The Al Salam Boccaccio '98, a ferry flying the Panamanian flag, sank in the Red Sea in 2006, causing the death of numerous passengers and crew members.
The complex ongoing legal case arising from this tragedy, still ongoing, has involved not only multiple aspects of international, civil, and maritime law, but also numerous procedural issues, particularly related to jurisdiction. The matter has reached the Italian Supreme Court of Cassation on multiple occasions, and it has also been brought before the Court of Justice of the European Union (CJEU).
The Genoa Court, in a preliminary ruling procedure, after initially accepting the claim of immunity from Italian jurisdiction raised by the Recognized Organization operating under delegation from the State of Panama (responsible for the required periodic inspections of the vessel and for issuing the relevant class and statutory certificates), submitted a request to the European Court to determine whether such a claim of immunity was compatible with the primary jurisdiction rule (the defendant's domicile) under EU Regulation No. 44/2001 on jurisdiction, recognition, and enforcement of judgments in civil and commercial matters, as argued by the claimants.
In short, the proceedings before the CJEU, which also saw interventions from the European Commission and the French Government (partially disagreeing with each other), focused on the nature of the activities performed by Recognized Organizations acting under delegation from the flag State—whether such activities should be considered public (sovereign) or private/commercial.
The Court held that this issue should be decided by the trial court, based on the specific activities relevant to the case at hand. However, the CJEU ruled that, based on its own examination of the case documentation, the key element necessary to establish the exercise of sovereign authority—discretionary power—was missing. According to the Court, Recognized Organizations do not exercise discretion because they are required to operate strictly within the technical standards set by international conventions when carrying out inspections and certifications.
Therefore, the Recognized Organization could not benefit from the immunity from jurisdiction traditionally granted to States or their delegates, which applies only to acts carried out in the exercise of sovereign powers (the so-called restrictive immunity doctrine). In this context, the CJEU found that the Recognized Organization's activities fell within the scope of the Regulation and were not exempt from jurisdiction.
