by Developer Verso VisualBLOCKAGE OF THE SUEZ CANAL: LIABILITY SCENARIOS AND FORESEEABILITY OF THE EVENT
The Suez Canal has been blocked for about a week in both directions due to the stranding of a large container ship operated by Taiwanese transport Company Evergreen (400 metres long and weighing about 224,000 tonnes), the Ever Given, which ran aground transversely while crossing the busy canal. The blockage has had, and will continue to have, serious consequences on the global market, despite the ship’s recent removal from the Canal: the Suez Canal is used by 12% of the world’s commercial shipping traffic and its blockage has already caused daily damage of $9.6 billion in the first week.
It is well known that the risks to which goods transported by sea may be exposed induce those involved in maritime shipping to stipulate maritime insurance policies, the purpose of which is to indemnify the insured party against loss or damage following the occurrence of accidents. From the first data released, it seems that the Ever Given is insured for 3.1 billion dollars and, although the sum may seem huge, it could be insufficient to cover the claims that could come from a huge number of parties directly and indirectly damaged by the event, due to the considerable delays in the delivery of goods, their possible deterioration, the heavy travel costs for those who decided to divert some of the ships to the Cape of Good Hope (with a diversion that implies 9. 000 km more to travel), the damage caused to the canal by the ship’s movement and the possible legal action that could be taken by the Egyptian authorities for the loss of profit due to the interruption of navigation in the Canal, unless they are found to be partly responsible for the accident (the canal authority, which collects almost six billion dollars a year, has admitted that it has started losing one hundred million dollars a day).
Indeed, the reason for the accident is still unclear, but an initial analysis suggests that the wind and the sandstorm, which have reduced the visibility in the Canal, were not the only reasons for the accident, leaving open the possibility that human error may have contributed to the grounding of the cargo vessel, which would also change some aspects of compensation for damages caused and carrier liability (see, for example, art. 17 Rotterdam Rules about the absence or presence of fault).
What is certain is the leading role that will be played by the insurance companies of those involved who have insured their vessels for such events, which will then take recourse proceedings (subrogation under Article 1916 of the Italian Civil Code) to recover the amount paid to their insured, if it is ascertained that Ever Given carrier or the owner and manager of the Canal itself is responsible.
We can foresee that the impact will primarily be on the shipowner’s H&M insurance which cover for the costs arising from the salvage operations, while the P&I (Protection and Indemnity) insurance cover will come into play for damages that may be claimed by the Canal authorities.
Another point is based on the predictability of such an event: between 2013 and 2016 there was an average of 12 navigation accidents per year within the Canal and it appears that groundings (such as the Ever Given incident) are the most common cause, 25 in the last 10 years. It is easy to see that with navigation so heavily dependent on such narrow canals, the potential for such accidents is always there.
Such an event had already been simulated several times by various scientists, including the University of Plymouth team. The severity of the accident is due to the size of the ships using the canal, with more than a third of the accidents in the last 10 years involving container vessels. The Ever Given is 400 metres long, 59 metres at its widest point and 16 metres deep below the waterline. This makes it one of the largest container ships in the world, capable of carrying more than 18,000 containers. When operating within such narrow boundaries, ships of this size need to maintain a certain speed to keep their steering effective. So it is clear that with the capacity to carry over 150,000 tonnes of cargo, these ships cannot stop suddenly. If something goes wrong, the crews have very little time to react before the ship runs aground.
This accident highlights how the dependence of international trade on ever larger ships needing to navigate narrow shipping lanes, built in an earlier era and therefore designed for use by medium-sized vessels, is becoming increasingly risky. It is even conceivable that accidents such as these could be in future deliberately triggered to cause targeted or widespread disruptions to global and local trade.
Even before the Ever Given ran aground in the Suez Canal, the global trade network was already showing signs of stress from the year-long economic disruption of the coronavirus pandemic. The fear now is that the Suez accident could intensify Europe’s logistical challenges, resulting in cancelled sailings, container shortages and higher freight rates. In terms of the impact on the global supply chain, the accident reveals the immediate consequences of blocking one of the world’s major shipping lanes and highlights the extent to which global trade has become dependent on mega-ships, with their pros and cons.
Trainee Lawyer Giulia Gioffredi
Trainee Lawyer – Milan – Italy
by Law Firm GioffrediCARRIER’S LIABILITY IN CASE OF GROSS NEGLIGENCE
Summary
1.Introduction
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
1. Introduction
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”.
Trainee Lawyer Giulia Gioffredi
Trainee Lawyer
by Law Firm GioffrediART. 46 ACT N. 298/74: WHAT SANCTIONS ARE APPLIED TO THE EU VEHICLE TRANSITING IN ITALY WITHOUT AUTHORISATION OR LICENCE ON BOARD?
[Following the changes to article 46 Act no. 298/74 for vehicles registered in a member state of the EU or the EEA, it is now possible to pay a reduced amount equal to the minimum fixed by the single rule, i.e. € 2,065.00, to be paid within 60 days from the day of the offence1. Alternatively, it is possible to pay the same amount to the officer as a deposit (the choice of this method must be indicated on the report). Article 46 also establishes as a supplementary sanction the administrative detention of the vehicle for 3 months, which should be reasonably released once the amount established by the sanction or the deposit has been paid and the missing documents delivered to the Local Authority. It is also believed that, following the amendments made by security decree no. 113/2018, the obligation to entrust the detained vehicle to the person entitled to custody is now in force.]
Article 46 of the Act 298/74 punishes the carriage of goods by vehicles without authorisations on behalf of third parties or licences on behalf of third parties, or which violate the conditions or limits set out in the licence or authorisation, with the administrative sanction of the payment of a sum from € 2,065.00 to € 12,394.00 and sets as a supplementary sanction the administrative detention of the vehicle for a period of three months.
This provision has been modified for the hypothesis in which the violations referred to in article 46 are committed by a vehicle registered in EU countries or countries that have joined the EEA, engaged in international road transport activities in Italy.
We therefore refer to art. 52, paragraph 1, letter b), of Act no. 120 of 29 July 2010, which, by modifying art. 60 of Act no. 298/1974, established that the violations referred to in article 46 of Act no. 298/1974, committed with a vehicle registered abroad, which is carrying out international road transport activities or cabotage operations in Italy, are subject to the provisions of art. 207 of the Highway Code (“Codice della Strada”2).
As a result of this variation, it is now possible to make the reduced payment provided for in Article 202 of the Highway Code, and the offender is therefore allowed to pay, within sixty day by the contestation or notification, an amount equal to the minimum fixed by the individual regulations (in our case, the minimum is € 2,065.00).
However, attention is drawn to the fact that in the case in which the offender does not use the right of reduced payment, for whatever reason, he can pay to the officer in charge, by way of deposit, an amount equal to the sum required for the reduced payment foreseen by Art. 202 (this provision applies, we remind you, only in the hypothesis, of our interest, in which the vehicle is registered in a Member State of the European Union or adherent to the Agreement on the European Economic Space and not to a vehicle registered in Italy).
The payment of the deposit must be mentioned in the report of violation. Local authorities still tend to demand a fine of € 4,130.00, on the basis of what we believe to be a misapplication of Article 16 of Act 689/81, which provides that the minimum amount of the sanction for article 46 should be one third of the maximum, or twice the minimum if more favourable. We believe that the correct definition of the amount of the sanction is the one set out in Article 202 of the Highway Code, i.e. the reduced payment of the minimum amount expressed by the single rule (in our case, we start from a minimum amount of € 2,065.00). The same assessment should therefore be applied to define the correct amount of the bail.
It is relevant to underline that for the offences committed under the Art. 46 of the Act no. 298/74, in addition to the payment of the pecuniary sanction, the administrative detention for three months is prescribed under the Art. 214 of the Highway Code (reference is made here to the regulations in Chapter I, Section II of the Title VI of the Highway Code), consequently, after the payment of the pecuniary administrative sanction or the deposit, or after the 60 days provided for by Art. 207 of the Highway Code, the local authorities tend to apply the supplementary measure of the administrative detention until the expiry of the three month term.
Here, the recent application practice often deviates from the literal application of the rule: indeed, we find several Prefetti3 that, following the request submitted by the offender for the return of the vehicle in order to transfer it out of the Italian territory and in compliance with the prohibition of its circulation on the Italian territory until the end of the administrative detention, grant the return before the expiry of the 3 months of detention so that it is transferred to the country of origin, always, however, subject to verification of the payment of the sanction in reduced amount or by way of deposit.
It should also be noted that following the complete rewriting of the rules of the Highway Code by security decree no. 113/2018, in the light of the modification of Articles 213 and 214 of the Italian Civil Code, the general principle has been reinforced according to which the obligation of immediate custody of the vehicle by the person entitled to custody is the general rule.
Consequently, in the case of verification of the violations referred to in Article 46 Act 298/74, since the rules operate only a mere formal reference to the provisions of Chapter I, Section II, of Title VI of the Highway Code, the general procedure remains applicable, with the obligation to entrust the person entitled to custody.
If the owner is not present on the vehicle, he/she must be notified immediately and asked to take custody of the vehicle.
Only in the event that the owner of the vehicle is not available or, in any case, states that he cannot, or does not wish to take custody of the vehicle, shall the vehicle be entrusted first of all to the driver or, in the event of impossibility or refusal, to other parties who are jointly and severally obliged to take custody of the vehicle (such as the lessee, etc.).
Having clarified the sanctioning effects of the rule, there are two other topics to be analysed: what are the protective measures available to the alleged offender? Is there only the formulation of a complaint to the Prefetto of the locus commissi delicti, as often the contestation report leads the transgressor to believe, omitting any reference to the possibility of appeal before the Justice of the Peace (“Giudice di Pace”4), or is this latter authority also competent?
Moreover, how is it dealt with in Italian courts in the case where a penalty is imposed under Article 46 of Act 298/74 for the mere temporary lack of documentation on board, and not its total absence?
The first aspect must be analysed by following the two different interpretations given by the Italian jurisprudence, which has not expressed itself uniformly.
Indeed, we find judges who say that the regulations of the Highway Code are not applicable, since the reference made by paragraph 2 of article 46 of act no. 298/1974 to the “regulations in chapter I, section II, of title VI of legislative decree no. 285 of 30 April 1992” has been surpassed by the new formulation of article 204 bis of the Highway Code (made by legislative decree no. 150 of 1 September 2011) whose article 7, providing that “disputes concerning opposition to the report of violation of the Highway Code referred to in article 204 bis of legislative decree 285 of 30 April 1992, are regulated by the labour procedure” and that “the opposition is brought before the Giudice di Pace of the place where the violation was committed”, referring explicitly to Highway Code violations, make the previous rules inapplicable (see Giudice di Pace of Gemona del Friuli, sentence of 10 November 2015, no. 52).
Other cases law, including a decision of the Supreme Court (Corte di Cassazione 5) and various decisions of the Giudice di Pace, asserts instead that Art. 46 of Act No. 298/74 requires that, at least with regard to the hypothesis of administrative detention of the vehicle, the regulations in Chapter I Section II of Title VI of the Highway Code must be observed. This referral would imply a clear reference to article 214, paragraph 4, and would therefore guarantee the right to appeal either to the Prefetto under article 203 or, alternatively, to the Giudice di Pace of the place where the violation was committed under article 205 of the Codice della Strada (see Corte di Cassazione, Civil Division, Sentence 17028/2007, which also pointed out that the contrary interpretation of the rule, which would limit the possibility of bringing an action for protection only against the Prefetto, would damage the right of defence of the offender).
The second topic was recently addressed again by the Supreme Court (see Corte di Cassazione, Section II, Order no. 28283/2019 of 05.11.2019). The Prefettura argued that the Giudice di Pace and then the Court in second instance should have taken into account the fact that all the authorisation models prepared by the Administration and the internal circulars of the latter expressly mention the obligation to carry the licence or authorisation on board and consequently this should have been sufficient to consider that the violation under Article 46 of Act no. 298/1974 took place.
The Supreme Court, rejecting the appeal, stated that it is necessary to give continuity to the orientation already expressed by the Supreme Court itself in the past, according to which in order to have transport of goods by road without authorisation, sanctioned under Article 46 of Act 6 June 1974, no. 298, it is necessary that a transport of goods is carried out by a person who is not in possession of the necessary authorisation because it was never issued, it being irrelevant that the authorisation is not momentarily in his possession at the time when the violation is ascertained (see Corte di Cassazione, Section II, Sentence no. 12697 of 30.05.2007).
The Supreme Court also added that the different interpretation put forward by the appellant Prefettura cannot be accepted, since the infringement of the provisions contained in the licence or authorisation does not take place in relation to what is set out in the models prepared by the Administration, which may change over time or contain errors and omissions, but rather when a different goods are transported instead of the prescribed ones (see Corte di Cassazione, Section II, Judgement no. 23082 of 30.10.2009).
This recent orientation expressed by the Supreme Court reveals an incongruity between the behaviour sometimes adopted by the Local Authorities when the above-mentioned case occurs, and the principles established by Italian jurisprudence. Indeed, it is not uncommon that the deliver of the missing document, even in the immediate phase following the drafting of the report of charge, leaves unaltered not only the application of the main sanction (also in its quantum), but also the supplementary sanction of the detention of the vehicle for 3 months, witch bring with it the obvious consequences in terms of damages for the company owning the vehicle.
It is therefore necessary to bring legislators and local authorities into line, not least to safeguard the principle of procedural economy, so as to reduce the number of cases in which it is necessary to go to the judge or to the Prefettura to request the revocation of the sanction, and so that our laws can be understood and applied with the highest degree of transparency and clarity. For this to happen, the models and guidelines prepared by the Administration also play a primary role: they must act as an intermediary between the legislator and local authorities and cannot afford “errors and omissions”, as stated by the Supreme Court in its recent 2019 ruling.
January 2021
Trainee Lawyer Giulia Gioffredi
1 The application of a penalty of €4,135.00 on the basis of Article 16 of Act no. 689/81 is, in our opinion, incorrect. Indeed, Article 16 of the above-mentioned Act provides that the minimum edictal sanction must be equal to one third of the maximum, or if more favourable, double the minimum edictal sanction (in this case, therefore, 4,135.00 euros). On the contrary, as we have supported, the amendment of art. 60 of the Act no. 298/1974, has established that the violations referred to in article 46 of the same Act no. 298/1974, committed with a vehicle registered abroad, are subject to the provisions of art. 207 of the Highway Code, which in turn refers to article 202 of the Highway Code: therefore, the offender is allowed to pay, within sixty days from the contestation or notification, an amount equal to the minimum fixed by the individual regulations (in our case 2,065.00 euros), and not the double of the minimum edictal amount.
2 Il Codice della Strada, in the Italian law system, is a set of rules in the form of a code issued to regulate the movement of pedestrians, vehicles and animals on the road on the Italian territory.
3 Prefettura is, in Italy, a suburban authority of the Ministry of the Interior that has the function of general representation of the government on the territory of the province or metropolitan city; it has its seat in the chief town.
4 Giudice di Pace is a qualified legal practitioner who is able to deal with a range of minor civil and criminal cases.
5 Corte di Cassazione is the apex of ordinary jurisdiction, being the court of last instance in the Italian ordinary (criminal and civil) court system. It ensures the uniform application and interpretation of legal rules (so-called nomofilactic function) and coordinates relations between the various jurisdictions.