The Law court of the EU establishes that victims and survivors of the Al Salam Boccaccio '98 will be able to introduce demanded of compensation in Italy



The Law court of the European Union has established that the victims of the shipwreck of the ferry Al Salam Boccaccio ‘98, happened incident at the beginning of 2006 in the Red Sea in which they died some one thousand people, will be able to address to the Italian magistracy in order to introduce an action for damages against the RINA and the Agency Italian Registry of Shipping, the societies that they have classified and certifyd the ship that fly Panamanian flag. The Court has specified that these last ones can only make use of the jurisdictional immunity as their activities have been expression of the publics powers of the Panamanian State.

The Court has remembered that some relatives of the victims and some fleeting survivors to the shipwreck have dared the Court of Genoa with a resource against RINA and Agency Italian Registry of Shipping asking the compensation for the patrimonial and not patrimonial damages deriving from the eventual liability of the societies, asserting that the activities of classification and certification of the ship were to the origin of the shipwreck. Moreover the Court has remembered that RINA and Agency Italian Registry have eccepito the incompetency of the dared judge invoking the principle of the jurisdictional immunity, since the certification and classification operations that they have carried out are carried out for delegation of the Republic of Panama hat and, consequently, constitute a manifestation of the sovereign prerogatives of the delegating State. The dared judge, interrogating itself as for the competence of the Italian judges, has raised a prejudicial issue.

In a note the Law court of the EU has explained that in order to reach the pronounced sentence today it has been dedicated in the first instance "to the interpretation of the notion of "civil and commercial matter", according to article 1, paragraph 1, of the regulations n. 44/2001 (regulations Brussels I), with regard to the activities of classification and certification of the ships carried out from societies RINA on delegation and on behalf of the Republic of Panama hat, to the aim to establish if the Italian judges are competent according to article 2, paragraph 1, of such regulations. The Court has remembered, first of all, than, although some controversies between a public authority and a by right private subject can re-enter within application of the Brussels regulations in case the jurisdictional resource concerns on completed actions without to rerun to the publics powers (iure gestionis), the situation is various in case the public authority acts in the exercise of the publics powers (iure imperii)".

In the note the Court has specified that "to such care, the Court has asserted that is inconferente that some activities are exercised delegation of a State: in fact, the single circumstance that some powers are delegated with action of the publics powers does not imply that they are exercised iure imperii. Equally it is worth if the operations in question are completed on behalf and in the interest of the Republic of Panama hat, from the moment that the fact to act on behalf of the State does not imply always the exercise of the publics powers. Moreover, the fact that some activities have a public purpose does not constitute, in itself, a sufficient element in order to characterize such activities as carried out iure imperii, the Court therefore has found that, in order to determine if the operations object of the main procedure are realized in the exercise of the publics powers, the relevant criterion is the resource to the exercise of powers that esorbitano from the sphere of the applicable norms in the relationships between private".

"On this point - the note continues - the Court has found that the activities of carried out classification and certification from societies RINA only consisted in verifying that the examined ship satisfied fixed requirement from the applicable legislative dispositions and, in case affirmative, in releasing the corresponding certificates. As for the interpretation and to the choice of applicable technical requirement, they were classified to the authorities of the Republic of Panama hat. Sure the verification of the ship by a certification and classification society can, if of the case, to lead to the revocation of the certificate in order non-compliance to such requirement. However, a such revocation is descendant of not the decisional power of said societies, which act in a normative context previamente defined. If, as a result of the revocation of a certificate, a ship cannot more navigate, this is due to the endorsement that is tax from the law. Consequently, the Court has concluded that, with reservation of the verifications that are up to the judge of the dismissal to carry out, the operations of classification and certification realized by the Rina societies cannot be considered completed in the exercise of prerogatives of the publics powers according to the right of the Union".

In the second place, the Court has examined the eventual incidence, to the aims of the applicabilità of the regulations Brussels I, of the relative exception to the by right customary international principle on the jurisdictional immunity. The Court has asserted "to have already statuito that, to the current state of the international praxis, the jurisdictional immunity of the States does not have absolute value, but generally is recognized when the controversy regards actions of completed sovereignties iure imperii. On the other hand - the note specifies - it can be excluded if the jurisdictional resource concerns on actions that do not re-enter in the exercise of the publics powers. The jurisdictional immunity of the organisms by right private, which societies RINA, generally are not recognized regarding the operations of classification and certification of the ships, in case they are not completed iure imperii according to the international law. Therefore, the Court has concluded that said principle not osta to the application of the Brussels regulations in a controversy as that object of the main procedure, in case the dared judge states that the organisms of classification and certification in object have not made use of the prerogatives of the publics powers according to the international law".