The Effects of Principles of European Law on Non-Contractual Liability of Classification Societies

The paper deals with the jurisprudence of common law and civil law courts regarding non-contractual liability of recognized certification bodies for services of classification of ships. The oldest sentences of the English courts exclude certification bodies from any liability for damages caused by structural failure of a ship. Generally, Courts of Common law have shown very rigorous criteria in recognizing a non-contractual liability of classification societies, based on the causal link between the survey carried out by the inspectors and the efficient cause of the damage; in detail, Courts require proof of a duty of care against the third party and proximity for inspectors regarding the elements that have caused the damage. The most recent sentences of European continental courts take the role of technical surveyors into consideration in relation to the expectancy of third parties: German courts have recognized the liability of classification societies in the event of damage to third parties arising from an accident of navigation, referring to the figure of the contract in favour of third parties. French courts are more attentive to safety of navigation and ,according to this, they consider classification services in terms of services of general interest; in the Wellborn case, the Bureau Veritas was held liable on the basis of the violation of a non-contractual general duty of care and diligence, which was shown by the fact that it allowed a ship to sail in conditions of high risk, seriously endangering the crew, the marine environment and, more generally, the safety of navigation. As was pointed out by the Italian courts in the Redwood case, the reputational status of classification societies gives a relevance of general interest to the certificate and heightens the need for protection of legitimate expectations of third parties afflicted by incorrect information. Rules of national legislation are different in this respect: the tort of negligence under English law only protects life and health. In the case of pure economic loss, only a tort of deceit could grant an actionable claim. Under German law, a contract with protective effects requires, in any case, a qualified proximity between the classification society and the damaged party. In Italian case law, there is a precedent of wide protection of the reliance of third parties on the attested class. In this context, the A. concludes that when the national rules, principles and criteria applied by different jurisdictions present some common elements, which find a correspondence in the principles and model rules of DCFR, those principles and model rules acquire a special significance, with special reference to a possible common interpretation of core notions, such as negligence, foresee ability, legally relevant damage. The principles of security and justice, including key elements such as proper allocation of responsibility for the creation of risks, and protection of reasonable reliance, could furnish a common frame of reference for the criterion of the duty of care and proximity. In this vein, also the principle of efficiency is of vital importance, and presents a wider scope than the protection of the interest of the parties, since it aims at fulfilling public purposes, such as sustainable growth. In this respect, there is a public value in promoting better-informed decision-making in a field such as shipping, that involves economic aims, but also environmental, competition and social matters. Then, those principles of European private law can provide a strong reference point for a common legal basis in drafting any future EU legislation in the field of non-contractual liability of classification societies.