With ruling n. 3361/2016, the third Section of the Corte di Cassazione (Italy’s Supreme Court) has once again recently intervened on the relationship between operators undertaking handling services and air carriers, and in particular on the issue of whether it is possible to consider the handler as an agent of the carrier.
The Corte di Cassazione takes the opportunity to strongly criticize the previous line of decisions of the same Court, which excluded the possibility of considering a relationship of agency between handler and carrier (mainly considering the independent organization of the handler and the fact that the latter, “operating in regime of monopoly” cannot “be chosen freely by the carrier”) and which classified the handover of the goods to the handler as contract in favour of third parties, “in which the “promisor” is the handler, the “policyholder” is the party who entrusts the goods (who could be the sender, or the carrier), the “beneficiary” is the consignee.”
The recent ruling of the Supreme Court states that this approach cannot be accepted due to the following issues.
First, according to the Court, classifying the handling relationship as a contract in favour of third parties does not seem reasonable, since “the handler does not exchange any offer or acceptance with the sender. The handler is chosen by the carrier, he has relations with the carrier, and receives the goods from the sender (or from the freight forwarder) upon indication of the carrier […]”.
The second issue raised by the Court is the contradiction inherent in the traditional interpretation, because denying that the handler is an auxiliary of the carrier means “recognizing the beginning of the performance of the contract of carriage not at the moment of delivery of the goods by the sender to the handler, but at the moment when the latter entrusts them to the carrier”. Likewise, according to the Court, by adhering to the traditional approach one is forced “to admit that the performance of the contract of carriage ceases not when the handler delivers the goods to the consignee, but when they are delivered to the former by the carrier”. According to the Court, such interpretation is incorrect.
In fact, “As a consequence of the contract of carriage […], the carrier “must make the transported goods available to the consignee in compliance with the place, the terms and the conditions indicated in the contract” (art. 1687 of the Italian Civil Code, paragraph 1). But if, as a result of the contract of carriage, the carrier is obliged to deliver the goods to the consignee, it cannot be maintained that the person upon whom the carrier relies to perform such delivery is not his auxiliary.”
The third critical issue is the supervened inconsistency of the traditional view – where it denies that the handler is an auxiliary of the carrier – with the Italian and the Community regulatory framework. Indeed, as pointed out by the Court, following the “liberalization” of the handling services, started with Directive 96/67 / EC (implemented in Italy by Legislative Decree no. 13 January 1999, n. 18) the handler “is no longer a monopolist, imposed on an air carrier in every airport, with no other choice”. The further argument through which the traditional line of decisions denies that the handler is an auxiliary of the carrier also seems groundless, namely, the argument according to which “the handler has a business organization which is distinct from that of the carrier”. In fact, on this point, the Court points out that, for the purposes of the applicability of Article 1228 of the Italian Civil Code concerning the liability of the debtor for the acts of the auxiliaries, the fact that the person appointed by the debtor for the performance of his own obligations does or does not have an autonomous organization from the debtor, is not relevant. Finally, the Court notes that the traditional approach, as described above, is in contrast with the prevailing approach in the jurisprudence of other countries who have signed the Montreal Convention of 5.28.1999 on international air transport, which “does not seem to have doubts on whether the handlers are covered by the definition of “auxiliary” set forth by art. 30 of the Convention”.
In light of the above considerations, the Court has held that the relationship between the air carrier, the handler and the consignee (or sender) can be classified as follows:
“(a) transport does not start when the handler delivers the goods to the carrier, but when the sender delivers them to the handler (and the same for unloading);
(b) therefore, the handler is an auxiliary of the carrier, for the simple reason that without the handler, the carrier can neither take charge, nor deliver the goods;
(c) Therefore, carrier and handler are jointly liable towards the owner of the goods, in case the goods are lost by the handler: the carrier pursuant to art. 1228 of the Italian Civil Code, the handler pursuant to art. 2043 of the same code, not having entered into any contract with the owner;
(d) when applying the Montreal Convention (i.e. in international air transport), the handler benefits from the limitation of liability provided for the carrier, in accordance with art. 30 of the Montreal Convention […]”.
Finally, it should be noted that the Third Section of the Corte di Cassazione referred the case to the First President for a possible assignment of the matter to the United Sections.
A cura dell’avv. Andrea.Giardini – andrea.giardini@studiozunarelli.com
