by Law Firm GioffrediVETTORE VITTIMA DI RAPINA: CASO FORTUITO O RESPONSABILITÀ?
Any lawyer who is active in the field of Transport Law will probably have had to deal with a dispute in which the basis of the loss of the goods, and consequently their non-delivery to the consignee, is an unlawful act such as robbery against the carrier, or those charged by him with the carriage.
Well, for a long time the party accused of gross negligence in the custody of the goods felt strong in defending itself by citing the exemptions provided for in Article 1693 of the Italian Civil Code, since it seemed clear that a robbery was not something foreseeable, but on the contrary was classifiable as something left to circumstances beyond control.
However, what has not been taken into account is that jurisprudence, with increasing concordance, has for some time now categorised the risk of theft and robbery as a typical risk of road haulage, in relation to which every professional in the sector must diligently take precautions in order to avert such dangers (Corte di Cassazione no. 7533/2009).
In this report, we wish to draw attention to what may be the appropriate actions to avoid such episodes and, therefore, a hypothetical future conviction for gross negligence on the part of the carrier.
The most recent rulings (see, to name but a few, Sentence no. 1106/2022 Court of Reggio Calabria and Sentence no. 18960/2023 Court of Rome) show how the exemption of unforeseeable circumstances is qualified by the inevitability of the robbery event in relation to the possible measures suitable to elide or mitigate the risk of the loss of the cargo which the carrier has a duty to adopt, to be carried out with the qualified diligence set forth in Article 1176 of the Civil Code.
The experience gained in several cases that Gioffredi Law Firm has dealt with in this field, allows us to state that the conduct of the driver and the precautions taken by the transport company can really make the difference as to the foreseeability of such events.
Indeed, when the event of robbery is not unforeseeable, the carrier shall be exempt from liability only if he can show that he took the appropriate measures to prevent it, taking into account all the circumstances of the concrete case, such as the value of the goods, the mode of transport, the manner of the robbery, etc.
Obviously, the more valuable the goods are, the greater will be the demand for an increased level of vehicle security and analytical planning of the stops to be made during transport.
Let us also bear in mind that the transport of goods of a certain value, or in any case goods that can be easily relocated on the market, attracts more attention from ill-intentioned persons than other types of goods. This must not escape the notice of transport companies, who must always be aware of what they are transporting and the resulting responsibilities they bear.
The accurate identification of the person collecting the goods may also prevent episodes of robbery and theft disguised as regular delivery.
It is therefore worth remembering that it is absolutely erroneous to assume that robbery in itself constitutes the unforeseeable case referred to in Art. 1693 of the Civil Code for the purposes of the exclusion of the carrier's liability for the loss of the things delivered to him. Which, mind you, does not mean that the carrier must always take precautions of an extraordinary nature and that he is in any case liable if he has not done so, but means instead, more simply, that the carrier must do all that he is required to do in relation to the characteristics of the concrete case.
Therefore, for example, the robbery of a 'container' parked in an unattended area, at night, cannot be considered an 'unforeseeable' event if it is not proven that he took all measures to prevent it, taking into account the professional nature of the service he is required to provide pursuant to Article 1176 of the Civil Code. Or again, how will it be recognised as gross negligence on the part of the driver to have got out of the vehicle, leaving the keys inserted in the ignition switch, as well as not closing the doors, to ensure that he was not easy prey to attackers, or not activating the alarm system.
Attention should also be paid to the contracts concluded with the companies entrusting transport. Indeed, the contracts often contain clauses imposing certain security systems or the obligation not to delegate transport to sub-carriers.
Giulia Gioffredi,
Lawyer & Partner at Gioffredi Law Firm - Milan
by Law Firm GioffrediWHAT 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