La giurisdizione italiana nel caso Costa Concordia e la importanza di partecipare al processo penale come parte civile contro Schettino

AncoraABOUT JURISDICTION IN THE CONCORDIA CASE * (by Avv. Massimiliano Gabrielli, coordinator and Head of press office for the legal pool Giustizia per la Concordia)

To understand the importance of participation in the criminal trial against the Italian commander of the Costa Concordia, Schettino, whose DEADLINE in order to provide the act through our legal department, will be July 8, 2013, it is important to frame the story in a unique opportunity to overcome every issue of jurisdiction, application of national and international laws, and the burden of proof with respect to contracts signed by foreign nationals and in particular British, which provide for the jurisdiction of the English courts and not Italian.

As I was able to explain in other articles, our main action is developed in the field of the criminal trial against the commander Schettino, starting july 9th, and in that context we have already obtained the admission of several Greek, English, Russian and German citizens in the process as civil parties, and we have also obtained in the preliminary hearing, the authorization of the party to the proceeding on Costa Spa in his capacity as civil liability for damage to passengers. At the moment, in other words, we do not suppose or argue, but affirm your right of partecipating to the trial, as we already have UK citizens (with the above underlined jurisdictional limitation in their contract) admitted as civil parties in the trial, and Costa did not objected on that, even if the same Costa SpA is a counterpart in the crime trial as a civil liability part for all the damages.

From this point of view, as you see, we already have a confirmed decision of an Italian court on the admissibility of the action for damages safe foreign nationals in criminal proceedings Italian, BECAUSE EVERY CONTRACT LIMITATION PROVIDED IN VARIOUS TRAVEL CONTRACTS CAN APPLY ONLY THE ACTION OF CONTRACT AND NOT EVEN THE CRIMINAL SIDE OF THE PROTECTION FOR THE PASSENGER, which in this case, through the establishment of a civil party, therefore, overcomes every possible issue of jurisdiction, just because the civil action is integrated with the Italian criminal trial. Even with regard to the contractual civil action, in any case, we must distinguish between claimant for damages resulting from loss of baggage, accident aboard a passenger, deviations of the service or travel than booked, and the different situation of damage to person and property resulting from an accident at sea, and in particular by the shipwreck In the first case the limitation of jurisdiction is validly regulated by the contract that you signed, while in the case of shipwreck IS NOT, because protection of the passenger goes back directly to the following international standards.

ABOUT CIVIL JURISDICTION, The law on liability of the carrier by sea of ​​people, it is outlined in the Athens Convention of 13 December 1974, as subsequently updated to the Protocols amending of London, dated 19 November 1976 29 March 1990 and November 1, 2002. This Convention governs the liability of the sea carrier for passengers in case the event productive of the damage has occurred during transport. On 23 April 2009, the Convention was adopted by the European Union of that draft more recent namely that resulting from the amendments introduced by the London Protocol of 2002 and has been included as Annex I to EC Regulation n. 392/2009, governing the liability of carriers of passengers by sea in the event of an accident by providing art. 12 that it is “applied from the date of entry into force of the Athens Convention for the Community, and in any event no later than 31 December 2012 ‘ International legislation in the field of maritime transport of passengers were heavily by the recent actions of the legislature and in particular EC Regulation 32/2009 and EU Regulation 1177/201, which are already in force, will apply from December 2012 . The above-mentioned new regulations introduced by the European legislator are designed to ensure a level of protection of passengers transported by sea at least equivalent to that already provided within the plane (Reg.CE 2027/1997 and Reg CE291/2004), while taking into account the conditions specific operational and insurance in the shipping sector. The principles relating to the protection of the passengers are based on the consideration that the passenger is always the weakest part of the contract of carriage. The Regulation establishes harmonized rules on liability and insurance coverage for the transport of passengers by sea based on both the 1974 Athens Convention Relating to the Carriage of Passengers and their Luggage, (as amended by the 2002 Protocol on the transport passengers, which incorporates most of the provisions) and the guidelines of the IMO (International Maritime Organisation) for the implementation of onvention of Athens adopted in 2006, which are declared binding. The Regulations apply to both domestic and to international transport for certain categories of ships if the ship is flying the flag of a Member State or is registered in a Member State (in this case, ITALY), if the contract of carriage has been made in a Member State, if the place of departure or destination, according to the contract of carriage, is in a Member State. The Athens Convention, adopted by the Regulation provides for a scheme of carrier liability differentiated according to the extent of the damage and the cause of the damage. In case of death or personal injury suffered by the passengers, we distinguish between two types of claims: Damage operation of the ship, where the possibility of passengers to control the events typically very limited, subject to a regime of almost objective responsibility, and other types of damage occurring on board, subject however to a system of liability based on fault.

The distinguishing criterion is given by the notion of “shipping incident” with which “means shipwreck, capsizing, collision or stranding of the ship, explosion or fire on board or defect in the ship” (see art. 3 Conv ​​Athens). In the event that the death of or personal injury to a passenger is caused by a shipping incident: if the damages do not exceed 250,000 SDRs, there is almost a liability of the carrier, which responds unless the applicant demonstrates that the incident is due to force majeure or act of third, if the damages are greater than 250,000 DSP is configured for the surplus a fault-based liability of the carrier, which is liable unless the carrier proves that the incident which is not due to the fault or negligence. In both cases of damage due maritime accident the burden of proof is on the carrier.

Marine casualties (both mentioned non-technical sense, and therefore irrespective of the distinction relevant to the detection of the liability regime vector which will become applicable in cases of shipwreck, capsizing, collision, stranding, explosion, fire, or defect in the ship) occurred during the transport of passengers by sea in the course a cruise on an Italian ship shall be governed, at least until 31 December 2012 (see Art 12 Regulation (EC) No 392/2009), only from the Italian Navigation Code, which reads (significant) applicable under the flag of the ship itself. While, the rules relating to jurisdiction, it will be necessary to refer to the canonical connection criteria laid down by law no. 218/1995, which in the present case, since the Italian shipowner, of course refer to Italy (see Section 3, Scope of jurisdiction: 1. “The Italian jurisdiction exists when the defendant-in this case-the Costa SpA is domiciled or resident in Italy … “), as well as (or rather, so) as regards EU citizens also to the rules laid down by Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The Regulation (EC) No 44/2001, on the other hand, resolves the root problem when the Articles 17 and 17-bis states (Art. 17 entitled Jurisdiction), as follows:1. An action arising under this Agreement must be made, at the option of the plaintiff, in one of the following courts, provided that it is located in a State Party to this Convention:

  • a) the court of habitual residence or principal establishment of the defendant (Genoa, Italy);
  • b) the court of the place of departure (Civitavecchia, Italy) or destination stipulated in the contract of carriage; omissis

As you can see, therefore, EVEN ON CIVIL DAMAGES, is however provided a series of competent courts identified according to several alternative criteria, that the passenger has a right to choose at his convenience.

then as a final consideration remains the absolute convenience of the civil action inserted in the criminal trial, even to undermine contractual restriction that would require an action in countries of origin, limiting, also by much, the possibility to make use of all the results obtained in terms of evidence and to punitive damages, existing in the criminal trial against Schettino

AncoraABOUT JURISDICTION IN THE CONCORDIA CASE * (by Avv. Massimiliano Gabrielli, coordinator and Head of press office for the legal pool Giustizia per la Concordia)

To understand the importance of participation in the criminal trial against the Italian commander of the Costa Concordia, Schettino, whose DEADLINE in order to provide the act through our legal department, will be July 8, 2013, it is important to frame the story in a unique opportunity to overcome every issue of jurisdiction, application of national and international laws, and the burden of proof with respect to contracts signed by foreign nationals and in particular British, which provide for the jurisdiction of the English courts and not Italian.

As I was able to explain in other articles, our main action is developed in the field of the criminal trial against the commander Schettino, starting july 9th, and in that context we have already obtained the admission of several Greek, English, Russian and German citizens in the process as civil parties, and we have also obtained in the preliminary hearing, the authorization of the party to the proceeding on Costa Spa in his capacity as civil liability for damage to passengers. At the moment, in other words, we do not suppose or argue, but affirm your right of partecipating to the trial, as we already have UK citizens (with the above underlined jurisdictional limitation in their contract) admitted as civil parties in the trial, and Costa did not objected on that, even if the same Costa SpA is a counterpart in the crime trial as a civil liability part for all the damages.

From this point of view, as you see, we already have a confirmed decision of an Italian court on the admissibility of the action for damages safe foreign nationals in criminal proceedings Italian, BECAUSE EVERY CONTRACT LIMITATION PROVIDED IN VARIOUS TRAVEL CONTRACTS CAN APPLY ONLY THE ACTION OF CONTRACT AND NOT EVEN THE CRIMINAL SIDE OF THE PROTECTION FOR THE PASSENGER, which in this case, through the establishment of a civil party, therefore, overcomes every possible issue of jurisdiction, just because the civil action is integrated with the Italian criminal trial. Even with regard to the contractual civil action, in any case, we must distinguish between claimant for damages resulting from loss of baggage, accident aboard a passenger, deviations of the service or travel than booked, and the different situation of damage to person and property resulting from an accident at sea, and in particular by the shipwreck In the first case the limitation of jurisdiction is validly regulated by the contract that you signed, while in the case of shipwreck IS NOT, because protection of the passenger goes back directly to the following international standards.

ABOUT CIVIL JURISDICTION, The law on liability of the carrier by sea of ​​people, it is outlined in the Athens Convention of 13 December 1974, as subsequently updated to the Protocols amending of London, dated 19 November 1976 29 March 1990 and November 1, 2002. This Convention governs the liability of the sea carrier for passengers in case the event productive of the damage has occurred during transport. On 23 April 2009, the Convention was adopted by the European Union of that draft more recent namely that resulting from the amendments introduced by the London Protocol of 2002 and has been included as Annex I to EC Regulation n. 392/2009, governing the liability of carriers of passengers by sea in the event of an accident by providing art. 12 that it is “applied from the date of entry into force of the Athens Convention for the Community, and in any event no later than 31 December 2012 ‘ International legislation in the field of maritime transport of passengers were heavily by the recent actions of the legislature and in particular EC Regulation 32/2009 and EU Regulation 1177/201, which are already in force, will apply from December 2012 . The above-mentioned new regulations introduced by the European legislator are designed to ensure a level of protection of passengers transported by sea at least equivalent to that already provided within the plane (Reg.CE 2027/1997 and Reg CE291/2004), while taking into account the conditions specific operational and insurance in the shipping sector. The principles relating to the protection of the passengers are based on the consideration that the passenger is always the weakest part of the contract of carriage. The Regulation establishes harmonized rules on liability and insurance coverage for the transport of passengers by sea based on both the 1974 Athens Convention Relating to the Carriage of Passengers and their Luggage, (as amended by the 2002 Protocol on the transport passengers, which incorporates most of the provisions) and the guidelines of the IMO (International Maritime Organisation) for the implementation of onvention of Athens adopted in 2006, which are declared binding. The Regulations apply to both domestic and to international transport for certain categories of ships if the ship is flying the flag of a Member State or is registered in a Member State (in this case, ITALY), if the contract of carriage has been made in a Member State, if the place of departure or destination, according to the contract of carriage, is in a Member State. The Athens Convention, adopted by the Regulation provides for a scheme of carrier liability differentiated according to the extent of the damage and the cause of the damage. In case of death or personal injury suffered by the passengers, we distinguish between two types of claims: Damage operation of the ship, where the possibility of passengers to control the events typically very limited, subject to a regime of almost objective responsibility, and other types of damage occurring on board, subject however to a system of liability based on fault.

The distinguishing criterion is given by the notion of “shipping incident” with which “means shipwreck, capsizing, collision or stranding of the ship, explosion or fire on board or defect in the ship” (see art. 3 Conv ​​Athens). In the event that the death of or personal injury to a passenger is caused by a shipping incident: if the damages do not exceed 250,000 SDRs, there is almost a liability of the carrier, which responds unless the applicant demonstrates that the incident is due to force majeure or act of third, if the damages are greater than 250,000 DSP is configured for the surplus a fault-based liability of the carrier, which is liable unless the carrier proves that the incident which is not due to the fault or negligence. In both cases of damage due maritime accident the burden of proof is on the carrier.

Marine casualties (both mentioned non-technical sense, and therefore irrespective of the distinction relevant to the detection of the liability regime vector which will become applicable in cases of shipwreck, capsizing, collision, stranding, explosion, fire, or defect in the ship) occurred during the transport of passengers by sea in the course a cruise on an Italian ship shall be governed, at least until 31 December 2012 (see Art 12 Regulation (EC) No 392/2009), only from the Italian Navigation Code, which reads (significant) applicable under the flag of the ship itself. While, the rules relating to jurisdiction, it will be necessary to refer to the canonical connection criteria laid down by law no. 218/1995, which in the present case, since the Italian shipowner, of course refer to Italy (see Section 3, Scope of jurisdiction: 1. “The Italian jurisdiction exists when the defendant-in this case-the Costa SpA is domiciled or resident in Italy … “), as well as (or rather, so) as regards EU citizens also to the rules laid down by Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The Regulation (EC) No 44/2001, on the other hand, resolves the root problem when the Articles 17 and 17-bis states (Art. 17 entitled Jurisdiction), as follows:1. An action arising under this Agreement must be made, at the option of the plaintiff, in one of the following courts, provided that it is located in a State Party to this Convention:

  • a) the court of habitual residence or principal establishment of the defendant (Genoa, Italy);
  • b) the court of the place of departure (Civitavecchia, Italy) or destination stipulated in the contract of carriage; omissis

As you can see, therefore, EVEN ON CIVIL DAMAGES, is however provided a series of competent courts identified according to several alternative criteria, that the passenger has a right to choose at his convenience.

then as a final consideration remains the absolute convenience of the civil action inserted in the criminal trial, even to undermine contractual restriction that would require an action in countries of origin, limiting, also by much, the possibility to make use of all the results obtained in terms of evidence and to punitive damages, existing in the criminal trial against Schettino

Rispondi