The victims of the sinking of the ship Al-Salam Boccaccio 98 flying the Panamanian flag can bring an action for damages before the Italian courts against the Italian bodies which classified and certified that ship, the Court of Justice of the European Union (CJEU) ruled on Thursday 7 May (Case C-641/18).
In 2006, the sinking of the Al-Salam Boccaccio 98 in the Red Sea claimed more than 1,000 lives. The survivors and the families of the victims are seeking compensation from the Court of Genoa (Italy) against the Genoa-based Rina companies, which carried out the classification and certification operations on the vessel. According to the complainants, these operations are the cause of the shipwreck. On the other hand, the Rina companies invoked the principle of jurisdictional immunity, arguing that their operations constituted a manifestation of the sovereign prerogatives of the Republic of Panama.
In its judgment, the Court follows the reasoning of the Advocate General (see EUROPE 12403/25). It rules that the so-called 'Brussels I' Regulation (44/2001) on jurisdiction in civil and commercial matters applies in the case of an action for damages brought against private companies carrying out the activity of classification and certification of ships on behalf of a non-Member State, where that activity is not carried out by virtue of the prerogatives of a public authority, within the meaning of Union law.
According to the European court, in order to determine whether the operations in question were carried out in the exercise of public authority, the relevant criterion is the recourse to powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. In this regard, it notes that the activities of the Rina companies consisted only in establishing that the vessel examined met the requirements laid down by the applicable legislative provisions.
The interpretation and choice of the applicable technical requirements were for their part reserved to the authorities of the Republic of Panama. Although the verification of a ship may lead to the withdrawal of its certificate, the competent body acts in accordance with a previously defined regulatory framework.
The Court also examined the possible effect, for the purposes of the applicability of the Brussels I Regulation, of the plea based on the principle of customary international law concerning immunity from jurisdiction. The Court recalled that it has already ruled that the immunity of States from jurisdiction is not absolute, but is generally recognised where the dispute concerns sovereign acts performed in the exercise of its public powers (iure imperii). On the other hand, it may be excluded if the action relates to acts which are not ones of public authority (iure gestionis).
See the judgment: https://bit.ly/3flWVpQ (Original version in French by Mathieu Bion)