Miguel_Ortego
International Conflict of Laws

Italian Courts are competent in tort action from a sunk vessel with Panamanian flag

8 mayo 2020

The Court of Justice of the European Union («CJEU») held on LG v. Rina (C-641/18-provisional text-) that the victims of the sinking of a vessel, which sailed under the flag of Panama, may bring an action for damages before the Italian courts against the Italian organisations which classified and certified that vessel under the Regulation Brussels I («RBI») (44/2001)-§60-.

The judgement of the CJEU as of May 7th, 2020 (ECLI:EU:C:2020:349), briefly, was about a group of relatives of the victims and survivors («LG and Others») of the vessel with Panamanian flag and, called «Al Salam Boccaccio’98», in the Red Sea on February 2-3, 2006 (more than 1,000 people died). LG brought an action before the District Court of Genova (Italy), according to art. 2.1 of RBI, against the Rina companies («Rina» hereinafter), dedicated to ship classification and certification, and which residence was Genova.

LG claimed compensation for pecuniary and non-pecuniary losses on the grounds that Rina was liable due to the fact that the wrongdoing in classification and certification of the vessel were the cause of that sinking. Rina and the State of Panama signed a contract in order to point Rina as the company in charge of the classification and certification works of their ships. Rina opposed that the Italian Courts lack jurisdiction based on the immunity principle granted to foreign States. In particular they argued that the works were carried out upon delegation from the State of Panamá and therefore, it is a manifestation of sovereign power of a State we are dealign with herein.

LG claimed that the plea of immunity from jurisdiction alleged does not cover activities that are governed by non-discretionary technical rules not connected to the political decision and prerogatives of a State. To what Rina argued that preclusion of immunity for States is only due when what is at stake are crimes and crimes against humanity or where such recognition undermines the principle of judicial protection (which is not the case).

What the District Court of Genova asks the CJEU, briefly, is whether article 1 of RBI ought to be interpreted as meaning that an action for damages brought against private law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of «civil and commercial matters» and therefore, this case falls under the scope of RBI and, provided is must be interpreted as said before, whether immunity plays a part in here or not.

On the one hand, is true that recital 7 of RBI claims form applying a broad definition of civil and commercial matters (§31); on the other hand, elements which caracterice the nature of the legal relationships between the parties must be analyzed (§32), bearing in ming that the Court admits that actions between a public authority (acts performed iure gestionis) and a person governed by private law fall within the scope of RBI (§33). In this line, exercising public powers by surpassing the scope of the ordinary legal rules applicable to relationships with individuals fall outside the scope of RBI (§34).

The CEJU observes that the fact of acting on behalf of the State does not always imply the exercise of public powers (CJEU April 21st 1993, on Sonntag, C-172/91, §21), agreeing with the Advocate General in his Opinion (§ 67 to 70). The fact that certain activities had a public purpose does not, in itself, constitute a sufficient evidence to classify them as being carried out iure imperii (the works of Rina did not mean that their activities stemmed from the exercise of public powers)-§41-. Likewise, acts carried out in the interest of a State does not imply that those activities are vested with iure imperii neither (§42). Therefore, the works of Rina for the State of Panama are not public but private and as a result of that, the action for damages in respect of those operations falls within the scope of «civil and commercial matters» of art. 1 RBI.

Moreover, the CJEU reminds (§21) that it has been excluded from the exception of article 51 of TFEU the activities of bodies governed by private law connected to the very same ones as those supplied by Rina (CJEU December 12, 2013, SOA Nazionale Costuttori, C-327/12, §50) and CJEU June 16, 2015, Rina services and Others, C-593/13, §16 to 21) (§51). Thus, only customary international law concerning immunity might be applied to the case, but, as long as it does not preclude application of RBI (§58).

Therefore, the interpretation of «civil and commercial» as of article 1 RBI includes actions for damages against the actions of Rina and giving they sat in Italy, RBI is applicable (art. 2.1) and the competent courts to know about this issue are the Italian ones according to articles either article 5.1.a) or 5.3 RBI (as LG claimed both, contractual and non-contractual liability- §36-). The principle of customary international law concerning immunity from jurisdiction does not preclude application of RBI.

Imagen: Welt

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