Carriers Liability Under Bill Of Lading In Italy
Identity of the carrier
Under Italian law the identity of the contractual bill of lading carrier is determined primarily as a matter of construction of material clauses on both the face of the bill of lading (for instance the logo appearing on the face of the bill, the printed signature and the terms and capacity in which that clause is signed) or the reverse of the document.
The bill of lading must necessarily allow, pursuant to Italian case-law, the identification of the carrier.1 In case there is no clear indication of the carrier the heading of the bill of lading is a relevant clue, provided that it is not inconsistent with the signature; if the bill of lading is signed by the master (or an agent signing as master's or owners' agent) the carrier is generally identified in the owner of the ship.
Identity of carrier clauses are disregarded by Italian courts.2
Validity of clauses on the B/L
Clauses like "said to be", "said to contain" or "weight unknown" are admissible, provided that the carrier has been unable, despite acting with due diligence, to check the accuracy of the indications received.
Similar clauses have the effect of shifting on the claimant the burden to prove the weight of the goods shipped, with the consequence that claimants can succeed in a shortage claim only by providing satisfactory evidence about the actual weight of the goods loaded on board.
Reserves must be ad hoc (typed) while printed clauses contained in the B/L standard forms are generally considered void and deprived of effects. Case-law on the issue has, however, changed quite recently, since in one case which reached the Supreme Court,3 the Court expressed the view that:
there is no reason to consider printed clauses on the B/L automatically deprived of effects;
the control of the weight is impossible or beyond ordinary diligence if the goods are loaded in bulk, since the Master has no way to determine the exact weight of the cargo put on board;
if a valid remark is inserted in the B/L with reference to the weight of the goods, it is upon cargo interests to prove the exact quantity of goods loaded, by submitting certificates of weight, survey reports and any other suitable evidence.
The decisions represents a change of attitude of Italian Courts and is one of the very few decisions of the Italian Supreme Court on the issue, but the majority of decisions is still in the sense that printed clauses are ineffective.
Proof of the weight outturn is generally given...
To continue readingREQUEST YOUR TRIAL