Immunity from jurisdiction under the Brussels I Regulation in a civil action for disasters at sea?

Is a maritime classification society immune from jurisdiction under the Brussels I Regulation in respect of a civil action for damages brought by victims of a maritime disaster? This was the question that Advocate-General Szpunar sought to answer in his 14 January 2020 opinion in Case C-641/18 LG v Rina SpA, Ente Registro Italiano Navale  ("RINA") (see here).

A maritime disaster

On 3 February 2008, an Egyptian Ro/Ro passenger ferry, the MS al-Salam Bocccaccio 98 ("the Vessel") sank in the Red Sea. Approximately 1,000 passengers and crew lost their lives. The vessel had been built in Italy in 1970. In 1991, it had been rebuilt in Italy, with an increase in both gross-tonnage as well as passenger and cargo capacity. In 1999, the vessel was purchased by an Egyptian shipping company, but its registered owner was a Panamanian company, who owned the Vessel at the time of the disaster. A subsequent Egyptian parliamentary inquiry blamed the vessel's owners for the sinking, finding that the owners had operated the ferry despite serious defects.

The Italian litigation

Relatives of the victims, along with survivors of the sinking of the Vessel, brought a civil action for damages against the Italian companies, Rina SpA and Registro Italiano Navalae ("RINA"). The claimants argued that RINA's certification and classification activities, the decisions they took and the instructions they gave, were to blame for the vessels' lack of stability and its lack of safety at sea, which were the causes of the vessel sinking.

A classification society is an organization whose main function is to carry out surveys of ships being built and at regular intervals after construction, for the purpose of establishing and maintain proper standards of construction and upkeep for ships and their equipment. They provide a service that most States, whose ships flying their flag trade internationally, are unable to deliver, such as regular audits and inspections.

In such circumstances, the defendants pleaded immunity from jurisdiction in respect of all their activities. They claimed that they were being sued in respect of certification and classification activities which they had carried out as delegates of a foreign sovereign State, namely the Republic of Panama. RINA claimed that the activities in question were a manifestation of the sovereign power of the foreign State (i.e. Panama) and the defendants carried them out on behalf of and in the interests of that State.

The Reference to the CJEU

The Italian courts sought guidance from the CJEU on the following question:

'Are Articles 1(1) and 2(1) of Regulation [No 44/2001] to be interpreted — including in the light of Article 47 of the [Charter], Article 6(1) [of the] ECHR and recital 16 of Directive [2009/15] — as preventing a court of a Member State, in an action in tort, delict or quasi-delict in which compensation is sought for death and personal injury caused by the sinking of a passenger ferry, from holding that it has no jurisdiction and from recognising the jurisdictional immunity of private entities and legal persons established in that Member State which carry out classification and/or certification activities in so far as they carry out those activities on behalf of a non-EU State?'

The Advocate General's Opinion

The Advocate-General rejected the defendant's claims, observing (inter alia) that:

• The fact that a private-law body carries out, as a delegate of a State, on behalf of a State and in its interests, acts in the performance of the State's international obligations in the area of maritime safety and the prevention of marine pollution has no bearing on whether or not those acts are performed in the exercise of public powers.
• The mere fact that RINA carried out the acts at issue upon delegation from a State does not, in itself, mean that the dispute in which liability for those acts is alleged is not covered by the context of "civil and commercial matters" within the meaning of the Brussels I Regulation. Neither the fact that the acts in question were performed on behalf of and in the interests of the delegating State, nor the possibility of the State's incurring liability for harm caused by those acts, in itself, conclusively characterized those acts as one performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.
• Although he considered that the relationship between the jurisdictional immunity of States and the rules of jurisdiction in the Brussels I Regulation "is difficult to put into context", and "the co-existence of two obligations, namely that of contributing to the observance of international law and that of ensuring respect for the autonomy of the European Union legal order, can create tensions which the Union must resolve", his eventual conclusion was that the principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of the Brussels I Regulation in proceedings relating to an action for damages brought against private-law bodies concerning the classification and certification activities carried out by those bodies upon delegation from a third State, on behalf of that State and in its interests.

The CJEU's decision is awaited with interest.

Michael McParland QC