject to some amendments to be made to the Italian national legislation, including:

• 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; and
• 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).

Decree Law No 144 of 23 September 2022, converted into Law No 175 of 17 November 2022, has extended all the measures granted to vessels registered in the Italian Registry to vessels registered in the Registries of other European countries and of the EEA. As a result of the novelties introduced by this Decree, resident entities (and non-resident entities with a permanent establishment in the Italian territory) operating vessels enrolled in the registers of other countries of the EU or the EEA will be beneficiaries of Italian state aid in the same way as they would be if they were operating vessels registered in the Italian International Register.

Ships operated by ship-owners established in Italy and registered in the EU and EEA registers will be subject, in their operations and in relation to the crew, to all the limits already envisaged for ships registered in the Italian International Register, such as:

• limitations on the number of cabotage voyages for Ro/Ro vessels;
• the application of collective agreements for EU/EEA;
• crews’ minimum manning rules, etc.

Last but not least, the legislation has included a flag requirement (thus complying with the Commission’s requests) according to which only ship-owners whose fleet tonnage is at least 25% EU/EEA are eligible as beneficiaries of the measure.

The new regime has recently been implemented by inter-ministerial Decrees No 299 of 21 November 2023, 300 of 21 November 2023 and 302 of 22 November 2023. The Ministry of Infrastructure and Transport is preparing a special interpretative circular on this matter.

The Italian Civil Code does not provide a real definition of force majeure, although it does provide 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 specific contractual clauses, reference can be made to the following institutions in particular:

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

Under Italian law, the general principle is provided for by Article 1218 of the Italian Civil Code, according to which a debtor who does not perform exactly the obligations due under a contract is liable for damages, unless he or she proves that the non-performance (or delay) was due to impossibility of the performance for a cause not attributable to him or her.

At the same time, pursuant to Article 1256 of the Italian Civil Code, a contractual obligation is terminated due to a supervening impossibility that is not attributable to the debtor.

In light of the foregoing, it appears evident that, under Italian law, the concept of force majeure is strictly linked to the concept of “cause not attributable to the debtor”.

Usually, contracts (including shipping contracts) include detailed force majeure clauses, defining a force majeure event as an unexpected event, action or circumstance that:

• is not reasonably foreseeable by the affected party at the time of the conclusion and/or execution of the contract;
• is beyond the reasonable control of the affected party;
• cannot be attributed to the affected party; and
• prevents the affected party from fulfilling its contractual obligations.

Considering these criteria, the COVID-19 pandemic appears to have been an event of force majeure, particularly with respect to the non-performance of shipping contracts, such as late delivery, non-arrival of a chartered vessel and a slow ratio of loading or discharging.

The Italian legislature clarified (see Article 91, paragraph 1, of Decree Law No 18 of 17 March 2020) that compliance with the containment measures must always be assessed in order to exclude the debtor’s liability, pursuant to and for the purposes of Articles 1218 and 1223 (governing the compensation for damages) of the Italian Civil Code, and also with regard to the application of any forfeiture or penalties connected with delayed performance or non-performance. This has also helped the maritime sector to grant protection to the operators that could not deliver their services according to the agreed contractual terms, due to the general disruption caused by the pandemic.

Today, the COVID-19 pandemic can no longer be deemed an unforeseeable event for parties wishing to enter into a contract. Indeed, the exclusion of the pandemic from the cases provided for in force majeure clauses has become increasingly common in contracts currently under negotiation. The shipping industry has recognised and accepted this trend, revising its typical contracts accordingly.

The IMO’s actions to protect the environment began in early 1973 via the adoption of the International Convention for the Prevention of Pollution from Vessels (MARPOL). Annex VI on the prevention of air pollution from vessels was added to the MARPOL Convention in 1997, to impose stringent limits on sulphur and nitrogen oxides emissions. Technical and operational measures aimed at reducing greenhouse gas (GHG) emissions were introduced in 2011.

The IMO rules apply uniformly to the entire global transport sector and help to prevent distortion of international competition between operators, by ensuring a fair and regulated environment.

Over the years, shipping companies have adapted to the increasingly stringent IMO regulations enforcing technical and operational solutions which, for example, have led to the reduction of the sulphur content of marine fuels from 4.5% to the current 0.5% worldwide and 0.1% in Emission Control Areas (ECAs), now also including the Mediterranean Sea. Such measures are expected to enter into force on 1 May 2024, with the new limits being effective as of 1 May 2025.

The IMO’s fourth study on GHG emissions shows that there has been a reduction of almost 7% in carbon emissions and almost 30% in carbon intensity since 2008. These results were due to the IMO 2013 mandatory measures: the Energy Efficiency Design Index for all new vessels and the Ship Energy Efficiency Management Plan for all vessels in operation.

The IMO has adopted a policy framework that sets key ambitions, including reducing the annual GHG emissions from international shipping by at least half by 2050, compared with their level in 2008. The IMO is also working towards phasing out GHG emissions from shipping entirely as soon as possible, and reducing the carbon intensity of international shipping (to reduce CO₂ emissions per transport work), as an average across international shipping, by at least 40% by 2030, pursuing efforts towards 70% by 2050, compared to 2008.

The “short-term measures” to reduce the carbon intensity of ships came into effect on 1 November 2022, through the introduction of the Energy Efficiency Existing Ship Index (EEXI), the annual evaluation of the carbon intensity indicator (CII) and an improved Ship Energy Efficiency Management Plan.

These measures combine technical and operational approaches to improve the energy efficiency of ships. From 2023 onwards, vessels over 400 GT will have to calculate their EEXI in comparison with a reference value, while vessels over 5,000 GT will have to establish their annual operational CII and CII rating. In this regard, a “Required annual operational CII” will be taken into consideration as a parameter, and are increasingly stringent every year.

In other words, ships will get an A, B, C, D or E rating for their energy efficiency, with A being the best. This sends a strong signal to the National Authorities and stakeholders, which are encouraged to provide incentives to ships rated as A or B.

A ship rated D for three consecutive years, or E, is required to submit a corrective action plan, to show how the required index (C or above) would be achieved. Impact assessments on how this new rule will change services and costs – especially in the cabotage sector – are under way around the EU and elsewhere, as there is no doubt that, in the absence of an appropriate timescale, there could be significant variations to the services as they are operated today.

As an EU member state, Italy has recognised and implemented several economic sanctions imposed on countries or non-state entities or natural persons and groups by the EU itself and by the United Nations (UN).

The sanctions regimes in force in the EU include the following:

• UN sanctions adopted by the UN Security Council under Chapter VII of the UN Charter, which the EU transposes into EU law on behalf of the EU member states;
• UN sanctions reinforced by the EU by imposing more stringent and severe measures (“additional”) (this regime can be referred to as a “mixed sanctions regime”); and
• EU sanctions imposed by the EU itself on its own initiative in the absence of UN sanctions (“EU autonomous sanctions regimes”).

Still at an EU level, with reference to freezing and blocking measures relating to assets, economic resources and funds (namely, measures interrupting or reducing economic relations with a targeted subject, in part or completely), Common Foreign and Security Policy decisions are implemented by means of a Regulation – which is binding and directly applicable in Italy – under Article 215 of the Treaty on the Functioning of the European Union.

In terms of co-operation with the enforcement of trade sanctions and – in particular – in order to implement the EU and UN sanctions, Italy has enacted the following legislation:

• Legislative Decree No 109 of 22 June 2007, and subsequent amendments, providing a legal framework aimed at preventing the use of financial systems for the purpose of terrorist financing and at freezing funds and economic resources in order to combat terrorist financing and activities of countries threatening international peace and security; and
• Legislative Decree No 221 of 15 December 2017, providing a legal framework aimed at implementing trade embargoes and rules for the export of dual-use items and goods that could be used for torture or capital punishment.

At a national level, Italian authorities may adopt autonomous trade and economic restrictive measures (such as asset-freezing and fund-blocking measures) in accordance with the procedure defined in Article 4-bis of Legislative Decree 109/2007 in compliance with the UN provisions and the specific restrictive measures adopted by the EU. The relevant Italian authority in charge of international negotiations and sanctions is the Ministry of Foreign Affairs and International Co-operation and, notably, the Office of the Directorate-General for Global Affairs, which deals with international organisations and fora for economic and financial co-operation and transport, and also with the implementation of international sanctioning regimes.

Italy does not keep the lists of sanctioned persons and entities that are held centrally by the EU.

Among the most recently implemented international trade sanctions introduced by the EU (and therefore recognised and implemented by Italy), the most prominent are those imposed in response to the military operation undertaken by Russia in 2022. Such sanctions add to the existing measures imposed on Russia since 2014 with Council Regulation (EU) No 833/2014 of 31 July 2014 (concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine) and Council Regulation (EU) No 269/2014 (concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine). Such regulations, as latterly amended, have impacted on the possibility of entertaining business relations with the sanctioned subjects, also imposing a significant tightening on ship transports.

The EU has adopted 12 packages of sanctions aimed at weakening Russia’s economic base since 2022, including:

• the ban on providing access to EU ports to vessels registered under the Russian flag and, as of 8 April 2023, more generally to vessels enrolled in the Russian registry; and
• the prohibition of maritime transport of Russian crude oil and petroleum that has been purchased above the “price cap” determined in Annex XXVIII of Council Regulation (EU) No 833/2014 of 31 July 2014, as subsequently amended.

As of January 2024, the Italian national legislature had not provided any special exemptions to the application of these measures.

The Italian Armament Material Authorisation Unit (UAMA) was established in 2012 and is empowered, even in this controversial historical period, to issue to the applicant parties – by means of the relevant electronic platform – the prescribed authorisations for the export, transfer, brokering, technical assistance and transit of dual-use items, and for the direct and indirect trade of items listed under EU restrictive measures.

With the outbreak of the conflict between Russia and Ukraine, the maritime sector – already severely affected by the COVID-19 pandemic – has been facing further challenges, including:

• an increase in the cost of energy, gas, oil and fuel, leading to a generalised rise in commodity prices; and
• logistic and commercial operational criticalities due to the restrictions imposed on the areas affected by the conflict, which have seen logistics operators come to terms with the ever-increasing number of sanctions and marketing bans.

In order to address the non-performance of contractual obligations, as had already happened during the pandemic, the Italian legal system triggered the “force majeure” instrument, a legal mechanism whose application requires the occurrence of extraordinary, unforeseeable and external events that, going beyond the will and reasonable control of the parties, determine a real supervening impossibility of performance.

This instrument is usually provided for in contracts governed by Italian law by the inclusion of ad hoc clauses which, after setting forth a period of suspension of the contractual obligations for the duration of the event or for a predetermined period of time, grant the parties the right to terminate the contract if the event lasts beyond that period, without the affected party that is unable to perform being required to pay damages, precisely because the non-performance is not attributable thereto. This is consistent with the case law, whose (limited) precedents depict a reliance by the courts on general institutions of Italian law, such as force majeure, supervening impossibility of performance for reasons not attributable to the debtor and supervening hardship in performance.

Regulation (EU) 2023/1804 on the deployment of alternative fuels infrastructure (“Alternative Fuels Infrastructure Regulation” – AFIR), repealing Directive 2014/94/EU, was enacted on 13 September 2023 as part of the European regulatory framework on de-carbonisation. The Regulation will come into force on 13 April 2024 and shall have direct implications for the Italian maritime port sector and therefore on the next initiatives that, at a central level, will have to be undertaken by the competent administrations.

In particular, the AFIR Regulation – together with the “FuelEU Maritime” initiative, under which ships calling at European ports will be required from 2025 to use fuels with a lower impact – introduces mandatory targets for member states with regard to grounding, in the main European ports of the TEN-T network, of bunkering points for – among others – liquefied natural gas (LNG, liquefied bio-gas, liquefied synthetic methane and mixtures) by 1 January 2025 and of shore-side electricity supply facilities in ports (so-called “Cold-Ironing”) by 31 December 2029 (de facto by 1 January 2030).

In this context, member states must prepare and submit a draft national strategic framework for the development of the market for alternative fuels in the transport sector (such as methanol and ammonia) and the realisation of the related infrastructure to the European Commission, by 31 December 2024.

The national strategic framework must also contain an overview of the planned measures for the realisation of infrastructure for alternative fuels in seaports (ie, for electricity and hydrogen) for port services in accordance with the provisions of Regulation (EU) No 352/2017. In this regard, the case of coastal depots is worthy of attention since they are subject to the regulations set forth in Article 18 of Law No 84/94. As a consequence, considering that coastal depot concessionaries are often in an oligopolistic or dominant position, the responsibilities arising from making the commitments to make the investments necessary to enable the energy transition will fall within the scope of the concessionary obligations of individual depots and – more generally – within those of the principles imposed by competition.