The Italian Supreme Court has recently issued three significant decisions on transport.
1. The FILO clause (free in / liner out), allocating the expenses of loading and stowage, has no relevance on the liability regime of the maritime carrier
The Italian Supreme Court2 has found that the FILO clause3 (as well as all similar clauses related to freight) has only an economic nature, since it is aimed at allocating expenses for the loading and stowage of the cargo on board.
As a consequence, the abovementioned clause does not affect the liability regime of the maritime carrier.
In the case at issue, the consignee of a shipment - damaged during the carriage by sea - sued the company who had carried out the loading and stowage of the cargo, arguing that - by virtue of the FILO clause - said company acted as servant of the shipper and not as servant of the carrier.
The correct qualification of the company was crucial to calculate the applicable time limit. Considering the company as a servant of the shipper, the two-year time bar provided for by article 1667 of the Italian Civil Code (concerning service contracts) should apply. On the contrary, considering the company as a servant of the carrier, the oneyear time bar provided for by the Hague Visby Rules should apply.
The Italian Supreme Court has pointed out that pursuant to the provisions of the Hague Visby Rules (article 3) and of the Italian Navigation Code (article 442) the carrier has to properly and carefully load and stow the cargo. As a consequence, such activities are carried out under the responsibility of the carrier.
In light of the above, the Court has clarified that the FILO clause does not shift the responsibility for the loading and stowage of the cargo from the shipper to the carrier.
Therefore the Court stated that the abovementioned company had acted as servant of the carrier and so the one-year time bar provided for by the Hague Visby Rules was to be applied.
This decision reminds us that clauses related to the freight, having only an economic nature, do not affect the liability regime of the carrier. We recommend bearing in mind this circumstance in order to duly determine the time bar limit in case of claims.
2. The consignee fails to withdraw the cargo and the maritime carrier stores it in a warehouse. What is the applicable liability regime of the carrier?
The Italian Supreme Court1 has recently replied to such question.
A maritime carrier stored a cargo in a warehouse because the consignee had failed to withdraw it.
Later, the Customs Agency sold the cargo considering it abandoned. The consignee sued the carrier in order to obtain compensation for the damage suffered as a result of the forced sale of the cargo.
The Tribunal of first instance, deeming that the Hague Visby Rules were to be applied to this case, stated that the claim brought by the consignee against the carrier was time-barred, since the one-year time bar provided for by such Rules had elapsed.
On the contrary, the Italian Supreme Court, upheld the decision of the Court of Appeal and found that the Hague Visby Rules were not applicable in this case. The Supreme Court has emphasized that such Rules only regulate the carriage by sea from the time when the cargo is loaded on board until its delivery.
In particular, the Supreme Court has noted that the delivery can take place immediately after the discharge of the cargo or after a certain time frame, provided that such time frame does not imply that the carrier has to carry out a further activity (such as the custody of the cargo).
In our case, the carrier had entered into a storage contract (i.e. the carrier had carried out a further activity in addition to the transport). Therefore in the Court’s view the liability of the carrier was regulated by the provisions of the Italian Civil Code related to the deposit and, as a consequence, the one-year time bar provided for by the Hague Visby Rules was not applicable.
This decision has deduced the concrete solution of the case from a well-known principle (the Hague Visby Rules only regulate carriage by sea), showing that the identification of the applicable law is crucial to accurately determine the relevant time bar limit.
3. The endorsement of the bill of lading in favor of the freight forwarder does not make him a freight forwarder acting as carrier
The Italian Supreme Court2 has provided us with a further clarification in connection with the issue of the identification of the freight forwarder acting as carrier.
In this case, a maritime carrier sued a freight forwarder to obtain the payment of amounts related to the detention of certain containers. The maritime carrier argued that the bill of lading was endorsed to the freight forwarder, who – as a consequence – received the cargo.
In the carrier’s opinion, such circumstance implied the assumption of the duties arising from the contract of carriage, making the freight forwarder a freight forwarder acting as carrier. In the carrier’s view, this meant that the freight forwarder had to pay the costs of the carriage.
The Supreme Court has pointed out that a forwarding contract is a mandate by which a freight forwarder undertakes, in his own name and for the account of the principal, to enter into a contract of carriage and to perform all accessory operations. The freight forwarder becomes a freight forwarder acting as carrier only when he undertakes the carriage of the goods.
In light of the above, the Court has found that the endorsement of the bill of lading in favor of the freight forwarder does not imply that the freight forwarder has undertaken the carriage of the goods. As a consequence, the endorsement of the bill of lading was not sufficient to make the freight forwarder a freight forwarder acting as carrier.
This decision clarifies that the right to receive the goods by the endorsement of the bill of lading does not imply the assumption of the duties arising from the contract of carriage.