NORMAN ATLANTIC – Tribunale di Bari – July 11, 2018

The third hearing of the civil action of the NORMAN ATLANTIC maritime accident victims represented by our firm took place before the Bari Court of Italy on 11 July 2018. During this hearing, procedural and pre-litigation issues were again raised by various parties to the proceedings. The competent Judge, Carmela Romano, deemed that the resolution of these issues is necessary before the Court proceeds to examination of the substance of the case, i.e. the facts of fire on the ship, the causes and liabilities for the maritime tragedy, and the damage and losses suffered by the victims. An order / preliminary ruling is expected to be issued by the Judge shortly. The new hearing date before the Bari Court - which is expected to get into the substance of the case - will be determined by judicial order in a short time.

NORMAN ATLANTIC: Update Regarding the Judicial Proceedings in Italy

1. The Civil Procedures, regarding the compensation claims that have been filed on behalf of the survivors and families of deceased passengers who are being represented by our law firm: On 4 April 2018 the parties to the dispute appeared for the second time – the first being on 27 September 2017 – before the Tribunal of Bari, Italy, where the civil claims for compensation are pending. The Court is still at the stage where procedural, necessary issues are being examined. The next hearing has been fixed for 11 July 2018, during which it is possible that the Judge will enter into the substance of the case, including the factual circumstances, the causes for the tragedy, the responsible parties and the liabilities involved.

2. The Criminal Procedure: Extensive evidence material, information, data, indications etc. have been gathered and examined. The pre-judicial investigation by the technical experts appointed by the Judge in Bari (GIP) has been completed. Technical reports have been issued by the GIP, the competent Italian Port Authorities, the experts appointed by the Public Prosecutor in Bari, the special committee instructed by the competent Italian ministry. It is now expected that the Prosecutor in Bari will soon pronounce and file charges against specific accused persons for the tragic maritime incident. The date of commencement of the criminal trial in Bari Courts has not yet been fixed.

TRUCK CARTEL: EUROPEAN COMMISSION DG COMPETITION – CASE AT. 39824

In July 2016, the European Commission condemned manufacturing truck companies that occupy 90% of the European market, for participation in a cartel and harmonized practices aiming, among others, at price-fixing of trucks. The companies involved are MAN, DAIMLER, IVECO, DAF, VOLVO/RENAULT, which admitted their guilt and cooperated with the Competition Commission, in order to obtain a 10% decrease of the fine, which was eventually set at 2,9 billion euro. SCANIA denied participation at the cartel. The Commission continued the investigation and concluded, in its decision dated September 27, 2017, in the condemnation of SCANIA, imposing a fine of 880 million euros.

According to the decision, the cartel operated from January 17, 1997 until January 18, 2011, that is, for 14 years.

It concerned trucks of 6-16 tons of weight (medium trucks) and “heavy-duty” trucks over 16 tons.

Those who bought or leased such trucks during the period from 1997 to 2011 have most probably been damaged due to the cartel, since they paid a higher price than what they would have paid if competition conditions applied in the market; it is probable that those people and companies are entitled to compensation from the manufacturing companies, provided that the existence and the extent of such damage is fully proven.

Our office, in cooperation with lawyers in other European countries who already handle claims of truck owners, is actively involved in this case, planning a pan-European claim for damages.

Global Justice Network’s Spring 2017 Conference – Prague

Silina Pavlakis, member of the board of directors of the Global Justice Network (GJN), participated in GJN’s Spring 2017 Conference which was held in Prague, Czech Republic, from 25 to 27 May 2017. The conference focused on human rights issues, pharmaceutical and medical devices, financial claims, as well as the possibility of filing collective claims in Europe. During the works of the conference Silina made a presentation on the Norman Atlantic maritime tragedy case, which is being handled by our office in cooperation with the Italian law firms “mbo law” and “Ambrosio & Commodo ”, members of the GJN.

News - Global Justice Network Conference Spring 2017 - 290517 - Norman Atlantic Presentation

News - Global Justice Network Conference Spring 2017 - 290517 - Work in progress

The Supreme Court (Areios Pagos) ruled that the limitations and restrictions imposed by Law 4092/2012 on the compensation payable by the Auxiliary (Guarantee) Fund for RTA Accidents are Unconstitutional and Unenforceable

Greece had enacted Laws 4092/2012 and 2837/2000, establishing restrictions and limitations respective to the liability of the Hellenic Auxiliary Fund (EPIKOURIKO KEFALEO) in Road Traffic Accidents. By its recent decisions (nr. 3/2017, 4/2017 and 5/2017) the Civil Section of the Supreme Court of Greece, in its Plenary Session, held that these law provisions, directly contradict and violate the Greek Constitution and the First Protocol of the ECHR, and as such they have been pronounced invalid and unenforceable.

Following are the provisions that have been disapplied by the Greek Supreme Court as being unconstitutional:

  1. The monetary limitation of non-pecuniary damages payable by the Auxiliary Fund to the secondary victims of fatal RTAs to the maximum compensation of 6.000€ per beneficiary.
  2. The general monetary limitation of the Auxiliary Fund liability not exceeding in any case 100.000€, with retrospective application to accidents that happened prior to the law enactment.
  3. The restriction of interest due by the Auxiliary Fund on payable compensations to 6%, substantially lower (almost half) than the interest imposed on all other private debtors and parties in litigation.

More specifically on the Supreme Court of Greece – Plenary Session, Decision 5/2017 (Civil Section):

 Claims for non-pecuniary damages were brought before Greek Courts by the parents and grandparents of a minor who died in a fatal Road Traffic Accident. The claim was brought against the owner and driver of the liable vehicle and against the civil liability insurance company “ASPIS PRONOIA A.E.”. During litigation the insurance company went bankrupt and its license was recalled. The Greek Auxiliary Fund “EPIKOURIKO KEFALEO” entered ex lege into the place of the bankrupt insurer and continued the pending litigation defending against the claimants’ arguments and claims, by force of article 25 par. 4 of Greek law 489/1976 codified by Presidential Decree 237/1986, implementing the respective EU law.

However, by Greek Law 4092/2012, limitations have been introduced to the compensations payable by the Greek Auxiliary Fund (EPIKOURIKO KEFALEO) in case of bankruptcy or recall of the license of the civil liability insurer. Specifically, art. 19 par 2 of Presidential Decree 237/1986 was amended to provide, inter alia, that:

(a) the compensation paid by the EPIKOURIKO KEFALEO for non pecuniary damages to the secondary victims in case of a fatal RTA cannot exceed the amount of six thousand (6.000)€ per beneficiary;

(b) that the liability of the EPIKOURIKO KEFALEO to pay compensation to the victims of RTA in case of the civil liability insurer’s bankruptcy or insolvency or license recall, shall be restricted to an amount ranging between 70% and 90% of the judicially awarded damages, and in any case, shall never exceed the maximum amount of one hundred thousand euros (100.000€) in total;

(c) the restriction/limitation extended to already pending claims, for which no final judgment had been issued at the time Law 4092/2012 came into force (8.11.2012); and

(c) that the interest due by the EPIKOURIKO KEFALEO on the payable compensation to the victims shall be calculated on the basis of a 6% annual rate, i.e. considerably lower (almost ½) than the legal interest rate applying to the other debtors.

 Both the First Instance Court of Arta by its decision nr. 98/2013, and the Court of Appeal of Ioannina by its decision nr. 106/2014, held that the above provisions of Law 4092/2012, setting limits and restrictions to the liability and obligation of the EPIKOURIKO KEFALEO, were contradicting:

-          The Greek Constitution

-          The European Law and

-          The European Convention on Human Rights.

 An appeal on legal issues was filed and the matter was referred to the Plenary Session of the Supreme Court of Greece, due to the important controversial legal issues involved. The Supreme Court upheld the judgment of the First Instance Court and of the Court of Appeal. Inter alia the Supreme Court held as follows:

 « […] It must be noted that by the above mentioned provision of article 1 par. 4 of the Second Directive 84/5/EEC, according to which “ Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation, for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied”, it is also established that there is an obligation for payment of compensation for non pecuniary damages in case of death (Supreme Court, Plenary Session 9/1993, ECJ C-277/12 of 24-10-2013 in the case Vitalijs Drozdovs vs. Baltikums AAS). Furthermore, it is prescribed by art. 9 par. 1 of the codifying Directive 2009/103/EC exactly which are the minimum limits of the insurance cover which must in any case be complied with (ECJ-C-348/98 Fereira dd 14-11-2000).

Furthermore, according to art. 25 par of the [Greek] Constitution, the rights of the person as individual and as member of the society are guaranteed by the State, whilst any kind of limitations/restrictions imposed to these rights must be either directly provided for by the Constitution or by the law but based on respective authorization and under the condition that the principle of proportionality is safeguarded.

Finally, by art. 1 of the First Protocol of the European Convention, that has been ratified by (Greek) Law 53/1974 and is of higher formal validity than the common (usual) laws, it is provided that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

                In consideration of the above, the provisions of Law 4092/2012 that have been cited are to be disapplied/are not enforceable for the following reasons:

The setting of six thousand euros (6.000€) as the maximum limit for the non pecuniary damage of each beneficiary in case of a fatal accident is directly contradicting art. 1 par. 4 of the Second Directive 84/5/EEC, according to which “ Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied”; this is a provision that covers also non pecuniary damages (moral damages) in case of a fatal accident, as above stated.

Also, the imposed maximum limit of 6.000€ compensation is contrary to the principle of the strict sensu proportionality (art. 25 par. 1 d of the [Greek] Constitution), because this intervention by the legislator is not effective for the achievement of the intended purpose, i.e. to ensure the viability of the Auxiliary Fund; furthermore, it is also not necessary for the achievement of its purpose, since this could have been achieved by use of milder means, either by providing for an extra financing of the fund by the state budget or by obliging it [the Fund] to improve its financial situation by increasing its income and reducing its operational expenses.

On the other hand, the application of the above provision, which extends the application of this upper monetary limit of the EPIKOURIKO KEFALEO liability to already existing/pending claims, is invalid, because it is contrary to the above mentioned article 1 of the First Additional Protocol of the ECHR, […]. This provision establishes the right of a person to have his property respected, which [property] the person can be deprived from only for reasons of public interest. The meaning of property includes not only rights in rem but also all rights of “property nature” and established “economic rights”. Accordingly, the rights arising out of obligations are included, and more specifically claims, […] The afore mentioned provision of [Greek] Law 4092/2012 to drastically reduce/limit the height of the non-pecuniary damages payable by the EPIKOURIKO KEFALEO is in essence abolishment of the civil right of the beneficiaries arising out of the death of their relative in a road traffic accident. This legal provision is therefore incompatible with article 1 of the First Additional Protocol of the ECHR, because it tends towards an unjustified deprivation of a property item of the beneficiaries, without the presence of public benefit reasons. The mere budgetary/cash interest of the EPIKOURIKO KEFALEO does not consist public benefit.

Furthermore, as per art. 4 par. 1 and 2 of the [Greek] Constitution, Greek citizen are equal in front of the law. Greek citizen have equal rights. By this provision, it is not only the equality of Greek citizen in front of the law that is established, but also the equality of the law towards them, in the sense that the legislator, when regulating essentially similar things, relationships or situations, categories or persons, cannot differentiate his regulation by introducing exceptions, unless when the different regulation is not arbitrary and is imposed by reasons of general public interest/benefit; this existence of special circumstances or social or public interest/benefit is subject to the control of the courts (Supreme Court, Plenary Session 3/2006, 38/2005, 30/2005, 23/2004, 11/2008).

Finally, by article 14 of the International Covenant on Civil and Political Rights, «all are equal in front of the courts”. Each person is entitled to have his case tried just and in public, by a competent, impartial and independent court of justice … in disputes of civil rights and obligations”. The International Covenant on Civil and Political Rights has been implemented into Greek legislation by Law 2462/1997. In the sense of these provisions, the principle of equality of the litigation parties, which is a special manifestation of the principle of equality, imposes their equal treatment by the legislation which determines the terms of judicial protection. Therefore, law provisions by which favorable treatment of one of the litigation parties is being established, which party gets in a favorable situation in comparison to his counterparty, are not enforceable/not valid (Supreme Court, Plenary Session 12/2013, 4/2012). Accordingly, the provisions by which it is determined that the interest rate that is payable by the EPIKOURIKO KEFALEO is 6% per year, i.e. a rate that is lower than what its own debtors are obliged to pay to it and which applies to all debtors, is contradicting to 1)  art. 4.1 of the Constitution and art. 14 of the International Covenant on Civil and Political Rights, since by these law provisions a favorable treatment of the EPIKOURIKO KEFALEO is established whilst his counterparty is placed in disadvantage and 2) to art. 1 of the First Additional Protocol of the ECHR, since by these favorable provisions, damage is being caused to the counterparty of the EPIKOURIKO KEFALEO (in this present case to the respondents), without this being justified by reasons of public interest, since the mere cash interest of the EPIKOURIKO KEFALEO cannot justify the violation of road traffic accident victims’ right to claim and to be paid interest for their claims at a rate equal to that what private parties are obliged to pay in general, while the fact that the EPIKOURIKO KEFALEO, which is not a public law legal entity, but is simply under the control of the State (Supreme Court 1025/2015) does not constitute a public interest reason.

Finally, the above provision is contradicting to the constitutionally (art. 25 Constitution) established principle of proportionality, as said above. This principle, which imposes the proportionality between the intended target/scope and the means that are used to reach it, is obviously violated in this present case. If the intended target/scope is the protection of the EPIKOURIKO KEFALEO, the 6% interest rate payable by it, i.e. half of what the private debtor is obliged to pay, is not proportional (Supreme Court Plenary Session 3/2017, 4/2012). […]

Furthermore, regarding the application filed by the applicant with its pleadings for the submission of a preliminary question to the European Court of Justice acc. το art. 267 of the Treaty on the Functioning of the European Union, based on its [the applicant’s] argument that there exists an interpretation issue of the primary and secondary EU law and in particular an issue for the interpretation of art. 1 par. 4 of the Directive 84/5/EEC in relation to art. 4 par. 1 of [Greek] Law 4092/2012, it is held [by the Court] that the requirements are not present for the reference of a preliminary question and specifically there exists no doubt about the interpretation of the above EU law provision and therefore there exists no necessity for a ECJ preliminary ruling; the respective application is therefore rejected.[…]».

NORMAN ATLANTIC: “Incidente Probatorio”- Examination of the Report submitted by the Court Experts/Collegio Peritale

The Court Experts’ Technical Report is being examined, in the context of the incidente probatorio at the Tribunale of Bari.

The Bari Court appointed Experts submitted their Report on 1.2.2017 on the causes and circumstances of the tragic fire incident that took place on 28-29.12.2014 onboard the ro-ro NORMAN ATLANTIC.

Initially, the Experts Messrs. Ammiraglio Salvatore Carannante, Ammiraglio Franscesco Carpintieri, Prof. Ing. Benrardino Chiaia, Prof. Ing. Enzo Dalle Mese, and Ing. Paquale Del Sorbo, presented the contents of their Report.

Questions and objections on the Report (always on technical issues) were then raised by the Prosecutor’s Office of Bari, that had appointed independent experts.

Objections, oppositions and questions were subsequently raised by the parties in the proceedings, namely the lawyers of the persons who are under investigation and potentially to accused, as well as by the lawyers of the victims of maritime tragedy.

Pavlakis – Moschos & Associates Law Offices and our Italian colleagues Marco Bona and Stefano Bertone are attending and taking part in the proceedings, by submitting objections and questions to the court experts on behalf of their principals, i.e. passengers who survived the accident and the families of deceased. The preparation for the proceedings was made in collaboration with our technical advisors, following repeated inspections of the ship and study of all the ship’s documents, drawings and other available evidence.

During the process, numerous critical issues were highlighted, such as:

  • Transportation of reefers and trucks carrying live fish onboard the NORMAN ATLANTIC with their diesel generators in function during the voyage and not connected to the ship’s electrical system, contrary rules and regulations in force. To be kept in mind that the most probable scenario is that the fire started in garage deck 4, from the diesel generator of a truck that was not connected electrically to the ship.
  • Emails between the Master Giacomazzi and the beneficial owner of the ship Carlo Visentini, related to previous Patras – Igoumenitsa – Ancona voyages of NORMAN ATLANTIC, indicated that person responsible for the safety onboard were aware of a defect in the ship’s electrical supply system, i.e. that the vessel was not able to cope with the electrical load required for the connection of all the refrigerator trucks to be carried onboard the ship, and that they consciously decided and allowed the transportation of trucks with their diesel-generators in operation. This practice created a huge fire risk and was in direct violation of the regulations.
  •  The ship’s manually operated fire extinguishing system (drencher) was incorrectly activated by the 1st Engineer in garage No. 3 instead of garage No. 4. However, it emerged that this human error was caused and / or attributable to a great extent to the defectiveness of the ship’s fire control plans in use by the crew, to the absence of adequate and visible marking on the system’s valves, to the inadequate instructions that were given by the bridge of the ship and to poor crew training.
  •  The fire safety system of the ship is being considered as generally problematic, especially at garage No. 4. Even if the drencher fire extinguishing system had operated properly in garage No. 4, it is almost certain that there would not have been any difference in the propagation of the fire, since:

(a) the fire was detected with delay, due to equipment and operational deficiencies,

(b) delayed activation of the proper fire response mechanism onboard,

(c) the fire in garage No. 4 was continuously refueled with oxygen from the large side and aft openings, and thus uncontrollable; within 5-6 minutes, the open deck No. 5 above garage No. 4 was already in flames; as a result, on the one hand the survival craft on the right side of the ship and the Fire Station 2 which were of significant importance, became inoperable and were destroyed by the fire, and on the other, within a few minutes the engine room was filled with smoke,

(d) the emergency generator on deck No. 8 was not automatically activated after the general black-out, i.e. when engines and generators stopped; as a result, none of the firefighting systems operated, as it should have done, complying to the regulations.

  •  Important errors, omissions and violations of laws and regulations were established in connection with loading and stowage of vehicles and especially of trucks in the garages, directly related to the fire and to the failure in controlling it.
  • Errors, omissions and violations of laws and regulations were identified in relation to the abilities, training, drills, division and duties of the crew in emergency situations and ultimately the crews’ effective operation during the phase of passenger rescue and the abandonment of the ship.
  • The Life Saving Boat handling and manoeuvre was done incorrectly. The embarkation platforms were launched prior to the lowering of the boat and this resulted to (a) inability to install the protective rails, that would prevent a number of passenger to fall into the sea while trying to embark the life saving boat and (b) to block the launching of the boat itself and put many passengers into risk. Amendments to the life saving boat and its embarkation platforms function had been effected shortly before the tragedy, but apparently the new instructions had not yet been affixed on the ship and were not sufficiently known by the crew.
  • Significant non-compliance with the Safety Management System, as established by the International Convention for the Safety of Life at Sea (SOLAS) have been marked.

Upon conclusion of this preliminary process, the incidente probatorio, the case will return to the Prosecutors of Bari, who may order further investigations, if deemed necessary, or indict / pronounce accusations against specific persons, in which case the criminal process will proceed further.

It should be emphasized that the above are just a few of the critical points that emerged during the process with regards to the omissions, defects, incorrect procedures, violation of regulations, etc. that led and contributed to the tragedy onboard NORMAN ATLANTIC. Unfortunately, every phase of this fatal voyage, and every system of the ship was suffering from serious problems and deficiencies, as will be demonstrated in the criminal and civil proceedings that will follow.

The civil process for the award of compensation to the victims of the maritime tragedy is proceeding in parallel. The first hearing of the lawsuit filed on behalf of our clients at the competent Court of Bari has been scheduled for September 27, 2017.

MLC 2006 – Amendments of 2014 – Direct Action against the P&I Clubs/insurers for the “contractual compensation” claims arising from seafarers’ accidents or illness

The ILO Maritime Labour Convention 2006 (MLC 2006) is widely known as the “Seafarers’ Bill of Rights” and as the “fourth pillar of international maritime law”, the other three being the SOLAS, STCW and MARPOL Conventions. It has been adopted by the ILO Maritime Session in Geneva on 23 February 2006 and entered into force on 20 August 2013, or 12 months after its ratification for states that ratified the Convention later than the 20.8.2012. In Greece, the MLC entered into force on 4 January 2014, ratified with the ministerial Decision 3522.2/00/2013 (FEK B’ 1553/21.6.2013).

The MLC is structured similarly to the STCW Convention, i.e. Articles, Regulations and the Code, with Part A mandatory Standards and the corresponding Part B non-mandatory Guidelines. The Convention establishes universal rights and minimum standards for the protection of seafarers’ health and safety and their rights in general and its wide ratification and enforcement enhances the global application of decent working conditions for seafarers.

The Amendments of 2014 to the Maritime Labour Convention, 2006, ratified by Greece with the Presidential Decree 3/2017 (FEK A’ 6/24.1.2017), further enhance seafarers’ rights and their protection, providing, inter alia, for a direct action against the shipowner’s insurer for compensation claims in case of a seafarer’s illness, injury or death. Following should be noted in this regard:

  • Shipowners are required to have in place P & I insurance for seafarers’ contractual compensation claims for injury, illness or death, otherwise they are not the mandatory Maritime Labour Certificate and Declaration of Maritime Labour Compliance.
  • Seafarers in case of illness or injury or their next of kin in case of death are entitled to immediate payment of the contractual compensation, i.e. the compensation provided for in the seafarer’s individual employment sea service agreement, and have a direct action against the insurers.
  • The payment of the contractual compensation does not prejudice other legal rights of the seafarer (or his next of kin) against the shipowner, such as for example disability or death compensation arising from the same incident and exceeding the contractual compensation, based on tort/negligence or other legal regimes.

The MLC Amendments are applicable in Greece to incidents after 24.1.2017. There is no experience in Greek courts yet and there will be certainly a number of interesting issues that will arise in litigation in practice.

For further information on the Maritime Labour Convention 2006 and the Amendments of 2014  you may see the presentation of Ioannis Pavlakis entitled “Seaman Claims & Maritime Accidents: The ILO Maritime Labour Convention 2006 in Practice” (powerpoint format) at the PEOPIL Annual Conference 2014 (Vienna, Austria), and the relevant analytic paper prepared for the conference participants by Ioannis Pavlakis and Silina Pavlakis, entitled also  “Seaman Claims & Maritime Accidents: The ILO Maritime Labour Convention 2006 in Practice” (pdf format).

NORMAN ATLANTIC – Criminal Proceedings: The Court of Bari Notifies the Victims of the Maritime Tragedy on the Examination of the Court Appointed Technical Experts

The Judge of preliminary investigation hearings of the Court of Bari, Ms. Alessandra Piliego, with her summons dated 02.03.2017, notifies the victims of the naval tragedy of NORMAN ATLANTIC, that the examination of the Court appointed technical experts with regards to their technical report that was filed on 01.02.2017 , will begin on March 20, 2017 in Bitonto, Italy and will be finalizprovvedimento gip ita_gre_Page_1 provvedimento gip ita_gre_Page_2ed on April 8, 2017. The text of the summons has as follows: