A question of principal

IT is common for claimants in Italy to serve a writ of summons against ship agents as representatives of owners/carriers in the ports called by the vessel. Indeed, Article 288 of the Italian code of navigation provides that the ship agent can be summoned before the courts in the name of owners or carriers to the extent and within the limits of the code.

At the same time, Article 163 of the Italian civil procedure code requires the defendant to be clearly identified in the writ of summons, while Article 164 provides that the writ of summons will be void in the absence of such clear identification.

In order to comply with these requirements, the claimant must include the name or names of the ship agent's principals in the writ of summons. Indeed, owners and carriers might be different companies, and the ship agent may be the representative of only one of them.

For this reason, Law 135/1977 requires the ship agent to declare to the local coastguard in writing the name of its principal for each vessel calling at a particular port. The problem is that the claimant may not always refer to such declarations, but may instead act generally against the agent as the representative of a nominated vessel. In this way, confusion arises as to the company which the claimant is actually seeking to act against.

Theoretically, failure to comply with the relevant regulations should mean that the writ of summons is rendered invalid. But the Italian courts have shown themselves to be increasingly sympathetic to claimants who fail to clearly identify principals. They have traditionally held that writs are valid to the extent that defendants can be identified elsewhere, and particularly through the attachment to the writ of documents to be produced at a later date. And, for the last ten years at least, the courts have allowed claimants to provide clear reference to the defendant during first-instance proceedings, before a decision has been rendered.

Most recently, in its decision of November 29, 1999 ("The Mexican Sea") the supreme court has gone further and agreed that clear reference to the principal can be given as late as the end of the appeal proceeding, although this dispensation is not extended to the supreme court itself. The judges in the "Mexican Sea" reasoned that the cargo interests had acted against the ship agents as representatives of the owners and/or carriers of the vessel in general, and had failed to clearly identify the principals during the previous phases of the dispute, leading up to the supreme court proceedings. Thus, it was concluded that the writ of summons, and the whole proceeding, was held to be void.