Lloyd's Maritime and Commercial Law Quarterly
THE ITALIAN CONSTITUTIONAL COURT AND THE LIMITS ON THE LIABILITY OF THE CARRIER OF GOODS BY SEA
The Italian Constitutional Court, the task of which is to ascertain whether ordinary acts of legislation violate the Constitution, was recently seised with the question whether Art. 423 of the Code of Navigation (CN) violates Arts. 3 and 42 of the Constitution.1 CN Art. 423 is the Italian domestic equivalent of Art. 4, r. 5 of the Hague Rules and of Art. 4, r. 5(a) of the Hague-Visby Rules. It provides that, unless the shipper has declared the value of the goods, the liability of the carrier shall not exceed 200,000 lire per unit. The two provisions of the Constitution, the violation of which had been alleged, state, respectively, that all citizens have the same social dignity and are equal in the eyes of the law, and that private property is recognized and guaranteed by the law which determines the means by which it is acquired and enjoyed, as well as its limits, for the purpose of ensuring its social function and of rendering it accessible to all.
Dealing with the alleged violation of Art. 3 of the Constitution, the court correctly pointed out that the measure of the indemnity is always established in an objective manner, so that the difference in the economic condition of the shipper does not affect the mechanism for calculating freight and assessing the indemnity. Having done this, the court held that the system adopted by CN Art. 423 provides an efficient instrument of protection (the declaration of value) for the party who has lesser bargaining power. The Constitutional Court then considered this aspect of the system realized by CN Art. 423 when dealing with the alleged violation of Art. 42 of the Constitution. After having pointed out that the protection established by Art. 42 in favour of private property does not apply to money obligations, the court held that in any event such protection would not be justified in respect of the obligation of the carrier by sea to pay an indemnity for loss of or damage to goods. The reason for this is, in the court’s opinion, that the shipper himself contributes to the determination of the amount of the indemnity payable to him by means of his own independent will, by omitting to declare the value of the goods shipped, thereby ensuring an indemnity corresponding to the actual value of the goods.
The repeated reference made by the Italian Constitutional Court to the system created by the authors of the Hague Rules of 1921, following the Canadian Water Carriage of Goods Act 1910,2 and then made part of the 1924 Bills of Lading
1. Judgment of 19 November 1987, No. 401.
2. The Canadian Water Carriage of Goods Act 1910, s. 8 provides: The ship, the owner, charterer, master or agent shall not be liable for loss or damage to or in connection with goods for a greater amount than one hundred dollars per package, unless a higher value is stated in the bill of lading or other shipping document, nor for any loss or damage whatever if the nature or value of such goods has been falsely stated by the shipper, unless such false statement has been made by inadvertence or error. The declaration by the shipper as to the nature and value of the goods shall not be considered as binding or conclusive on the ship, her owner, charterer, master or agent.
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