CARRIER’S LIABILITY IN CASE OF GROSS NEGLIGENCE
2. The case of theft of goods
2.1 Insight: the relevance of the complaint
3. The case of robbery
4. The case of loss of goods due to lack of control
5. The case of loss of goods and the inability to piece together the fact
In the event that the goods transported do not reach their damaged on their arrival, the full liability of the carrier, compensation of the full value of the goods, may be requested by the person entitled only if the damage has been caused by intentional wrongdoing or gross negligence on the part of the carrier. The concept of negligence equalised to intentional wrongdoing must be assessed with reference to the legal system in which judicial proceedings are conducted to ascertain its existence, so that, if the proceedings take place in Italy, the principles and consequences of gross negligence will apply if the court finds gross negligence on the part of the carrier or its employees and supervisors, or any other person used by the carrier to perform the transport service. Although Italian case law and Italian doctrine have long been setting forth a series of general principles aimed at guiding the judge’s decision in assessing the carrier’s conduct, there is still a large grey area within which it is not possible to determine a priori whether, for example, the exemption of unforeseeable circumstance applies. The judge will therefore necessarily be required to assess in concrete terms whether in the case in question the event has those characteristics of inevitability and unforeseeability that can justify the limitation of liability.
Thus, the difficulty of establishing the key requirements for the carrier’s gross negligence has led to divergent evaluations by the courts over time. Consequently, it is of great interest to analyse the latest developments.
2. The case of theft of goods
One of the frequent hypotheses requiring the court to examine the carrier’s liability is the theft of the goods transported.
The question was recently faced by the Court of Biella with the sentence delivered on 5.02.2020. The judge was able to provide some interesting starting points on the distribution of the burden of proof and the verification of the existence of gross negligence, which, as known, excludes the invocation of the 1€/kg liability limit. In the present case, the land carrier had left the truck on which the goods were loaded in a private area, which was fenced off, equipped with cameras and closed by a barrier. However, he had failed to take the vehicle keys from the control panel inside the vehicle and the doors had not been locked for the time the driver had been inside the offices of the company owning the area.
Based on the examination of these circumstances, the judge asseted that the theft was “neither an unforeseeable and inevitable event, nor an unlawful act unrelated to the negligent conduct of the carrier, the latter having in fact facilitated the unlawful removal of the lorry and the goods contained therein precisely because of his failure to take the precautionary measures required by Article 1693 of the Italian Civil Code, a fortiori if it is considered that the area was surrounded by a fence running along the entire perimeter, except at the entrance crossed by a simple barrier”.
Making an assessment based on the causal nexus, the Judge found that it was highly unlikely that the theft could have taken place in broad daylight, in such a short space of time, while the driver was at the offices, “if he had taken the keys out of the truck and locked the vehicle, in the light of the barrier that clearly did not prevent people from entering on foot”. The theft was therefore deemed to be attributable to the carrier’s negligent conduct. The attitude adopted by the Court in assessing the carrier’s gross negligence is therefore rigorous with respect to the verification of the degree of professional diligence required to the carrier, qualifying theft, and as it will be seen at times also robbery, as an absolutely foreseeable risk in the context of road transport.
Also, the Court of Appeal of Salerno, in its decision delivered on 23.04.2020, found the carrier and the sub-carrier engaged by him to carry out the transport of a consignment of goods guilty of serious misconduct, following the theft committed by unknown persons while the cargo was on board of an articulated lorry left inside the customs area. In the present case, the carrier had tried to prove the existence of an unforeseeable circumstance, since the theft had occurred during the night, while the vehicle was inside the customs barrier of the port, whose access points are guarded by the Finance Authority.
However, the Court of Appeal affirmed that it could not accept the existence of the characteristics of inevitability and unforeseeability of the event capable of integrating the unforeseeable circumstance, considering that the abandonment of the vehicle “in the customs area regularly fenced off with gates guarded by the Finance Authority and about 200 metres from the Police Office is not a circumstance by itself capable of excluding liability, since it is not even deduced whether the vehicle was equipped with adequate anti-theft systems and the fact that the trailers were inside the customs gates is irrelevant, since the surveillance provided by the police was carried out exclusively for customs purposes”.
The Court therefore found the carrier’s conduct to be “grossly negligent“, rejecting the appeal filed by the carrier and the sub-carrier and confirming the first instance ruling that had already upheld the plaintiff’s claim.
Also the Court of Gorizia, in its judgment delivered on the 29 June 2018, reaffirmed the principle already stated by the Supreme Court (Corte di Cassazione, Civil Division I, no. 554/2015) according to which, “in order to exclude the carrier’s liability ex recepto, it is not sufficient to prove the loss of the cargo due to theft, since it is necessary to ascertain that the facts, even if traceable to a crime, took place in such an atypical and abnormal manner as to be considered totally unpredictable and inevitable, despite the adoption of adequate preventive measures”. According to the Judge, this circumstance had not been proved in this case since the carrier had not been able to provide any information about the loss of the cargo, except for reporting to the Udine Police Headquarters that the cargo had disappeared due to the inability to trace the driver of the sub-carrier company to which the defendant had entrusted the carriage.
The Court thus stated that the complaint, besides characterised by a general nature, of certain criminal offences cannot be sufficient to consider the actual course of events as reported, with the consequence, already ruled by the Court of Cassation in judgment no. 1935/2003, that the simple complaint does not allow, in view of the special diligence imposed on the carrier in the custody of the goods entrusted to him, to exonerate him from liability for the loss of the goods transported.
Indeed, the gross negligence of the carrier sued for compensation for damage resulting from the loss of the goods transported may legitimately be affirmed if the carrier is unable to provide any indication as to the time, place and circumstances of the loss of the goods. This appears to be sufficient to establish, on a presumption, that the organisation set up by the carrier, which under the legislation also includes the sub-carrier, lacks elementary diligence, which constitutes gross negligence.
Otherwise, the carrier who simply states that it was unaware of the circumstances of the loss of the goods would inevitably place the injured party in the position of not being able to fulfil its burden of proof.
The Court also recalled that when the carrier, in order to perform the carriage, resorts to third parties, if the loss of the goods delivered depends on the fault or wilful misconduct of one of them, both, in the external relations with the creditor of the service, are considered to be the carrier’s own, without the necessity for any distinct and independent fault on his part, such as, in particular, culpa in eligendo (see Corte di Cassazione Civile, section III, 4/4/2003, no. 5329).
2.1 Insight: the relevance of the complaint
The judgement delivered by the Court of Biella provides a starting point for a brief reflection on the function often played by the carrier’s complaint in the Italian proceedings. In cases where goods are stolen, there are few documents that allow the parties, their insurers and, if necessary, the judge to reconstruct what happened: among these, the complaint describing the evolution of the damaging event is therefore important. It is precisely from here that critical issues can arise: it frequently happens that the complaint is submitted to the competent authority by a person who is not competent to represent the company, such as the driver, who is not willing to carry out in- depth investigations.
Generally, the report contains the complainant’s personal information, the details of the goods lost, the reference value of the goods, much more rarely a precise description is given of the circumstances that caused the loss, almost never what the carrier did to prevent the loss from occurring. The Court will therefore be confronted with a statement that is often self- accusatory, opening the way to an assessment of the possible existence of gross negligence on the part of the carrier due to his inability to reconstruct the event.
Before filing a complaint, therefore, it would be advisable to create an internal report gathering the necessary documents and data to illustrate any precautions taken by the carrier, in order to lay the foundations for rejecting the hypothesis of gross negligence on the part of the carrier and to be able to define the possible responsibilities of the parties in the logistics chain involved in the transport service.
3. The case of robbery
As regards the hypothesis of robbery, the thesis according to which there would be an automatic exclusion of the full liability of the carrier has long since been surpassed.
Decisive and increasingly referred to by the judging body in the decision- making phase, as far as we are interested, is sentence no. 7533/2009 of the Supreme Court, which affirms that, pursuant to article 1693 of the Italian Civil Code, “the event represented by robbery does not, in itself, constitute a unforeseeable circumstance, it being necessary, on the contrary, whenever the risk of such an event is not unpredictable, for the carrier to demonstrate that he has adopted, among the various forms of conduct, those most suitable to ensure the punctual performance of the service incumbent on him, to be assessed in the light of the parameter of specific diligence indicated in article 1176, paragraph 2 of the Italian Civil Code”.
In the present case, the conduct of the driver, to whom the goods were materially entrusted, was characterised by evident negligence, consisting in having left the vehicle parked, during the whole night, on an unguarded public road, without any preventive means of defence against robbery by violence or threat, other than his own physical presence.
The Court added in its decision that “the professional carrier, although benefiting from a wide autonomy in choosing the time, method and route of transport, is still required to make choices in order to minimize the risk of loss of cargo, so that the choice of the carrier to place the cargo at night in an unattended area, is not an unquestionable choice, but reaches the level of gross negligence, given that the risks of theft and robbery are typical of the road transport activity, against which the companies in the sector are particularly required to prevent”. Moreover, in the case in question, the Appeal Judge had already considered the conduct of the carrier to be grossly negligent, because the carrier had failed to foresee the special conditions that would arise for the conclusion of the transport at night. Indeed, the Court of Appeal stated that “the duration of the journey in relation to the time of departure and the extension of the route could not fail to fall within the minimum capacity of the professional carrier to organise the safekeeping of the cargo in a protected area”.
The truth is that in the present case the goods had been left in a place without night surveillance and adequate fencing, so that the decision is adequately motivated on the qualification of the high degree of negligence and the consequent exclusion of unforeseeable circumstance. Indeed, as already stated by the Supreme Court in sentence no. 7293/96, “the removal of the transported goods by violence or threat cannot be considered as a cause for releasing the carrier’s liability if the circumstances in which it occurred are such as to make it foreseeable and, therefore, avoidable”.
Also the Court of Appeal of Florence, with its decision no. 2487/2019, following the direction taken by the Supreme Court, reaffirmed the principle according to which the carrier is always required to make suitable choices to minimise the risk of loss of cargo.
In the case in question, the Court of Appeal ruled in favour of the existence of gross negligence on the part of the lorry driver who, as the first instance judge had already pointed out, had stopped at night in an unprotected, unfenced and even less supervised area, without he any prevision for the vehicle, with only one driver on board and therefore in the absence of a companion with whom the driver could alternate in controlling the vehicle during the night, to be equipped with adequate protection systems. Among the hypotheses of adequate systems of protection of the vehicle, the Court of Appeal refers to:
-an anti-theft system equipped with an acoustic system or an alarm system linked to the Police;
-measures to prevent or delay the criminal action until the arrival of the Police;
-protective barriers aimed at preventing or, in any case, making it difficult to take hold of the load.
Therefore, negligence on the part of the carrier is attributable to his professional role, since he must be aware that the risk of theft and robbery is very high in road haulage and frequent in unguarded parking areas.
4. The case of loss of goods due to lack of control
Another hypothesis, which is not infrequently indicative of gross negligence, occurs when the control activity carried out by the carrier during transport is not sufficient and becomes the very cause of the loss of the goods.
In a recent decision, the Court of Monza (judgment no. 556/2018) asserted that the carrier was liable for gross negligence, arguing that the carrier’s activity in the case in question “was characterised by great superficiality due to the failure to take even the slightest precautions concerning the control of the goods loaded and unloaded as well as the identity of the persons responsible for their delivery and receipt”.
Specifically, the case involved several parties, all involved in various ways in the delivery of the goods sent to destination and never received.
In the course of the investigation, a certain superficial behaviour of all the carriers/sub-carriers had emerged, whom, both during the loading and unloading of the goods, had not, by their own admission made by the witnesses employed by the companies, checked the correspondence between what was loaded and unloaded and the relevant delivery letters, which in this case were two. Consequently, no checks had been carried out either during the delivery of the first load to the first consignee and the first destination or during the delivery of the second load. Since this case falls under the provisions of Article 1693 of the Italian Civil Code, in which the carrier is liable for the loss of cargo unless he proves that such loss was caused by unforeseeable circumstance, by defects in the goods or their packaging, or by the acts of the sender or the consignee, and no contrary evidence having been adduced in the course of the investigation, the Court affirms that the carrier was liable, supported by factual evidence that corroborated the carrier’s gross negligence.
Before it, also the Supreme Court, in its decision no. 6483/2017, had already affirmed that the activity of control was not at all extraneous to the execution of the transport by the carrier itself, but was an integral part of one of those additional obligations to the performance of that contractual relationship, necessary to achieve the practical purpose set by the parties. Indeed, the Supreme Court had pointed out in this case that the Court of Appeal had rightly found that the carrier was exclusively liable for not having checked that the goods had been loaded on the very container in which they should have been actually stored, since the carrier was the only person who was aware, on the basis of the consignment letter, of the related identification data, necessary for that purpose because of the presence of another container intended for different carriage.
The failure to check the goods and the waybill was indicative of gross negligence on the part of the carrier who, therefore, could not benefit from the limitation of liability under Law 450/1985.
Also the Court of Bolzano, with its decision no. 1204/2018, ruled on the presence of gross negligence on the part of the carrier, following the failure to apply the precautions for the transport of the goods and its control.
In the present case, the defendant company had transported a cooling device. In order to carry out the transport, the defendant instructed an Austrian carrier to deliver the machine, which arrived at its destination damaged in several places and was therefore not collected by the recipient company. On the instructions of the shipper, the package was brought back to the company, where it was repaired by the manufacturer, the costs being covered by the plaintiff.
The defendant therefore asked for a new transport, assuring that it would be carried out “obviously this time with the necessary precautions“.
After a new transport, the package was again refused by the addressee, due to the presence of apparent damage.
The Technical Expert nominated by the Judge came to the reasonable conclusion that “the cause of the damage was to be found in the handling contrary to the instructions printed on the package”.
The carrier therefore admitted that he had handled the goods in a manner different from the instructions on the package to be transported. The Court of First Instance concluded that the negligence was gross, since the defendant had admitted that the first carriage had not been carried out with the necessary precautions and that not even at the second attempt, mindful of what had happened, he was able to adopt such “necessary precautions“, besides clearly indicated in the recommendations on the package.
5. The case of loss of goods and the inability to piece together the fact
Another hypothesis that has repeatedly engaged the Italian Courts on the subject of gross negligence of the carrier is the inability to reconstruct the events that led to the loss of the goods transported.
The Court of Perugia, in its judgment delivered on the 26 February 2020, confirmed, in accordance with the principle set out by the Supreme Court in a famous judgment which will be analysed below, that if the carrier fails to provide information about the steps leading to the loss of the goods, there could be a case of gross negligence and therefore the limit of indemnity indicated by the CMR (8.33 SDR per Kg) could be excluded.
In the present case, the plaintiff had delivered a cargo of 15,000 kg of bottles of oil to the carrier to transport to England, providing the carrier with a CMR. Subsequently, when the plaintiff requested payment for the goods sold, he discovered that the consignee purchaser had not received anything and consequently had not made the payment.
Having asked the carrier for an explanation, the plaintiff was informed that the goods had not been delivered to the exact address indicated in the CMR, but to another warehouse located at a distance of about 20 km from that place and that this place was no longer traceable.
As clearly stated in the judgement, the carrier, for unknown reasons, had not delivered the cargo to the place indicated in the transport documents but, on the basis of indications from an unspecified and unidentified contact person of the consignee, to another warehouse, subsequently failing to inform the consignor of what had happened.
Also in this case, the lack of due diligence on the part of the carrier and his inability to prove that the loss of the goods was due to a unforeseeable circumstance or to the other hypotheses envisaged by Article 1693 of the Italian Civil Code and Articles 17 and 18 of the Geneva Convention on the International Carriage of Goods by Road (CMR), led to the defendant company being ordered to pay full compensation for the value of the goods transported.
Another case dealing with the above hypothesis is the one faced by the Court of Milan (Judgement no. 3285/2018, Section XI), which ruled that a carrier who is unable to clarify how and when the goods were stolen while under its control is guilty of gross negligence, pursuant to article 1696, paragraph IV of the Italian Civil Code.
In the present case, the plaintiff claimed damages for the loss of a medical instrument taken by the defendant for transportation. With regard to the loss of the package intended for the plaintiff, the Judge affirmed that “the defendant had acted in a manner that could be qualified as grossly negligent, in view of the fact that, although the defendant was a professional operator who had managed every stage of the transport operation, which was undisputedly carried out over a period of a few hours, it had not been able to provide any explanation for the loss of the goods transported”. Moreover, the defendant’s attempt to defend itself against the allegation of gross negligence by claiming that he had tried to search for the package, which had evidently been stolen in his own warehouses, was also considered irrelevant.
It is interesting to note here a further analysis made by the Court of Milan, which has considered as constituting gross negligence the category of the goods transported, which was specified on the consignment note (medical surgical instruments), and which, according to the Judge, should have given rise to a duty of special care and attention on the part of the carrier, given the obvious value and delicacy of the goods themselves.
The Judge further added that “the fact that the defendant had not even been able to explain how and when the goods had been stolen, while it was within its sphere of control, constituted gross negligence on the part of the carrier who had shown that he had failed to take due care in carrying out the transport”.
It seems clear, therefore, that otherwise there would be the paradox that the carrier’s failure to explain the circumstances in which the loss occurred, as a symptom of gross negligence in the handling of the transport steps, would mitigate its liability.
A similar judgment was recently delivered by the Court of Appeal of Catania (judgment no. 869/2020) which, in the present case, asserted that “the carrier was guilty of gross negligence for not having clarified “how” and “when” the goods were destroyed, considering that, according to settled case law, the carrier is the custodian of the goods from their loading to their arrival at destination”.
The well-established case law often referred to in rulings convicting the carrier on the ground of inability to reconstruct the event, starts from a notorious judgment of the Supreme Court (Corte di Cassazione, Section III, Sentence no. 21679 of 13 October 2009) in which the Supreme Court ruled that “the conduct of the carriers and sub-carriers was such as to constitute gross negligence on the part of the defendant company, since it is undoubtedly gross negligence to disregard the goods transported and to place them in such a disorderly and careless manner that it is not even possible to reconstruct how and why they were lost”.
The Court confirmed that, in the present case, it was highly significant that the sub-carrier had not been able to give adequate information to the sender about the circumstances in which the goods entrusted to him had gone missing.
Neither the carrier nor the sub-carrier had been able to specify the location and circumstances in which the goods had been found to be missing and where the goods had been stored before they disappeared. All this, according to the Court, “showed a serious disorganisation of the sub-carrier in the performance of the service, for which the principal carrier was directly liable”.
However, the Court recognises the incorrect evaluation of the Appeal Court when it qualifies gross negligence treating it as a simple lack of diligence. And the Supreme Court supports its argument by stating that “while it is undoubtedly true that the carrier is obliged to always perform his services with “adequate diligence” and therefore, if he fails to do so, he is responsible, it is not less true that in order to classify such responsability as gross negligence, this must be characterised by a “quid pluris” of the simple lack of diligence”.
In the present case, moreover, no indication had been given to the sub-carrier as to the value of the goods transported. The Supreme Court’s analysis of the point is interesting: the Supreme Court supports the Court of Appeal’s view that the failure to indicate the value of the cargo in this specific case could not have had any relevance for the purposes of limiting the carrier’s liability, but it also provides a guideline to be followed as to whether the value of the goods transported is relevant: the Court holds that “there is no doubt that the indication of a particular value of the goods implies for the carrier a particular duty of vigilance and the taking of particular precautions, in view of the greater likelihood of theft. However, it goes on to say that there is no doubt that the delivery of goods, even of modest value, must in any case be treated with adequate diligence, so that in any case the total disinterest in them and their being placed in such a disorderly and careless manner as to make it impossible even to reconstruct how and why their loss occurred, appears to constitute gross negligence”.
Dott.ssa Giulia Gioffredi