We return to a topic of great interest in this period: the updating of pilotage tariffs. In the last issue of our Shipping & Transport Bulletin we analysed the problems related to the world of Italian pilotage, including the determination and updating of pilotage tariffs.
A recent ruling by the Council of State (“CoS”), confirming a decision of the Regional Administrative Court of Veneto, established the inadmissibility “for initial lack of interest” of the appeal filed by the Association of Shipping Agents and Shipbrokers of the Veneto region to challenge the increase in the tariffs in question decided by decree No. 11 of 27 December 2016 of the Ministry of Infrastructures and Transport - Venice Maritime Division.
Shipping agents and shipbrokers had claimed to be holders of an interest since their "role is necessary for the functions assigned to them by the Italian Navigation Code on the promotion of activities and business of shipowners".
But the Council of State, while recognizing the existence of a personal, current and concrete interest necessary to propose the appeal, has highlighted that in reality “shipowners are those, immediately and directly, suffering from the alleged damage caused by the challenged tariff determinations”. The Council of State further specified that shipowners - despite having participated in the procedure for the approval of the tariffs through their trade unions - did not object to the increases established by the aforementioned decree.
So, in fact, the CoS has denied any interest of shipping agents and shipbrokers in relation to the issue of tariffs, arguing that, if need be, shipowners should be the ones to comment on the tariff increase, and in any case, this should be done directly during the procedure for the approval of the tariffs through the trade unions.
The ruling in question turns out to be of interest for two reasons: (i) first of all, because it highlights the lack of shipping agents’ and shipbrokers’ representative power with respect to shipowners' interests, which - as we will see below - is limited only to the cases provided for by Article 288 of the Italian Navigation Code; (ii) secondly, because it underlines the importance of having a trade union representing and protecting the interests of shipowners in the determination and updating of pilotage tariffs.
As regards the first aspect, Article 288 of the Italian Navigation Code clarifies that the shipping agent can promote actions on behalf of the shipowner only within the limits of the representation mandate given to the same by the shipowner. Therefore, Article 288 of the Italian Navigation Code links substantial representation to legal representation, thus excluding any representation on the part of the shipping agent with regard to relationships and contracts from which the latter has been completely excluded.
This approach has been reaffirmed several times in the case law of the Court of Cassation, which specified that “With regard to maritime transport, the shipping agent, pursuant to Article 288 of the Italian Navigation Code, is responsible for the legal representation of the shipowner within the same limits of the substantial representation conferred to him, and within such limits he can promote actions or be brought to trial as representative, irrespective of a specific power of attorney on the part of the shipowner, but said representation excludes contractual obligations that fall outside the relationships managed by the shipping agent” .
It is therefore evident that the determination of the tariffs and/or the updating of the same cannot fall within the powers of representation under Article 288 of the Italian Navigation Code, since the shipping agent does not take part in this procedure on behalf of the shipowner, which participates in it through its trade union.
On the other hand, with regard to the second aspect, the problem that emerges is the true representativeness of trade unions. As already highlighted in the previous issue of our Shipping & Transport Bulletin - the tariff setting criteria and mechanisms applying to pilotage are decided by the Ministry of Infrastructures and Transport subject to a joint preliminary investigation conducted by the General Command of Harbour Masters and joint unions of Port System Authorities, service providers and port users.
However, in the past few years, the concentration between service providers and shipowners, gathered in the same trade union, seems to have slowed down the debate on the issues highlighted by the Italian Antitrust Authority (“AGCM”) over twenty years ago and so far, never resolved . In fact, this was also confirmed by the ruling in question, where it states that shipowners, “despite having participated in the procedure for the approval of the tariffs through their trade union, did not object the increases challenged before this Court”.
So, the examined court ruling highlights again the need to solve a long-standing problem that moreover - as seen in previous issues of this Shipping & Transport Bulletin - has been repeatedly challenged by both the AGCM and the Court of Justice of the European Union.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Ekaterina Aksenova.
[1]Italian Supreme Court, Sec. II, 8 June 2012, No. 9354
[2]See October-November 2018 and December 2018 – January 2019 issues of our Shipping & Transport Bulletin
[3]See October-November 2018 and December 2018 – January 2019 issues of our Shipping & Transport Bulletin
