Procedures for securing cargo on board ro-ro vessels: let’s make some clarity
The need to shed light on the legal nature, in Italy, of the procedures for securing (lashing and unlashing) cargo on board ro-ro vessels seems extremely topical at this time.
It should be recalled that cargo securing procedures are regulated by the SOLAS Convention, under which cargo units and cargo transport units must be loaded, stowed and secured throughout the voyage in accordance with the Cargo Securing Manual (CSM) approved by the competent authority of the IMO Member State and drawn up to a standard at least equivalent to the guidelines developed by the International Maritime Organisation (IMO). Since 1998, all IMO-registered vessels are required to carry a Cargo Securing Manual, in which cargo securing (including lashing and unlashing) procedures must be described.
It is therefore important to determine whether such procedures can be performed on a self-handling basis without the assistance of port and/or dock workers, or whether the latter are the only persons authorised to that effect.
Solving this issue is not easy. Some argue that, to protect safety of navigation, such procedures should be performed by the crew, while others maintain that lashing and unlashing operations should be performed by port workers.
In particular, a debate has arisen as to whether such procedures should be classified as “port operations” or “technical-and-nautical services“.
If cargo securing procedures were considered “port operations“, they would fall within the scope of Article 16 of Law 84/94 and, therefore, (i) would be reserved for port workers only, but (ii) could be performed on a self-handling basis by shipping companies authorised to carry out port operations under Article 16.
The different view that the procedures at issue should be reserved for the crew is based on the reasoning that, since they are implemented to ensure safety at sea, they should be performed by the people responsible for that safety (i.e. crew members).
Particularly appropriate is at this point to take into account the view of Italian courts on the legal classification of cargo securing procedures.
First of all, attention should be given to a judgment of the Court of Appeal of Genoa. The dispute dealt with arose from a shipping company who challenged a decision of the Harbour Master’s Office whereby the company was denied authorisation to self-handle lashing and unlashing operations through its own crew. In the challenged order, the Harbour Master’s Office justified its refusal on the ground that these procedures be considered as “operations to be performed by port workers”.
The allegations of the shipping company were at fist supported by the Magistrates’ Court (Pretura) of Massa Carrara, on the ground that reserving deck cargo securing procedures to port workers would be in conflict with European and Italian competition laws and, namely, Article 9 of Law No. 287/90. According to the Magistrates’ Court, the ship-owner of a ro/ro vessel was therefore entitled to perform such procedures by its own means.
The Tribunal and the Court of Appeal of Genoa subsequently overruled the Magistrates’ Court decision, which denied that such procedures could be performed by the crew of the ro/ro vessel.
More specifically, the Court of Appeal stated that, although “they may only take place when a ship is in port”, cargo securing procedures do not fall within the scope of Article 16.4, d) of Law 84/94, which provides for, and regulates, the exercise of “port operations, to be carried out on arrival and departure, of ships equipped with their own mechanical means and their own staff trained for these operations”.
Furthermore, invoking a previous ruling of the Supreme Court, the Court of Appeal expressly stated that cargo securing procedures should be not considered as port operations, but rather as “nautical operations”.
The Italian Higher Administrative Court (Consiglio di Stato) shortly afterwards confirmed the view of the Genoa Court of Appeal, further clarifying the point at issue: “According to Article 16 of Law No. 84/94, the discipline of port operations (such as loading, unloading, transhipment, storage and movement of goods and of any other material carried out in port) shall not extend – in case of self-production or “self-handling”- to the so-called ”nautical operations” such as lashing and unlashing”.
It therefore appears that Italian courts have so far denied that cargo securing procedures may be carried out by persons other than port or terminal workers, thus preventing shipping companies from self-handling such procedures through their crew.
It should be noted, however, that Italian courts have not given a definition of “nautical operations” (which also include lashing and unlashing) and, therefore, there is no clarity as to how they should be regulated and performed.
Indeed, if on the one hand the term “nautical” used by the judicial authorities so far involved clearly relates to the activities carried out on board during navigation, the same authorities have on the other hand argued that cargo securing procedures may only take place in port and cannot be performed by crew members.
In this regard, it is worth emphasising a view developed by legal commentators, according to which cargo securing procedures can be appropriately assimilated to “technical-and-nautical services” (e.g. pilotage, mooring, towage), as the need to protect safety at sea is crucial to the performance of both activities.
This is, however, relevant also for the purposes of the applicability of the principles of competition and, consequently, the possibility of self-handling.
While it is true that Article 14 of Law 84/94 provides that technical-and-nautical services are general-interest services whose organisation lies within the competence of the Maritime Authority in agreement with the Port Authority, such provision must be interpreted in the light of aforementioned Article 9 of Law 287/90, according to which any statutory reservation granted to an undertaking entrusted with the sale of goods and services to the public does not imply a prohibition on third parties from producing the same goods or services for their own internal use.
In this regard, the Italian Competition Authority has stated that the law does not exclude the possibility of adopting competitive procedures for the organisation of technical-and-nautical services and that the choice of a management model should be assessed on a case-by-case basis since “the protection of safety of navigation does not necessarily conflict with competition among multiple undertakings”.
Nevertheless, the Authority has repeatedly reaffirmed the need to create “competition in the market, limiting any statutory reservation only insofar as is absolutely necessary or, in the absence thereof, to establish competition in the market, wherein the service provider is selected through a public procedure”.
As regards the self-handling of technical-and-nautical services, the Authority has noted that technical-and-nautical services can be self-handled, while reiterating the need for a balance between “the need to ensure adequate safety standards in regulating technical-and-nautical services in the port area and the need to preserve the highest level of competition “.
Indeed, as technical-and-nautical services are provided also to ensure port and navigation safety, the self-handling of such services is necessarily subject to specific authorisation and supervision by the Maritime Authority (competent under Article 14 of Law 84/94), which shall assess the applicant’s ability to provide services in accordance with public requirements.
Source: Nctm Studio Legale