With a recent judgment1 the first criminal division of the Court of Genoa has ruled on an accident caused by the sudden detachment of a boarding gangway fastened to the deck of a cruise ship to allow passengers to board.
This event (which unfortunately caused the death of a person who was on the gangway when it detached) allows us to make some considerations about the possible responsibility profiles of the various subjects involved in this case, which we schematically outline below:
- the manufacturer of the gangway;
- the Port Authority2, which bought the gangway and provided it to the concessionaire of the harbour station;
- the concessionaire of the harbour station, which was delegated to the practical use of the gangway;
- the master of the cruise ship to which the gangway was fastened.
For the sake of conciseness imposed on us herein, we will immediately examine the cause of the accident investigated by the Court of Genoa, so as to subsequently focus on the responsibility profiles of the subjects mentioned above.
In light of the technical investigations carried out, the Court of Genoa identified the cause of the sudden detachment of the gangway from the deck of the ship to be an "improper use" of the gangway.
In very practical terms, according to the Court, the gangway was not in itself "objectively dangerous" and – if used correctly (i.e. in compliance with the applicable safety regulations) – it would not have caused the event occurred. Excluding a "natural dangerousness of the asset", the cause of the accident was therefore attributed, as already mentioned, to the improper use of the gangway, or to a use characterized by a "macroscopic forcing of all existing safety conditions"3.
Having clarified the cause of the event, we will briefly examine the position – in point of potential responsibility – of the aforementioned entities involved in this case.
Firstly, with regard to the gangway manufacturer, the same – according to the Court – could theoretically have been held responsible for the event only in two cases: (i) if the objective and absolute dangerousness of the gangway had been ascertained (direct liability of the producer) or (ii) if the manufacturer had provided the goods knowing that the same was going to be used in a dangerous way. Since – in the opinion of the court – none of the two cases above was true, the manufacturer of the gangway was acquitted.
A similar issue – regarding possible responsibility profiles – was dealt with by the Court also with reference to the position of the Port Authority, that is to say the entity that had purchased the gangway and subsequently delivered it to the concessionaire of the harbour station, but never used the asset.
However, the Port Authority's position seems to differ from that of the manufacturer with respect to an aspect concerning the second of the cases taken into consideration above. Indeed, given the "physical and institutional" proximity with the concessionaire of the maritime station, according to the judge it could not be maintained that said Authority was unaware of the manner in which the gangway was actually used by its user. Consequently, still according to the Court, in the abstract, the Port Authority could be responsible for liability for negligence exactly in light of its aforesaid (alleged) awareness of the manner in which the asset was actually used.
On this point, the judge decided to refer the proceedings to the public prosecutor for procedural reasons, which are not to be commented herein. However, it is useful to highlight that – for the reasons mentioned above – the position of an Authority providing assets to a concessionaire could be different, in terms of liability in case of accident, from that of the manufacturer of said asset, given the aforementioned "proximity" between the Authority and the concessionaire. Indeed, because of this "proximity" the first of the aforementioned subjects could be deemed aware of the manner in which the second subject uses the asset and consequently this could justify an imputation of responsibility on the basis of the second criterion considered above (to provide an asset knowing that it will be used in a dangerous way).
As regards the position of the ship cruise master, according to the judge the latter could theoretically be held responsible for the occurrence of the event only if it were proved that the same – despite being aware of the danger represented by the improper use of the gangway – had anyway authorized the boarding/disembarking operations via that gangway, thus accepting the risk of the occurrence of the accident. That, obviously taking into consideration also the fact that the asset in question is ground equipment and as such outside the control of the master.
In this sense, in cases such as the one we are dealing with, we could (correctly) recognize the "legitimate expectations" of the master with respect to the equipment made available to the cruise ship by the harbour station (as well as with respect to the procedures for the management of said equipment, which – we repeat – are exclusively used for ground assistance).
In other words: according to the Court, the master could not be blamed for not taking further precautionary measures based on the use of a gangway provided by the harbour station of one of the first Mediterranean ports. In fact, it is hard to see how the master could have assumed that the use of that gangway involved a danger so serious as to impose the adoption of further safety devices. Since there is no actual obligation to adopt precautions, there can be no imputation of responsibility to the master for not taking further security measures.
From this point of view, we believe that this decision correctly limits the scope of the so-called "duty of care" of the master, which we had already dealt with – in relation to a different case – in a previous issue of our newsletter, which we refer to for an interesting comparison4.
Finally, we will examine the position of the concessionaire of the harbour station, which – as you will have gathered – was held responsible by the judge for the event occurred.
Indeed, the concessionaire was the user of the gangway and – according to the judge – it de facto consciously "used it in a dangerous way". The latter aside is clearly essential, given that the subject in question would not have been held liable if it had been unable to realize the absolute danger of the asset or in any case the danger deriving from the way in which such asset was – concretely – used.
In the present case, in light of the facts found during the proceedings, the Court held that the concessionaire of the harbour station had to be aware of the risk inherent in the manner in which it used the gangway. Nevertheless, the concessionaire failed to identify and adopt suitable measures to ensure the safe use of the gangway and hence this grounded the imputation of responsibility for the accident occurred.
The matter examined is particularly interesting in order to understand the possible "allocation" of responsibility profiles in case of accidents entailing – de facto – the involvement of several subjects. This hypothesis is anything but remote, as one can easily imagine when thinking of all the cases in which a harmful event occurs as a result of the use, or in any case during the use, of an asset in respect of which the behaviours, for example, of the manufacturer, supplier, operator and end user of said asset may be relevant. Therefore, the decision offers interesting insights for further meditations that, in our opinion, it is useful to keep in mind.
1 See decision No. 5051/2017, First Division of the Criminal Court of Genoa, of 12.12.2017 (filed on 25.07.2018).
2 The facts in question are prior to the reform that introduced Port System Authorities but it goes without saying that the reasoning that follows on the point of responsibility does not change
3 Conditions referred, firstly, to the angle of inclination of the gangway with respect to the cruise ship, to the activation of alarm devices and to the necessary surveillance of the vehicle during the boarding of passengers.
4 See the Shipping and Transport Bulletin issue of August – September 2015 – "The position of a cruise ship's master in case of death of a passenger".
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