Italian State Railways v Garofalo

Date03 Giugno 1949
Docket NumberCase No. 172
CourtCourt of Appeal of Naples (Italy)
Italy, Court of Appeal of Naples.
Case No. 172
Italian State Railways
and
Garofalo.

Belligerent Occupation — Legislative and Administrative Functions of the Occupant — State-Owned Railways Operating under Orders of Occupant — Civil Responsibility — Whether Attributable to Occupant — Effect of Armistice — The Law of Italy.

The Facts—This case arose out of a collision in 1943 between a cart driven by the respondent and an unlighted train at a level crossing the gates of which had been destroyed in the course of military operations.1 The Court of first instance of Naples, in a decision of June 4, 1948,2 gave judgment for the respondent on the ground that the Italian Railways Administration was not relieved of responsibility for the reason only that the railways were operated for and under the direction of the Allies. Upon appeal,

Held: that the judgment of the Court below must be reversed on the ground that the Railways were administered by the Allied Military Government. The Court said:

“The appellant Railway Administration contends … that as a result of the Armistice of September 8, 1943, involving the unconditional surrender of the Italian Government to the United Nations, the sovereign powers of the former ceased to operate and were transferred to the Allied Military Government which was installed on Italian territory. As a result, it is argued, the latter Government must bear the responsibility for all acts of public administration. This view is unfounded, for the reason that belligerent occupation does not imply a change in the legal system of a country. … Nor is it true that all laws of the occupied territory derive their binding force from the belligerent occupant, and that the executive and judicial activities are carried on by the authority of the latter. According to the general principles of the international law of war, as codified by the two Hague Conventions of 1899 and 1907, military occupation is, from the legal point of view, a mere factual situation of a transitory character. It does not exclude the sovereign rights within the occupied territory of the State in which they were previously vested, and these rights continue to belong to that State during the occupation. This factual situation only acquires a new legal character in virtue of a treaty of peace whereby the territory in question is annexed by the belligerent occupant. This is borne out by the fact that the occupying Power must respect the existing legislation, unless absolutely...

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