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    02.11.2022

    New developments in transportation: from the reform of freight-forwarding contracts to limitation of liability in multimodal transport, from “fuel surcharge” clauses to exemption from payment of the ART contribution for road haulage companies


    The beginning of this year saw several interventions of the lawmaker in the transport field.

     

    The most significant step addressed freight forwarding contracts, whose discipline under the Italian Civil Code was partly changed (such reform, as we will see, also addressed Article 1696 of the Italian Civil Code on limitation of liability of carriers, introducing a specific limit for multimodal transport).

     

    Then, there were two further steps, albeit of a much more limited and specific scope, which are worth mentioning. We are referring to the provision for a “fuel surcharge” clause to the benefit of carriers under Decree Law No. 21 of 21 March 2022 and to the exemption from payment of the ART (“Autorità di Regolazione dei Trasporti”, Art Regulation Authority) contribution, for 2022, for road haulage companies.

     

    Let’s take a closer look at these changes.

     

    1) Freight forwarding contract reform and the new limitation of liability in multimodal transport

     

    Law No. 233 of 29 December 2021 (which came into force on 1 January 2022) reformed the discipline of the Italian Civil Code on freight forwarding contracts, albeit not significantly, since lawmakers seem to have basically limited themselves  to formalising practices already in place in the operational reality.

     

    Let’s take a summary look at changes made to the provisions on freight forwarding contracts.

    • Article 1737 of the Italian Civil Code: the former provision formally granted freight forwarders only the power to conclude transport contracts on behalf, but not in the name, of the principal. The reformed provision expressly states that freight forwarders can also conclude transport contracts in the name of the principal (with effects directly on the principal), even where the freight forwarding contract has as its object not one, but a plurality of transports;
    • Article 1739 of the Italian Civil Code: besides replacing the term “client” (“committente”) with “principal” (“mandante”) (in order to strengthen the parallelism between mandates and freight forwarding contracts), it was provided, through a mere terminological change, that freight forwarders are under no obligation to insure the shipped goods, unless otherwise expressly requested by the principal (the former reference to customs was deleted). The provision that “premiums, allowances and tariff benefits obtained by freight forwarders shall be credited to the principal, unless otherwise agreed” was repealed too. This is without prejudice to the freight forwarder’s reporting obligation in accordance with the standard mandate scheme.
    • Article 2761 of the Italian Civil Code: it was formalised that even freight forwarders can exercise the right of retention, including on goods (as long as they remain with them) that are the subject of other transport or freight forwarding contract than the one from which the claim has arisen (insofar as  such contracts are part of the same contract for  periodic or continuous services). Furthermore, as concerns payment of customs duties, freight forwarders are granted the right of recourse against the principal’s personal property as privileged creditors;
    • Article 1696 of the Italian Civil Code: the former provision set out a general limit of liability applicable to domestic and international road haulage only, which has remained unchanged[1]. The reform however introduced a specific limit of liability applicable to multimodal transport, namely: (i) 1 euro per each kilogram of gross weight of goods lost or damaged in domestic transport; (ii) 3 euros for each kilogram of gross weight of goods lost or damaged in international transport. Moreover, it was provided that the limits of liability “provided for by international conventions or applicable national laws” shall apply to transport by air, sea, river and rail, provided that the prerequisites laid down therein for the carrier’s liability are met. This is without prejudice to the exception to limitation of liability in case of wilful misconduct or gross negligence on the part of the carrier;
    • Article 1741 of the Italian Civil Code: the provision defined, and defines, “freight forwarder-carrier” (“spedizioniere-vettore”), meaning a freight forwarder who also undertakes to perform the transport (of the goods), assuming the rights and obligations of a carrier. The reform introduced a reference to Article 1696 of the Italian Civil Code to formalise the chance for the freight forwarder acting as a carrier to enforce the limitation of liability granted to carriers under Article 1696 of the Italian Civil Code.

     

     

    2) The new “fuel surcharge” clause

     

    Decree Law No. 21 of 21 March 2022, converted into Law 20 May 2022 No. 51, incorporated the discipline of road haulage contracts for transport of goods on behalf of third parties as regulated by Legislative Decree No. 286/2005.

     

    In particular, the Decree (in order to counteract the economic effects of the Ukrainian crisis), included price adjustment based on variations in fuel costs among the basic elements of written transport contracts (“fuel surcharge”)[2].

     

    This is provided for “on the basis of the variations that have occurred in the price of the automotive fuel oil as a result of the monthly surveys conducted by the Ministry of Ecological Transition, where such variations exceed by 2 percent the value taken as a reference at the time of the conclusion of the contract or the last adjustment made”.

     

    The new discipline therefore requires the parties to  a transport contract to adjust the agreed consideration if the fuel price records a variation of at least 2 percent of the value taken as a reference at the time when the contract was entered into or the last adjustment was made.

     

    In the absence of a fuel surcharge clause in a contract, the contract will be deemed to have been concluded in an unwritten form.

     

    Thus, the new discipline introduced by Decree Law No. 21 of 21 March 2022, which provides that, in transport contracts concluded verbally, the relevant consideration shall be calculated on the basis of “the indicative value of the operating costs of the road haulage company published and periodically updated by the Minister of Infrastructure and Sustainable Mobility”, shall apply, to the detriment of the parties’ negotiation autonomy.

     

    In this way the carrier will be entitled to claim from the principal the tariff difference resulting from the requalification (from the written to the verbal form).

     

    Therefore, it is recommended to include an addendum or otherwise incorporate a fuel surcharge clause in transport contracts concluded in written form.

     

     

     

    3) The exemption from the payment of the ART contribution for 2022

     

    Again with a view to facilitating road haulage companies during this difficult time, marked by an increase in fuel prices, Article 16 of Decree Law No. 21 of 21 March 2022, also provides for exemption from the payment of the ART contribution for 2022 for companies registered in the National Register of natural and legal persons engaged in road haulage of goods on behalf of third parties.

     

    This is clearly not a “regulatory” reform but rather a measure adopted by the Italian Government to provide a minimum “relief” to companies operating in road haulage in this difficult historical moment.

     

    We are talking about a measure that is not likely to be decisive for the financial statements of the companies concerned, but that will nevertheless give them a (small or very small) breath of fresh air.

     

     

    This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Mattia Zanotti.

     

     

     

     

    [1] In the amount of (i) 1 Euro per each kilogram of gross weight of goods lost or damaged in domestic transport and (ii) 8.33 D.S.P., or approximately 10 Euros, for each kilogram of gross weight of goods lost or damaged in international transport.

    [2] Such change was introduced by Article 14, paragraph I, (a) of Decree Law No. 21 of 21 March 2022; for Legislative Decree No. 286/2005, see Article 6, paragraph 3, (d).