This contribution, prepared by attorneys Niccolò Medica and Laura Andreani, was published in N&T Plus Diritto – Il Sole 24ORE.

Decree-Law of November 6, 2021, No. 152, converted with amendments by Law of December 29, 2021, No. 233, has significantly affected certain provisions of the Civil Code concerning transport and shipping.

First, the amendments have affected Article 1696 of the Civil Code, in that:

• – the limitation on compensation owed by the carrier – set, at the national level, at 1 euro per kilogram of gross weight of lost or damaged goods and, at the international level, by reference to the CMR Convention (8.33 SDR per kilogram of gross weight missing) – which previously applied exclusively to road transport, has been extended to other modes of transport; in the case of air, maritime, inland waterway, and rail transport, both national and international, reference is made to special laws and relevant international conventions with regard to the amount of such limitation and compliance with the prerequisites for the assumption of liability;
• – a specific discipline has been introduced for the first time in our legal system (thus implementing the consolidated jurisprudential orientation) for the case in which, in the event of intermodal transport, it is not possible to establish at which stage of transport the loss or damage occurred: the compensation owed by the carrier shall not exceed 1 euro per kilogram of gross weight of lost or damaged goods in the case of national transport and 3 euros per kilogram of gross weight of lost or damaged goods in the case of international transport.

With regard to shipping, the main amendments have concerned Article 1737 of the Civil Code, pursuant to which the freight forwarder may now conclude transport contracts entered into in performance of the mandate conferred upon him by the client either in his own name and on behalf of the principal or in the name and on behalf of the principal himself, provided that he is “endowed with powers of representation“. The same article also provides that the mandate conferred on the freight forwarder may concern the conclusion of a plurality of transport contracts.

With regard to Article 1739 of the Civil Code, which establishes that the freight forwarder is under no obligation to arrange insurance of the goods shipped, the reference to contrary agreements has been eliminated. The new formulation of Article 1739 of the Civil Code places upon the principal the task of providing precise instructions relating to the conclusion of insurance coverage, leaving to the freight forwarder the assessment of the best coverage in relation to the type of transport and the risks connected thereto.

As for Article 1741 of the Civil Code, which governs the rights and obligations of the freight forwarder-carrier, namely the party that “with its own or others’ means assumes the performance of transport, in whole or in part“, it is now specified that, in the case of loss or damage to the goods, the discipline of Article 1696 of the Civil Code applies, including the compensation limits provided therein. In this way, the question of the compensation limits applicable to the freight forwarder-carrier who has not been authorized to carry out road transport of goods on behalf of third parties has been resolved.

Finally, the amendments to Article 2761 of the Civil Code are noted:

• – there has been a substantial equalization, in matters of special privileges, of the freight forwarder’s claim to that of the carrier;
• – the orientation of the Supreme Court has been normatively incorporated, according to which the right of retention and lien on goods transported for a claim arising from the transport contract may be exercised also to satisfy a claim arising from a different transport, but with which there is a connection. In substance, based on the new formulation of the rule, where multiple transports are carried out in performance of a single framework contract, the right of retention and lien may be exercised also for the consideration accrued for a transport prior to that having as its object the goods currently in the carrier’s possession.