Rivista Marittima Luglio-Agosto in inglese

LUGLIO-AGOSTO 2021

RIVISTA

MARITTIMA MENSILE DELLA MARINA MILITARE DAL 1868

SPED. IN ABB. POSTALE - D.L. 353/2003 (CONV. L. 46/2004 ART. 1 COMMA 1) - PERIODICO MENSILE € 6,00

* RIVISTA MARITTIMA *

LUGLIO-AGOSTO 2021 - Anno CLIV

Copertina_completa_ stampa 2_Layout 1 26/07/2021 15:37 Pagina 1

L’emersione dell’interesse alla tutela dell’ambiente Emanuele Guarna Assanti

Sostenibilità, un auspicato multilateralismo e l’UE 7

Beatrice Benocci

PRIMO PIANO

The emergence of interest environmental protection Emanuele Guarna Assanti

Lecturer in Environmental Law and Public Company Law at Guglielmo Marconi University of Rome. He holds a PhD in Public Law from the University of Florence. Second level Master in Environmental Law at Roma Tre University. Law degree, with honours, from Roma Tre University. He was awarded the departmental scientific prize “Prof. Dante Cosi” (2021) for his writings on administrative and environmental law. He works as a lawyer in the Courts of Rome and as a consultant for public administrations.

6

Rivista Marittima July-August 2021

Premise

“(…) in the last decades between the twentieth and twentyfirst centuries, due to widespread environmental pollution and the depletion of natural resources, a collective awareness began to develop. Starting from the 1960s, this has brought about the creation of associations whose central theme is care for the environment” (Image source: fao.org).

Rivista Marittima July-August 2021

The theme of environmental protection, that is of our “common house” (1), is extremely topical, as the main social and, consequently, scientific problem of recent times.

Even from a legal point of view (2), environmental protection is a relatively recent concern. In fact, in the last decades between the twentieth and twentyfirst centuries, due to widespread environmental pollution and the depletion of natural resources, a collective awareness began to develop. Starting from the 1960s, this has brought about the creation of associations whose central theme is care for the environment. Therefore, the science of law has also begun to deal with this topic that is now deemed of utmost importance.

Attention has been drawn to the fact that environmental law constitutes a challenge for jurists (3) as the (recent) history of environmental law has demonstrated the difficulty of applying traditional legal categories to this “new” concern.

In the first place, it may be said that the matter of the emergence of interest in environmental protection and its inclusion in the legal sphere has followed the same path as all the other concerns that have entered the world of law. In fact, society’s evolution has determined the emergence of new needs and legislators gradually take them into consideration to varying degrees: as protected legal situations (protected to various degrees: we know the legitimate interest or the subjective right), with organizational solutions (for example, the establishment of a public body as a centre of interests ascribable to those needs) or with other legal instruments (procedures, agreements, connections).

This demonstrates that a need, which can be of various types, is one thing while a legally protected need, which occurs only when a provision takes an interest into consideration and makes it legally relevant, is another: therefore, subject to legal protection. In the latter case, the need becomes an interest in need of protection (4). And this was the case for environmental law.

7

The emergence of interest environmental protection

The environment as a verbal synthesis of a plurality of interests

tive data, the analysis shows that there is no correspondence between the meanings given to the “environment” in each of the three cases”.

In short, there was no “environmental” subject that was autonomous and systematic in character, as is also evidenced by the first international conventions on the subject, which were all sectorial and specific in nature.

According to the prevalent thought, the environment is an asset that, in and of itself, cannot be protected: in practice, a mere “verbal synthesis” of multiple interests and a mere descriptive term.

“Environment” was a generic term, not unitary but decomposable into individual environmental matrices, The environment as a unitary notion and which was taken into consideration, in the numerThe role of international law and European Union law ous sectoral laws enacted since the 1920s, in relation to other aspects that were considered legally relevant.

Environmental law came about in the international The environment was thus a “territory” to be regarena. In fact, over time we have come to understand (7) ulated from an urban and landthat global problems require solutions scape point of view, as well as the with the self-same extension (8). protection (particularly from polDoctrine has typically identified lution) of individual natural retwo phases in the evolution of intersources (water, land, air, etc.). national environmental law (9). The This is clearly shown from the first is that of “environmental funcsectoral legislation. A few examtionalism”, which began in 1972 ples include: the establishment of with the United Nations Conference nature parks starting from 1922 (the in Stockholm, and is characterized Gran Paradiso or the National Park by a sectoral approach to environof Abruzzo), the Consolidation bill mental problems. The second is inof health care laws of 1934, the law stead defined as the phase of on the protection of natural beauties “environmental globalism”, which of 1939, the law on the protection began with the Rio de Janeiro Conof items of artistic or historical inference in 1992 and is characterized terest of 1939 and the urban planby an (attempt at) a universal apMassimo Severo Giannini (1915-2000) was an proach to environmental problems. ning law of 1942.

Italian jurist and politician, minister for the OrganThe distinguished jurist Massimo ization of public administration and for the regions With the first conference, conthe Cossiga I and II government from August 4, Severo Giannini (1915-2000) (5) — in vened by the United Nations General 1979 to September 28, 1980 (dati.camera.it). in his well-known work Ambiente: Assembly in Stockholm and dedisaggio sui diversi suoi aspetti giuridici (6) — asserts cated to the “Human environment”, the international that the environment is not identifiable as a unitary community began to focus attention on environmental legal asset in its own right but, rather, that it can be broissues from the point of view of the prevention principle. ken down into different interests: In fact, the approach adopted is sectoral in nature, that — the environment which the legislation refers to is aimed at preventing the greatest risks, ensuring enviand the movement of ideas relating to the landscape; ronmental protection through the adoption of interna— the environment which the legislation refers to tional conventions aimed at regulating specific sectors and the movement of ideas relating to the defence of (for example, the Barcelona Convention on the protecthe soil, air and water; tion of the Mediterranean Sea, 1976; the Geneva Con— finally, the environment referred to in the legisvention on Transboundary Air Pollution, 1979). lation and in urban planning studies.

With the second Conference, held in Rio de Janeiro According to Giannini, “if we consider the legislaand dedicated to the theme “Environment and devel-

8

Rivista Marittima July-August 2021

The emergence of interest environmental protection

opment”, an attempt was made at implementing what emerged from the work of the Brundtland Commission (named after the Swedish Prime Minister who chaired it), the report Our common future. And this is where the objective of sustainable development (10) and the precautionary principle are outlined (11).

An extremely important outcome of the Rio Conference is that of having kick started global environmental conventions, aimed at involving the international community to solve problems that know no borders (for example, the 1992 Convention on Climate Change, which would later lead to the Kyoto Protocol of 1997; and the Convention on Biological Diversity, 1993) (12).

From the standpoint of multilevel environmental protection, immediately after international comes European Union standardization, which is fundamental for the member states.

For the Member States, it may well be said that environmental law is a creation of the European legal system, whose origins can be traced back to the 1970s, although, within the founding treaties of the European Economic Community (EEC) there was no mention of environmental protection (13) (moreover, just as is still the case for the Italian Constitution) (14).

Based on the initiatives taken from the 1970s onwards in the international arena, community institutions, supported by the Court of Justice (now) of the European Union, began to create the regulatory bases needed in order to issue regulatory measures on environmental protection.

Given that the Treaty of Rome did not contemplate the subject of the “environment” (neither as an exclusive subject of the Union, nor as a concurrent subject between the Union and the States) and given the need to respect the principle of attribution (today consecrated to art. 5 TUE), the necessary legal basis, which would be the foundation of the first legislative initiatives, needed to be identified.

Two tools in particular were used: implicit powers and the principle of subsidiarity.

The former are a veritable legal invention, on the basis of which it is stated that although the treaty does not mention the subject “environment”, however, if it were deemed necessary to act in order to pursue the ob-

Rivista Marittima July-August 2021

jectives established by the treaty (clearly different from environmental protection and, specifically, concerning the common market), the Union can also adopt measures concerning environmental protection, if such measures are deemed functional to the achievement of the aforementioned objectives. In practice, this is a mitigation of the principle of attribution, as the EU can typically act only in matters of exclusive competence.

The principle of subsidiarity, which was subsequently incorporated into the internal constitutional system as a general principle and not strictly linked to the subject of the environment (15), constitutes a criterion for the distribution of competences between territorial entities, according to which the function must be attributed to the territorial body that is best suited to managing that particular problem. In practice, when adopting a Community act, one must demonstrate that the objective of protecting the environment cannot be sufficiently pursued at the level of the individual Member States but, on the contrary, can be better pursued at the European level (thus art.5 TEU) (16).

Subsequently, the interest in environmental protection was incorporated by primary European law as an independent interest compared to that of promoting a single market. This first happened, at the level of the founding treaties, with the Single European Act of 1986, which incorporated the objectives and principles that derived from the previous environmental action programs promoted by the community (17).

Today, the Treaty of Lisbon (of 2007 and which entered into force in 2009) provides, in art. 3, par. 3 that “the Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance”.

The role of European and national jurisprudence Another, perhaps the most important, source of consolidation of the new environmental vision was the jurisprudence of the Court of Justice of the European Union and, on the heels of this, the national one (18).

9

Alongside the formal rules issued by the legislator, which is simply the body authorized to produce general and abstract rules having a binding nature for all the subjects of the legal system, there are rules (rectius: principles) pertaining to judicial law-making, which help to resolve cases not expressly provided for by formal norms.

Of particular note is the propulsive role played by jurisprudence, in the case of environmental law, carried out thanks to the evolutionary interpretation of the rules, often of an indeterminate nature, contained in international treaties or in the constitutions of the Member States, and of pre-existing principles (for example the case of the principle of proportionality developed by the Court of Justice on the basis of German judicial experience).

Specifically in this jurisprudential work, general principles have played (and still play) a fundamental role.

These are both the traditional principles of the legal system (such as good faith), as well as principles extrapolated from the provisions and their relationships (for example, subsidiarity which, as we have seen, arose precisely in environmental matters) or newly-coined principles derived from the specific case (for example the “polluter pays” principle, of European origin,) (19).

For the sake of completeness, the principles in force on environmental matters, some of which would ultimately shape the entire sector of national administrative law (by no means an exhaustive list) are: the principle of subsidiarity, the principle of integration, the precautionary principle, the prevention principle, the principle that environmental damage should as a priority be rectified at source, the polluter-pays principle (20).

Some case laws It is worth noting how, in the face of the emergence of environmental awareness, the European Court of Justice and the national courts and the Court of Justice have begun to deduce the protection of the environment from already protected subjective legal positions, related to different interests, although contiguous to the environmental one: for instance property rights or the right to health.

Before moving on to some European and national case laws, it is interesting to note how all the discussions concerning environmental law refer, in principle, to a famous

10

The Trail Smelter dispute was a trans-boundary pollution case involving the federal governments of both Canada and the United States, which eventually contributed to establishing the harm principle in the environmental law of transboundary pollution (en.wikipedia.org). Opposite page: the Cassis de Dijon judgement, pronounced by the Court of Justice of the European Union, states that items produced in accordance with the legal regulations of a member state of the European Union can generally be sold in other member states (a rule therefore known as the Cassis de Dijon principle) - (rts.ch).

case resolved by a joint United States-Canada arbitration commission: Trail Smelter Arbitration (United States United vs. Canada), Award of 11 March 1941, in which Canada’s responsibility for the damage caused by polluting emissions produced by a Canadian foundry to neighbouring American farmers was recognized (21).

Two fundamental points, for the purposes of understanding environmental law, emerge from this jurisprudential case: firstly, that a polluting fact can lead to limitations on the activity of a State, which can no longer use its territory fully and exclusively without understanding the consequences; secondly, that environmental phenomena are necessarily transnational and tend to go beyond the borders of individual states (and this is why the first political moves took place, as we have seen, at an international level).

In Europe, the first ruling on environmental law is considered the Cassis De Dijon judgment of the Court of Justice, February 20, 1979, C-120/78,.

On that occasion, the European judge identified a series of imperative requirements that justified restrictions on the free movement of goods (in the present case it was a French liqueur whose circulation had been prohibited by Germany) including, in particular, “the protection of public health”, then interpreted extensively as protection of the environment and the ecosystem.

Another important ruling of the European judge is the so-called “waste oils” judgement (February 7,

Rivista Marittima July-August 2021

The emergence of interest environmental protection

1985, case 240/83), where the Court of Justice specified that the directive on waste oils: “Whilst conceding that a system of approvals is bound to have a restrictive effect on freedom of trade (...) there is no reason to conclude that the directive has exceeded those limits. The directive must be seen in the perspective of environmental protection, which is one of the Community’s essential objectives. It is evident, particularly from the third and seventh recitals in the preamble to the directive, that any legislation dealing with the disposal of waste oils must be designed to protect the environment from the harmful effects caused by the discharge, deposit or treatment of such products. It is also evident from the provisions of the directive as a whole that care has been taken to ensure that the principles of proportionality and non discrimination will be observed if certain restrictions should prove necessary” (22).

As for national jurisprudence, it is remarkable that environmental interest was affirmed for the first time by the Court of Auditors, in terms of compensation for damage caused to the environment and natural resources, with judgements no. 39/1973 (later confirmed by the Joint divisions of the same Court, no. 108/1975) relating to the National Park of Abruzzo and no. 61/1979, regarding the so-called Scarlino “red mud” affair.

On these occasions, the judicial auditors were able to affirm their jurisdiction, as the State holds a direct interest in protecting the environment and its prejudice constitutes tax damage pursuant to art. 52 of the Consolidation bill on the Court of Auditors. This is because “the notion of tax damage did not exclusively include financial hypotheses, such as the alteration and disruption of financial statements, or assets, such as the

Rivista Marittima July-August 2021

destruction, theft and damage of state property, or the recovery of sums paid for damaging actions committed by public employees, but also the prejudice to more general interests, of eminently public nature (affecting the entire category of citizens), provided they are subject to economic evaluation”.

The Court of Cassation continues on this path, with judgement no. 5172/1979, with which it identified the right to a healthy environment, deducing it from art. 32 of the Italian Constitution (23). In particular, the link between art. 32 and art. 2 of the Italian Constitution attributes an additional content to the right to health, which the Court specifies in terms of “sociality and safety”. The right to health, in fact, is presented not only as a mere right to life and physical safety, but as a veritable right to a healthy environment that not even the public administration can sacrifice or compress (24).

For our purposes, the clarification that “the protection of health assists man not (only) as he is considered in an abstract and improbable separateness, but as a participant in the various communities - family, housing, work, study and others - wherein his personality unfolds” is particularly important (25). Therefore, “protection extends to the social life of man in the places of the various aggregations in which it is articulated and, by reason of its effectiveness, to the preservation, in those places, of the indispensable, or even only propitious, conditions for his health: in this way it assumes a content of sociality and safety, so that the right to health, rather (or beyond) than a mere right to life and physical safety, is configured as a right to a healthy environment”.

This first important jurisprudential verdict takes on an important problematic profile relating to environmental law and the techniques for protecting this interest.

The objection to a broad protection of the environmental good is that, in this way, protectable subjective positions would arise in reference to an asset that would appear to be protected only objectively (as a constitutional value), that is to say an asset for which a specific, differentiated and exclusive position of a subject would not be configurable, but a mere widespread interest (26), that is, referable in the same way and indifferently to an indefinite number of subjects.

With regard to this problematic profile, the civil

11

The emergence of interest environmental protection

judge objected that protection cannot be denied to anyone who is (diversely) interested in relation to an asset for the sole reason that this does not appear to be attributed or attributable to this subject in an exclusive manner. The perspective according to which there is legal protection only in the case of an exclusive connection between an asset and a single individual or a personified group (27) is conditioned by a patrimonial type of legality and risks mortifying the constitutional right to the effectiveness of the judicial protection (Article 24 of the Italian Constitution).

Recently, the Constitutional Court of Italy, with judgement no. 126/2016, adequately summarized what has been stated thus far. In point 5.1. of the Conclusions in Point of Law, it states that, although the original text of the Italian Constitution did not contain the term environment, nor provisions aimed at protecting the ecosystem, the Court with numerous judgments had already recognized the “pre-eminent importance accorded in the Italian Constitution to the protection of health of the individual (art. 32) and the protection of the environment in which he lives (art. 9, second subparagraph)”, as primary constitutional values.

This is on the heels of what is affirmed by a consolidated jurisprudence, such as that proposed by the Constitutional Court judgement no. 641/1987, which firmly asserted that the environment constitutes “a unitary intangible asset, albeit with various components, each of which can also constitute, in isolation and separately, the object of care and protection; but all, as a whole, can be traced back to units. The fact that the environment can be used in various forms and different ways, as well as being the subject of various regulations that ensure the protection of the various profiles in which it is expressed, does not diminish and does not affect its nature and substance as a unitary asset that the legal system takes into consideration”.

The Court specifies that the recognition of the existence of a “unitary intangible asset” is not an end in itself but a perspective functional to the affirmation of an increasingly felt need to ensure the uniformity of protection that only the State can guarantee, without however excluding the fact that other institutions may

12

also take charge of the environmental interests of the specific communities.

Ultimately, the environment is qualified as a “material and complex asset of life, the object of public interest of primary and absolute constitutional value” (thus Constitutional Court 378/2007) (28).

The role of the national legislator: the establishment of the ministerial organization in charge of environmental protection and the so-called “Environmental Code” As we have seen, as there was a gradual awakening of social conscience and an evolution of legal debate, the notion of the environment as a legal asset and an autonomous matter, in need of an overall view and systemic protection, gained ground.

Understanding the fundamental point, namely that the “environmental problem” is administrative (29), rather than legislative in nature, the first organizations aimed at its care and the preparation of the first administrative tools designed to protect it were established.

With law of July 8 1986 no. 349, the Ministry of the Environment was established for the first time in Italy (since 2006 referred to as: The Ministry for Environment, Land and Sea Protection) (30), without entrusting it with new tasks, but transferring to the new organization competences previously assigned to the Minister for Cultural and Environmental Heritage and to the Ministry of Public Works (concerning, in particular, the fight against pollution of water bodies, waste and the regulation of national parks) (31).

The general purposes of the new ministerial organization are established in art. 1, paragraphs 2 and 3 of the aforementioned law. The first establishes that “it is the ministry’s task to ensure, within an organic framework, the promotion, conservation and recovery of environmental conditions in accordance with the fundamental interests of the community and the quality of life, as well as the conservation and enhancement of the national natural heritage and the defence of natural resources from pollution”; while paragraph 3 specifies that “the ministry carries out and promotes studies, surveys and appraisals regarding the environment; it adopts, with the aid of the media, suitable initiatives to raise public awareness of the needs and problems of

Rivista Marittima July-August 2021

The emergence of interest environmental protection .“With law July 8 1986 no. 349, the Ministry of the Environment was established for the first time in Italy (…) without entrusting it with new tasks, but transferring to the new organization competences previously assigned to the Minister for Cultural and Environmental Heritage and to the Ministry of Public Works (concerning, in particular, the fight against pollution of water bodies, waste and the regulation of national parks)” (Image source: guardiacostiera.gov.it). Opposite: the logo of the Ministry for Environment, Land and Sea Protection (minambiente.it).

the environment, including through schools, in agreement with the Ministry of Education”.

In this way, a unitary centre of interest was established that made interaction between the individual environmental matrices possible, in order to achieve a common purpose. And it is precisely this aspect, namely that relating to the possibility of interrelation, which has enabled a change of vision: the environment from synthesis to system: organization, functions and subjective legal situations interact with each other, forming unitary notions (32).

However, only in 2006 the Italian Legislative Decree 3 April 2006 no. 152, entitled “Environmental regulations”, was issued with the aim of transposing various European directives into internal law and attempting to systematize them (33). Unsurprisingly, Italian Legislative Decree 152 is called by sector operators “Environmental Code” or “Consolidated Environmental Act”: however, it should be noted that the legislative intent has failed and this body of legislation constitutes neither one nor the other.

In fact, Italian Legislative Decree no. 152 does not constitute a Code (such as the civil or criminal code) as it does not deal with the matter in a systematic and organic way, with a general part and a special part, descending from the principles to the disciplines of the sector, in a coherent manner (34).

Secondly, it does not even constitute a consolidation bill, whose function is to rationalize and replace the rules envisaged for an entire sector of law, since it does not contain the complete regulation of all environmental sectors (for example, noise pollution or single environmental permits are not included).

Furthermore, it should be noted that continuous regulatory changes (35) intervene on the most sensitive sectors of environmental regulations, such as that of environmental authorizations and, in particular, on the Environmental Impact Assessment (EIA) and on the

Rivista Marittima July-August 2021

Strategic Environmental Assessment (SEA), attempting to shorten the time for their release and providing for a procedural simplification in view of the imperative that has characterized the administrative legislation for some decades: bureaucracy reduction. However, these operations, aimed at decentralizing environmental governance, are in contrast with the relevance that the objective of ecological transition is gaining.

Characteristics of environmental interest and differences as compared with similar notions In order to legally frame the notion of “environment”, a summa divisio between environment in the strict sense and environment in the broad sense has been proposed: the latter constitutes the entire terrestrial sphere (and therefore the entire human habitat), while the second concerns all those profiles selected by the legal system (therefore considered worthy of protection) and which are subject to specific administrative competences and subjective legal situations (36).

Secondly, the doctrine has identified the specificities of the environmental interest.

First of all, it is an interest that intersects with other already protected interests (as we will see, for example, the governance of the territory) and is part of the care of the same, giving rise to transversal skills compared to those provided for the individual sectors.

Thus the interest is misaligned with respect to the specific territorial organization that should provide for it: think of the effects of an air or water polluting activity that extends beyond national borders (37).

An important aspect is the difficulty in identifying with certainty the holders of the interest in need of protection. The mechanism based on traditional subjective legal situations (right, obligation, authority, duty) does not appear adequate or, at the very least, the only one: the problem relating to widespread interests.

This particular character is linked to the consideration that the dynamism of environmental phenomena undermines the traditional static nature of legal systems, making it clear that law is constantly evolving, cannot ignore social phenomena and must constitute a point of balance in the tension between static and dynamic.

Finally, it highlights the importance of the time fac-

13

The emergence of interest environmental protection

tor, which is a determining element (think of the pollution of the territory, reclamation and environmental damage) for the protection of environmental interests.

The transversal vocation of the notion of environment emerges, in particular, if one thinks of the structural and functional similarities between the concept of environment and some contiguous notions, such as those of landscape or urban planning, (the latter, today traced back to the “governance of the territory”).

The relationship between environment and landscape, as one may surmise, involves some difficulties of delimitation and overlapping of the matters, as in a territory there can be several types of interventions, provided for by different regulatory instruments, with purposes that are sometimes conflicting (38). These difficulties are primarily due to constitutional reasons, since the very notion of environment arises, by way of judicial lawmaking, as may be seen, precisely from art.

9, which expressly protects only the landscape and the historical and artistic heritage of the nation.

At this stage, landscape is everything related to territorial identity (39), as resulting from the synergistic action of natural and human factors (40): the notion, therefore, in part overlaps and in part is broader than the ecosystemic and natural aspects.

As for the relationship with town planning, it experiences the same difficulty in identifying a clear distinction between the environment, town planning and the new notion of governance of the territory , implemented, starting from the constitutional reform of 2001, as a matter of concurrent legislative competence between State and regions. The issue, in this case, is more complex than that relating to the landscape since it is believed that the choice of the reform legislator was precisely to combine urban planning aspects with environmental ones, according to a less fragmented vision.

From this point of view, then, the distinction between the two subjects is identified in the fact that the governance of the territory is constituted by a set of procedural rules, in the sense that the protection of natural resources is provided according to the rules of urban planning, while the environment is, more than anything else, an end, counting as a priority the result of preserving the environment (41).

14

Environmental law Therefore, environmental law today is a veritable subject, the elaboration of which is due to jurisprudence, to the normative data (European and therefore internal) that followed its indications, to the subsequent establishment of administrative organizations with specific (notably technical) skills, the identification of subjective legal situations and, finally, the existence of administrative, civil and criminal instruments aimed at protecting it. Based on what has been analyzed thus far, the doctrine has highlighted the characteristics of the legal framework for the environment (42). Environmental law is defined, first of all, “the law of modernity”, because it governs matters just recently included among social phenomena, that go hand in hand with economic development (the best known example is epitomized by the Ilva affair, in the need to reconcile industrial development and environmental protection) and, in relation to which, the use of technology is fundamental. For this reason, environmental law is also an “innovative law”, aimed at creating new legal institutions which then extend to the general administrative system, such as the right of access to environmental information (which has, since 1995, provided for free and universal access without the need to demonstrate a concrete and current interest on the part of the applicant). But simply consider, more generally, the importance of fundamental principles as canons of legitimacy of public au-

“Environmental law is defined, first of all, “the law of modernity”, because it governs matters just recently included among social phenomena, that go hand in hand with economic development (the best known example is epitomized by the Ilva matter (shown here in the images), in the need to reconcile industrial development and environmental protection) and, in relation to which, the use of technology is fundamental. (Image source: ilsole24ore.com).

Rivista Marittima July-August 2021

thorities, such as the principle of subsidiarity and, even more, the principle/objective of sustainable development now extended (at least theoretically) to every type of planning and scheduling of administrative activities. Environmental law is certainly the “law of complexity” because environmental interests constitute a transversal matter, which involves every other matter and every other public interest at stake and therefore requires suitable administrative devices for its reconciliation with the other interests at stake. It came about as a “reactive” emergency-based law, , to counter the harmful effects of human activity, and has now become a “planning or proactive law”, aimed at preventing and directing human activity towards sustainable development goals. Finally, it is a “heteronomous law”, influenced directly and indirectly, as we have seen,

by European Union law and international law.

Evolutionary perspectives: ecological transition, circular economy and climate “Italy is characterized by a unique natural, agricultural and organic ecosystem. An area of inestimable value that represents a central element of national identity, culture and history, the driving force behind present and future economic development”. This is the wording of the new National Recovery and Resilience Plan (NRRP) (43) which envisages, within the second mission, dedicated to the green revolution and ecological transition, the protection of the territory and water resources (M2-C4). Within this second mission, the stated objectives are: 1) strengthening the ability to forecast the effects of climate change through advanced and integrated monitoring and analysis systems; 2) the prevention and contrast of the consequences of climate change on the phenomena of hydrogeological instability and on the vulnerability of the territory; 3) safeguarding the air quality and biodiversity of the area through the protection of green areas, land and marine areas; 4) the guarantee of supply security and the sustainable and efficient management of water resources throughout the entire cycle. As can be seen, environmental protection has forcefully entered the current political discourse and, in this context, the ecological transition, which is also the subject of important European measures, such as the so-called Green New Deal and the 2030 Climate and energy framework, become of paramount im-

Rivista Marittima July-August 2021

“The new National Recovery and Resilience Plan (NRRP) envisages, within the second mission, dedicated to the green revolution and ecological transition, the achievement of the following objectives (...): 1) circular economy and sustainable agriculture; 2) renewable energy, hydrogen, grid and sustainable mobility; 3) energy efficiency and building renovation; 4) protection of land and water resources” (Image source: twitter.com/wwf).

portance. Two in particular seem to be the most interesting evolutionary perspectives of the legal regulation of the environment. The first is the promotion of the circular economy (44), a concept developed and accepted by some European Union provisions (45), and mainly (but not only) referable to the waste sector (46), which proposes a new model of economic development that - no longer based on the so-called linear economy, aimed at the use and abandonment of products - focuses on the constant reuse and transformation of assets (therefore, regeneration), through various techniques, favoured by technological innovation (47). This is all linked to a new paradigm of understanding the relationship between environment and development: no longer sustainable development but an “environment for development”. The second concerns the necessary reduction of climate-altering emissions, until the goal of climate “neutrality” is reached, as required by 2030 Climate and energy framework. The issue of climate change is fulfilling the intuition of an illustrious scholar of administrative law, according to which studying environmental law “is simply fascinating if you want to study law not in its static nature but in the dynamism that actually constitutes is, essence and value” (48). In fact, the climate litigation, promoted by non-governmental organizations and young activists, which has been recently proliferating also in Europe (49), undermines traditional legal categories such as the separation of state powers (as the judge condemns the legislator) and the traditional criteria for promoting judicial actions by organizations with widespread interests (which are always, very often, limiting). These two aspects, without excluding others, are the main features of environmental law: that of constituting an important testing ground for public law and anticipating, as has often occurred, solutions that are later adopted by the legal system as a whole.

8 15

The emergence of interest environmental protection NOTES (1) Thus wrote Pope Francis, in the Enciclica Laudato sì of 2015, the first encyclical of a pontiff on the problem of safeguarding the environment.

(2) A few notes on methodology. In my opinion, law is not a science but a discipline, characterized by a consolidated set of instruments (provisions, dispositions, subjective situations, etc.) which is applied according to the rules of logic (therefore the general rules of discourse) which are inevitably affected by the thinking adopted in the introduction by each author. With particular reference to administrative law, see G. Rossi, Metodo giuridico e diritto amministrativo. Alla ricerca dei concetti giuridici elementari, in Dir. Pubbl., 2004, p.1-18.

(3) G. Rossi (edited by), Diritto dell’ambiente, Turin 2017, pinpoints that “The task of unravelling the tangle, of identifying some linearity, is a source of even greater interest, because it offers food for thought to those who want to study the evolution of legal systems and that is, of the legal structures of societies”. The same author quotes F. Benvenuti who, in Studi dedicati ai problemi dell’ambiente. Presentazione, in Arch. Giur., 1982, p.255 states that “the topic is simply fascinating if one wishes to study the law not in its static nature but in that dynamism which in fact constitutes its essence and value”.

(4) On this point, G. Rossi, Potere amministrativo e interessi a protezione necessaria. Crisi e nuove prospettive del diritto amministrativo, Turin 2011.

(5) See S. Cassese, s.v. Giannini, Massimo Severo, in Dizionario Biografico dei Giuristi Italiani (XII-XX secolo), vol. I, Bologna 2013, pp.984-987.

(6) In Riv. Trim. Dir. Pubbl., 1973, p.15 et seq. And much of the doctrine of the time, including European, went along the same lines as Giannini: simply consider R. Drago, Rapport de synthèse, in La protection du voisinage et de l’environnement. Travaux de l’association H. Capitant, Paris 1979, p.457, who deemed it “absurd” to consider environmental law as a new legal discipline.

(7) But this often was not followed up by concrete and effective measures, as is demonstrated by the matter of climate change, which will be briefly examined later.

(8) S. Cassese, Il diritto globale, Turin 2008, p.5.

(9) S. Marchisio, Il diritto internazionale dell’ambiente, in G. Cordini, P. Fois, S. Marchisio, Diritto ambientale. Profili internazionali, europei e comparati, Turin 2017, pp.6 and 12.

(10) In fact, point 1 of the Declaration on the human environment already provided that “man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”. Subsequently, the Brundtland Report established that sustainable development consists of “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. As highlighted by L. Krämer, Environmental Law, p.9 et seq., it is a largely indeterminate notion, whose content derives from the application of the notion itself.

(11) Which implies that, in view of a lack of knowledge of the possible effects of an action with environmental effects or a mere suspicion of potentially harmful effects, appropriate measures must be put in place and, ultimately, in the opinion of the writer, simply refrain from taking any action. Principle 15 of the Rio Declaration states: “In order to protect the environment, the Precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.

(12) On this point, S. Marchisio, Il diritto internazionale dell’ambiente, cit., p.24 et seq.

(13) M. Renna, I principi in materia di tutela dell’ambiente, in Riv. Quad. Dir. Amb., 2015, p.62 et seq., notes that, precisely with regard to the fact that the European construction was economic in nature, and therefore tending to the creation of a common market (these were the post-war reconstruction years), there was only one article 36 TCE, which read: “The provisions of Articles 30 to 34 [that is those relating to the abolition of quantitative restrictions between Member States] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.

(14) Despite a succession of various bills, which propose the introduction of art. 9 and see, for example, the one proposed in the legislature XVIII of the Italian Republic: “At the end of Article 9 of the Constitution, the following subparagraph has been added: The Republic protects the environment and the ecosystem, protects biodiversity and animals, promotes sustainable development, also in the interest of future generations”.

(15) P. Dell’Anno, Diritto dell’ambiente, cit., p.2, notes how the principle of subsidiarity may be effectively implemented in the distribution of regulatory functions, arising precisely in the context of European environmental protection and then being promoted by the Maastricht Treaty to the rank of general criterion for regulating relations between the Union and member states in the scope of any kind of public policy. In Italy, as is well-known, it was introduced in Article 118 of the Italian Constitution by Constitutional Law 3/2001.

(16) For additional information see L. Krämer, Environmental Law, p.17.

(17) See P. Fois, Il diritto ambientale dell’Unione Europea, in G. Cordini, P. Fois, S. Marchisio, Diritto ambientale, cit., p.65 et seq. See art. 130R, par. 1 of the Single European Act, according to which “Action by the Community relating to the environment shall have the following objectives: to preserve , protect and improve the quality of the environment; to contribute towards protecting human health; to ensure a prudent and rational utilization of natural resources”, as well as par. 2 which lists the relevant principles: “Action by the Community relating to the environment shall be based on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay. Environmental protection requirements shall be a component of the Community’s other policies”.

(18) As pinpointed by F. de Leonardis, Le trasformazioni della legalità nel diritto ambientale, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.131: “environmental law basically poses (...) as a law of jurisprudential nature: in it the written law generally tends to come later, almost as a crystallization of what the jurisprudence has elaborated”.

(19) G. Rossi (edited by), Diritto dell’ambiente, p.32 critically clarifies that this principle contains a margin of misunderstanding since, by providing for the payment of a penalty to be paid by the polluter, it may be seen as the right to pollute provided one pays.

(20) For in-depth study of these principles see L. Krämer, Environmental Law, cit., p.20 et seq.

(21) For additional information see F. de Leonardis, Le trasformazioni della legalità nel diritto ambientale, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.131 et seq.

(22) The subsequent Imballaggi di birra e bibite judgement, September 20, 1988, C-302/86, recalls that “in that regard, it must be pointed out that in its aforementioned judgment of February 7 1985 the Court stated that measures adopted to protect the environment must not ‘go beyond the inevitable restrictions which are justified by the pursuit of the objective of environmental protection’”. With the PreussenElektra judgment, March 13, 2001, C-379/98, the Court of Justice specified that the internal legislation of a Member State that obliges companies that supply electricity to purchase the energy produced in the respective supply area from renewable sources at prices above their real economic value does not constitute State aid. This is because “it is for reasons of environmental protection that the latter authorises Member States in Articles 8 no. 3, and 11 no. 3, to give priority to the production of electricity from renewable sources”.

(23) Which “configures the relative right [to health] as a fundamental right of the individual and protects it primarily, unconditionally and absolutely as the way of being of the human person”.

(24) The judgement then specifies that the right to health, understood in this dual aspect, is legally protectable even before an ordinary judge and also against the public administration whose injurious activity must necessarily be considered devoid of any legal basis and therefore in default of any discretionary power. This, in fact, is linked to the aspect, explicitly addressed by the sentence, relating to the type of protection given to the individual interest, specifying that “clearly this is a legal technique that is protective in nature, which is then that of “fundamental” or “inviolable rights” of the human person. In other words, it is a question of full protection which translates into the attribution of powers of free use of utilities and the free development of activities, of the exclusion of obstacles that come between one or the other from anyone or anything. And it is in this all-out defence against any hostile initiative, whoever it may come from - other individuals or even the public authority - not in an atomistic, asocial consideration, separate from man that the meaning of the reference to the “fundamental right of ‘individual’” is found. In a word: the juridical instrumentation is that of subjective law, indeed of absolute law”.

(25) By emphasizing, in this way, the inherent nature of the person and the social nature of the protected property, “it becomes clear that protection is not limited to the safety of the individual, presumed to be immobile in the isolation of his home or solitary in his occasional movements [...] but is aimed at ensuring the individual’s effective participation through physical presence and attendance, in said communities, without this constituting a danger to his health”.

(26) On the subject of widespread interests, connected to the emergence of the issue of common assets, which intersects with contributions from doctrine pertaining to civil and public law see, B. Caravita di Toritto, Interessi diffusi e collettivi, in Dir. soc., 1982, 187; R. Ferrara, Interessi collettivi e diffusi, in Dig. Disc. Pubbl., VIII, Turin 1993; G. Alpa, Interessi diffusi, in Dig. Disc. Civ., IX, Turin 1993. As we have seen, the problem is linked to the profile of judicial protection, which has been the

16

Rivista Marittima July-August 2021

The emergence of interest environmental protection object of an extensive and authoritative doctrinal discussion, see S. Cassese, Gli interessi diffusi e la loro tutela, in AA.VV., La tutela giurisdizionale degli interessi collettivi e diffusi, Turin 2003, p.569 et seq.; F.G. Scoca, Tutela dell’ambiente: la difforme utilizzazione della categoria dell’interesse diffuso da parte dei giudici amministrativo, civile e contabile, in Dir. soc., 1985, p. 645 et seq.; G. Berti, Il giudizio amministrativo e l’interesse diffuso, in Jus, 1982, p.68 et seq.; R. Villata, Riflessioni in tema di partecipazione al procedimento e legittimazione processuale, in Dir. proc. amm., 1992, p.171 et seq.

(27) Which is the condition for the protection of widespread interests, including environmental interests, traditionally protected with the technique of legitimate interest.

The judgment continues: “Which is all the more serious since the denial of such enforceability results in the lack of protection of real subjects [that is, of the true recipients of constitutional protection even if they are considered community participants] in relation to assets that are of particular relevance because they pertain to the human person. This would be the consequence which would be reached if it were held that a need is not protected in reference to a single individual because it is or it cannot be protected at the same time and in the same way in reference to a plurality of other individuals (even indefinite in number or indeterminate in composition) with homogeneity of content and reciprocal implication, as is the case for the ways in which the human person finds fulfilment in the social formations wherein he participates. What can, on the other hand, be requested is only that the protection is postulated on the basis of this participation and the effective configurability of the social formation which they belong to”, also specifying that the protection of widespread interests can also take place with other connecting criteria.

(28) From this derives the qualification of a unitary interest, capable of referring to one or more specific subjects and, therefore, integrating the qualification of a veritable subjective right, as such protected by the legal system, today also explicitly, with its inclusion in art. 117 of the Italian Constitution, following the reform of Title V: lett. s) of this article, it gives the State exclusive competence with regard to the protection of the environment, ecosystem and cultural heritage.

(29) The functional link between the administrative organization and the satisfaction of the interests entrusted to the public sphere is highlighted by M. Nigro, Studi sulla funzione organizzatrice della pubblica amministrazione, Milan 1966, p.114 et seq. and G. Guarino, L’organizzazione pubblica, Milan 1977, p.18 et seq.

(30) Today, in accordance with the National Recovery and Resilience Plan proposed by Italy (PNRR), the nomenclature is that of the Ministry of Ecological Transition (MiTE). The changes in the names of the administrative organizations almost never involve a substantial change in the activities carried out and the interests subject to their care (in our case, some competences in energy matters previously entrusted to the Ministry of Economic Development have been entrusted to MiTE). These are often changes due to momentary and contingent political pressures, as also took place in the case of the Ministry of Transport, now called the Minister of sustainable infrastructures and mobility (MiMS).

(31) “In this phase, a non-sectoral yet autonomous discipline of environmental protection is being developed, both internationally and in the EU and in Italy, with regulatory interventions inspired by a unitary concept of the problem”, notes S. Grassi, entry Tutela dell’ambiente (dir. amm.), in Enc. dir., Milan 2007, no.2, who also highlights how the instituting law of the Ministry of the Environment “while constituting an essential step towards defining the environment as the object of an autonomous discipline, indicates the ministerial competences in multiform terms which are too articulated to reach a defining result, leaving open the discussion on whether the ministry and the central technical bodies were entrusted with mere coordination activities of the related competences of other apparatuses (health, urban planning, agriculture and forests, hunting and fishing, local police, etc.), or if they were able to perform functions in a sector with full autonomy and with its own unitary characteristics”. This is because art. 2 of law 349 referred to competences already exercised, in fact, by other administrative organizations.

(32) In this way, a first legal notion of the environment was formed, more specific than that used in common language and identifiable from a defensive point of view in the fight against pollution and in the conservation of certain areas, see G. Rossi, La materializzazione dell’interesse all’ambiente, in Id. (edited by), Diritto dell’ambiente, cit., p.14.

(33) Art. 1 of the Code envisages for its scope: “This legislative decree governs, in the implementation of law of December 15 2004, no. 308, the following matters: a) in the second part, the procedures for the Strategic Environmental Assessment (SEA), for the Environmental Impact Assessment (EIA) and for the Integrated Environmental Authorization (IPPC); b) in the third part, the defence of the soil and the fight against desertification, the protection of water from pollution and the management of water resources; c) in the fourth part, waste management and remediation of contaminated sites; d) in the fifth part, the protection of the air and the reduction of emissions into the atmosphere; e) in the sixth part, reparation protection against damage to the environment”.

(34) It is paradoxical, in fact, that only the subsequent amending decrees 4/2008 and 128/2010 introduced the general principles of the environment in the “Code”, in Articles 3 and et seq. In fact, P. Dell’Anno, Diritto dell’ambiente, cit., P.3 notes that if, on the one hand, the principles expressed in the first part of the Code would like to constitute the reference point for all environmental sectors, on the other, this objective has not been fully achieved, thus giving the impression that legislators had exhausted their reconstructive capacity precisely in the drafting of these principles and without ensuring homogeneity and consistency with sectoral regulations.

(35) For example, recently, Italian Legislative Decree July 6, 2020, no. 76, containing “urgent measures for digital simplification and innovation” (the so-called Simplification Decree), converted by Law of September 11, 2020, no. 120, that brings legislative modifications which, inspired by a logic of simplification (it is no wonder that Article 50 is entitled “rationalization of environmental impact assessment procedures”) mainly affect the quando (when) of the procedures (reduction of deadlines) and on the quomodo (how) (document simplification, transparency and greater public involvement), intervening on the provisions contained in Titles I and III of the Second Part of Italian Legislative Decree no. 152/2006.

(36) G. Rossi (edited by), Diritto dell’ambiente, cit., p.26 et seq. and 5 et seq.

(37) G. Rossi (edited by), Diritto dell’ambiente, cit., p.6, notes that the territorial levels in which the causes are generated either do not have the strength to control the phenomena or have an interest in having others bear the negative effects of the harmful activities and the related charges: this is an effect of the so-called Nimby syndrome (Not in my back yard), according to which the choices regarding the location of activities with environmental repercussions are decidedly opposed by the local communities wherein these activities should be activated, without such communities actually opposing to their installation elsewhere.

(38) Unsurprisingly, A. Predieri, entry Paesaggio, in Enc. Dir., Milan 1983, no. 3 identifies that: “The accepted notion of landscape has structural points of coincidence, at different depths, with that of the environment, or at least with some notions of it, and the activity of landscape protection is functionally connected to that of environmental protection”.

(39) The renowned definition provided by A. Predieri, entry Paesaggio, cit. is that of “shape of the territory”.

(40) See art. 131, Italian Legislative Decree January 22, 2004, no. 42 (Code of cultural heritage and landscape).

(41) S. Civitarese Matteucci, Governo del territorio e ambiente, in G. Rossi (edited by), Diritto dell’ambiente, cit., p.225.

(42) See with regard to the characteristics of environmental law, for everyone, P. Dell’Anno, Ambiente (Diritto amministrativo), in P. Dell’Anno, E. Picozza (edited by), Trattato di diritto dell’ambiente, vol. I, Padua, 2012, p.285 et seq.

(43) National Recovery and Resilience Plan (NRRP), so-called Next Generation Italia, p.145.

(44) F. de Leonardis explains in Economia circolare: saggio sui suoi tre diversi aspetti giuridici. Verso uno Stato circolare?, in Dir. Amm., 2017, p.168-169, that from the so-called Red Economy, that is the economy of the exploitation of nature “which borrows without worrying about how to repay the debt”, we have moved on to the Green Economy, which is concerned with how to “repay” the damage caused to the environment (see for example, the “polluter pays” principle), all the way to the Blue Economy which, according to the definition by, Blue Economy 2.0., Milan 2015, p.30, “addresses the issues of sustainability beyond simple conservation and whose purpose (...) is to push towards regeneration” (for the record, the Blue Economy has also become relevant with regard to maritime issues).

(45) In particular, the two communications of 2014 and 2015 on the circular economy, the second “package” on the circular economy consisting of directives no. 851 and no. 852 of 2018, that amended the general directive on waste and that on packaging waste, and other directives, that amended six additional directives on waste (directive 98/2008), packaging (94/1962), landfills (31/1999), electrical and electronic waste (19/2012), end-of-life vehicles (53/2000) and batteries (66/2006), numbers 849, 850, 851 and 852 of 2018.

(46) As is clearly highlighted by F. de Leonardis, Economia circolare: saggio sui suoi tre diversi aspetti giuridici, cit., p.167.

(47) On this point, see, F. de Leonardis, Il diritto dell’economia circolare e l’art. 41 Costituzione, in Riv. Quad. Dir. Amb., 2020, p.50 et seq. and G. Rossi, Dallo sviluppo sostenibile all’ambiente per lo sviluppo, in Riv. Quad. Dir. Amb., 2020, p.4 et seq. The first notes that, in this perspective, “the environment is no longer simply considered a cost but, rather, an opportunity for real profit for companies: we can therefore significantly speak of an ‘environment for development’” and the second that “the phases of opposition and that of (desired) compatibility are now joined by that of conceivable synergy”.

(48) F. Benvenuti, Studi dedicati ai problemi dell’ambiente. Presentazione, in Arch. giur., CCII (1982), p.255, ora in Scritti giuridici, Milano, p.3736.

(49) On the basis of the right to life and the right to respect for private and family life (articles 2 and 8 of the European Convention on Human Rights, ECHR), in line with the constitutional principle of the State’s duty of care to its citizens, and the obligations under the Paris Agreement (2015), in 2015, the Dutch Urgenda Foundation sued the Dutch government on behalf of 900 Dutch citizens for not adopting adequate measures to counter the danger of climate change. Likewise, in February 2021, in the so called Affaire du Siècle, following a complaint lodged by some French NGOs (Oxam France, Greenpeace, Notre Affaire à Tous, FNH), the administrative court of Paris acknowledged the State’s liability for inaction in tackling climate crisis, recognizing a breach of the objectives established in the Paris Agreement.

Rivista Marittima July-August 2021

17

PRIMO PIANO

Zero Emission Vessels

48

Rivista Marittima July-August 2021

Zero Emission Vessel The IMO strategy for the decarbonisation of maritime transport expects to reach the minimum goal of halving, compared to the current level, the emissions of greenhouse gases by ships in 2050; this objective will be achieved by using regulatory measures that are already envisaged in the operational (for example route optimization or speed limitation) and technical-design (increase in the energy efficiency of the ship) sectors, but an “emission gap” remains to be filled which, of a necessity, calls for the use of new technologies, new fuels and new measures (IMO action to reduce greenhouse gas emissions from international shipping, available in the IMO media library at https://www.imo.org/en/MediaCentre/HotTopics/Pages/Reducing-greenhousegas-emissions-from-ships.aspx).

Claudio Boccalatte Inspector Admiral of the Corps of Naval Engineering, after completing active duty service in 2017 as Director of the CISAM of Pisa, he currently holds the position of auxiliary member of staff.

He entered the Naval Academy of Livorno in 1975 and was awarded a degree with honours in naval and mechanical engineering from the University of Genoa. He has collaborated with various magazines, and in particular with the Rivista Marittima since 1992; he has edited the Science and Technology section since 2006. He is a Fellow of the Royal Institution of Naval Architects, President of the La Spezia Section of ATENA (Association of Naval Technology) and President of the Board of Directors of the Association Amici del Museo Navale e della Storia.

G

lobal public opinion has become increasingly aware of the problem of global pollution, in its various forms, including that of the emission of greenhouse gases, such as carbon dioxide (CO2) that is produced by the combustion of all fossil fuels containing carbon, including natural gas. The international community, represented by the various organizations that revolve around the United Nations, and above all by the General Assembly, has set itself ambitious targets for reducing emissions in the coming decades. In September 2015, the General Assembly approved a list of 17 sustainable development goals (1) for the year 2030, which are connected to 169 numerical objectives (targets). Among the objectives are renewable and accessible energy (objective 7) and the fight against climate change (objective 13).

The world of maritime transport has also been called on to make its contribution, and the international organization responsible for establishing the rules that merchant ships must respect, IMO (International Maritime Organization), is analysing alternative technologies and fuels to commercially operate ships without emissions harmful to the environment, called ZEVs (Zero Emission Vessels) as soon as possible. In particular, IMO has developed a strategy with regard to greenhouse gases, called GHG (Green House Gas) strategy, which envisages, as a minimum objective, a reduction of greenhouse gas emissions by 50% in 2050

Rivista Marittima July-August 2021

compared to 2008 emissions, and the complete elimination of emissions as soon as technically possible, starting from 2050 itself, and in any case by the end of the 21st century. In order to achieve this, considering that the average lifespan of a merchant ship is at least 20-30 years, the first emission-free ships will need to enter service around 2030.

The same challenge also affects other transport sectors, but there are different solutions for each of them; for example, in the automotive sector today, at least in Europe, a rapid abandonment of diesel oil used in diesel engines for the propulsion of cars and light transport vehicles (vans) is expected, and a slower transition from traditional fuels for Otto cycle engines (petrol and natural gas) towards fully electric vehicles, using advanced lithium-ion batteries: in fact, starting from 2050, many scenarios envisage that only electric-powered vehicles will be produced.

In other sectors, such as heavy road transport, air transport and maritime transport, on the other hand, a prominent role will be assigned to the new liquid fuels with a reduced or no greenhouse effect, the LCF (Low Carbon Fuel), obtained with production processes that eliminate or balance the production of carbon dioxide, such as biofuels, fuels of biological origin believed to have zero carbon dioxide emissions overall, as, during their production cycle, when they are still vegetables, they absorb a quantity of CO2 from the atmosphere equal to that which is emitted by their combustion. First-generation biofuel, which currently constitutes 5-6% of the petrol that is supplied by European distributors, has some disadvantages, mainly because it is produced using surfaces that could be profitably used for the production of vegetables for human consumption, and will be replaced by second and third-generation biofuels, which use waste products (slurry from animal breeding, waste and by-products of the food industry with high oil content, waste plastic materials, etc.) or spe-

49

An image of the 73rd meeting of the IMO’s Marine Environment Protection Committee (MEPC), held in London in October 2018. At the meeting, which was attended by national representatives, a work program was agreed upon to achieve the ambitious greenhouse gas reduction targets set by the organization (imo.org). Below: the cover of the Zero-Emission Vessels 2030: How do we get there? Study, published by the British ranking company Lloyd’s Register (LR), in collaboration with the consultancy firm UMAS (University Maritime Advisory Service) - (lr.org).

cial crops with a high energy content which grow on lands that could not produce crops suitable for use as food, or even marine algae (studies in this sector are particularly advanced in the United States, with a pilot plant that should produce fuel from algae on a large scale in 2025).

Returning to the merchant ship sector, a recent study by the British ranking company Lloyd’s Register (LR), in collaboration with the consulting firm UMAS (University Maritime Advisory Service) has identified seven possible new propulsion technologies with zero environmental impact, namely suitable for ZEVs. These technologies are: — battery electric propulsion; — hybrid electric and hydrogen propulsion; — hydrogen fuel cells; — hydrogen internal combustion engines; — ammonia fuel cells; — ammonia internal combustion engines; — biofuels.

Other types of zero-emission propulsion were not considered, either for reasons of public acceptability (this is the case of nuclear naval propulsion, abandoned for merchant ships several decades ago), or because they were not considered suitable for the propulsion of operational merchant units, as in the case of wind propulsion, which is instead profitably used, during the energy transition phase, as an auxiliary system on ships equipped with traditional engine

50

systems to reduce consumption and therefore environmental impact. Each of the technologies was applied for the propulsion of 5 different types of ship (Bulk carrier, container ship, oil tanker, cruise ship and RoPax ferry), envisaging three different potential scenarios in the price trend, developed to take into account the uncertainties in the evolution of the energy market, trying to cover all possible evolutions.

Each scenario is characterized by a form of “green” energy, that is, with a reduced environmental impact, but generally obtained at a high cost. Below is a description of the three scenarios: — first scenario: Green Electricity. In this scenario, electricity is produced mainly from renewable sources, with extensive use of systems for the recovery of the carbon dioxide produced; in this way, energy prices are high, but the environmental impact in terms of greenhouse effect is zero, if not negative. Batteries reach high technological levels, but prices remain high. Hydrogen is produced at relatively low prices from fossil fuels and stored as compressed gas, while ammonia is

Rivista Marittima July-August 2021

Zero Emission Vessel

produced using “clean” electricity and cheap hydrogen.

Third-generation biofuels are available, which do not generate emissions in their production chain; — second scenario: Green Ammonia. In this scenario, ammonia produced without greenhouse gas emissions is available. Electricity is produced, at low prices, mainly from fossil fuels, batteries are produced on a large scale causing a reduction in prices.

Hydrogen is produced using a mix of fossil fuels and renewable energy, and both storage techniques and fuel cell technology are improving, but at high prices.

Third-generation biofuels are available, which do not generate emissions in their production chain; — third scenario: Green Hydrogen. In this scenario, hydrogen is produced exclusively from renewable sources without the production of greenhouse gases, but at a high cost. Fuel cell technology allows for high levels of efficiency, and the cost of hydrogen tanks decreases. Electricity is produced, at low prices, using a mix of fossil fuels and renewable sources, battery technology reaches high levels and their price falls. Ammonia is produced at high prices and with low emission levels from cheap energy and high-cost hydrogen. The results of the analyses carried out are reported in economic terms, the return on the investment made for the purchase of the ship, setting the highest return to 1 and the lowest to 0. In all scenarios, the solution with the use of biofuels to replace traditional fossil fuels is the one that has the highest efficiency, while the battery-powered electric solution is the one with the lowest efficiency. Solutions that involve the use of ammonia as a fuel come immediately after biofuels, followed by those that involve the use of hydrogen.

In any case, the efficiency of all the hypothesized ZEV solutions is always substantially lower than that of ships with traditional propulsion (internal combustion engine and fossil fuel), highlighting the need for regulatory interventions in order to make these solutions competitive. The price of these interventions has been estimated at about $250 per tonne of carbon dioxide produced for biofuels, and about double for ammonia and hydrogen. In order to be transported in the liquid state, hydrogen must be kept at temperatures just

Rivista Marittima July-August 2021

above absolute zero (-253°C at ambient pressure); transport in the form of compressed gas (at pressures that can reach 700 bars) has other drawbacks, as well as being less efficient from a volumetric point of view.

Liquid hydrogen accidentally released can cause the fragile fracture of carbon steel and evaporate, increasing its volume hundreds of times and turning into a highly flammable gas which, if released indoors, can remain separated from the air for prolonged periods; on account of its small molecule size, gaseous hydrogen can pass through many materials. Hydrogen burns with an invisible flame and has a high flame propagation speed, with consequent high risk of detonations in the case of combustion within confined spaces. Compressed gaseous hydrogen tanks entail explosion risks in the event of tank rupture due to the very high pressures involved; at these pressures, a leak can cause the spontaneous combustion of hydrogen, with jet fires that are extremely dangerous, also due to the difficulty in identifying them with the naked eye.

Ammonia (NH3), whose use as a naval fuel was discussed in an article in the April 2021 issue of this magazine, is a colourless, flammable, highly toxic and corrosive gas, with a very strong and suffocating odour.

It is highly water soluble, and is normally sold in liquid form; it has an energy content similar to that of hydrogen and methanol, but low flammability, which is good for safety, but makes it unsuitable for use in internal combustion engines, except in combination with another substance which facilitates the ignition of combustion. Coming in contact with or inhaling it can lead to burns and asphyxiation; fortunately, the strong unpleasant odour is perceived at concentration levels much lower than those of actual danger.

Biofuels are produced directly or indirectly from organic materials, and are classified according to their origin. As previously mentioned, first-generation biofuels are produced directly from vegetable crops that can also be used for food; among them bioethanol produced by fermentation starting from cereals and sugar, and biodiesel obtained from oil extracted from rape seed. Second-generation biofuels are produced from non-food crops, such as wood, organic waste and specific crops particularly suited to

51

Zero Emission Vessel

The Doge’s Palace in Venice submerged by high water on November 4, 1966. The increase in sea level due to the greenhouse effect would, according to many scholars, lead to an increase in the frequency and severity of this type of phenomena, if corrective measures are not taken in time (wikipedia.it).

An image of the merchant port of Naples that highlights the coexistence of areas intended for pleasure boating, passenger traffic (ferries and cruise ships) and merchant traffic; the military base with the San Vincenzo pier is also visible. The port areas in the urban environment are currently considered a possible source of pollution for the whole city and as such are subjected to careful environmental monitoring. Below: a container ship leaving the port of Genoa; the continuous increase in the size of cargo ships, in the absence of corrective measures, makes them increasingly important sources of greenhouse gases (author).

52

the production of biomass; the third-generation consists of optimized crops such as algae. They are functionally equivalent to traditional liquid fuels of fossil origin, and compatible with existing engines and infrastructures; their integration into the shipping industry therefore appears relatively simple. However, their energy content is lower than that of diesel oil (2), and therefore, other elements being equal, they provide lower power and require larger tanks to obtain the same autonomy.

Biomethanol (methanol produced from biomass) is a unique biofuel; at atmospheric pressure it is liquid in a wide range of temperatures, between -98°C and + 65°C. It is highly toxic to humans, difficult to identify without particular systems, and it burns with an invisible flame; compared to fossil fuels, it has a lower density and a lower calorific value, but it is highly flammable, with a fairly low flammability temperature (11-12°C). It is water soluble, so it is impossible to remove the water that may enter the tanks, resulting in problems of energy density and combustion quality. In conclusion, the main risks of this fuel are fire, explosion and contact with humans.

Batteries are currently based on very different chemical principles; even if we only consider the lithium-ion type, which are the most promising today, there are numerous variations in terms of chemical processes, manufacturing methods and architectures, each of which requires specific construction and testing requirements to mitigate the risks of failure. The greatest risk is probably the one linked to thermal drift, that is, to possible uncontrolled heating as a result of mechanical damage, overload, short circuits or excessive use of capacity. In any case, the performance of these batteries is highly dependent on temperature. The consequences of a failure include the release of toxic and flammable gases, fire and explosion. The architectures used are generally based on a hierarchy of devices, from single cell to module, to battery, to the complete system. Monitoring today is mainly carried out on temperatures and voltages at the battery or module level, while failures that can have very serious consequences can also originate only at the level of a single cell.

Rivista Marittima July-August 2021

Zero Emission Vessel

Fuel cells are chemical reactors inside which chemical substances that can be used as fuels, such as hydrogen, ammonia or methanol, undergo reactions that generate electricity, heat and water, without therefore producing any polluting emissions; moreover, having no moving parts, they do not generate noise and vibrations. The lifespan of a fuel cell, which is a very expensive system, greatly depends on the purity of the fuel used. The main risks are those of uncontrolled or secondary reactions and fuel leaks.

In conclusion, all seven technologies identified by the Lloyd’s Register study are considered feasible without substantial changes to the types of merchant ships used today, even if technological areas have been identified for each of them that require investments before they can be used on an industrial scale.

These technological areas, many of which are common to different propulsion systems, are batteries and electric motors, hydrogen and ammonia storage technologies, fuel cells, hydrogen dual fuel internal combustion engines or ammonia and related emergency propulsion systems using liquid fuel, reformers (3), tanks for biofuels and internal combustion engines optimized for the same biofuels.

The introduction of propulsion systems and innovative “Zero Emission” fuels will entail safety risks, risks that must be identified and studied in order to mitigate or manage them. The shipping industry has taken decades to optimize the design and management of ships using traditional fossil fuels, managing to obtain a fairly low accident rate, by applying the basic principles of prevention, detection and ventilation. These principles will continue to hold true, but will have to be adapted to the characteristics of the new fuels, which present, in addition to unique safety specifications, such as the need to be transported in cryogenic form for hydrogen, also the disadvantage of a lower energy density compared to fuels of fossil origin, with the consequent need other characteristics (capacity, speed and autonomy) being equal - to store a greater quantity of fuel on board. Rigorous risk analysis studies and the adoption of sophisticated safety systems and related procedures will be required at all stages, from design,

Rivista Marittima July-August 2021

The cover of the study Safety considerations for the use of zero-carbon fuels and technologies. Centre: the cover of the Zero-Emission Vessels: Transition Pathways study. We’re considering how to turn ambition into reality. Below: the cover of the Fuel production cost estimates and assumptions study, published by LR, in collaboration with UMAS (lr.org).

construction and testing to operational management and maintenance, as well as staff retraining through specific training courses, bearing in mind that any security system is only as effective as the personnel who use and maintain it.

8 53

Outline of the main activities related to the production of hydrogen for use on board zero-emission naval units. From the study Safety considerations for the use of zero-carbon fuels and technologies, published by LR, in collaboration with UMAS (lr.org).

Outline of the main activities related to the production of ammonia for use on board zero-emission vessels. From the study Safety considerations for the use of zero-carbon fuels and technologies, published by LR, in collaboration with UMAS (lr.org).

Outline of the main activities related to the production of biofuels for use on board zero-emission naval units. From the study Safety considerations for the use of zero-carbon fuels and technologies, published by LR, in collaboration with UMAS (lr.org).

54

Rivista Marittima July-August 2021

Zero Emission Vessel

Outline of the main activities related to the production of methanol for use on board zero-emission naval units. From the study Safety considerations for the use of zero-carbon fuels and technologies, published by LR, in collaboration with UMAS (lr.org).

Outline of the main activities related to the use of batteries on board zero-emission naval units. From the study Safety considerations for the use of zerocarbon fuels and technologies, published by LR, in collaboration with UMAS (lr.org).

NOTES (1) SDGs, Sustainable Development Goals.

(2) In the order of 38 MJ/Kg (Megajoule/kilogram) compared to 46 MJ/Kg of diesel of fossil origin.

(3) Reformers are components that extract hydrogen from a fuel, such as diesel or ethanol, which will then be used to run the fuel cell.

BIBLIOGRAPHY Zero-Emission Vessels: Transition Pathways, available on the Lloyd’s Register website at http://info.lr.org/ZEV-transition-pathways.

Zero-Emission Vessels 2030: How do we get there?, available on the Lloyd’s Register website at https://www.lr.org/en/insights/articles/zev-report-article/.

Safety considerations for the use of zero-carbon fuels and technologies, lr.org.

Fuel production cost estimates and assumptions, lr.org.

Energy Transition Outlook 2020, https://eto.dnv.com/2020/#ETO2019-top. https://www.dnv.com/maritime/insights/topics/decarbonization-in-shipping/index.html. https://www.imo.org/en/MediaCentre/HotTopics/Pages/Reducing-greenhouse-gas-emissions-from-ships.aspx.

Ranking company Lloyd’s Register, lr.org.

Ranking company DNV-GL, dnv.com.

IMO (International Maritime Organization), imo.org.

Rivista della Lega Navale, September 2020, La propulsione ausiliaria a vela, Claudio Boccalatte.

Rivista Marittima, April 2021, L’ammoniaca come combustibile navale, Claudio Boccalatte.

Rivista della Lega Navale, January 2021, L’IMO di Londra, organizzazione delle Nazioni Unite per il settore marittimo, Claudio Boccalatte.

Rivista Marittima July-August 2021

55

STORIA E CULTURA MILITARE

The two ships of Prince Philip Two new event of 1941 and 1943 Enrico Cernuschi He holds a degree in law and lives and works in Pavia. A scholar of naval history, he has published, over the course of twenty-five years, as many volumes and over 500 articles published in Italy, Great Britain, the United States and France by the most important magazines in the sector. Some of his most recent books are «Gran pavese» (Marincovich 2012 Prize), «ULTRA - La fine di un mito», «Black Phoenix» (with Vincent P. O’Hara), «Navi e Quattrini» (2013), «Battaglie sconosciute» (2014), «Malta 1940-1943» (2015), «Quando tuonano i grossi calibri», «Gli italiani dell’Invincibile Armata» (2016), «L’ultimo sbarco in Inghilterra, 1547» (2018) and «Venezia contro l’Inghilterra, 1628-1649» (2020).

66

Rivista Marittima May 2021

The recent passing of His Royal Highness Prince Philip, Duke of Edinburgh and Prince Consort of Queen Elizabeth II, is undoubtedly a sad event. The epitome of style and elegance, HRH has been in the headlines for so long that he has become a constant presence for three generations, both taken Philip of Battenberg, future Prince Consort, in 1941 (Wikipedia). Opening photo: the battleship VALIANT, photographed here in Malta in August 1943; the Prince embarked there in late 1940 (Photo by David Zambon).

for granted and reassuring. On the occasion of the news of his death, some unpublished details about his experiences during the Second World War, starting from April 9, 2021, emerged in the British press which, in the writer's opinion, merit a brief study.

Rivista Marittima May 2021

67

The two ships of Prince Philip

Cadet, midshipman and LTJG Born in a royal family, that of Greece (in turn of Danish origin), penniless following the advent, in 1922, of the Hellenic Republic, in January 1939 the young prince entered the Britannia Royal Naval College Dartmouth. He did not, despite his noble origins, receive special treatment, but he surely did not want for good will and tenacity, so much so that at the end of the first year of an accelerated course equivalent to the contemporary NP (Naval Preliminaries) of the Regia Marina, he was first in ranking, and was appointed midshipman. The new war with Germany naturally accelerated everything, and in January 1940 he was embarked on the battleship Ramillies to serve in time aboard two heavy cruisers, in the Indian Ocean. At end of the year, he joined the battleship HMS Valiant, at that time based in

was quite interesting to hear the shells whistling over and splashing around, then landing in the water with great splashes". These were the four 120/45 mm guns of the Euro battery, recovered from an Italian destroyer damaged by a torpedo bomber the previous year and returned to Italy for repairs after having landed its two twin systems of that calibre and the fire control system, allocating everything to the sea defence of that anchorage, which had until then remained defenceless on that side, apart from some 13.2 mm anti-aircraft guns. The bombardment, carried out simultaneously with the major ground attack that was to conquer that stronghold, had been entrusted, as of the day, to the battleships Warspite, Valiant and Barham for the dual purpose of allowing fire observation from the ground and ensuring the safety of the attacking units. In fact, Bardia had already been bombed 8 times, between December 14, 1940 and January 2, 1941, and the Euro battery had damaged, with its own fire, the Australian destroyer Voyager, the gunboat Aphis (on two separate occasions) and the twin Ladybird (2). Contrary to forecasts, however, the Italians had in the meantime modified the elevation of those four 120 mm guns,

Above and opposite: HRH, Prince Philip (in the centre and dressed in white) playing with other officers on the deck of the battleship RAMILLIES sailing in the Indian Ocean in February 1940. Judging by another player’s striped socks, already back then shows that class will out (courtesy of David Zambon collection).

Alexandria, and had his baptism of fire off Bardia at 8 a.m. on January 3, 1941 on the occasion of a shore bombardment against that stronghold besieged for almost a month. As he himself would recall, many years later, he was impressed by the roar of the battleship's large-calibre guns, the flames, the vibrations and the rolling. Immediately afterwards, as the Prince recounted many years later in his wry style, the Italians "had the effrontery (1) to shoot back; it

68

thus managing to have the British ships of the line within reach. Since the first shots fired, the ground reaction caused some minor damage to the battleships Warspite and Barham, and the battle squadron of the Mediterranean Fleet hauled out, drawing away after a few minutes (3). The Australian and British

Rivista Marittima May 2021

The two ships of Prince Philip

A 37/54 twin machine gun aboard the cruiser ABRUZZI in July 1940 (Photo

by Castegnaro, Cernuschi collection).

troops engaged in the attack against the fortified walls of the stronghold were thus left without the ground support of the big guns and the last Italian strongpoints finally fell on the January 5 in the afternoon, after what the British called "dog fights".

The great moment of that young officer, promoted to lieutenant junior grade on February 1 1941, came on March 28 1941 on the occasion of the night action off Cape Matapan. In charge of manoeuvring the port searchlights, HRH (of Greece and Denmark) Philip Battemberg (as he was then called) first lit the Italian heavy cruiser Fiume and, after the first broadside that had devastated that ship, the Zara. And, at this point, recent British revelations confirm what had already, in our opinion, been hypothesized on these same pages last March on the solid (but at the time unexplained) basis of a certified copy of a confidential document from the Admiralty. Contrary to the propagandistic version immediately conceived by the great English novelist Cecil Scott Forester, "father" of the famous commander Hornblower, and subsequently taken up by everyone, the British ships did not suffer any damage or losses, as the Italian units did not react, except, a few minutes later, for the destroyer Alfieri, who fired two salvoes with the 120 mm forward mount against the Australian destroyer

Rivista Marittima May 2021

Stuart, with no effect equal to the launch of two torpedoes. It also appears that, after the war, the Italian Commission of Inquiry collected some testimonies made by survivors of the Zara who stated that a twin 37 mm machine gun of that ship, which remained efficient after the first, terrible broadside fired by the Barham, reacted, but in the absence of British confirmations (the official report published in the London Gazette, the Battle Summary of 1941 and the Naval Staff History of 1957, not to mention the memoirs of Admiral Cunningham and other authors) (4) the members of the Commission simply took note.

This same news was then published in 1977 by now deceased Franco Gay (5) but it was no longer talked about until 2013, when the author published, on the basis of the original British confidential document then taken up by the Rivista Marittima in March of this year, regarding that same modest affair (6).

We will never know all the details of what actually happened on both sides on that moonless night off Cape Matapan.

Today, an additional fragment of the mosaic is available regarding that event and we know, based on what was published between April 9 and 16, 2021 by the United Kingdom press on the occasion of the death of the Prince, that immediately after lighting the previously hit Zara, the flag deck and the signalling bridge of the Valiant were hit by a burst fired by an Italian unit (the pointer was obviously aimed at the search lights) which just missed (and of this we are glad!) the future consort of Queen Elizabeth: “He survived unscathed amid his shattered lights as enemy cannon shell ripped into his position (…) The Duke later spoke of how he coped when his shipmates died or were wounded. ‘It was part of the fortunes of war’, he said. ‘We didn’t have counsellors rushing around every time somebody let off a gun, you know asking ‘Are you all right – are you sure you don’t have a ghastly problem?’ You just got on with it” (7). Words completely in line with the unmistakable style of the character. Basically, it is the writer's opinion that, although the 203 mm main gun of the Italian cruisers that had been lost on that occasion was in low state of readiness, at that moment, (as night shooting was not envisaged for those weapons,

69

The two ships of Prince Philip

The British destroyer WALLACE in 1942. Perhaps the ugliest ship, as well as poorly efficient, of the Royal Navy. Philip had no preferential treatment. Opposite page: Lieutenant Philip of Battenberg in 1943 (Wikipedia); below: an Italian Cant Z 1007 Bis bomber in camouflage for night bombardment (Dimensione Cielo, vol. 5, Bizzarri, Rome 1973).

except for a very recent initial experiment, which took place just a few days earlier) it is now evident that the other weapon systems (that is the secondary 100 mm batteries and the machine guns) were, conversely, in high state of readiness, as indeed always foreseen by the War Regulations of the Regia Marina and as is, all in all, logical. The Italian units were - yes - taken by surprise, but the survivors of the first, deadly British large-calibre broadside (shot, as they were 381 mm shells, at about 3,500m, that is point blank range) reacted, as officers, non-commissioned officers, graduates and seamen were surely not unprepared to acquit their duties during a night fight.

Similarly, for having performed his duty efficiently, and without ever losing control of the situation, that young officer was, shortly after, "Mentioned in the dispatches" returning, the following summer, to Great Britain, to pass into Full Active Duty, in January 1942, at the end of an accelerated course during which he again ranked first in 4 of the 5 exams of the Command School. He was then assigned, that same month, aboard an old destroyer, the Wallace, launched during the

70

Great War and used to escort convoys along the English coasts of the North Sea. There was no shortage of adventures, from a collision on February 22, 1942 to damage caused

by German planes in May 1942 that immobilized that unit, which was adventurously towed home and remained in the docks for two and a half months. Philip, obviously, was no shirker. Promoted to lieutenant on July 16, 1942, he became the executive officer of that destroyer in a period in which the Royal Navy that had been increasingly understaffed for over a year. However, a new story which has remained undisclosed until now, awaited him once more in the Mediterranean.

An ingenious lieutenant

The Anglo-American invasion of Sicily, an operation which turned out to be decisive for Italy's political destiny in that year, entailed, already in the early stage of planning, which began in late January 1943, the acceptance of an unusual level of risk for the United States and Great Britain.

In fact, there was the looming fear of a separate Russian-German peace that would bring about a subsequent end to the Anglo-Saxon war in Europe and, according to Japanese opinion, also in the Far East based on a general compromise (8).

By June 23, 1943, Great Britain managed to concentrate in the Mediterranean, by rounding them up from all the traditional "Seven Seas": 6 battleships and 2 aircraft carriers, thanks to the simultaneous American loan of 2 modern ships of the line and, later, of an aircraft carrier sent to Scapa Flow, in addition to the deployment in the Atlantic of the old, recently modernized, Nevada battleship. In order to put together the escort units needed for the invasion convoys, a flotilla of old "V" and "W" class destroyers of the previous world war were utilised, including the Wallace, which had been intended to protect

Rivista Marittima May 2021

The two ships of Prince Philip

the first wave of attack conducted by Canadian landing troops at the southern end of Sicily between Pachino and Pozzallo. The night between July 10 and 11, 1943, the first day of the invasion, the Wallace, isolated due to one of its recurrent engine problems, was attacked and damaged by a solitary bomber.

Some fires broke out aboard the torpedo boat due to near misses ("Wallace having sustained some damage and being set ablaze in places") as the aircraft departed. While the crew put out the flames, everyone was sure that the bomber would come back, as it did 5 minutes later. During this time that young lieutenant proposed to Commander Duncan Carson to throw overboard a raft with two smoke buoys and

Rivista Marittima May 2021

a fire on board and to get away shortly at full speed and then remain motionless. It might or might not work. The commander accepted the idea and HRH was able to get everything sorted in a heartbeat. The plane, which had promptly returned to the area after its tour, threw its remaining four bombs against that float and, later, calm returned. The Wallace headed at a slow pace for Malta, where she spent a week in the docks and then repatriated in August.

This story has also been made public recently (9) and once again it is news and, even on this occasion, nothing had been reported regarding this damage. Even HM Ships damaged or Sunk By Enemy Action 3rd Sept. 1939 to 2nd Sept. 1945, a typescript from 1952 drawn up solely for internal Admiralty use (10) is silent on the subject. The circumstance is all the more curious as the aircraft that attacked that fighter was a Cant Z 1007 bis from the Bomber Group based in Perugia, armed with 8 100-kg bombs launched in two shots, and claiming 3 hits on an enemy ship. That same night 48 German Ju 88s attacked the ships in the stretch of sea between Augusta and Avola, sinking the regularly illuminated hospital ship Talamba. The Germans attacked in waves making use of flares, artifices which, conversely, the Italian planes lacked and which were not observed by the crew of the Wallace (11).

The following events in the life of the young lieutenant and prince, assigned, in February 1944, onboard the new destroyer Whelp, at that moment nearing the end of its outfitting, and later to the Arctic and, finally, to the Pacific, are well-known as they were recently covered by the press and television, not to mention the appeal of his royal love story.

Conclusion One should not be surprised by the many omissions, more or less relevant, in the story of naval

71

warfare in the Mediterranean. For historians, it is a continuous journey in search of truth.

Personally, I believe that His Royal Highness the Prince of Wales wanted, as the perfect gentleman he always has been, to honour the commitment, which all British sailors were required in wartime (and even after) not to divulge anything when silence on the events was ordered by the Admiralty, also taking care to seize the photographs, especially those taken during the actions, as was the practice at that time for obvious reasons of military secrecy. At the same time, he ensured, after his death, a complete account of his own events on the occasion of the drafting of his “coccodrilli” ("crocodiles") (12) with the same care with which he organized his own (invariably) sober and elegant funeral.

Therefore, this all confirms the nature, boundless like the sea, of history and teaching, just to give an example, of an illustrious author such as Franco Bandini, already a guest on the pages of the Rivista Marittima, in 1964, during a free (in keeping with the unchanged and immutable traditions of the monthly magazine of the Navy General Staff), intense and prolonged debate held by none other than Admiral Romeo Bernotti, founder of the IGM (now the Institute of Maritime Military Studies). The conclusions of that well-known historian and journalist had

As in any self-respecting fairy tale, the brave and ingenious sailor marries the princess in the end. The correspondence between the two began during the Second World War and Philip's deeds and dedication to duty, barely publicized, were appreciated by George VI, a well-rounded naval officer who became King of necessity. By the end of 1943, after the successful rescue of the WALLACE, the career of that lieutenant finally took a normal course without the fear of allegations of favouritism (Corriere della Sera).

been: "Nothing must ever be taken for granted", and this lesson (which is the law and the very purpose of historiography) must always be the rule for everyone.

8

NOTES (1) https://www.forces.net/news/prince-philip-duke-edinburghs-active-service-career.

(2) https://www.navy.gov.au�HMASVampire, A. Cecil Hampshire, Armed with Stings, New English Library, London 1976, p.112.

(3) As wrote the sailor of the Warspite Bernard Hallas: «… splinters hit the Barham and our ship but no serious damage had been done». (http://www.bbc.co.uk/ww2peopleswar/stories/322a4134232.shtml).

(4) All the texts in question are, moreover, periphrases of the original model of 1941.

(5) Franco Gay, Incrociatori pesanti classe Zara, Ateneo e Bizzarri, Rome 1977, p.53.

(6) Enrico Cernuschi, I sette dello Zara, Lega Navale, October-November 2013.

(7)https://www.dailymail.co.uk/news/article-9456333/Price-Philip-dies-Sea-Lord-pays-tribute-highlights-role-Battle-Cape-Matapan.html; https://www.standard.co.uk/news/uk/italian-greece-pacific-edinburgh-westminster-b928802.html; https://www.belfasttelegraph.co.uk/news/uk/philip-mentioned-in-despatches-for-role-in-battle-of-cape-matapan-40293302.html; https://www.shropshirestar.com/news/uk-news/2021/04/09/philip-mentioned-in-despatches-for-role-inbattle-of-cape-matapan.

(8) Enrico Cernuschi and Andrea Tirondola, Comando Centrale, USMM, Rome 2018.

(9) https://www.bbc.com/news/uk-10266717; https://www.businessinsider.com/prince-philip-helped-sink-enemy-ships-during-world-war-ii-2021-4?IR=T; https://www.navy.gov.au/media-room/publications/semaphore-vale-hrh-duke-edinburgh.

(10) TNA (ex PRO), ADM 234/444.

(11) Some authors have written about the damage inflicted, that night between July 10 and 11, 1943, by German bombers to the English monitor Erebus off Capo Passero, but this is a trivial typographical error as that ship was straddled by some shells dropped nearby, complaining of 6 dead and 26 injured, on the night of July 20, 1943 while in Augusta. Ian Buxton, Big Gun Monitors, Seaforth, Barnsley 2016, p.197.

(12) In Italy, this is the name given, in journalistic jargon, to the obituaries of important personalities, articles that every newspaper must always keep ready and that were once prepared by stapling one on top of the other, much like crocodile scales, some cardboard cards that reported all the latest updates about the future, illustrious departed.

72

Rivista Marittima May 2021