Italy: Container Detention Charges In Italian Case-Law

Many contracts in the shipping industry provide free use for a certain period of the container, and provide for increasing daily charges after such a free time.

The shipping line usually specifies a number of free days after which the container must be returned clean and empty to the terminal or the depot.

Arguments frequently brought before the Courts are that daily costs for renting containers from a third party are generally far less than the daily detention fee charged by shipowners, and it is frequently alleged that no binding agreement has been reached as regards the daily charges applied by the line.

Italy is no exception, and there have been over the last 20 years quite a few proceedings where owners have sought the recovery of container detentions.

In some jurisdictions, container detention has been qualified as penalty clauses,1 with the consequence that it has been disputed whether the quantum of charges being levied by the lines (or their agents) are reasonable and fair and cab be enforceable as damages, or whether they should be construed instead as penalties and be unenforceable.

There is no distinction however under Italian law between penalty clause and liquidated damage clause, and the general rule is that such a clause is valid provided it is fair and reasonable.

It is now settled case-law that:

a) the supply by the shipping line of containers employed for the carriage of goods gives rise to a contract of lease, separated from the contract of carriage, which exposes the shipper and/or the consignee to the payment of detention charges.

b) the charges must be agreed upon; the agreement can be evidenced by the indication of the daily detention fee on the front of the bill of lading, or by exchanges of correspondence between the line and the shipper.

c) if there is no convincing evidence of such an agreement, the charges can be assessed by the Court, possibly on the basis of equity.

It is possible therefore to ask the Court to reduce the charges on the grounds that the penalty for the delayed restitution of the containers is excessive, and can quickly reach an amount largely exceeding the value of the container.

A few decisions have in fact dramatically reduced the quantum claimed by the Owners, and in a few cases the detention awarded have been kept at the value of the container.

It happens rather frequently furthermore that owners react slowly in advising the shipper as regards the delay accrued at discharging port and the receivers’ failure to collect the goods, and are owners may likewise be slow in taking the measures available at destination in order to dispose of the cargo and obtain the release of the containers, thus failing to reduce the detention.

It is worth noting in this respect that under Italian Law (article 1227 Civil Code) the debtor is entitled to ask the Court to reduce the amount of damages in proportion to the extent of damages which could have been avoided by the creditor if mitigating measures had been taken.

Owners generally address their requests of payment of the detention charges to the party appearing as shipper on the bill of lading, and freight forwarders are often requested to settle the charges, since the freight forwarder under Italian law acts in its own name and on behalf of the principal for the stipulation of the contract of carriage, and frequently appears as shipper in the B/L.

The possibility for freight forwarders to successfully challenge claims for container detention largely depends up on the possibility to argue and prove that the forwarder acted on behalf of a principal whose identity was fully disclosed at some stage of the stipulation of the contract of carriage.

This is the position held by the Court of Appeal of Genoa:2 the Court found conclusive evidence of the existence of a contractual relationship between the sellers/exporters and Owners in the correspondence exchanged between the parties for the confirmation of the booking; another element which has been considered particularly significant (but the issue is still controversial and far from being settled under Italian case-law) is the indication of the principal as “shipper” on the bill of landing, because according to the Court of Genoa this amounted to a confession.

The Court of Genoa however, expressed a different view in a case3 relating to the protracted detention of 4 containers in the port of Mombasa: the tribunal considered that the forwarder had failed to provide clear evidence that the identity of the principal had been disclosed to the carrier, and was reinforced in this assumption by the fact that the whole correspondence relating to the transport had been exchanged between owners and forwarders.

The Court nonetheless expressed an important principle where, after having found that the owners had informed the shippers about the receiver's failure to collect the goods and redeliver the containers just six months after delivery, held that the forwarder was bound to pay for the detention charges only for the period following the declaration, deducting the free period agreed upon.

The issue has been recently considered by the Italian Supreme Court4, by a decision which is quite accurately motivated and is likely to become a leading case.

The Court has confirmed that the contract whereby owners provide the availability of containers is a contract of lease, and that owners are bound to put on notice the shipper as regards any delay accrued at discharging port, stressing that Italian civil code (article 1690) and maritime code (article 450) contain provisions specifically aimed at enabling the carrier to seek and receive instructions from the shipper, and dispose of the goods in case no receiver shows up asking delivery of the goods.

The Court has added that although the aforesaid provisions refer to contracts of carriage, they nonetheless apply to the contract for the lease of the containers, since the two contracts are inherently intertwined, and that a duty of promptness in alerting the shipper about any delay at discharging port is an application of the duty of good faith and diligence in performing the contract.

The Cassazione has concluded stating that wherever the carrier does not inform within a reasonable deadline the shipper he will lose the right to seek the payment of detention charges, since the contract of lease of the containers would be in this case brought to termination.


1 See for instance the decision of the New South Wales Consumer, Trader & Tenancy Tribunal in D V Kelly Pty Ltd v China Shipping (Australia) Agency Co Pty Ltd [2010]

2 Court of Appeal Genoa 30 May 2005

3 Court of Appeal Genoa 2 August 2006

4 Cassazione, n. 12888/2009, Soc. Ari c. Soc. grandi traghetti Gilnavi

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.