In the context of lease financing transactions, it is not uncommon for the financier (registered owner) to refinance part of the transaction by recourse to third-party lenders, concluding a loan agreement which is typically secured by a mortgage over the vessel. Under Italian law, a charterer's right to enjoyment of a vessel receives a certain level of protection even if nothing is specifically agreed by the parties and no letter of quiet enjoyment is issued.
Italian law includes no specific rules concerning the sale of ships. As such, the general rules on the sale of movable assets apply. However, should the purchase of a ship qualify as an acquisition of business assets, certain mandatory rules of law apply. In two recent judgments, the Rome Court of Appeal held that the mandatory rules regarding the transfer of business assets do not apply to sale and purchase agreements concerning a single ship.
A significant recent judgment by the Genoa Court of Appeal examined the extent and nature of the informative duties imposed on shipbrokers under Italian law. The decision applies to shipbrokers the principles outlined by the Italian courts for general brokerage activities (in particular, real estate brokerage for which the case law is richer and more consistent). Consequently, a general and uniform legal framework has been extended to shipbrokers.
The Tribunal of Milan recently published a judgment analysing a common occurrence in shipping matters where a contract of charter is not incorporated into an agreement duly executed by both parties, but is instead contained in a recap fixture exchanged via email. The decision is noteworthy as it reaches conclusions (significantly different from prevailing Italian case law) which deserve to be carefully considered when concluding charter parties.
A recent Supreme Court judgment addressed the issue of maritime liens and the remuneration of shipping companies' court-appointed managers by adopting a strict interpretation of the maritime liens rules. The judgment provides an idea of which credits are assisted by liens and highlights the difference between the rules of law regarding liens and those regarding managers' duties and rights.
The Tribunal of Genoa recently issued a judgment regarding the corporate structure of a group of shipping companies. In particular, the court considered the liability of a local shipping agent where it was established as a subsidiary of the line carrier and alternatively where it was merely a branch office of the line carrier.
The Tribunal of Genoa recently issued an interesting judgment addressing the applicability of fair competition principles to certain contractual provisions generally used by most major line carriers. The dispute regarded a claim filed by a group of freight forwarders which held that certain surcharges – particularly the 'LO-LO' charge – should be declared null and void.
The Messina Court of Appeal recently issued an interesting judgment in which it addressed the qualification of a vessel's sale and purchase as a 'transfer of business assets'. The decision was issued in regards to a claim by the Italian social security agency against the purchaser of a vessel for the payment of crew members' social contributions, which the former shipowner had failed to pay.
A Tribunal of Genoa decision has affirmed that damage claims against carriers for full liability must prove not only that the carrier's behaviour had been grossly negligent, but also that the carrier or its agents acted recklessly and foresaw that damage would result from their act or omission.