The Court of Viterbo accepted the Firm’s arguments in favour of a well-known freight forwarding company and dismissed the complaint brought by the opposite party against the order issued at the end of the previous ex parte proceedings.
During the ex parte proceedings the applicant acted pursuant to article 700 of the Italian civil procedure code against the forwarding company in order to have handed over the bill of lading referring to the shipped goods. At the end of the first proceedings, the judge considered the freight forwarding company’s lack of capacity to be sued and dismissed the application. The applicant, believing the order to be unlawful and erroneous, challenged the decision. The forwarding company appeared in the complaint proceedings preliminarily pleading the inadmissibility of the proceedings due to the absence of the precautionary requirement of the periculum in mora (ie danger in delay). In fact, while the proceedings commenced, the ship on which the goods had been traveling reached her destination. The goods had been cleared through customs and delivered to the consignee. Therefore, there was no longer any “serious and imminent prejudice” to the applicant, such as to allow the granting of the requested measure.
For these reasons, the Court -espousing the principle that “the complaint is not merely a check on the lawfulness of the measure, but it is some kind of renewal of the proceedings of first instance”- rejected the opposite party’s complaint for lack of that precautionary requirement, noting that, even if granted, the measure would have not had any effect for the applicant.
(Bologna Office – Federico Tassinari – 0039 (0)51 2750020)
