Identity of the carrier
Under Italian law the identity of the contractual bill of lading carrier is determined primarily as a matter of construction of material clauses on both the face of the bill of lading (for instance the logo appearing on the face of the bill, the printed signature and the terms and capacity in which that clause is signed) or the reverse of the document.
The bill of lading must necessarily allow, pursuant to Italian case-law, the identification of the carrier.1 In case there is no clear indication of the carrier the heading of the bill of lading is a relevant clue, provided that it is not inconsistent with the signature; if the bill of lading is signed by the master (or an agent signing as master's or owners' agent) the carrier is generally identified in the owner of the ship.
Identity of carrier clauses are disregarded by Italian courts.2
Validity of clauses on the B/L
Clauses like "said to be", "said to contain" or "weight unknown" are admissible, provided that the carrier has been unable, despite acting with due diligence, to check the accuracy of the indications received.
Similar clauses have the effect of shifting on the claimant the burden to prove the weight of the goods shipped, with the consequence that claimants can succeed in a shortage claim only by providing satisfactory evidence about the actual weight of the goods loaded on board.
Reserves must be ad hoc (typed) while printed clauses contained in the B/L standard forms are generally considered void and deprived of effects. Case-law on the issue has, however, changed quite recently, since in one case which reached the Supreme Court,3 the Court expressed the view that:
there is no reason to consider printed clauses on the B/L automatically deprived of effects;
the control of the weight is impossible or beyond ordinary diligence if the goods are loaded in bulk, since the Master has no way to determine the exact weight of the cargo put on board;
if a valid remark is inserted in the B/L with reference to the weight of the goods, it is upon cargo interests to prove the exact quantity of goods loaded, by submitting certificates of weight, survey reports and any other suitable evidence.
The decisions represents a change of attitude of Italian Courts and is one of the very few decisions of the Italian Supreme Court on the issue, but the majority of decisions is still in the sense that printed clauses are ineffective.
Proof of the weight outturn is generally given by mean of certificates of weight (not necessarily coming from Customs or Port Authorities) but claimants must prove that the report is not purely unilateral, and that the carrier and the Master have been duly invited to join the surveys, proving furthermore the accuracy of the weighing operations.
As to the measurements made at loading and unloading ports by mean of draught survey, Italian case-law is rather sparse, and while a few decisions have held that draught surveys can be considered reliable and at least give rise to a prima facie evidence of the weight of the goods, other decisions have been much more reluctant to rely on these measurements, in light of the fact that draught surveys are notoriously subject to mistakes due to sea or weather conditions, exactness of the data furnished by the vessel (ballast and fresh water, oil etc.).4
Letters of indemnity for "clean" bills
A master is justified in refusing to sign the bill of lading in circumstances where the shipper/charterer presents the master with a bill of lading that does not accurately describe the cargo.
Often charterers/shippers negotiate the wording to be inserted on the bill of lading, and may obtain the issuance of clean bills against a letter of indemnity (i.e. a written undertaking to indemnify the carrier for any responsibility that it may incur for having issued a clean bill of lading in circumstances where the condition of the cargo received on board was defective).
In quite a few cases Italian courts have refused to enforce such letters of indemnity, holding that they are tantamount to an agreement to defraud a third party, and are unenforceable as an illegal contract.
Jurisdiction and arbitration clauses
Traditionally under Italian case-law jurisdiction clauses were considered binding and effective only provided that they had been expressly accepted by both contracting parties.
If contained in bills of lading, the clause was considered valid only upon condition that the shipper had signed the B/L, in practice this meant that jurisdiction clauses contained in bills of lading were very rarely considered effective by Italian courts.
In a very accurate and detailed decision handed down in the case Trumpy Castelletti5 the Supreme Court pointed out that the party relying on a jurisdiction clause must prove that a custom of the trade exists as regards the inclusion of jurisdiction clauses into bills of lading, and that the parties entering into the contract of carriage knew or should have known the existence of the jurisdiction clause and of such usage, establishing a test which imposes a burden of proof quite severe.
However, over the past few years the validity of jurisdiction clauses contained in bills of lading has been increasingly acknowledged exonerating owners from discharging this burden of proof, as a result of the European Court of Justice's interpretation of Article 17 of the 1968 Brussels Convention (now Article 23.1 of EU Regulation 44/2001), and a few recent decisions of the Italian Supreme Court held the validity of jurisdiction clauses contained in bills of lading also beyond the scope of application of EU Regulation 44/2001 (i.e. when choice of jurisdiction is outside EU: in two recent cases the forums were Japan and China).6
Several decisions have held that where plaintiffs disclose in Court the B/L with no reservation or objection they are bound by the jurisdiction clause, since such a disclosure proves that claimant is relying on the terms and conditions of the B/L: this is now frequently inducing plaintiffs to disclose just the front of the bill, or to specify that the disclosure takes place only in order to prove title to sue without endorsing or accepting explicitly or tacitly the provisions contained in the bill of lading.
As to arbitration clauses contained in charter parties, under Italian case law the charter party should be clearly identified (preferably by date, names of parties, reference number, etc.) on the front side of the bill of lading, and the incorporation clause must be wide enough to give rise to a relatio perfecta, for example by the words "all terms, conditions and exceptions contained in the charterparty, including the arbitration clause, shall be incorporated".
References to freight like "freight payable as per charterparty dated XXX" are considered merely for the purpose of freight payment, and are insufficient to incorporate the arbitration clause. Similarly, the fact that the reverse of the bill of lading contains standard printed provisions like "all terms and conditions liberties and exceptions of the charter-party dated as overleaf including the law and arbitration clause are herewith incorporated" is generally considered unsuitable to give rise to a proper incorporation.
1. Court of Genoa, 18 June 1990, New Hampshire insurance co. c. Cosulich.
2. Court of Appeal Genoa, 23 October 1997, Rhein Maas & See France c. Caisse algérienne assurances transports
3. Cassazione13341/1999, Rocco vs. DIAR Maritime
4. Court of Appeal Genoa, 30 August 1994, Canali c. Dolphin; Court of Venice 19 September 1988, Gvm c. Bellardi; Court of Ravenna, 22 December 1999, Siat assicuraz. c. Novamar.
5. Cassazione SU 748/1999, Castelletti c. Hugo Trumpy.
6. Cassazione SU n. 731/2005, Sgl Carbon c. Agenzia marittima La Rosa.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.