First reflections on the "new" regulation of the shipping contract

By ASLA - Associazione degli Studi Legali Associati

di Pietro Berlingieri*

Genova - With the conversion of the Decree-Law no. 152/2021 in the Law of 29 December 2021 n. 233, the reform of the regulations governing the shipping contract has finally come to life.

The evolution of the international transport sector in recent decades (and the development of modern logistics and multimodal transport activities) strongly called for a regulatory modernization operation that sought to adapt the discipline as much as possible to the operational reality; it is sufficient to think that the text had remained unchanged from 1942 with the promulgation of the Civil Code and was not suitable for describing the now widespread practice, also contributing to possible application uncertainties. The legislative intervention as a whole does not strictly affect only the shipment contract (referred to in articles 1737 and following of the civil code), but also deals with the matter of the limitation of vectorial liability for loss and damage of the transported items (referred to in all 'art. 1696 of the civil code) together with that of the special privilege of the carrier, the shipper and the agent (as per art. 2761 of the civil code).

Here are some brief notes on the reformed articles and their practical consequences.

The revision of art. 1696 cod. civ. represents an intervention of considerable importance for the regulation of transport in general. The purpose of the revision is to provide greater clarity on the discipline of the limitation of vectorial liability without limiting it to land transport only. For the latter, the previous liability limits continue to apply (1 € / kg for national transport and the limits set out in the CMR convention for international transport), while it is specified that air, sea, river and rail transport are subject to the limits sanctioned by international conventions or by applicable national laws, provided that the requirements set out therein are met for the onset of carrier liability. A further innovation of the article concerns the specific insertion of a limit also for intermodal transport for which the liability is now limited to one euro for every kilogram of lost or damaged goods in the case of national transport and to three euro in international transport, in cases where which it was not possible to identify at what stage of transport the damage occurred.

By virtue of the new formulation of art. 1737 cod. civ., which introduces the reference to the mandate with representation, it is now possible for the shipper to conclude transport contracts in the name and on behalf of the sender and not only on behalf of the latter. Also note the approach to the now widespread reality in practice through the provision for the shipper to be able to conclude not only one but more transport contracts even with different carriers. Finally, we note the replacement of the expression "client" with the more appropriate "principal".

With regard to art. 1739 cod. civ. on the obligations of the shipper, the substitution of the reference to the customer with the more appropriate principal expression is also highlighted here. The same article then refers to any insurance subscription for items shipped, which is not mandatory "unless expressly requested by the principal". Note also the complete abrogation of the reference to the shipper's duty to credit the premiums, rebates and tariff advantages obtained to the client.

A confirmation also appears in the introduction in the article of art. 1741 cod. civ. relating to the forwarder-carrier of the reference to art. 1696 in the event of damage or loss of the goods shipped.

The last provision that affects the reform (Article 2761 of the civil code) concerns privileged credits which are specifically integrated with the privilege on credits arising from the shipping contract. It thus becomes possible to exercise the privilege and the related right of retention no longer only "on the principal's things that the agent holds for the execution of the mandate", but also "on goods subject to transport or shipment other than those for which the credit arose as long as these transports or shipments constitute the execution of a single contract for periodic or continuous services ”thus making a consolidated orientation of jurisprudence a“ norm ”. Also, is introduced no specific privilege for the forwarder who "has paid the customs duties on behalf of the sender".

Having taken note of the changes to the rules of the shipping contract, all that remains is to ask some questions both of an operational and coordination nature.

The reform attempts to bring the Italian discipline closer to that of the other European member countries, however the classic tripartition (carrier, forwarder and forwarder-carrier) has remained in place albeit with differences from the point of view of responsibility.

Again, an operational aspect to be taken into consideration concerns the possible coordination between regulatory changes and insurance coverage.

In this regard, it is noted that the introduction of a liability limit for multimodal transport, potentially tripled compared to the past in cases where the phase in which the loss or damage of goods is not identified, must lead operators to concretely verify whether your policy is able to guarantee adequate protection in the face of possible different liability scenarios, in particular with reference to the policy limits. It is therefore advisable to carefully evaluate the additions made and to make a comparison with the current values ​​indicated in your insurance policy, in order to verify that the new liability limit is covered by the policy ceiling.

Still in relation to the introduction of the new limit of 3 euros for each kilogram of lost or damaged goods for multimodal transport, there is a further aspect, this of coordination with respect to international legislation, on which it will probably be necessary to reflect. This limit, which seems to recall the limit of 2 SDRs envisaged for maritime transport in the Hague-Visby Rules, in fact grants a more convenient limit to the multimodal carrier, in the event that it is not possible to identify in which type of transport the damage, compared to that established by Article 23 paragraph 3 of the CMR and subsequent amendments (and therefore the limit introduced with the Geneva Protocol of 5 July 1978, equal to 8.33 SDRs per kilo of goods).

Further integration that will certainly have implications on contractual relationships is that of the revision of Article 2761 of the Italian Civil Code. civ. in the matter of special privileges, which in this context has effectively equated the shipper to the carrier. The new provision, however, attributes the aforementioned privilege to the shipper without any distinction between pure shipper and carrier shipper (the "pure" shipper still maintains, as an agent, the privilege provided for in article 2761 second paragraph of the civil code, that is the privilege over the principal's property that the agent holds for the exercise of the mandate).

These and other issues will undoubtedly engage operators and over time it will be seen what impact they will have on existing and future contracts.

*Lawyer, LCA