In a judgment issued in February 2015, the Corte di Cassazione (the Italian Supreme Court) granted the arguments submitted by the Firm on behalf of a forwarding company, with regard to the criteria to be adopted for the quantification of damages in case of non-delivery of goods. Through this judgement which ended a dispute initiated in 1998, the Corte di Cassazione confirmed that the value of the goods must be determined based on the invoice accompanying them and issued to the consignee. If, as in this particular case, there is an invoice in which the value of the goods has been indicated by the same party who acts to obtain compensation, Article 23 CMR should not be resorted to. Indeed the will of the parties, resulting from their agreement on the value and price of the transported goods, must prevail over the ordinary criteria of quantification of compensation under the Convention.
In the judgement filed last February, the Court clarified that the party who has actually suffered or borne the harmful consequences is the one entitled to claim for compensation for the damage to the goods. Therefore, with regard to the contract of carriage, the party entitled to claim compensation against the carrier is either the consignee or the shipper, depending on whose assets were affected by the damages.
The Corte di Cassazione has stated that the 1956 Geneva Convention, as well as the rules of the Italian Civil Code, attribute the entitlement to compensation based on the extent of the detriment which arises as a consequence of the loss or deterioration of the carried goods.
The Corte di Cassazione has also considered the liability of the freight forwarder, reaffirming an already well established view, shared both by case law on the merits and on legality, and by Scholars. According to that view, the freight forwarder’s duty of care must be particularly qualified, in order to serve the shipper’s interests in the best possible way. It is therefore necessary to assess the adequacy of the freight forwarder’s behaviour in view of the peculiarities of the case, such as, for example, the demanding nature of the journey, the destination and the characteristics of the foreign shipper (if the latter appears to have no experience of the Italian transport system and of the risks connected to it).
Due to the diversity of situations and of actual needs, the freight forwarder is, therefore, compelled to adopt all precautions and behaviours based on an adequate risk assessment and on an efficient management of insurance relations.
(Trieste Office– Massimo Campailla and Federica Fantuzzi – 0039(0)407600281)
