A decision of the Tribunale di Sassari dated 22 March 2016 concerning jurisdiction by territory in the contract of carriage has confirmed the principle expressed by the Cassazione (the Italian Supreme Court) according to which the “forum contractus” – which identifies the jurisdiction under Article 20 of the Italian Code of Civil Procedure as an alternative to the forum of the defendant, as provided for by articles 18 and 19 – is that of the place of loading of the goods that will be moved (see Cassazione, section III, July 15, 2009, Order n. 16446).
In the case at hand, a contracting company from Sassari brought an action for preventive expert testimonial as per article 696b of the Italian civil procedure code before its Court of residence, against a cooperative of hauliers with which it had had a contractual relationship which had lasted several years, in order to obtain the appointment of a Court-Appointed Expert, to whom to entrust the task of ascertaining the actual kilometers covered by the carrier and the subsequent determination of the amounts owed to it, based on the kilometric rate verbally agreed between the parties.
The carrier -represented by the Firm- appeared at Court preliminarily disputing the jurisdiction of the Court, the lapse of the opposite party’s right and, on the merits, the groundlessness of the opposing claims.
The Court granted the carrier’s preliminary plea and declared its own lack of territorial jurisdiction, pointing out that, having the parties agreed upon a non written contract of carriage, this must be considered as entered into at the location where the performance of the service started.
And in fact, according to a well established case-law, in cases where the contract of carriage is not formed in writing, the provisions of art. 1326 of the Italian civil code do not apply, but those of art. 1327 do, which stipulate that, “when, at the request of the offeror or by the nature of the transaction or according to usage, the performance should take place without a prior reply, the contract is concluded at the time and place in which performance begins” (ie, regarding the contract of carriage, in the place where the goods were loaded by the carrier).
The above is confirmed by the fact that in contracts of carriage – in which for reasons of expediency it is necessary to proceed to the immediate performance of the service in the applicant’s interest- the performance of the contract is not subject to a prior reply by the carrier. Therefore, acceptance of the contractual offer occurs when the performance of the contract begins.
(Bologna Office – Federico Tassinari – 0039 (0)51 2750020)
