WHAT CHECKS MUST BE CARRIED OUT WHEN ENTRUSTING GOODS TO A SUB-CARRIER?

Our experience in assisting our clients, both with reference to insurance companies and to transport companies, has made us reflect on how it often happens that the decision to entrust the transport of goods to a sub-carrier is made with a good deal of superficiality.

What superficiality are we talking about?

Let's find out with a very recent concrete case.

A famous brand in the luxury sector entrusted the transport of 169 packages of high-value clothing to a transport company. The carrier decided to assign the transport to a small local company.

Once the sub-carrier had received the goods, he made himself unavailable and did not deliver the packages to the consignees.

Despite the defences raised by the carrier in an attempt to limit its liability, the Court of Appeal ordered the carrier to pay compensation for the value of the goods for its gross negligence.

But on what grounds? This is where we must focus our attention: case law tells us that the carrier's liability is not excluded if the event occurred in foreseeable and avoidable manner such as to show the omission of suitable precautions to prevent it (see, for example, Cassazione no. 28612 of 20/12/2013).

In order to avoid "ex recepto" liability, specific proof is required of the derivation of the damage from a positively identified event wholly extraneous to the carrier itself, referable to the hypotheses of fortuitous event and force majeure.

The carrier's defence was therefore useless, as it attempted to limit its liability by arguing that the sub-carrier was the owner of the semitrailer, registered with the road hauliers' Association, in good standing with social security contributions, and subject of some previous collaborations with the carrier that had ended positively.

The judge assessed that the cooperation had been in place for a very short period and had been concerned with the transport of goods of extremely low value, in contrast to the present case in which the goods were well suited to the commission of criminal acts. Furthermore, the check of the sub-carrier's registration in the National Association of Road Hauliers had not been properly carried out, given the fact that they had not been registered for a few months.

The judge's evaluations led to the conviction of the carrier company for the weakness of the checks carried out on the reliability of the sub-carrier it had hired (Sent. n. 566/2023 Court of Appeal of Milan).

But such checks do not seem necessary only for the concrete transport of the goods but also for their temporary storage. Indeed, in an absolutely recent case that we are dealing with, the carrier is accused of being responsible for a kind of "culpa in eligendo" because he was extremely negligent in entrusting the goods to be delivered to the consignee, which were then destroyed following an accident that occurred inside the warehouses where they were stored, to a party that did not comply with the laws that apply to those who manage the storage of goods.

So attention must be paid to the correct methods and procedures for selecting a third party to whom goods are entrusted. Preliminary checks on the reliability of the entity, the existence of an insurance policy to cover its possible liabilities, its reputation as an operator in the field of transport, the compliance of any warehouses it uses, are all actions that the carrier must not shy away from carrying out because their absence will inevitably fall on the carrier itself.

Giulia Gioffredi,
Lawyer & Partner at Gioffredi Law Firm - Milan