Luca Di Marco November 7 2018 Supreme Court rules out vicarious and strict liability of receiver for road carrier violations Dardani Studio Legale | Shipping & Transport - Italy Luca Di Marco Shipping & Transport FactsDecisionCommentThe Supreme Court recently issued a significant decision regarding the joint liability of a carrier, shipper and owner of goods following the carrier's violation of road safety rules under Italian law.FactsAn Albanian company, acting as the shipper, instructed an Albanian road carrier to transport 1,083 cartons of footwear from Albania to Italy. The receiver was the shipper's Italian holding company.On arrival at the Port of Bari, the truck was inspected by the Italian police and it was found that the driver was in possession of a forged permit to transit in Italy. As a result, the police ordered the arrest of the cargo.The order was appealed by the receiver and the owner of the goods, but was dismissed by the prefect of Bari, who ordered the confiscation of the cargo.The receiver instituted judicial proceedings aimed at revoking the prefect's order. However, both the first-instance tribunal and the Bari Court of Appeal confirmed the confiscation order. As a consequence, the receiver appealed the Bari Court of Appeal decision before the Supreme Court.The appellant argued, among other things, that the lower courts had erroneously interpreted and applied Article 7(2) of Legislative Decree 286/2005. Article 7(2) provides that the contractor, shipper and owner of goods will receive an administrative fine under Article 26(2) of Law 298/1974 and the relevant cargo will be confiscated where they entrust the transport of goods to:a carrier that is not provided with the necessary authorisation or that violates the conditions and limits prescribed therein; ora foreign carrier that does not have proper authorisation to carry out transport services in Italy.In this respect, the appellant maintained that:Article 7(2) of Legislative Decree 286/2005 should have been interpreted in accordance with the principle that only the wrongdoer should be deemed liable for an illicit act; andsuch liability should be established on the basis of material facts, by ascertaining the infringer's wilful or negligent behaviour (act or omission), thereby excluding the admission of strict or vicarious liability of any of the other parties involved in the transport chain.By referring to the abovementioned principle, the appellant argued that the Court of Appeal had wrongly and arbitrary held that the receiver had committed a negligent omission by failing to properly check whether the carrier's permit was genuine.DecisionThe Supreme Court granted the arguments raised by the appellant by overruling the Court of Appeal decision.In particular, the Supreme Court held that, since Article 7(2) of Legislative Decree 286/2005 does not foresee the strict or vicarious liability of the parties involved in the transport chain, in the case of a violation of said rule, the liable parties should be identified by ascertaining their wilful or negligent behaviour.In this respect, the Supreme Court also stated that the different roles played by the parties involved in the transport chain, as indicated in Article 7(2) of Legislative Decree 286/2005 (ie, the carrier, the contractor that appointed the carrier, the shipper and the owner of the goods) should be properly considered in order to assess the relevant conduct and behaviour of each party, with reference to the level of diligence required by each of them.Turning to the particular case, the Supreme Court held that the Italian receiver of the goods could not be asked to check the Albanian carrier's permit at the beginning of its journey, considering that the contract of carriage was concluded by an Albanian company with a haulage company that was regularly enrolled in the local road haulage register.In consideration of the above, the Supreme Court concluded that the appellant had committed no fault and was not liable for the carrier's violation and that, as a result, the goods previously confiscated should be released and returned to the appellant.CommentThe Supreme Court judgment is notable, as it gives a clear interpretation of Legislative Decree 286/2005's rules by confirming the principle already expressed in another court precedent – namely, that at least, the fault is the subjective element required to establish the liability of a party in the transport chain where there is a violation of the road safety rules.For further information on this topic please contact Luca Di Marco at Dardani Studio Legale by telephone (+39 010 576 1816) or email ([email protected]). The Dardani Studio Legale website can be accessed at www.dardani.it.