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SHIPPING and the LAW Managing the Risks THE LIABILITY OF CLASSIFICATION SOCIETIES Siccardi Bregante SHIPPING and the LAW Managing the Risks THE LIABILITY OF CLASSIFICATION SOCIETIES Siccardi Bregante & C. 1

CLASSIFICATION SOCIETIES ( «CS» ) RECOGNISED ORGANISATIONS ( «RO» ) CLASS SHIPOWNER STATUTORY CERTIFICATION CLASSIFICATION SOCIETIES ( «CS» ) RECOGNISED ORGANISATIONS ( «RO» ) CLASS SHIPOWNER STATUTORY CERTIFICATION SHIPOWNER Siccardi Bregante & C. FLAG STATE 2

POTENTIAL CLAIMANTS IN CONTRACT OWNER (shipowner, manager) FLAG STATE IN TORT: THIRD PARTY «USERS» POTENTIAL CLAIMANTS IN CONTRACT OWNER (shipowner, manager) FLAG STATE IN TORT: THIRD PARTY «USERS» : • • Siccardi Bregante & C. INSURERS CHARTERERS PASSENGERS CARGO OWNERS SHIP BUYERS POLLUTION VICTIMS OTHERS 3

BASIS OF LIABILITY • IN CONTRACT • CONTRACTS WITH PROTECTIVE EFFECTS FOR THIRD PARTIES BASIS OF LIABILITY • IN CONTRACT • CONTRACTS WITH PROTECTIVE EFFECTS FOR THIRD PARTIES • IN TORT • CRIMINAL • ADMINISTRATIVE (IT. LAW No. 231/2001) 4

CS-RO DEFENSIVE ARGUMENTS • SOVEREIGN IMMUNITY • NO LIABILITY? • EXCULPATORY/LIMITATION CLAUSES • STATUTORY CS-RO DEFENSIVE ARGUMENTS • SOVEREIGN IMMUNITY • NO LIABILITY? • EXCULPATORY/LIMITATION CLAUSES • STATUTORY LIMITATION 5

SOVEREIGN IMMUNITY ( «S. I. » ) WHAT DOES IMMUNITY MEAN? THE CS/RO AS SOVEREIGN IMMUNITY ( «S. I. » ) WHAT DOES IMMUNITY MEAN? THE CS/RO AS DELEGATE OF A STATE IN THE EXERCISE OF SOVEREIGN POWERS ENJOYS THE SAME RIGHTS OF THE DELEGATING STATE: - IT CAN BE SUED ONLY BEFORE THE COURTS OF THAT STATE - IT CAN AVAIL OF THE SAME DEFENCES 6

SOVEREIGN IMMUNITY WHY ARE CS/RO ENTITLED TO S. I. ? • STATES EXERCISE JURISDICTION SOVEREIGN IMMUNITY WHY ARE CS/RO ENTITLED TO S. I. ? • STATES EXERCISE JURISDICTION OVER SHIPS FLYING THEIR FLAG AND ENSURE SAFETY AT SEA (UNCLOS ART. 94) • ADMINISTRATIONS MAY ENTRUST INSPECTIONS TO ORGANISATIONS RECOGNISED BY THEM • ADMINISTRATIONS IN EVERY CASE GUARANTEE COMPLETENESS AND EFFICIENCY OF THE INSPECTIONS (RULE 6 SOLAS ANNEX 1) • CERTIFICATES ISSUED FOLLOWING INSPECTIONS SHALL BE ACCEPTED BY OTHER GOVERNMENTS (RULE 17 SOLAS ANNEX 1) 7

S. I. AND CASE LAW - The SUNDANCER US Ct of Appeal (2° Circ. S. I. AND CASE LAW - The SUNDANCER US Ct of Appeal (2° Circ. ) 15 Oct. 1994 - The SCANDINAVIAN STAR USDC (Florida) 4 June 1993 - It. State Auditing Court 28 Sept. 1992 - It. Ct of Cassation 3 Dec. 1986 - Ct of Appeal of Paris 2010 ( «Erika» ) - French Ct of Cassation 2012 ( «Erika» ) - It. Adm. CT (Tar) 2007 - It. CT of First Instance Genoa 2012 8

C. S. – R. O. LIABILITY ARE THEY ACCOUNTABLE FOR DAMAGE (PHYSICAL – ECONOMIC) C. S. – R. O. LIABILITY ARE THEY ACCOUNTABLE FOR DAMAGE (PHYSICAL – ECONOMIC) TO OTHERS (OWNER – THIRD PARTIES) ? ARGUMENTS DEVELOPED BY COMMON LAW DECISIONS: 1. OWNERS’ NON-DELEGABLE DUTY TO PROVIDE A SEAWORTHY VESSEL 2. ORGANISATIONS WITH ONLY FLEETING CONTACT WITH AND BRIEF OPPORTUNITY TO OBSERVE THE VESSEL 3. CLASSIFICATION SOCIETIES SHOULD NOT BE THE INSURERS OF THE VESSELS THEY SURVEY 4. IMPORTANCE OF THE PUBLIC FUNCTIONS PERFORMED Siccardi Bregante & C. 9

BASIS OF LIABILITY UNDER CIVIL LAW SYSTEM DAMAGE (TO SHIPOWNER) FOR NON/INCORRECT PERFORMANCE OF BASIS OF LIABILITY UNDER CIVIL LAW SYSTEM DAMAGE (TO SHIPOWNER) FOR NON/INCORRECT PERFORMANCE OF CONTRACT (BREACH OF CONTRACT) DAMAGE (OTHER THAN ECONOMIC) (TO THIRD PARTIES) ON THE BASIS OF A CONTRACT WITH PROTECTIVE EFFECT TOWARDS THIRD PARTIES (CASE LAW IN THE MATTER OF FINANCIAL ADVISORS – EXTERNAL AUDITORS – DOCTORS) NEGLIGENT MISREPRESENTATION GENERAL LAW OF TORT Siccardi Bregante & C. 10

LIABILITY AND EXCLUSION/LIMITATION CLAUSES 1. TOWARDS WHOM? - CONTRACTUAL PARTY - THIRD PARTY RELYING LIABILITY AND EXCLUSION/LIMITATION CLAUSES 1. TOWARDS WHOM? - CONTRACTUAL PARTY - THIRD PARTY RELYING ON PROTECTIVE EFFECT OF THE CONTRACT 2. IN WHAT LIMITS? - EXCLUSION CLAUSE NOT ENFORCEABLE IN CASE OF WILFUL CONDUCT – GROSS NELIGENCE - LIMITATION CLAUSE NOT ENFORCEABLE AGAINST CLAIM FOR LOSS OF LIFE/PHYSICAL INJURY 3. EXCLUSION/LIMITATION OF RO VIS A VIS FLAG STATES (DIRECTIVE EC 2009/15 23. 4. 2009) Siccardi Bregante & C. 11

STATUTORY LIMITATION - I ARE CS PROTECTED BY LIMITATION RULE IN CURRENT CONVENTIONS? HAGUE STATUTORY LIMITATION - I ARE CS PROTECTED BY LIMITATION RULE IN CURRENT CONVENTIONS? HAGUE VISBY (1924 -1968) art. IV bis Limitation available for «servant or agent of the carrier (such servant or agent not being an independent contractor)» ROTTERDAM RULES (2012) art. 18 -61 Limitation available for: • Carrier (C) • Any Performing Party (PP) • Master & Crew • Employee of C and PP • Other party performing any of the C’s obligations 12

STATUTORY LIMITATION - II LIMITATION OF LIABILITY FOR MARITIME CLAIMS (19761996) ART. 1 -9 STATUTORY LIMITATION - II LIMITATION OF LIABILITY FOR MARITIME CLAIMS (19761996) ART. 1 -9 Limitation available for: • Owner, Charterer, Manager and Operator • Shipowner of ship rendering salvage service • Salvor not operating from a ship • Any person for whose act, neglect or default they are responsible CIVIL LIABILITY CONVENTION (1969/1992) ART. III. 4(b) Limitation available for: Any other person who, without being a member of the crew, performs services for the ship 13

STATUTORY LIMITATION - III IS IT DESIRABLE? PREVENTION & COMPENSATION PRINCIPLES REQUIRE THAT THE STATUTORY LIMITATION - III IS IT DESIRABLE? PREVENTION & COMPENSATION PRINCIPLES REQUIRE THAT THE WRONGDOER COMPENSATE THE DAMAGE BUT • ECONOMIC EFFICIENCY REQUIRES TO AVOID MULTIPLE LIABILITY INSURANCE PREMIUMS • CS CANNOT BUY INSURANCE FOR UNLIMITED (OR VERY HIGH) LEVEL • MOST (IF NOT ALL) OTHER PLAYERS CAN ENJOY LIMITATION PROTECTION 14