Francesca Greblo has successfully represented a transport company sued in an opposition procedure against an order for payment.
The other party ‒ against which the order for payment of several unpaid carriage charges had been issued ‒ filed an opposition not by contesting the invoices quoted in the order for payment, but by alleging a counterclaimed compensation resulting from the non-performance of a transport which was not among those in the order for payment.
In support of its compensation claim, the opposing party attached only the invoice received by the consignee of the goods to its statement of opposition.
The Court of Udine rejected the opposition by fully accepting the defensive arguments of the transport company represented by the Firm.
First, the Court granted the objection ‒ which was decisive in itself ‒ of the opposing party’s lack of entitlement to sue, because it was not the party entitled to claim damages. Such right belonged only to the shipper or to the consignee of the goods.
In this case, in fact, the opponent had taken on the role of first carrier on behalf of the shipper, and as such, under Article 37 CMR, it would have had a right of recourse against the other carriers involved in the performance of the contract of carriage, only if it had proven that it had paid the damage to its shipper.
The proof of payment of damage is strict: the registration of the debit invoice in the registers of the opposing party does not amount to evidence of payment in the absence of a discharge or other documentation which can adequately attest the actual payment of the sum referred to in the debit note.
Since the payment was not proven, the claim for compensation ‒ on which the opposition was based ‒ was rejected, the order for payment was confirmed and the opponent was sentenced to pay the legal expenses.
(Trieste Office – Francesca Greblo – 0039 (0)40 7600281)
