On June 27 1980 an Itavia Douglas DC-9-15 jetliner was en route
from Bologna to Palermo when it crashed into the Tyrrhenian Sea off
the small island of Ustica. All 81 passengers and crew members were
killed. Most of the wreckage sank to a depth of some 3,500 metres,
but in the following days floating debris (along with several
bodies) was found within an area of several hundred square
The cause of the accident was never officially established. In
the years following the event, panels of experts examined the
wreckage and reached different conclusions, some alleging that the
DC-9 may have accidently been shot down by a missile from North
Atlantic Treaty Organisation fighters during a dogfight involving
Libyan, US, French and Italian air force fighters in the area. It
was also suggested that an explosive device had detonated in the
rear (starboard) toilet.
In Italy, 'Ustica' is synonymous with cover-ups, and the
case has inspired several television programmes, a film and several
The Supreme Court1 recently held that the plane crash
was caused by a missile, and that the government must pay damages
to the families of all 81 victims for not guaranteeing the safety
of the skies. In doing so, the court upheld the decision of the
Palermo Court of Appeal, which:
held that the Italian radar systems had not adequately
protected the skies, and that there was clear evidence that a
missile had caused the crash; and
ordered the Italian government to pay €100 million to the
relatives of the victims for its failure to ensure the security of
The relevant ministries appealed the decision, alleging that the
actions brought by the relatives of the deceased passengers were
time barred, being subject to the five-year time limit applicable
for actions in tort.
The court rejected this exception on the grounds that the claims
were subject to the longer time limit of 15 years for events like
the one at hand. Under Italian law, if the cause of action
originates from acts or facts that amount to a crime subject to a
longer time limit, such extended time bar applies to actions
brought in civil proceedings for the recovery of damages arising
from the event.
Government liability for 'dangerous
The Supreme Court fully endorsed the conclusions reached by the
Palermo court, in which the judges expressed the view that the
relevant ministries were subject to the strict liability regime set
out in Article 2050 of the Civil Code for the exercise of dangerous
The Palermo court pointed out (confirming the position already
expressed in several previous decisions) that activities aimed at
ensuring safety and security in civil aviation are "inherently
dangerous" when navigation takes place in abnormal or
dangerous conditions. In case of an accident, the government must
therefore indemnify the damages, unless proof is given that
measures were taken to avoid the event.
The Supreme Court also addressed the argument raised by the
relatives that the Palermo court had erroneously rejected their
claim for damages that they were entitled to receive
by iure hereditario. This is a peculiar area of
Italian law. Pursuant to settled case law, where death is not
sudden, but follows a more or less extended period of pain, the
victim is entitled to claim damages indemnifying the suffering
caused by the consciousness that death is approaching. Such damages
can be transmitted to and claimed by heirs. However, the condition
for such a right to accrue is that the death follow a reasonably
extended period during which the victim suffers from protracted
pain and anguish.
The Supreme Court considered that in the Ustica accident, death
had most likely been sudden and occurred immediately after the
moment that the plane was hit by the missile, and therefore
rejected the claim.
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