Zunarelli – Studio Legale Associato has represented a carrier in opposition proceedings against an order for payment in which the shipper, whom had been ordered to pay the freights, had opposed as a set-off the damages suffered because the goods carried from Italy to Serbia were spoilt.
The judge dismissed the opposition and confirmed the order for payment, since he deemed not only that the amount, but also the existence of the damage suffered by the shipper had not been proven.
In particular, the Judge stated that the carrier is not liable for loss or damage of the goods if they are a consequence of events which may occur during transport, if the cargo is not arranged properly, if the shipper or a party entrusted by the latter has seen to the arrangement. The carrier is not required to prove the specific fact which has determined the loss or damage, since there is a presumption of non-liability in his favour every time in which ‒due to the particular factual circumstances in which the loss or damage occurred‒ it is possible that the loss or damage were caused by one of the risks that could have been avoided with a proper arrangement of the cargo. Therefore, it is up to the party who claims the carrier’s liability to prove that the loss or damage were instead caused by a specific wrongful conduct by the latter.
In addition to the above, in CMR carriage complaints should be filed within seven days from receipt of goods, and in this case the shipper did not prove he had complied within such deadline.
(Trieste Office – Federica Fantuzzi – 0039 (0)407600281)
