Health and safety in the maritime and port sector (still) awaiting decrees for harmonization with the Consolidated Act on Health and Safety at Work

More than 13 years have passed since the Consolidated Act on Health and Safety at Work (Legislative Decree No. 81 of 9 April 2008) came into force. Nonetheless, operators in the maritime and port sector are still waiting for the decrees that– within 56 months from the entry into force of the Consolidated Act – were supposed to harmonize and coordinate the Consolidated Act with the specialist legislation applicable to working activities carried out, respectively, on bord ships, in ports and on fishing vessels.

If, on the one hand, the specificity of the risks of maritime and port working activities undoubtedly justifies the existence of specialist rules and regulations, distinct from the general ones, on the other hand, a legislative initiative would definitely be of use in order to solve the many existing problems of interpretation and to better coordinate general rules with the specialist rules and regulations.

To date, in the absence of such coordination, the pivotal point of occupational health and safety regulations in the maritime and port sector is still to be found in the decrees issued in 1999, which are clearly inspired by Legislative Decree No. 626/1994 (i.e., the legislation applicable before the entry into force of the Consolidated Act). In particular, occupational health and safety issues relating to work activities?(i)?on board merchant ships,?(ii)?in ports and?(iii)?on board fishing vessels are regulated, respectively, by Legislative Decree No. 271/1999, Legislative Decree No. 272/1999 and Legislative Decree No. 298/1999.

The regulatory framework is complicated by the fact that?(a)?in various points, the above-mentioned 1999 decrees contain express references to Legislative Decree No. 626/1994 (i.e. the regulation now repealed and replaced by the Consolidated Act) and?(b)?the Consolidated Act provides, in the first paragraph of Article 3, that “with respect to … air and sea transport, the provisions of this legislative decree shall be applied taking into account the actual particular needs connected with the service provided or the organizational peculiarities”.

According to the Consolidation Act, interpretative doubts should have been dispelled through the issue of ministerial decrees, designed to “lay down the provisions necessary to allow coordination” between the Consolidation Act and the specialist health and safety rules existing for work activities carried out, respectively,?(i)?on board ships,?(ii)?in ports and?(iii)?for the fishing vessel industry.

Alas, as initially mentioned, more than 10 years after the expiry of the deadline set out in the Consolidated Act (the decrees should have been issued by 9 December 2011), said coordination has not yet taken place. Thus, the existing regulations on occupational health and safety in the maritime and port sector are extremely articulated and complex and, quite often, the existing legislation is the harbinger, as already said, of many interpretative doubts.

In such an uncertain situation, it is hardly surprising that case law (and especially criminal case law) has tried to do what the legislator failed to do, demanding – with an obvious interpretative stretch – the application of part of the provisions of the Consolidated Act also to the maritime and port industry. However, this guidance is questionable from a twofold point of view: on the one hand, both the principle of the prevalence of the special law over the general one and the principle of legal and sufficient certainty of criminal law raise legitimate doubts about said view. On the other hand, the same case law guidance limits the application of the Consolidated Act exclusively to criminal law issues and with a view to managing problems relating to accidents that have already occurred, while excluding any extensive interpretation of the Consolidated Act outside criminal law issues and with reference to the prevention of work accidents and the relevant specific obligations and instruments.

So, rather than resolving existing interpretative doubts, case law seems to add a further layer of complexity to a regulatory framework that is already extremely complex.

Coordination between the Consolidated Act and the decrees on health and safety at work in the maritime and port sector certainly did not take place with the issue – by the then Ministry of Transport (now the Ministry of Infrastructures and Sustainable Mobility) – of the so-called “Operational Directives” (circular letter No. 09/SM of 28 November 2006), whereby the Ministry tried to provide some answers to the numerous requests for clarification received from operators on issues concerning the construction and application of Legislative Decree No. 271 of 27 July 1999 (i.e. the special law on health and safety for work on board merchant ships). Although the circular is certainly of help in the management of specific operational issues raised by Legislative Decree No. 271/1999, it is not, in any case, a substitute for the harmonization decrees envisaged by the Consolidated Act.

It is therefore hoped that the legislator, although belatedly, will soon fulfil its obligation and introduce the harmonization and coordination rules announced in the Consolidated Act and long awaited.