7th Symposium of Lawyers - Avv. Paolo Zucconelli

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

Avv. Paolo Zucconelli
Studio Legale Dindo, Zorzi & Associati, Verona (Italy)

7th Symposium of Lawyers, Members of the IRU Legal Assistance Network
St Petersburg, 30 April 2008

RESPONSIBILITY OF THE CONSIGNOR/PRINCIPAL IN THE FRAMEWORK OF THE INSTRUCTIONS GIVEN TO THE TRANSPORT OPERATOR

PREAMBLE

This paper looks at the possible consequences of the instructions given by the principal to the haulier with regard to the performance of the haulage contract, particularly where they may be the basis for inexact performance, or where they may lead to infringement of regulations.
The question of the principal’s instructions thus needs to be approached from two different standpoints, both of which are important:

Where the principal’s instructions result in failure of contractual performance due to loss of or damage to the transported goods;
Where the principal’s instructions result in the haulier’s infringement of road and social safety law and regulations.

THE PRINCIPAL’S INSTRUCTIONS AND FAILURE OF CONTRACTUAL PERFORMANCE

The source law for consequences of instructions furnished by the principal is to be found in articles 1683 and 1693 of the Italian civil code, as regards the transportation of things as detailed here below.

1683. Instructions and documents that must be given to the haulier.
The principal must indicate exactly to the haulier the name of the consignee and the place of delivery, as well as the nature, the weight, the quantity and the number of things to be transported and other details necessary for their carriage and transportation.
If special documents are needed for the performance of the movement of the goods, the principal must remit them to the haulier at the time the things to be transported are consigned.
The principal is liable for any damage arising from any omission or any imprecision in instructions or from the failure to consign the things or any irregularity in the documents.

1693. Liability for loss or damage.
The haulier is liable for the loss of damage to the things handed over to him for transportation from when they are received to when they are redelivered to the consignee, if, that is, he is unable to prove that the loss or damage was a chance event or due to the nature of or defects in the goods themselves or of their packaging, or was the result of some action or inaction of the principal or of the consignee.
If the haulier unreservedly accepts the things to be transported, there is a presumption that the things themselves have no apparent packaging defects.

The courts have on many occasions been called upon to interpret the combined provisions of the two articles of the civil code just cited, and has often had to consider, with regard to the liability of the haulier, the relationship between the requirement for an exact indication of the nature and the quantity of the things to be transported, which is the responsibility of the principal under paragraph 1 of article 1683 of the civil code (together with the penalty provided for in paragraph 3 of the article, with liability for damages occurring due to omissions or inexact instructions), with the principle according to which the haulier is not liable for loss or damage due to the actions of the principal (paragraph 1 article 1693 c. c.).

Following the court decisions, it must be ascertained on a case by case basis whether any failure in the aforesaid instructions was or was not the actual cause of the loss of the things handed over for transportation, so that the loss due to the failure on the haulier’s part to adequately care for the things may be due to the actions of the principal under paragraph 1 of article 1693, with the situation provided for in paragraph 3 of the article 1683 also arising, where measures should have on the one hand been taken by the haulier to prevent the loss, while and on the other hand he may have failed to carry these out because he had not been duly informed.

Generally speaking the courts have found that the first factor is the presumption of liability of the haulier. The presumption of the haulier’s liability under article 1693 c. c. means that for him not to be liable he must provide positive proof that the damage and consequent failure to perform the contract have been due to a positively identified event to which he was a stranger and which cannot be attributable to him, in the sense that the loss or damage is the result of a chance event, due to the nature of or defects in the things to be transported or of their packaging or the of the actions of the principal or the consignee.

It thus has to be ascertained whether the omission as regards the instructions was the independent and sole cause of the loss of the goods, occurring as a result of the lack of the special and suitable measures for their safekeeping that, on the one hand the carrier should adopted to prevent their loss and, on the other hand, he did not put into effect for the very reason that he was not properly advised, or because he was incorrectly informed (Cass. civ., Sez. III, 16/02/2000, n.1712).

The carrier’s liability for the loss of goods is not excluded or diminished by the failure of the principal to indicate the nature, quantity or weight of the goods according to article 1683, c. c. if there is no causal connection between the omission or the inexactness of the aforesaid instructions and the fact that resulted in the loss of the goods (Cass. civ., Sez. III, 08/10/1991, n.10533).

The burden of proof to for the exclusion of serious liability is therefore on the carrier, who not only has to demonstrate that the loss or the damage was the consequence of erroneous instructions provided by the principal but also that the aforesaid instructions were a matter wholly external to the business of the carrier.
If, therefore, the principal’s instructions even though capable of causing the loss of or the damage to the goods, this does not amount to a factor wholly external to the business of the carrier and his obligation to correct custody of the goods (even complying with all the regulations and taking the precautions necessary to protect the goods transported with the due professional care of carrier), with the result that the liability of this latter cannot be excluded.
The burden of proof on the carrier is thus extremely heavy.

THE PRINCIPAL’S INSTRUCTIONS AND SHARED LIABILITY FOR INFRINGEMENT OF ROAD SAFETY REGULATIONS

The reform of the road haulage system introduced with legislative decree 286/2005 is based on an increase in the supervisory powers of the public authorities in relation to any road safety regulations.
To this end, articles 7 et seq. of legislative decree 286/2005 brought in shared liability as between the different persons involved in the carriage contract, which can only be overcome if it is shown that the person infringing the regulation did not act following instructions that induced him to commit the offence.

For the purposes of ascertaining shared liability, the infringement of the following provisions of the highway code in relation to road safety are of particular importance:

article 61 (outline limit);
article 62 (mass limit);
article 142 (speed limits);
article 164 (vehicle loading system);
article 167 (carriage of things on vehicles and trailers), even in cases other than those in paragraph 9 of this article;
article 174 (length of time driving vehicles equipped for the carriage of persons and things).

The shared liability system and the corresponding burden of proof operates differently according to to whether:

the carriage contract is drawn up in written form; or
the carriage contract is in non written form.

When is a carriage contract drawn up in written form?

The lawmakers, to encourage correct conduct and transparency in the dealings between the contracting parties, as well as and especially to keep the content under observation, established that the contract for the carriage of freight by road must be stipulated in principle in writing.
The legislation was not however restricted to establishing the form of the contract but also set out to determine which must be the essential elements in the written contract, stating that if certain of these elements are absent the contract will nevertheless continue to be valid as between the parties but will be deemed to have been completed in “non written form”.

The essential elements of the contract for the purposes of article 6 of the decree are the following:

The name and the head office of the haulier, identified also in the case of a non Italianhaulier, and of the principle and, if different, that of the loader;
The registration number of the haulier on the national hauliers register
The type and the quantity of the goods being transported, in compliance with the registration document of the vehicles;
the payment for the service and the method of payment;
the place of consignment of the goods by the haulier and of the re-consignment of the goods to the recipient.

These elements are expressly provided for and required by the law as essential elements to a carriage contract in the sense that if even only one of them is missing, the carriage contract is deemed not to be in written form.

INFRINGEMENTS OF SAFETY REGULATIONS AND THE WRITTEN CONTRACT

Where there is a carriage contract for goods by road that is drawn up in written form, and where the driver of the vehicle used to transport the goods has committed a road safety regulations offence, the principle, as well as the loader and the owner of the transported goods that have given instructions to the drive regarding the re-consignment of the goods, are jointly liable with the driver if the manner of performance as provided in the contract (and thus in the instructions to the carrier) turn out to be incompatible with the driver’s compliance with the road safety regulations that have been infringed.

The law also says that instruments or conduct that seek to have the carrier bear the financial consequences of penalties imposed on the principal, the loader and the owner of the goods are null and void.

This means that no contractual clause may be inserted by which the haulier is whatever happens obligated to reimburse the principal and the owner for an even that is not wholly attributable to the carrier himself.

INFRINGEMENTS OF SAFETY REGULATIONS AND THE CONTRACT NOT IN WRITTEN FORM

If, where the road haulage contract is in non written form, there is infringement of safety regulations, the principal or, failing that the driver, are required at the request of the highway police who ascertained the offence, to produce the documentation which show the compatibility of the instructions given to the haulier for the performance of the service with the provision in the regulations that has been infringed.
If this documentation is not forthcoming, the haulier and the principal are always jointly liable with the person who committed the actual offence.
In practice the principal has the burden of proof to show that he did not give instructions that lead to the commission of the offence.

Such proof may be anything but easy, especially where there is no written documentation.
The failure to draw up the contract in writing may thus have important repercussions for the principal and for the owner of the goods.

The verification procedure is the following: within 15 days of the infringement being challenged, the competent authority requests the principal and the carrier to present within 30 days a copy of the contact and any accompanying documentation. Within the 30 days following receipt of the requested documents, the competent authorities imposes the penalties provided for in law if no incompatibility emerges between the instructions given and compliance with road safety regulations.

The aim of the co-liability principle is to seek to avoid unfair competition based on infringement of safety regulations, insofar as each person in the transport industry chain must pay particular attention to those he entrusts the haulage service to, and what contractual terms are drawn up, since any lack of care with regard to the content of the contract will expose the party heavy penalties, even though in reality the infringements are actually the improper performance by others.
Friday 14/03/2008

Avv. Paolo Zucconelli
Studio Legale Dindo, Zorzi & Associati,
Via Leoncino 16, 37121 VERONA (Italy)
tel. +39 045 8001884 - fax +39 045 597244
e-mail: paolo.zucconelli@studiodindo.it

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