By means of decision dated 2 December 2015, the Tribunale di Bologna decided over a dispute concerning a claim for damages consequent to the theft of goods that took place during the land segment of an international shipment from China to the province of Bologna. The proceeding had been initiated by an insurance company which ‒after having paid compensation for an accident‒ exercised its right of subrogation against the parties that organized and performed the transport. The insurance company filed its claim for damages against our client, who in turn filed an indemnity demand to the carrier to whom it had entrusted the task of carrying the goods to their final destination. The latter, however, challenged the indemnity demand, claiming that he had acted, in this particular case, as a mere freight forwarder, without having undertaken the obligation to perform the transportation. Therefore, the judgment in question examined the issue concerning the distinction between freight forwarder and carrier (or freight forwarder-carrier). This is one of the most controversial aspects of international shipping, as it opens to interpretation and as it involves evaluations that ‒far from remaining confined within the theoretical field‒ determine relevant and practical effects on the allocation of risks in case of accidents, in light of the different liability regime of freight forwarder and carrier (or freight forwarder-carrier) respectively.
To confirm the critical nature of the subject, one need only to consider that case law has attempted to define the distinctive features of each figure, without however achieving ‒at least so far‒ a sufficient degree of uniformity of interpretation and, therefore, of certainty for the business operators. In particular, the distinction has been drawn, using, among others, the specific criteria relating to the stipulation of the fee, the level of discretion and autonomy in identifying the route, the methods of transport, the carrier/s who should be entrusted with the transport, the defensive strategy chosen after the accident, the conditions in which one faces the market, including, for example, the contents of the promotional material given to potential customers.
In the dispute at hand, the Tribunale di Bologna granted the indemnity claim filed on behalf of our client, establishing that the party entrusted by the client had taken on the obligation to carry out the transportation of goods from China to Italy, and that the latter’s role could not be considered as being limited to the activities related to the organization of the shipment and to the performance of the ancillary fulfilments that are typically carried out by the mere freight forwarder. In reaching these conclusions, particular emphasis was placed on the fact that the place of final delivery of the shipped goods was mentioned specifically in the invoice issued by the defendant in the indemnity demand. This was considered as an acceptance of the obligations concerning the performance of the carriage. The conduct and the contents of the defenses brought forward by the defendant as indemnity in the correspondence exchanged between the parties during the out-of-Court phase before the Court dispute were also underlined. In particular, it was emphasized that such company had never claimed, on that occasion, their lack of liability for having acted as mere freight forwarder, while, according to the content of the correspondence, there was awareness of the occurred assumption of the role and of the responsibilities of the freight forwarder-carrier.
Therefore, the contents of the judgment at hand are a confirmation of the careful consideration needed in order to distinguish between freight forwarder and carrier (or freight forwarder-carrier), of the uncertain definition of these concepts and of the consequent importance of the means of protection that the business operators are requested to adopt, either by entering into separate agreements or by carefully managing the case following the accident right from the out-of-Court phase.
(Bologna Office- Alessandro Vacca – 0039(0)51 2750020)
