M. Musi - Successive Carriers 03.10.2016

ALMA MATER STUDIORUM
UNIVERSITÀ DEGLI STUDI DI BOLOGNA
60 Years CMR: Future proof or time for a reform?
Dr. Massimiliano Musi, PhD 2012 UniBo
Department of Legal Studies
Alma Mater Studiorum – University of Bologna
[email protected]
Carriage performed by successive carriers:
CMR Convention and Italian national law compared
Abstract
CMR Convention in its Chapter VI regulates the factispecies in which a carriage, even if governed by a single
contract, is performed by successive road carriers. Since this case is quite common in practice, both in the road
transport sector and in the one involving several transport modes, it would be certainly very useful applying a
uniform discipline.
The paper intends to carry out a comparative-contrastive analysis between the provisions of articles 34 - 40
of the CMR Convention and art. 1700 of the Italian Civil Code, the latter related to the so called “trasporto
cumulativo”, which can be assimilated to the figure of carriage performed by successive carriers.
Both CMR and Italian Civil Code provisions have much in common and seem to provide a substantially
similar discipline to the factispecies. Nevertheless, they diverge significantly on an essential point. CMR Convention
states that its Chapter VI applies only in the event that the successive carriers are all road carriers: if carriage
includes also non-road routes, in the absence of a uniform regulation, national rules on multimodal transport or
the discipline on trasport superposé should be applied. On the contrary, the Italian national legislation makes no
distinction, therefore art. 1700 of the Civil Code shall apply also in cases of successive carriers that operate using
modes of transport other than road transport.
The different approach of the two regulatory systems in analysis leads significant consequences in terms of
the applicable discipline – especially with regard to the liability of carriers, the interruption of the prescription and
the determination of the delay – to cases of successive carriers who use different modes of transport for the
execution of a single contract of international carriage.
Finally, the paper, in order to give a more complete framework of all the issues involved, focuses, also, on
the distinction between the factispecies in analysis and those cases where the contracting carrier hires
subcontractors or acts as freight forwarder for the performance of certain segments of the carriage.
1
SUMMARY: 1. Transport with multiplicity of carriers: framing of the case. – 2. The “trasporto cumulativo” according
to Italian legislation: dogmatic reconstruction of the factispecies. – 2.1. The discipline of the contract of “trasporto
cumulativo” provided by the Italian Civil Code. – 3. Transport performed by successive carriers in the C.M.R.: interpretive
problems posed by the uniform regulation. – 3.1. Differences and similarities compared with the Italian legislation. – 4.
The case of mixed transport: the transport superposé. – 5. The applicable legislation to the international “trasporto cumulativo
combinato”. Dogmatic perspectives developed in the field of multimodal transport: conclusive remarks.
1. Transport with multiplicity of carriers: framing of the case.
The phenomenon of the cooperation of more successive carriers in the execution of a
contract of carriage, albeit dating back in time, recorded, gradually, a significant growth, thanks,
among other factors, the establishment of new models of organization of transport and logistics.
The increased movement of goods among locations, mostly placed at great distance, and the
need to meet ever higher and sophisticated demands of the users, among which assumes a key role
the transfer of the cargo door to door, have, in fact, led the carriers to adopt progressively such form
of business co-operation, enabling them to enrich, mutually, their own dimensional capacities and
technical specialization, and to achieve considerable advantages, especially, but not only, of a
financial type.
It should be also considered the economic savings for the users: the subdivision of the
transport service in many independent and separated segments of transport entails higher costs,
which, on the contrary, are significantly reduced with a unique transport service1.
The analysis of the phenomenon, that according to Italian national law is named “trasporto
cumulativo” (literally “cumulative transport” – either of passengers or goods), must not be confused
with other different modalities of involvement of more carriers in a single service of transport.
It must not be taken into consideration, hither, the hypothesis of the so called “multiple
transport”, through which, the consignor concludes with each carrier a contract of transport whose
object is a part of the whole total route. In other words, this is an aggregation of single transports:
there will be, therefore, a multiplicity of contracts of transport, independent of one another,
pertaining to the respective carriers, who will commit themselves, and will be liable towards the
consignor, exclusively for the portion of transport carried out individually by each of them.
Such a factispecies, hence, does not present from the legal point of view, peculiar characteristics
compared to any standard contract of carriage, and it is solved in practice, in a mere technical
phenomenon: resulting that prescription and forfeiture terms shall be counted in respect to each
1 As effectively already indicated in dating back times: “Se Primus chiede che la sua cosa venga trasferita da un luogo A a
un luogo B e Secundus si offre invece a trasferirgliela solo fino a un luogo C intermedio tra i due, il servizio di Secundus non presenterà per
Primus un’utilità diretta, giacché evidentemente lo scopo economico cui quest’ultimo mira non potrà mediante quel servizio essere ottenuto. È
vero che il raggiungimento finale dello scopo stesso ne sarà agevolato notevolmente, in quanto che la distanza fra C e B, minore di quella che
intercede tra A e B, sarà poi, compiuto il servizio di Secundus, superata con maggior facilità da un Tertius qualsiasi (utilità
complementare): ma, a parità di condizioni tecniche ed economiche, i due servizi di Secundus e di Tertius verranno complessivamente a
costare a Primus più di quel che gli sarebbe costato un servizio diretto dal luogo A al luogo B” (“If Primus requests that his thing
being transferred from one place A to a place B and Secundus is offered instead transferring it only until a place C,
intermediate between both, Secundus’ service will not represent for Primus a directutility, because apparently the
economic purpose which he is aiming shall not be obtained through such service. It is true that the fulfilment of the final
scope itself will be remarkably facilitated, for what the distance between C and B, less than that intervenes between A
and B, will be then, performed Secundus’ service, overcome more easily by any Tertius (supplementary utility): but, on equal
technical and financial conditions, the two services of Secundus and Tertius will cost altogether to Primus more than
that it would have cost a direct service from place A to place B” – full Author’s tranlsation) (G. VALERI, Trasporti
cumulativi, Milano, 1913, p. 1 ff.)
2
route, individually considered, on the day on which the goods are delivered at destination of each of
them.
Similarly, “trasporto cumulativo” should be distinguished from other legal forms widespread in
practice, such as transport with reshipment and transport with sub-transport2. Although, indeed, the
multiplicity of the parties involved in the transport operation is common feature to all the kinds of
transport mentioned above, both the Doctrine and the Courts properly drew attention to structural
differences and to the regulation of the various factispecies3.
Regarding the contract of transport with reshipment4, it is useful to highlight that the carrier is
obliged toward the consignor to perform the transport for one part of the whole route, engaging
himself also to conclude, in its own name and on behalf of the consignor, one or more contracts of
transport for the execution of the remaining segment of the route5.
2
For a complete description of the different factispecies, see, with particular clarity, Civil Cassation 28 November
1975, n. 3983, in Giur. it., 1976, p. 586; Cass. civ., 6 January 1982, n. 10, in Foro it., Rep., 1982, entry Trasporto, n. 7.
3 For a detailed analysis of the topic subject of the current discussion, in Doctrine, see, inter alia: A. ASQUINI, Del
contratto di trasporto, Torino, 1925, p. 477 ff.; C.A. COBIANCHI, Su una ipotesi di trasporto cumulativo e varie questioni in tema di
regresso tra vettori, in Riv. dir. comm., 1926, p. 473 ff.; C. VIVANTE, Trattato di diritto commerciale, Milano, 1935, p. 526 f.; F.U.
DI BLASI, I contratti speciali. Commentario al nuovo codice civile italiano, Milano, 1943, p. 285 ff.; G. TAMBURRINO, Contratto di
trasporto cumulativo, contratto di spedizione, impresa di trasporto e figure affini, in Giur. compl. cass. civ., 1948, p. 519 ff.; A. ZANELLI,
Sulla assunzione degli obblighi del vettore da parte dello spedizioniere, in Riv. giur. circolaz. e trasp., 1948, p. 226 ff.; M.
IANNUZZI, Trasporto cumulativo occasionale o subtrasporto?, in Riv. dir. civ., 1952, p. 363 ff.; C. FISSOTTI, Trasporto cumulativo,
trasporto con rispedizione, trasporto ordinario con sub-trasporto, in Giur. compl. cass. civ., 1954, p. 319 ff.; U. IACCARINO, In tema di
trasporto cumulativo, in Giust. civ., 1956, p. 1649 ff.; V. BUONOCORE, Trasporti con pluralità di vettori: in particolare del contratto di
trasporto ordinario con subtrasporto, in Dir. giur., 1958, p. 204 ff.; G. CATURANI, A. SENSALE, Il trasporto, Napoli, 1960, p. 181
ff.; M. ESU, Appunti in tema di trasporto cumulativo occasionale, in Studi economico-giuridici dell’Università di Cagliari, Milano, 1969,
p. 157 ff.;M. IANNUZZI, Del trasporto, Art. 1678-1702, in A. Scialoja, G. Branca (a cura di), Commentario del Codice Civile,
Bologna-Roma, 1970, p. 289 ff.; M. IACUANIELLO BRUGGI, L.F. PAOLUCCI, Il contratto di trasporto, in Giur. civ. comm., 1979,
p. 488; G. MIRABELLI, Dei singoli contratti, in Commentario al codice civile,Libro IV, Torino, 1991, p. 519 ff.; A. BOTTI, Il
trasporto con pluralità di vettori, in G. Silingardi (a cura di), Il contratto di trasporto, Milano, 1997, p. 217 ff.; V. BUONOCORE, I
contratti di trasporto e di viaggio, in V. BUONOCORE (diretto da), Trattato di Diritto Commerciale, Torino, 2003, p. 203 ff.; P.
CENDON, La colpa nella responsabilità civile, Torino, 2006, p. 629 ff.;M. RIGUZZI, I contratti speciali. Il contratto di trasporto, in
Tratt. Bessone, XIV, Torino, 2006, p. 267 ff.; D. DE RADA, La responsabilità del vettore, Padova, 2007, p. 199 ff.; A.
ANTONINI, Corso di diritto dei trasporti, Milano 2008, p. 140; M. SELLA, I nuovi contratti nella prassi civile e commerciale, Torino,
2008, p. 362 ff.; F. SALERNO, Del trasporto, in D. Valentino (a cura di), Commentario del codice civile. Dei singoli contratti. Artt.
1655-1802, Vol. II, Torino, 2011, p. 327 ff.; P. STANZIONE, Trattato della responsabilità civile, Padova, 2012, p. 913 ff.; G.
ALPA., V. MARICONDA, Codice civile commentato, Milano, 2013, p. 1537 ff.; F. MACARIO, A. ADDANTE (a cura di), Contratti.
Formulario commentato, Milano, 2014, p. 2532 ff.; S. ZUNARELLI, C. ALVISI, Del trasporto, Art. 1678-1702, in
Commentario del Codice Civile e Codici Collegati Scialoja-Branca-Galgano, Bologna, 2014, p. 620 ff.; G. MINERVINI, V. SANTORO,
U. BELVISO, A. GRAZIANI, Manuale di diritto commerciale, Padova, 2015, p. 495 ff.
4 G. STRADOLINI, Il contratto di trasporto con rispedizione, in Dir. giur., 1974, p. 582 ff.
5 In this regard, it should be recalled that the Italian Civil Code, to article 1699, governs expressly such
contractual factispecies providing that if the carrier assumes the obligation to continue the transport of the goods carried,
beyond his lines, through successive carriers, (without the consignor having previously issued to him a consignment note
directed at final destination), it is presumed that he assumes, for the portion of transport beyond his lines, the
forwarder’s own obbligations. Thus, it is assumed iuris tantum that it falls within the factispecie as set out in article 1699
Civil Code when: “a) il vettore si sia obbligato ad eseguire una prestazione di trasporto fino ad un luogo determinato, che
non è il luogo di destinazione delle cose da trasportare; b) il vettore si sia obbligato a far proseguire le cose da trasportare
dal luogo suddetto a quello di destinazione; c) il vettore non si sia fatto rilasciare una lettera di vettura diretta fino al
luogo di destinazione” (“a) the carrier engages himself to render a transport performance up to a given place, which is
not the place of destination of the goods to transport; b) the carrier engages himself to continue the transport of the
goods to carry from the above said place to the place of destination; c) the carrier has not been able to make issue
himself a consignment note directed at final destination” – full Author’s translation) (Civil cassation., 28 November
1975, n. 3983, cit.). On the other hand, whenever one of those elements is missing, it will not be able to invoke the
presumption, but it should be determined in particular if the factispecies completes the provision of the contract of
transport with reshipment or a different factispecies.
3
Therefore, while for the portion of the route where he assumes the quality of carrier, he
responds according to the principles which govern the liability of the carrier in the contract of
transport, for the damages occurred in the portion of the route successive to its own, the carrier has
the role of the freight forwarder. Consequently, he may be held liable exclusively, in accordance with
the rules of the mandate, for the choice of the subject who will be the next carrier, without prejudice
to the possibility to act of recourse against the latter (who will respond to the carrier-freight
forwarder, who takes the role of consignor towards him)6.
The prescription terms of the right to compensation shall take effect, individually, from the
time of delivery of goods, at destination of each route. The interruption of prescription for one of
the carriers (starting, likewise, from the delivery of the goods at the end of each single route) does
not benefit other carriers.
It has, instead, a contract of transport with sub-transport7, when the consignor enters into a
contract with the first carrier for the whole voyage, and that carrier makes use, in whole or in part,
the work of one or more subcontracting carriers, with whom concludes himself, in his name and on
his behalf (taking the form of consignor), one or more different and independent contracts of
transport8.
In this particular case, from a contractual point of view, the first carrier assumes towards the
consignor the obligations and the liabilities for the whole route (unlike what seen above for the
contract of transport with reshipment) and, correspondingly, he only acquires rights relating to the
performance of transport9.
Therefore, given that the carrier assumes the obligation of render the performance for the
whole route, the consignor remains extraneous to the contract of sub-transport, and the
6
It should be noted the existence of a subtype of transport with reshipment to the obligated carrier as well,
where the consignor is the subject who determines the successive carrier (even more than one) to whom the first carrierforwarder will have to confer the goods.
7 Please note, in that regard, that the factispecies of the contract of transport with sub-transport does not find
express legal provision within the Italian Civil Code. It seems, instead, being mentioned by the Convention on the
contract for the International Carriage of Goods by Road (C.M.R.), signed at Geneva on 19 May 1956, as amended by
the Protocol 5 July 1978, whose Article 3 provides: “For the purposes of this Convention the carrier shall be responsible
for the acts of omissions of his agents and servants and of any other persons of whose services he makes use for the
performance of the carriage, when such agents, servants or other persons are acting within the scope of their
employment, as if such acts or omissions were his own”.
8 As effectively observed, the formula of the sub-contract of transport may also take shape in relations of subcontract of transport of second, third, fourth degree and so forth, in the event that the subcontracting carrier, in turn,
perform all or a portion of the route (conferred) acquired to another carrier (A. ASQUINI, op. cit., p. 472). In the field of
the carriage of goods by road, though, it has recently been introduced, by article 6 ter of legislative decree 21 November
2005, N. 286 (article added by article 1, paragraph 247, lett. b), L. 23 December 2014, N. 190), the prohibition for the
first subcontracting carrier of entrust, in turn, the transport to a further subcontracting carrier. In the event of noncompliance with that ban the correspondent contract is null, without prejudice to the payment of the remuneration
agreed for the performances already rendered.
9 In relation, see Civil Cassation, 16 September 1981 N. 5133, in Foro it., Rep. 1981, entry “Trasporto (contratto di)”,
N. 14: “l’ipotesi di subtrasporto di cose si differenzia da quella, espressamente prevista dall’art. 1700 c.c., di esecuzione cumulativa o
successiva della prestazione. La prima infatti è configurabile allorché il vettore, con o senza il consenso del committente, incarichi altri del
trasferimento delle merci dal luogo di partenza a quello di destinazione. Il contratto, di subtrasporto non è opponibile al committente non
consenziente” (“the hypothesis of sub-transport of goods differs from that, expressly provided by article 1700 of Italian
Civil Code, of cumulative or successive execution of the performance. The first one, in fact is configurable when the
carrier, with or without the consent of the purchaser engages others for the transfer of the goods from the place of
departure to the place of destination. The contract of sub transport is not valid against the unconsent purchaser” – full
Author’s translation).
4
subcontracting carrier assumes, before the consignor, the quality of carrier’s auxiliary (as much as a
subject inserted into the carrier’s entrepreneurial organization)10.
Concerning the prescription and forfeiture terms, it should be noted that they take effect, as
well as for the consignor and for the original carrier, from the moment of the delivery of the goods
at final destination. It has to be noted that in the event of interruption of transport during the
voyage performed by the subcontracting carrier, the obligation is deemed not fulfilled even for the
portion of route already performed by the principal carrier.
So far, briefly individuated the peculiar characteristics integrating other contractual forms
different from the contract of “trasporto cumulativo”, and which must not be confused11 with the latter,
may result of more immediate comprehension the analysis of the elements which compose the
notion of “trasporto cumulativo”, pursuant to Article 1700 of the Italian Civil Code12.
10
According to legal literature, can be distinguished also others forms, such as: transport operator (the one who
acquires, as carrier, transports in its name, but they are arranged by other’s means, concluding sub-transport contracts),
transport mediator (he does not take neither the role of carrier or the one of operator, but merely mediator), shipping
agent (in that case it falls into the agency contract) and, at the end, the factispecies of the contract of collective transport
(with plurality of purposes, subject to the common regulation of the contract of transport). See, in this respect, G.
CATURANI, A. SENSALE, op. cit., p. 200.
11 The Italian Court of Cassation, on more than one occasion, has well represented the differences between the
different factispecies. Herein we deem advisable to report a brief excerpt of one of the most interesting decision regarding
the subject: “La partecipazione al trasporto di più vettori successivi può assumere diverse configurazioni giuridiche a seconda della posizione
in cui ciascun vettore si colloca rispetto al rapporto inizialmente istituitosi con il mittente. In particolare: a) si ha contratto di trasporto con
sub-trasporto, quando il vettore impegnatosi ad eseguire il trasporto delle cose dal luogo di consegna a quello di destinazione, esegue con i mezzi
propri soltanto una parte di esso, avvalendosi, quanto al resto, dell’opera di altro vettore, con il quale conclude in nome e per conto proprio un
contratto di sub-trasporto, nel quale assume la veste di mittente e che opera indipendentemente dal primo, non istituendosi alcun rapporto tra
l’originario mittente ed il vettore del sub-trasporto che, di fronte a quello, agisce quale ausiliario del vettore originario; b) ricorre l’ipotesi di
contratto di trasporto con rispedizione allorché il vettore si obbliga verso il mittente, oltre ad eseguire il trasporto per una parte del complessivo
percorso, anche a concludere in nome proprio, ma per conto di quello, uno o più contratti di trasporto per l’effettuazione della restante parte del
percorso, con la conseguenza che vengono posti in essere due contratti collegati, rispettivamente di trasporto e di spedizione; c) si verte in tema di
contratto di trasporto cumulativo, allorché più vettori si obbligano, con un unico contratto – mediante manifestazione di volontà negoziale
contestuale o anche successiva, purché chiaramente diretta ad inserirsi nel rapporto contrattuale già costituito verso il mittente – a trasportare le
cose fino al luogo di destinazione, curando ciascuno il trasporto per un tratto dell’intero percorso” (“The participation to the transport of
several successive carriers may take different legal forms according to the position in which each carrier find himself
with respect to the relationship originally established with the consignor. In particular: a) there is a contract of transport
with sub-transport, when the carrier has engaged himself to perform the transport of the goods from the place of
delivery at place of destination, performs with his own vehicles only a portion of it, availing himself, as for the rest, of
the work of another carrier, with whom concludes in his own name and on his own behalf a contract of sub-transport,
in which he takes the form of consignor and operates independently from the first one, not establishing any relationship
between the original consignor and the carrier of the sub-transport who, facing that, acts as auxiliary of the first carrier;
b) it is the case of the contract of transport with reshipment when the carrier engages himself toward the consignor, in
addition to perform the transport for a portion of the entire route, also to conclude in his own name, but on behalf of
that one, one or more contracts of transport for the performing of the remaining portion of the route, with the result
that are executed two linked contracts, respectively a contract of transport and a contract of shipping c) it is covered the
theme of the contract of “trasporto cumulativo”, when several carriers engage themselves, within a single contract –
through the manifestation of the willingness to negotiate simultaneously or subsequently as well, provided that clearly
directed to adhere in the contractual relationship already established toward the consignor – to transport the goods at
place of destination, each one taking care of the transport for a portion of the entire route’’ – full Author’s translation)
(Civil Cassation, 7 May1999, n. 4593, in Dir. mar., 2001, p. 1377 ff.).
12 The concept generally accepted can be considered valid regardless of the fact that it regards the transport of
passengers or goods, the last one, more specifically, object of the present analysis. Nevertheless, such two transport
patterns must be kept clearly separated: in the Italian Civil Code, for example, other than having from a systematic point
of view, a distinct treatment (respectively, article 1682 and articles from 1700 to 1702), they have considerable
differences at the point of regulation, in particular with reference to the liability: in the “trasporto cumulativo” of
passengers, indeed, the solidarity between the carriers is excluded and each carrier is liable only within his own route. It
should specified, anyway, that the exclusion of the solidarity between the carriers does not change the nature of the
5
This last one takes the form of a contract whereby several carriers engage themselves towards
the consignor, with a single contract, rendering the performance of the carriage of goods until the
place of destination, being responsible each of them for the transport for a portion of the entire
route13.
The fact that the carriers jointly assume the obligation to fulfill the indivisible performance of
the transport, involves the rise of joint liability of all the carriers towards the consignor, except, as
indicated in the next paragraphs, the internal right of recourse14.
In the light of what so far exposed, it is possible to point out, regarding the liability issues, that
while in the contract of transport with sub-transport, the consignor faces a single subject liable for
the whole route (except the right of recourse of the first carrier against the subcontracting carriers),
as it occurs in the contract of transport with reshipment (with the difference that the only one liable
would respond for different titles, i.e. for the contract of transport and for the contract of shipping),
on the contrary, in the contract of “trasporto cumulativo”, shall be liable to the consignor (to this effect
significantly favored)15 all the carriers who have engaged themselves, with a single contract,
rendering the overall transport performance, which may be qualified as indivisible opus (except the
right of recourse of each single carrier between themselves)16.
The analysis must also dwell on the differences between the “trasporto cumulativo” and
multimodal transport, of which it will be said better hereinafter, that occurs when the transport is
carried out by a carrier, called multimodal transport operator (M.T.O.), based on a single contract,
through at least two different modes of transport, each of them functionally independent from the
others17.
performance engaged by them, which remains indivisible. This because the indivisibility is inherent to the same concept
of “trasporto cumulativo” being it of passengers or goods. It follows, in fact, that according to article 1682, despite not
subsisting the solidarity link between carriers, the damage for the delay or for the interruption of the voyage is
determined by reason of the entire route.
13 In this respect, Civil Cassation 28 November 1975, n. 3983, cit. Cfr., moreover, Civil Cassation, 5 January 1945,
n. 7, in Rep. giur. it., 1944-1947, entry “Trasporto (contratto di)”, n. 55; Court of Appeals Venezia, 9 January 1946, in Foro
pad., 1946, p. 223; Court Appeals Napoli, 18 January 1946, in Rep. giur. it., 1944-1947, entry “Trasporto (contratto di)”, n. 54;
Civil Cassation, 17 May1949, n. 1224, in Mass. giur. it., 1949, p. 318; Civil Cassation 26 September 1977, n. 4082, in Foro
it., 1978, p. 426; Civil Cassation, 21 January 195, n. 698, idem, 1995, entry Trasporto, n. 14; Civil Cassation, 18 September
2003, n. 13781, in Dir. trasp., 2004, p. 996; Civil Cassation , 7 February 2006, n. 2529, idem, 2006, p. 638; Civil Cassation c
10 January 2008, n. 245, idem., 2010, p. 131.
14 It is necessary to point out that the quality of jointly liable, specific of each carrier “cumulativo”, it does not
renege where this last one, being not equipped of his own vehicles organization, concludes, himself a contract of sub
transport with another carrier (in respect of whom, as consignor shall take action according to article 1693 of the Civil
Code). That is because the conclusion, independently, of a sub-contract does not affect the jointly liable nature of the
obligation on the same burdening because part of a contract of “trasporto cumulativo”.
15 It is clear in fact, that the “trasporto cumulativo” it is more convenient for the consignor, and in relation to the
transport with sub-transport, because instead of a single carrier’s liability, is guaranteed from the joint and severally
liability of all the carriers who are parties in the contract, and compared to the transport with reshipment, because the
multiplicity of the contracts is substituted with a single contract.
16 Therefore, can be identified, as distinctive features of the contract of “trasporto cumulativo”, the uniqueness of
the contract and the multiplicity of the carriers (among others, M. IACUANIELLO BRUGGI, L.F. PAOLUCCI, op. cit., p. 505).
17 For the Doctrine on the subject of multimodal transport, see, inter alia, F. BERLINGIERI, N. VERRUCOLI, Il
trasporto combinato: nuove problematiche in tema di responsabilità e documnetazione, in Dir. mar., 1972, p. 204; G. FERRARA, Aspetti e
problemi del trasporto combinato, Napoli, 1973; L. VERDE, Il contratto di trasporto multimodale, Napoli, 1984; G. SILINGARDI,
A.G. LANA, Il trasporto multimodale, in Riv. giur. circ. tr., 1994, p. 17; G. VERMIGLIO, La disciplina del trasporto multimodale,in
Aa.Vv., Trasporto multimodale e sviluppo dell’economia nell’area del Mediterraneo, Messina, 1994, p. 17; S. ZUNARELLI, La disciplina
della responsabilità del vettore nel trasporto multimodale, Id., p. 161; R. DE WIT, Multimodal transport: carrier liability and
documentation, London, 1995; R.D. BLOCH, Transporte multimodal: analisis juridico y operativo de un sistema integrado de transporte,
Buenos Aires, 1996; M. KINDRED, M.R. BROOKS,Multimodal transport rules, The Hague, 1997; PH. DELEBECQUE, Le
transport multimodal, in Revue Internationale de Droit Comparé, 1998, vol. 50, No 2, pp. 527-537 M. CASANOVA, M.
6
In the multimodal transport, normally, the carrier (effectively defined as “simple architect of
the operation”)18 entrusts the execution of each single portion of the route to one or several
subcontracting-carriers19.
It should be underlined, however that, while in the “trasporto cumulativo”, as defined above, the
obligation of transport is undertaken by several carriers jointly together20, in the contract of
multimodal transport, the only subject obligated is still the M.T.O. The carriers of which the latter
avails for the performing of the transport remain uninvolved with respect to the contractual relation
between the M.T.O. and the consignor21.
Last but not least, it should be mentioned the so called transport superposè. It is stated
henceforth that it occurs when, not the goods, but the means which carries them is loaded onto
another vehicle, without transshipment of the goods22.
Once the transport with multiplicity of carriers has been laid down, in its many forms, it is
possible focusing now on the “trasporto cumulativo” of goods and on the issue of interpretation
BRIGNARDELLO, Trasporto multimodale, in Dig. disc. priv. sez. comm., Torino, 2003, p. 919; A. LA MATTINA, La responsabilità
del vettore multimodale: profili ricostruttivi e de iure condendo, in Dir. mar., 2005, p. 29; ; M. FAGHFOURI, International regulation
of liability for multimodal transport, in WMU Journal of Maritime Affairs, April 2006, Volume 5, Issue 1, pp. 95-114 M.
BRIGNARDELLO, Il trasporto multimodale, in Dir. mar., 2006, p. 1071; M. RIGUZZI, Il trasporto multimodale, in M. Riguzzi, A.
Antonini (a cura di), Trasporti e turismo, Torino, 2008, p. 423; A. ANTONINI, Il trasporto multimodale: regime normativo e
responsabilità del vettore, in Dir. mar., 2009, p. 3; T. ECKARDT, A. STEGER, J. ROSING, G.W. DAWSON, T. YLIKANTOLA, J.
ECKOLDT, L.A. GARCIA, M. SCHMITT, R. HINDERLING, Multimodal Transport Including Cross-border Road Haulage – Will the
CMR Apply?, in EJCCL, 2010, No. 3, vol. 2, pp. 153-162; M. HOEKS, Multimodal transport law: the law applicable to the
multimodal contract for the carriage of goods, Alphen aan den Rijn, 2010; Y. ZHAO, The New Multimodal Regime – The
UNCITRAL Convention on the Carriage of Goods Wholly or Partly by Sea, in EJCCL, 2011, No 1, vol. 3, p. 22; M.
BADAGLIACCA, Il trasporto multimodale nell’unitarietà dei trasporti, Roma, 2013, p. 55 ff.; E. ORRÙ, The Regime of Multimodal
Carrier’s Liability for the Transport of Goods, Passengers and their Baggage, with Particular Regard to the Italian Legal System, within
International and Comparative Perspectives, in M. Musi (edited by), New Comparative Perspectives in Maritime, Transport and
International Trade Law, Bologna, 2014, p. 411 ff.
18 M. ORIONE, Appunti per uno studio sul trasporto multimodale, in Dir. mar., 1996, p. 660.
19 In this regard, it is noted that multimodal transport is not classified, within the Italian national legislation, in a
specific regulatory hypothesis. Moreover, at an international level, the United Nations Convention on International Multimodal
Transport of Goods (Geneva 24 May 1980) has never reached the necessary number of accessions required to its actual
entry into force. The UNCTAD and the International Chamber of Commerce (ICC), with the purpose of compensate
the lack of an international convention in force, have drawn up a body of laws having a negotiating nature, the
UNCTAD/ICC Rules for Multimodal Transport Documents del 1992, valid only if signed by the parties. Such rules are
expressly contained in various models of document of transport, such as the FIATA Multimodal Transport Bill of Lading
(otherwise known as “FBL”) and the Multidoc 1995, contributing to the spread of a common regulatory framework;
however, it would seem to be an instrument less effective compared to an international convention , for the purpose of
an effective uniform regulation (see, in that regard, M. BRIGNARDELLO, op. cit., p. 1069).
20 It is specified, furthermore, that according to art. 1 of the Geneva Convention of 1980 multimodal transport
can be defined that one in which the transfer of goods occurs at least with two different modes of transport, none of
which is functionally subordinated to the other, from the place where the goods are taken into account at the place of
delivery located in another country. Thus, assuming a large variety of vehicles, it also differs in that both from “trasporto
cumulativo” and from transport with sub-transport, which, other way around, can be made using the same type of vehicle.
21 The intervention of the carriers engaged by the M.T.O., in fact, does not manifest itself outside, against the
consignor, but this is the operator who avails himself of others’ parties and tools through an adequate organization (L.
VERDE, op. cit., p. 113).
22 As it will be examined in the further, the factispecies is expressly provided in article 2 of C.M.R., who addresses
to the cases of mixed transport road-sea (or inland waterway), or road-railway, or still road-airplane (very rare). See,
among others, G. SILINGARDI, I trasporti superposé e la volontà delle parti nella disciplina inderogabile della C.M.R., in Dir. trasp,
1993, p. 673 ff.; G. SILINGARDI, A. CORRADO, A. MEOTTI, F. MORANDI, La disciplina uniforme del contratto di trasporto di cose
su strada, Torino, 1994, p. 27 ff.;C. ROSSELLO, Tre questioni in tema di CMR: i presupposti di applicabilità della Convenzione; il
regime dei trasporti misti o “sovrapposti”; la distribuzione dell’onere della prova relativa alla responsabilità del vettore, in Dir. mar., 2002,
p. 568 ff.
7
regarding the factispecies, analyzing its national and international discipline, and in particular the
application problems presented by Convention on the contract for the international carriage of
goods by road of 195623.
2. The “trasporto cumulativo” according to Italian legislation: dogmatic reconstruction of the factispecies.
Art. 1700 of the Italian Civil Code, first paragraph, provides that in the transport which are
taken up cumulatively, with a single contract24, by several successive carriers, each of them is jointly
and severally liable for the execution of the entire transport, at the place of destination25.
23 In respect to many questions regarding the legal framework of the C.M.R., see among others E. COSTANZO, Il
contratto di trasporto internazionale CMR, Milano, 1984, p. 59 ff.; P. IVALDI,Criteri interpretativi della CMR e responsabilità del
vettore terrestre, in Riv. dir. int. priv. proc., 1989, p. 617 ff.; A. PESCE, L’esclusività delle azioni del destinatario nel contratto di trasporto
internazionale di merci, in Giur. it., 1994, p. 1523 ff.; L. BOGGIO, La C.M.R. in Cassazione: errare humanum est…, in Dir. mar.,
2000, p. 132 ff.; F. FERRARI, “Forum shopping” e diritto contrattuale uniforme, in Riv. trim. dir. proc. civ., 2002, p. 575 ff.; B.
FIORE, CMR: la giurisprudenza di merito ne conferma l'applicabilità anche in mancanza di espresso richiamo nella lettera di vettura, in
Dir. trasp., 2002, p. 578 ff.; L. BOGGIO, Il trasporto di merci su strada tra CMR e Convenzione di Roma (sulla legge applicabile alle
obbligazioni contrattuali), Dir. mar., 2002, p. 978 ff.; E. EMILIO,Responsabilità per la caricazione della merce e onere probatorio in base
alla CMR, idem., 2002, p. 921 ff.; C. TUO, Alcune riflessioni sulla portata applicativa della CMR, in Riv. dir. int. priv. proc., 2004, p.
193 ff.; A. LA MATTINA, Trasporto di merci “sensibili” e responsabilità del vettore nella CMR, idem, 2005, p. 865 ff.; A. SARDELLA,
Operazioni in tema di prescrizione nella disciplina dell’art. 32.2 C.M.R.: Corte di Cassazione 29 gennaio 2003, punto di arrivo o di
partenza?, in Dir. mar., 2005, p. 499 ff.; V. ARDITO, Trasporto internazionale e derogabilità della Convenzione di Ginevra, in Contr.,
2006, p. 364 ff.; E. FOGLIANI, Sospensione ed interruzione della prescrizione nel trasporto soggetto alla C.M.R., in Dir. trasp., 2007,
p. 500 ff.; F.L. ROBERTI MAGGIORE,Note sulla legittimazione del mittente, del destinatario e sulla colpa grave del vettore in base alla
CMR, in Dir. mar., 2007, p. 486 ff.; A. SALESI, Orientamenti della giurisprudenza e della dottrina sulla applicabilità della CMR in
assenza di una espressa manifestazione di volontà delle parti, idem, 2007, p. 164 ff.; P. ZUCCONELLI, Trasporto internazionale di merci
su strada: il ruolo della CMR tra diritto uniforme e disciplina pattizia, in Obbl. contr., 2008, p. 37 ff.; E. BETTO, Trasporto
internazionale di merci su strada e limiti risarcitori, in Contr., 2009, p. 476 ff.; C. ROSSELLO, Altre questioni in tema di CMR. Il
trasporto con sub trasporto. La legittimazione ad agire contro il vettore, in Dir. mar., 2009, p. 514 ff.; A. SARDELLA,Brevi riflessioni
sull’art. 30 della CMR, idem, 2009, p. 863 ff.; G. MARCHIAFAVA, Sul carattere imperativo e inderogabile della CMR, in Dir. trasp.,
2010, p. 488 ff.; A. SARDELLA, Prescrizione e colpa grave nella CMR, in Dir. mar., 2011, p. 570 ff.; A.E. TRACCI, Trasporti in
regime CMR: note sull’orientamento dei giudici di merito circa i presupposti di applicabilità della Convenzione., idem, 2011, p. 1300 ff.; R.
MANGATIA, L’applicazione della C.M.R.: persiste il contrasto tra legittimità e merito, in Corr. merito, 2013, p. 951 ff.; A.
PALMIERI,Trasporto internazionale di merci su strada e applicabilità automatica della Cmr (“Convention Marchandises Routières”), in
Foro it., 2013, p. 2285 ff.; S. VERNIZZI, A proposito della legittimazione ad agire nei confronti del vettore nell'ambito della CMR, in
Resp. civ. prev., 2014, p. 1194 ff.; L. BOGGIO, Responsabilità contrattuale del vettore stradale internazionale tra Codice Civile e CMR,
in Giur. it., 2015, p. 124 ff.
24 With reference to its uniqueness, see App. Florence, 13 January 1951, in Giur. tosc., 1951, p. 13; App. Naples, 18
January 1946, cit.
25 It should be noted that the provision must not be considered merely declaratory of the principle already
expressed by the Civil Code in general for the obligations (article 1294). Indeed, it must be considered that article 1307
of the Civil Code provides that if the fulfillment of the obligation has become impossible for reasons attributable to one
or more co-debtors, the joint obligation of the other co-debtors, having as its object the compensation for damages, is
foreseen limited to the payment of the value of the performance remained unfulfilled (“Se l’adempimento dell’obbligazione è
divenuto impossibile per causa imputabile a uno o più condebitori, gli altri condebitori non sono liberati dall’obbligo solidale di corrispondere il
valore della prestazione dovuta. Il creditore può chiedere il risarcimento del danno ulteriore al condebitore o a ciascuno dei condebitori
inadempienti” - “If the fulfilment of the obligation has become impossible for a reason attributable to one or several codebtors, the others co-debtors are not discharged from the jointly obligation to correspond the value of the performance
due. The creditor can demand the compensation for additional damage to the co-debtor or to each co-debtors in
default” – full Author’s translation). Therefore, the purpose of article 1700 of the Civil Code, in so far as it specifies that
the carriers are jointly liable for the execution of the contract from the place of origin at the place of destination, is
precisely that of excluding, tacitly, the application of the limitation with regard to article 1307 of the Civil Code (M.
IANNUZZI, Del trasporto, cit., p. 296). It is furthermore evident, that, in spite of article 1700 of the Civil Code does not
contain the express indication that the parties can exclude the scheme of solidarity or bring forward changes to it, there
are not reasons in order to believe that the regulation has wanted to intend the provision of solidarity as mandatory
8
The unity of the contract, the indivisibility of the performance engaged by the multiplicity of
carriers and the joint and several lability of them have, obviously, considerable effects on legal
ground.
Firstly, the terms for the fulfilment of the obligation of the transport must be considered as a
whole, by reference to, in order to compute potential delays, arrival of the goods at place of final
destination (and not single stations of transshipment).
Moreover, it emerges that, in case of interruption of travel, the contract is deemed unfulfilled
also compared with the carriers who have correctly performed the transport for the route entrusted
to them.
The deprivation of the right to compensation for damages coming from the loss or the
damage to the goods takes place only afterward the delivery of the goods to the consignee and his
acceptance without reservation of the goods, with the payment of what is due to the carrier (except
in the case of loss or damage which is unrecognizable at the time of the delivery). Similarly, the
limitation period starts, for all the carriers, from the moment of the final delivery (or from that in
which the delivery should have taken place). Lastly, the interruption and the suspension of the
limitation period against one of the carriers has effect with respect of all the others26.
If what highlighted so far can be considered interpretation by now diffused of the type of
contract in question, it should be noted, instead, that the legal reconstruction of the factispieces has
given rise to a complex debate both in Doctrine and case law. In particular concerning the nature of
the link that binds the consignor, the initial carrier and the successive carriers, in order to explain
how it is possible that the close relationship between the consignor and the initial carrier obligate
also the successive carriers (since, for the same nature and the same purposes of “trasporto
cumulativo”, the establishment of the relationship occurs so rarely simultaneously).
The theory according to which the initial carrier would be liable, in compliance with the
general principles in the matter of transport, for the obligation as a whole and, then, even for the
fact of the successive carriers, while these would be liable for a different title, under the rules set for
substitution of the mandate, in quality of representatives replaced to the initial carrier, was not
accepted27. In truth, the scheme of the substitution of the mandate can explain “la responsabilità dei
singoli vettori per il fatto proprio e per quello dei vettori successivi, ma non la responsabilità dei vettori
precedenti”(“the liability of single carriers for their own fact and for that of the successive carriers, but
not the liability of the previous carriers” – full Author’s translation)28.
The same goes for the view that would identify the source of the carrier’s liability in a
cumulative delegation of the debt operated by the first carrier towards successive carriers, in favor of
the consignor, and accepted by them through the taking over of the goods. If so, it should also be
admitted an alternative position between the first carrier’s liability and the successive carriers,
ontologically not compatible with the type of “trasporto cumulativo”29.
Likewise, the theory30 which suggests that the will of the law would be the source of the
liability, has not been considered sufficient to explain the phenomenon.
(according to the regulatory nature of the principle determined, in general, for the obligations composed of more than
one persons).
26 A. ASQUINI, op. cit., p. 491; M. IANNUZZI, Del trasporto, cit., p. 297.
27 For a complete analysis of the various theories and for the doctrinal references contained therein, please see: A.
ASQUINI, op. cit., p. 480 ff.
28 G. CATURANI, A. SENSALE, op. cit., p. 184.
29 Ibidem.
30 C. VIVANTE, Trattato di diritto commerciale, Milano, 1935, p. 575 ff.
9
The theory that has gained greater acceptance is that one according to which the contract shall
be deemed concluded between the consignor and the first carrier, and to this one adhere,
subsequently, the other carriers31.
In fact, assuming that the contract of “trasporto cumulativo” is characterized, as stated above, by
the uniqueness of the link between the consignor and several carriers, it is necessary that the
willingness to negotiate of the parties is directed, from the very beginning, to the creation of a
unique legal link that belongs to several carriers. Thus, the contract remains open for acceptance or
accession of successive carriers (that can even be tacit, through the reception and the loading of the
goods), to whom the proposal of the consignor is transmitted documentary, through consignment
note which accompanies the goods (in which must be contained the provision of cooperation of
several carriers)32 or, in the absence of the consignment note, verbally, by the last of the carriers who
are already part of the contract, as nuncius of the consignor.
Moreover, it should be emphasized that when it is not possible to discern a contractual offer
directed to several carriers in the will to negotiate originally expressed by the consignor, it shall be
concluded for the setup of a contract of transport pure and simple33, except when it intervenes, in
correspondence to the accession of the successive carriers, a new negotiating event directed to the
extension of the original relationship also to the acceding carriers34.
Such clarification is not obvious at all, if only are considered, as far as highly outdated, the
arguments of the decision of the Italian Court of Cassation 11 March 192635, which had raised some
surprise. With such decision, the Supreme Court had identified the subjective and objective factors
of the contract of “trasporto cumulativo”, respectively, the first ones, in the consciousness of each
carrier to cooperate and in the will of acquire rights and engage himself toward the consignor; the
seconds, in the assumption of the entire transport by the first carrier in respect of the consignor.
Said that, the Court had qualified as “occasional” “trasporto cumulativo” a factispecies in which the
occurrence of a factum principis had made it necessary the intervention of a second carrier in order to
31 According to such theory “la proposta contrattuale del mittente è diretta a più persone, l’una determinata (primo vettore), le
altre più o meno facilmente determinabili (vettori successivi), ed è da quella accettata immediatamente, da queste successivamente” (“the
contractual proposal of the consignor is directed to several persons, one of them is given (first carrier), the others more
or less easily determinable (successive carriers), and from the first one is accepted immediately, by them successively” –
full Author’s translation). The communication of the proposal can be made in writing, through a unique consignment
note, or orally, the carrier operating in quality of nuncius of the consignor. The successive carriers shall adhere to the
contract as much expressly, accepting the proposal of the consignor, as, implicitly, performing the transport (G. VALERI,
op. cit., p. 103 ff.; in this respect, Appeal of Trieste, 29 April 1959, in Rep. giur. it., 1959, entry “Trasporto (contratto di)”, n.
51.
32 It was considered that it does not occur the communication to the consignor or to the loader of the acceptance
of the consignment note by the successive carriers, pursuant to the open nature of the joint and several obligation of the
“trasporto cumulativo”.
33 To set up the existence of the “trasporto cumulativo” it is not sufficient that the consignor, at the moment of the
custody of the goods to the carrier, is only aware that this last one, in order to make it come over at place of destination,
he reserved the faculty to entrust it to another carrier or several carriers (see. Civil Cassation, 10 June 1991, n. 6557, in
Giur. it., 1992, p. 514).
34 M. IANNUZZI, Trasporto cumulativo, cit., 365 ff. According to the Author, the determing element to the purpose
of the configurability of a “trasporto cumulativo” is the “direzione della volontà del mittente ad una pluralità (sia pure eventuale) di
vettori” (“direction of the consignor’s will toward a multiplicity (albeit eventual) of carriers” – full Author’s translation),
which can be found also on the basis of circumstantial elements, such as, among others, the predetermination of a single
payment for the entire transport (in that sense Civil Cassation., 19 August 2003, n. 12125, in Giust. civ., 2003, p. 2055).
35 With comment of C.A. COBIANCHI, op. cit., p. 473 ff.
10
complete the service of transport, without, however, that there had been a statement of intention of
the carrier in that sense, neither expressed, nor even obtainable aliunde36.
It would seem erroneous believing that the decision above mentioned could find legitimate
basis in that doctrine under which “può invece ammettersi che trasporto cumulativo si verifichi non solamente
quando la collaborazione di più vettori nella esecuzione di un unico trasporto sia prevista sin dal momento del
contratto e si riconnetta ad un accordo stipulato in precedenza tra i successivi vettori, ma anche quando per l’esecuzione
del trasporto contrattato fra mittente e l’unico vettore si renda necessario, per un caso di forza maggiore o per ordine
dell’autorità, un prolungamento del trasporto con l’intervento e l’adesione al contratto di un nuovo vettore” (“it can
then be admitted that “trasporto cumulativo” takes place not only when the cooperation of several
carriers during the performance of a single transport is envisaged as early as the moment of the
contract and it is reconnected with an agreement previously concluded among the successive
carriers, but also when for the execution of the transport negotiated between the consignor and the
only carrier becomes necessary, for reason of force majeure or by order of a public authority, an
extension of the transport with the intervention and the accession to the contract of a new carrier” –
full Author’s translation)37.
By this way, in fact, it did not want to intent that a ‘pure’ transport could become a “trasporto
cumulativo” even without a manifestation of intent of the consignor in that sense.
On the contrary, the Doctrine which is in favor of the configurability of the contract of
“trasporto cumulativo” as a result of the ‘propagation’ of a ‘pure’ transport (seen as the multiplication of
the original parties), leaves unchanged the negotiation assumptions of the “trasporto cumulativo”,
including the consent of the consignor.
In this respect, it has correctly been observed that, in the case that the intervention of another
carrier is necessary for an event of force majeure (or for a factum principis), the consignor, who did
not give originally his own consent to a “trasporto cumulativo”, will have, however, interest to be able
to rely on the patrimonial guarantee of another carrier who is added to the original one. Therefore,
the case in question could configure a “trasporto cumulativo” founded on the principles of the useful
management: “La dichiarazione di volontà del vettore originario (o di un suo incaricato) diretta a determinare
l’inserzione del nuovo vettore nel contratto iniziale apparirà, di regola idonea ad essere considerata come un’attività
gestoria, la quale, in quanto utiliter coepta, integrerà senz’altro gli estremi di quella rappresentanza di cui la legge
investe l’utile gestore nei confronti del gerito” (“The declaration of intent of the original carrier(or of his
representatives) directed to cause the participation of the new carrier in the original contract will
appear, generally, suitable to be considered as a management activity, which, since being utiliter coepta,
certainly will integrate the elements of the representation which the law provides for the useful
manager in respect to the person managed” – full Author’s translation)38.
There are also divergent views of those who have noted that, in this particular case, in order to
qualify a transport as an (occasional) “trasporto cumulativo”, it is necessary that the contract remains
unique and provides evidence of the accession of the successive carriers to the original contract and
to the correlative ratification from the consignor. Otherwise, the intervention of each other carrier
36 In the same direction, in accordance with the sentence of the Italian Supreme Court above mentioned, spoke
out the Court of Milan with the sentence 13 June 1952, in Riv. dir. comm., 1952, with comment by M. IANNUZZI, Trasporto
cumulativo, cit., p. 363 ff.
37 A. ASQUINI, op. cit., p. 488.
38 M. IANNUZZI, Del trasporto, cit., p. 302. The author, furthermore, states that in such cases would not fail the
contemplatio domini, since the declaration of the first carrier to extend to other carriers the contract concluded by the
consignor, involves inevitably, the will to put in a direct relationship the consignor ad the new carrier.
11
extraneous to the original contract of transport will integrate a new contract and, hence, you will
have the different factispecies of the transport with sub-transport39.
2.1. The discipline of the contract of “trasporto cumulativo” provided by the Italian Civil Code.
The second paragraph of article 1700 of the Italian Civil Code, expressly provides that the
carrier held liable of a harmful event not attributable to him, can have the right to recourse towards
others carriers, individually or cumulatively, who will be held liable in shares proportional to their
routes. To this end, it appears to be sufficient that the regressing carrier (in order to have the right to
recourse) provides the proof to have been held liable for a fact not of his own (and not, instead, as
in article 1953 of the Italian Civil Code, that he has also made the payment in favor of the creditor).
Where he takes action against all the other “cumulativi” carriers, in order to be exempted from
any liability, he will have to prove that the harmful event has not occurred in his own part of the
route. Instead, if he addresses the action under the right of recourse, for full compensation, only
against one of the carriers, he has to provide the proof that the damage occurred in the portion of
the route of the respondent carrier40.
It is clear, then, according to the scheme introduced by the provision, that whenever it does
not result the traceability of the loss to the fact of one or several specified carriers, the liability is
allocated, within the internal relationships, among all the carriers, in parts proportionate to their
route, unless for those carriers who prove that the damage did not occur in their own route or, a
fortiori, that the damage is not attributable to them.
In relation to the burden of proof imposed on the carrier who acts in recourse, we should bear
in mind the provision of article 1701 of the Civil Code, namely that the successive carriers may have
declared in the consignment note or in a separate act the condition of the goods at the time when
are delivered for the transport41.
39 V. BUONOCORE, I contratti di trasporto, cit., p. 218; C. FISSOTTI, op. cit., p. 321; G. CATURANI, A. SENSALE, op. cit.,
p. 87 ff. e 200 ff.; G. MIRABELLI, op. cit., p. 546. U. IACCARINO, op. cit., p. 1651, regarded as sufficient, instead, the mere
acceptance of the consignment note on the part of the successive carriers.
40 G. CATURANI, A. SENSALE, op. cit., p. 193. From what has been exposed above derives that the joint and
several liability can be excluded only where it appears that the harmful event has occurred along the way of one of the
carriers, this last one is held to full compensation of the loss, with the exclusion of the liability, not even partially, of the
carriers who prove that the loss has not occurred during their own route. It should be, then, laid down, as for the
wording of the rule (“Se risulta che il fatto dannoso è avvenuto nel percorso di uno dei vettori, questi è tenuto al risarcimento integrale; in
caso contrario, al risarcimento sono tenuti tutti i vettori in parti proporzionali ai percorsi, esclusi quei vettori che provino che il danno non è
avvenuto nel proprio percorso” - “If it results that the harmful event has occurred during the route of one of the carrier, this
last one is held to full compensation; if it is not, are held to compensation all the carriers in proportional parts to the
route, excluded those carriers who prove that the damage has not occurred in their own route” – full Author’s
translation) that it refers to “harmful event”; however such a formula appears restrictive, given that must be considered
that are contemplated contemplate both the case in which the transport has been interrupted without the goods being
damaged, and that one where the goods have been lost or damage (G. COTTINO, Il trasporto e la spedizione, in F. Galgano
(diretto da), Trattato di diritto commerciale e di diritto pubblico dell’economia, Padova, 1991, p. 854 ff.). It should be added that,
nevertheless the provision uses, first the expression “harmful event” and then “damage”, must be regarded that the
proof being borne by the carriers (set out in the second sentence) concerns not only the occasion of the tangible
occurrence of the event in a precise segment of the route, just, more correctly, “la imputabilità del medesimo che può anche
collocarsi in un momento e tratta anteriore e quindi modificare il regime delle rivalse” (“the imputability of the same one that can also
be placed in a moment and route anterior and thus modify the regime of the recourses” – full Author’s translation)
(ibidem). For a complete study of the matter herein mentioned, see also, M. IANNUZZI, Del trasporto, cit., p. 307 ff.
41 Article 35.1 of the Convention on the contract for the International carriage of goods by road (Geneva 1956),
has essentially the same content, even if contains some minor differences: while article 1701 of the Italian civil code
qualifies as right that one of the successive carriers to put conditions, the Convention it refers more generally using the
expression “If it is the case, he [namely the carrier] puts on that sample[… ] conditions […]”. Moreover if the civil code
12
In addition, the rule specifies, that whenever such declaration is not made (and no reservation
has been entered in the consignment note or in a separate act), it is assumed that the successive
carriers have received the cargo in good condition and in compliance with the consignment note42.
It may appear clearly evident that the ultimate aim of the provision is to safeguard the
complying carrier both from the carrier who preceded him, from whom he takes over the goods,
and from the carrier who succeeded him, to whom he delivers them for the prosecution of the
transport43.
Particularly, through the entering of reservations in the consignment note or in a separate act,
the carrier to whom are delivered the damaged goods, will be able to prove his non-involvement in
term of causative factor of the damage (otherwise it will be benefited the precedent carrier, since, in
case of lack of reservations, it assumed that the goods have been received by the successive carrier in
good condition).
Apparently, regardless doctrinal positions in the opposite direction44, it would seem correct
attributing to such presumption, in the absence of such an expressed legal provision, character of
assumption iuris tantum, being, therefore, susceptible of proof to the contrary 45.
Although the provision above mentioned it does not state anything in that respect, it is
believed that when the previous carrier refuses to make the declaration about the condition of the
goods, the successive carrier has the right to recourse to preventive inquiry under article 1697 of the
Italian Civil Code, for the execution of a technical assessment or judicial inspection46.
In addition, the action under the right of recourse can be relied by direct action, but also by
guarantee call. In the first case, when the carrier against whom the creditor claimed the damages has
not paid, the action under the right of recourse may have the nature of the so called “azione di rilievo”
(under article 1953, n. 1, Italian Civil Code). If, on the contrary, the carrier has already paid, he has
the right to a full repayment of the paid amount, of the interests, of possible damages, and of the
additional expenses, pursuant to article 1950 of the Civil Code, in addition to that of being
surrogated in the rights that the creditor, already satisfied, had against the liable subject. In case of
guarantee call, the respondent carrier shall not, in any event, request to be ousted from the
judgement47.
Concerning the limitation period applicable to the action under the right of recourse among
the carriers, it is noted that it is the same applicable to the principal action of the consignor or of the
consignee, namely the short one pursuant to article 2951 of the Italian Civil Code. This is because
the action under the right of recourse is based on a joint and several liability among carriers,
provision contains the possibility for the carriers to include conditions in the consignment note or in any separate act,
article 35 of the Convention provides that conditions must be included both in the second sheet of the consignment
note, and on the receipt of acceptance of the goods.
42 The presumption contained in the provision under consideration shall be regarded much more serious of that
referred to in article 1693, paragraph 2, civil code, whereby if the carrier accepts the goods without conditions, it is
assumed that the same does not present apparent packaging defects. In truth, the presumption provided for in article
1701 civil code does not only refer to the apparent packaging defects, but also to the qualitative and quantitative integrity
of the load (A. ASQUINI, op. cit., p. 450). Such most serious nature can be explained in view of the need, to make it
simpler, in the internal relationships, the identification of the liable subject.
43 M. STOLFI, Appalto. Trasporto, in G. Grosso, F. Santoro Passarelli (diretto da), Trattato di diritto civile, Milano,
1966, p. 140. It should be noted that with respect to civil code provision, article 35.2 of the Convention on the contract
for the international carriage of goods by road states that such presumption shall be applied to the internal relationship
among successive carriers.
44 S. BUSTI, Contratto di trasporto terrestre, in Trattato di diritto civile e commerciale Cicu-Messineo, Milano, 2007, p. 664.
45 S. ZUNARELLI, C. ALVISI, Del trasporto, cit., p. 626.
46 In questo senso, G. VALERI, Manuale di diritto commerciale, Firenze, 1946, p. 174; G. MIRABELLI, op. cit., p. 547.
47 A. ASQUINI, op. cit., p. 514; G. CATURANI, A. SENSALE, op. cit., p. 194.
13
therefore, the law governing the external relationship shall apply also to the internal relations. The
dies a quo begins to run from the day when it has been taken the principal action, because only from
that moment the carrier held liable of an event not of his own, can exercise his right48.
It is specified, furthermore, that, in consideration of the relationship intervening among the
“cumulativi” carriers (which it is not a contract of transport), to the right of recourse does not apply
the term of forfeiture provided by article 1698 of the Civil Code (which, instead, deals with the
action that can be brought by the consignor or the consignee against the carrier and, hence,
concerns the contract of transport)49.
Lastly, in relation to the recovery of debts, article 1702 of the Italian Civil Code provides that
the last carrier, who shall deliver the goods to the final consignee, represents the other carriers in
order to collect their claims and to exercise the right of lien over the carried goods, as well as to
receive the claims and the payments50.
Consequently, whenever the last carrier omits to do what due in his own interest and in the
interest of the other carriers, he shall be liable to other carriers for the sums due, even if he will keep
the right to take action against the consignee. In addition, in the event that the consignee does not
pay the entire credit51, the last carrier will have to refuse the delivery, under penalty to pay damages
caused to the other carriers who are represented by him.
It must be noted that where the consignor paid the full charge for the transport to the first
carrier, the latter remains liable for the distribution of the payment towards the other carriers for
their respective routes. Moreover, when the consignor has not entirely fulfilled the payment, each
carrier shall take action against the consignor, in order to obtain the amount due, or separately pro
rata, or, together with the others, represented by the first carrier.
On the contrary, in the case of “porto assegnato” (freight collect), for which the payment of the
transport is charged to the consignee, in the case of payment still due by this last one, each carrier
shall take action in order to obtain his respective share, even in this case, or separately pro rata, or
together with the others, all of them represented by the final carrier, unless this last one has
anticipated the amounts, in that case the possibility of taking the action will exclusively be addressed
to him in his own name52.
Furthermore, considering the fact that the payment of the price by the consignor has the
nature of a pecuniary and divisible obligation and that it can be demanded pro quota from each
carrier, in proportion to the economic benefit of the transport, the existence of a single contract in
the factispecies of “trasporto cumulativo” does not lead to the establishment of an active solidarity
between the carriers, unless it is expressly provided in the same contract. Regarding the
remuneration for ancillary performances and the indemnities due to potential suffered damages,
these are exclusively allocated to the carriers who have made such performances or lost out
financially53.
48
G. CATURANI, A. SENSALE, op. cit., p. 195; M. IACUANIELLO BRUGGI, L.F. PAOLUCCI, op. cit., p. 514.
A. ASQUINI, op. cit., p. 517.
50 This is one of those cases of representation ex lege according to article 1188 Civil Code (M. IACUANIELLO
BRUGGI, L.F. PAOLUCCI, op. cit., p. 515).
51 The credit shall be intended not only as agreed remuneration for the transport, but also as amount accrued for
the continuing safekeeping and storage activity of the goods transported, following a legitimate refusal of redelivery
expressed from last carrier (Civil Cassation 26 April 1977, n. 1588, in Giur. it., 1978, p. 861).
52 G. CATURANI, A. SENSALE, op. cit., pp. 196 – 197.
53 M. IANNUZZI, Del trasporto, cit., p. 303 ff.
49
14
3. Transport performed by successive carriers in C.M.R.: interpretative problems posed by the uniform
regulation
The Convention on the Contract for the International Carriage of Goods54, at Chapter VI,
governs the transport of goods performed by “successive carriers”, providing, at article 34, first part,
the case where the carriage is governed by a single contract and is performed by successive road
carriers, each of them being responsible for the performance of the whole operation55.
Nevertheless the Convention textually refers to “successive road carriers” (“transporteurs routiers
successifs”), and does not explicitly use the wording “cumulative transport”, it is commonly
considered, that the factispecies governed by Chapter VI represents a case of “trasporto cumulativo”
under article 1700 of the Italian Civil Code56.
Indeed, the elements integrating the factispecies of international “trasporto cumulativo”57 (similarly
to the contractual form subject to the Italian legislation) are: a single contract; the multiplicity of the
carriers (being aware of performing - each one for his own part of the route - a “trasporto cumulativo”);
and the joint and several liability58 of these latter ones toward the consignor for the performing of
the overall service of transport.
Firstly, it must be point out that if, on the one hand, the Convention does not leave margin of
interpretation about the requirements of the single contract, on the other hand, it does not fully
clarify which conditions must be met in order to acquire the qualification of successive carrier.
In essence, it is not specified the concept of fragmentation of the transport performance, or
rather, if it should be referred to the contractual obligation in itself or to the ways of his effective
execution. Having also considered that the uniform rule, with reference to the transport regulated by
a single contract, uses the wording “is performed by successive road carriers” compared to article
54 The Convention primarily pursues the aim to regulate in a uniform way the contract’s terms of the
international carriage of goods by road, with particular reference to transport documents, carrier’s liability and related
actions. The aspects not covered by C.M.R. remains governed by domestic law applicable according to a time to time
basis.
55 In this regard, inter alia, cfr. A. PESCE, Il contratto di trasporto internazionale di merci su strada, Padova, 1984, p. 355
ff.; G. SILINGARDI, M. RIGUZZI, M. GRIGOLI, Il contratto di trasport internazionale di merci su strada: trenta anni di dottrina e
giurisprudenza sulla C.M.R., Roma, 1989, p. 157 ff.; G. SILINGARDI, A. CORRADO, A. MEOTTI, F. MORANDI, op. cit., 297 ff.;
A. BOTTI, op. cit., p. 239 ff.; N. CALLIPARI, Il contratto di autotrasporto di merci per conto terzi, Milano, 2009, p. 222 ff.
56 See, in this respect, in addition to the above mentioned doctrine, including G. SILINGARDI, A. CORRADO, A.
MEOTTI, F. MORANDI, op. cit., p. 298 (“l’accostamento del modulo normativo previsto dall’art. 34 CMR alla ipotesi di trasporto con
pluralità di vettori contemplata dall’art. 1700 cod. civ., per la contestuale operatività di un vincolo diretto fra mittente e vettori successivi, in
conseguenza dell’assunzione cumulativa del trasporto da parte di questi ultimi con unico contratto, appare pertanto indiscutibile” - “the
juxtaposition of the regulatory framework provided by article 34 CMR to the hypothesis of transport with multiplicity of
carriers included in article 1700 Civil Code, for the simultaneous operability of a direct link among the consignor and the
successive carriers, as result of the cumulative use of the transport from these last ones with a single contract appears
therefore dubious” – full Author’s translation), the decision of the Court of Cassation 19 December 1978, n. 6102, in
Foro it., 1979, I, p. 1512, according to which the provision of article 34 of C.M.R. “mette in chiara evidenza quelli che sono gli
estremi del contratto di trasporto cumulativo di cose secondo la nozione sopra specificata, che è poi quella accolta dall’art. 1700 c.c.” (“points
out clearly those which are the criteria of the contract of “trasporto cumulativo” of goods with respect to the
aforementioned notion, which is that one then accepted in 1700 Civil Code.” – full Author’s translation).
57 It should be mentioned that pursuant to article 1 of C.M.R. the same is applicable to each contract of transport
for valuable consideration of goods by road, independently of the domicile and of the citizenship of the parties, when
the place of acceptance of the load and the place designed for redelivery of the same are located in two different
Countries, of whom at least one is part of the Convention (internationality of the transport).
58 It is recalled that the joint and several liability shall extend to each part of the contract, contractual and extra
contractual, “regarding the transport ‘per se’ and its performing and not only contractual obligations”. Confirmation can
be found in article 28 of C.M.R., which extends the limitation of liability of the carrier also to extra-contractual aspects
(A. PESCE, Il contratto, cit., p. 356).
15
1700 of the Italian Civil code, that, using perhaps a more clearly expression, it refers to a transport
“engaged cumulatively by more successive carriers”.
About this issue, it has been observed59 that, in line with the first of the solutions just
mentioned, article 34 could not be certainly interpreted in the sense of considering necessary, for the
purposes of its own operability, the material and effective fragmentation of the performance.
Otherwise it should be considered outside the field of application of the C.M.R. the hypothesis, of
not rare occurrence, where the performance is entrusted to a multiplicity of subjects, but it is in fact,
rendered only by the first carrier for the loss of the goods due to an event that took place during the
portion of route of his competence. In fact, nevertheless, in this case, the transport can not be
considered materially rendered by more carriers, what is relevant, for the scope of the application of
the C.M.R., is the fact that the obligation of transport has been contractually undertaken by more
carriers.
In line with what said with respect to the analogous factispecies in the Italian private law, the
indivisibility of the contract in question, notwithstanding the multiplicity of the contracting parties,
is possible only if the negotiating willingness of the parties is directed to the creation of a single legal
bond that refers to more carriers60.
Therefore, it is a single contract with a multiplicity of subjects, to which can adhere the
successive carriers after the first one, both at the moment of the stipulation, and at a later stage.
Regarding, then, the declaration of intent of the carriers, it should be noted that the regulation
provided by the C.M.R., unlike the Italian one, focuses on more details on the specification of the
entering procedures by the successive carriers to the original agreement between the consignor and
the original carrier.
Article 34 provides, in fact, that successive carriers become parties of the contract as a result
of the acceptance of the goods and of the consignment note.
The Doctrine raised question about the meaning of the expression used by the provision,
wondering if it has an “indicative” or a “dispositive-exclusive” nature.
59
S. BUSTI, Il trasporto cumulativo nella C.M.R., in Trasp., 1980, pp. 136 – 137. The Author clearly observes that
“Quella del trasporto cumulativo è perciò una fattispecie negoziale, talché appare assurdo che la C.M.R. ne faccia dipendere l’esistenza da
quelli che sono invece propriamente i suoi «effetti» […]. La lettera della norma deve quindi essere intesa come previsione d’una ipotesi
negoziale (per cui il trasporto può venir attuato da più soggetti), e non d’una circostanza di mero fatto (che la prestazione, cioè, sia
effettivamente eseguita successivamente da diversi vettori)” (“That one of “trasporto cumulativo” is therefore a contractual factispecies,
so that it seems incongruous that the C.M.R. makes depending its existence from those which are instead properly
known as its own «effects» […]. The letter of the rule should be therefore meant as provision of a negotiating hypothesis
(whereby the transport can be performed by more subjects), and not a purely factual situation (which is the performance,
namely, is effectively rendered subsequently by several carriers)” – full Author’s translation).
60 Concerning the consignor’s manifestation of willingness to create contract of “trasporto cumulativo”, it may be
referred to the analysis of the issue d carried out in paragraph 2 in relation to the Italian regulation. It has been observed,
in particular, that it cannot be qualified successive carrier that one to whom the original carrier delivers the goods in
order to continue the transport, on its own initiative and without the consent of the consignor. This because the quality
of successive carrier postulates the recurrence of a single negotiating relationship that brings together all the subjects
involved in the service of transports (S. BUSTI, Il trasporto cumulativo, cit., p. 138). For these reasons, the Author has
considered unjustifiable the opinion of the English jurisprudence (High Court of Justice, Queen’s Bench Division, 8 May 1975,
in Eur. Tr. Law, 1976, p. 246 ff.) stating that the C.M.R. would create an artificial statutory contract among the successive
carriers and the consignor, who should accompany to the contract concluded between the consignor and the first carrier.
It is necessary, hence, that the consignor’s willingness is directed to a multiplicity of carriers (the first one determined
and the others determinable), resulting, thus, suitable to receive the accessions of successive carriers. In case the
consignor’s will to sign a contract with all the successive carriers at the beginning lacks, a contract can also become
“cumulativo” if the accession of the new carriers is connected to the willingness of the consignor and the first carrier, also
tacit, directed to the subjective propagation of the original contract.
16
According to the first view, the provision would contain the reference to one among the
different factispecies of “trasporto cumulativo”, to which the uniform regulation set out in chapter VI of
C.M.R. applies61.
According to the second one, the acceptance of the goods and the consignment note would
be necessary for the valid participation of each successive carriers to the original contract between
the consignor and first carrier (only doing so, the original contract will be considered a contract of
“trasporto cumulativo”) and, then, in order to apply the uniform regulation62.
In this respect, it has properly been pointed out that the provision of the regulation clearly
implies an element (the takeover of the goods and the consignment note), that goes further the sole
consent to the performance of the transport63.
This is also confirmed by article 35 of C.M.R., according to which the carrier who “accepts”
the goods from the preceding carrier, delivers to the latter a “receipt”64. Such provision in fact,
would place on an equal level acceptance and delivery of the goods.
Said that, the interpretation according to which article 34 would have a dispositive-exclusive
application it is not supported. That orientation, in fact, in order to determine the status of
successive carrier, attributes determinant role to the acceptance not only of the goods, but also of
the consignment note. Deeming so, the existence of the latter would be a fundamental requirement,
without which the carrier who has to perform only a portion of the transport could never be
considered a successive carrier for the scope of C.M.R. This would, therefore, odd with what has
been laid down by the Convention itself in article 465, pursuant to which, by contrast, the
consignment note has exclusively probative value66.
Indeed, it seems unlikely that C.M.R. wanted to derogate to the general principle of mutual
consent of the contract of transport67, with a special regulation applicable only to the factispecies of
“trasporto cumulativo”, that confers a constitutive effect for the attribution of the status of successive
61
In the sense that it is considered part “chi accetta la merce da altro vettore per trasportarla secondo le condizioni di
quell’unica lettera di vettura” (“who accepts the goods from another carrier in order to transport under the conditions of
that unique consignment note” – full Author’s translation) (S. BUSTI, Il trasporto cumulativo, cit., p. 138).
62 Among others, see R. LOEWE, Note explicative sur la Convention au contrat de Transport international de Merchandises par
Route (C.M.R.) du 19 mai 1956, in Eur. tr. law., 1976, p. 407 ff.; D.J. HILL, The interpretation of C.M.R. in the English Courts, in
Lloyd’s mar. comm. law quart., 1977, p. 216.
63 S. BUSTI, Il trasporto cumulativo, cit., pp. 138 – 139.
64 The receipt must be dated and signed, showing the name and the address on the second copy of the
consignment note. The carrier, moreover, can attach on this last one, and also on the receipt, the reservations set out in
article 8, paragraph 2. On the bases of such last provision (dictated for every type of transport falling in the application
of C.M.R.), similarly (but more detailed respect)to the Italian legislation, at the moment of taking over of the goods, the
carrier must check the accuracy of the statements of the consignment note regarding (lett. a)) the number of packages
the marks and numbers, as well as (lett. b)) the apparent condition of the goods and their packaging. The second
paragraph provides that the carrier has not reasonable means of checking the accuracy of the statements referred to in
paragraph 1 lett. a), must enter his reservations in the consignment note together with the grounds on which they are
based as referred to in lett. b). Such reservations thus entered, shall not bind the consignor, unless he has expressly
agreed to be bound by them on the consignment note.
65 It should be recalled, in fact, that under article 4 of C.M.R. the absence, irregularity or the loss of the
consignment note shall not affect the existence or the validity of the contract of transport. The argumentation herein not
accepted, in particular, the specialty of article 34 compared to article 4 on the basis of the material positioning
aforementioned articles in separate and distinct chapters of the Convention: the second provision would be applied only
to the transport between the first carrier and the consignor, while the first one would apply only to “trasporto cumulativo”.
66 See on the point G. VALAPERTA, La C.M.R. è facoltativa?, in Trasp., 1976, p. 103.
67 It would not realize, therefore, the reason of the unequal treatment that would occur between the carrier called
to continue the transferring operations of the goods and the first carrier, to whom it would apply indeed the provision of
article 4 of C.M.R. (the irrelevance of the absence or of the faults inherent to the consignment note upon the validity of
the contract and, thus, the mutual consent of the same).
17
carrier to a formal element, consisting of the issuing of the consignment note, and to a material one,
as the delivery of the goods and the consignment note68. The provision, hence, would not be
interpreted in the direction to believe that a carrier may become part of a “trasporto cumulativo” only
with the acceptance of the consignment letter.
This not only considering the fact that it is not found in the rule an intention to exclude other
procedures to enter into the contract, but especially for uniformity and equal treatment needs69.
In addition to this, in order to determine the requirements of the consignment note - since
there is no trace in article 34 - it would be however necessary referring to article 6 of C.M.R.,
confirming in this way the essential link and the coordination between the provisions set out in
Chapter VI and the general provisions on the conclusion of the contract70.
In the light of the observations made above, it seems more correct considering that the actual
acceptance of the goods and the consignment note are not an essential prerequisite in order to
assume the quality of successive carrier.
In conclusion, the provisions of the C.M.R., on the one side have the main purpose of
attributing conclusive value (without the need of a further evaluation of the effective animus),
regarding the willingness to be part of the “trasporto cumulativo”, to the behavior (described by article
34) of the successive carrier who takes over the goods and the consignment note; on the other side
they do not preclude different forms of accession of the successive carrier to the contract71.
3.1. Differences and similarities compared with the Italian legislation.
An adequate description of the matter just addressed, is more than necessary, especially in
terms of legal implications, upon the liability regime, which derive from one and the other dogmatic
perspectives. It should be noted, indeed that the joint liability regime of successive carriers is
otherwise interpreted by C.M.R. with respect, for instance, to Italian legislation, in accordance to
article 1700 Italian Civil Code.
In fact, article 36 of C.M.R. provides the possibility for the consignor or for the consignee to
promote a liability action for loss, damage or delay only against the first carrier, the last carrier, the
carrier who has performed the portion of the transport during which the event causing the loss
68
For a complete study of the problem, see S. BUSTI, Il trasporto cumulativo, cit., 139 ff.
It is worth considering a transport ab origine “cumulativo” and regularly performed by successive carriers: the
consignment note being issued or not does not have any effect at all on the effectively cumulative nature of such
transport.
70 Last but not least, it should be noted that the argument does not find solace neither in article 35, above
mentioned: the fact that such rule provides that the successive carrier should enter his name and address on the second
copy of the consignment note, it does not entail the essentiality of the existence of such document. By contrast, it shall
be considered a provision established in the case that a consignment note indeed exists. In support of such approach, it
should be added that article 35 does not provide for any sanctions in case of infringement of its own prescriptions: from
that rule, therefore, it does not seem possible draw any decisive argument in favor of the necessity (of the existence of)
of the acceptance of the consignment note for identification purposes of an international “trasporto cumulativo”.
71 S. BUSTI, Il trasporto cumulativo, cit., 145 ff. The Author, in the view of his own conclusions, further notes that
the Convention does not solve in a global and uniform way, the matter relating to the requirements in order to assume
the quality of successive carrier. Thus, in order to determine them, it should be referred to national regulation, which
shall be applied just to fill the legal vacuum of the international framework. To this end, it should be noted that, with
respect to Italian law, the contract of “trasporto cumulativo” of goods is a consensual agreement, which is concluded only
with the consent of the parties. Thus, the contract of “trasporto cumulativo” shall be deemed concluded when the will to
accession to the contract from the successive carriers reaches the consignor, or the successive carrier starts the material
performance of the contract (under article 1327, paragraph 1, Italian Civil Code), accompanied by the will to participate
with other carriers to the joint obligation of transport.
69
18
occurred. The rule provides, then, the right to promote the same action against more carriers
simultaneously.
This rule differs significantly from the correspondent Italian provision, article 1700 of Civil
Code, that, as above mentioned, assigns to the entitled subjects the right to take action against all the
carriers, without being relevant the temporal order of the performances or the occasion where
harmful event occurred in a portion of the route rather than in another part (except, obviously, the
action to recourse).
Evidently, the ratio of the CMR regulation has as main purpose, the one to address the liability
action against the carriers who have a closer contact with the subject entitled, or better, if known,
against the carrier to whom the damage is attributable72.
The limits to the capacity to be made a defendant are not provided, for expressed provision of
article 36 of C.M.R., in case of counterclaim or objection raised in a judgement concerning a claim
based on the same contract of transport. Thus, the provision, on the one side ensures the
compliance with the principle of procedural economy, on the other side, in the case of an action
undertaken by a so called “intermediate carrier” for his own claims, against the claimant, permits to
the latter to carry out the counterclaims, that, in a separate trial, should be addressed against the first
or the last carrier or the carrier in whose portion of route occurred the loss73.
As for regulation regarding internal relationships among carriers, articles 37 of C.M.R.
(similarly, at least to some extent, to the Italian legislation) points out, that the carrier who has paid
the person entitled, has the right to request, by way of recourse, to the other cumulative carriers, the
return of the amounts paid, together with the interest and the expenses according to the criteria
specified in the same provision74. In light of those criteria, the carrier responsible for the loss,
remains solely liable, independently from the fact that the compensation has been paid by him or by
another carrier (lett. a.). In the case where the loss or damage has been caused by the action of two
or more carriers, each of them shall pay an amount proportionate to his share of liability and,
whenever it is impossible to apportion the liability, each carrier shall be liable in proportion to the
share of the payment for the transport which is due to him (lett. b.). In the case where it cannot be
ascertained to which carriers is attributable the liability, the compensation shall be apportioned
between all the carriers in proportion to the share of the payment (lett. c.).
From the analysis of the legal provisions above mentioned, an additional difference between
the Italian regulation and the Convention legal framework stands out. The second paragraph of
article 1700 of Italian Civil Code, in fact, contains an irrefutable legal presumption of liability of the
carrier in whose portion of route has been ascertained the occurrence of an harmful event (loss,
damage or delay): such carrier is held to full compensation. By contrast, C.M.R. provides only that
the liability action “can only be brought against”, besides the first and the last carrier, “the one who
has performed the portion of the carriage during which the event causing the loss, the damage or
delay, occurred” (art. 36) and that is solely liable for the compensation the carrier to whom is
attributable the loss (without, furthermore, making any reference to the portion of route where it has
occurred) (art. 37, lett. a.).
Therefore, the C.M.R., more than imposing on the carrier, in whose portion of the transport
the loss has occurred, the burden of a full strict liability would appear, more simply, aimed at
facilitating the identification of the subject against whom the person entitled to the goods can
72
N. CALLIPARI, op. cit., p. 222.
A. PESCE, Il contratto, cit., p. 364; J. PUTZEYS, Le contrat de transportroutier de marchandises, Bruxelles, 1981, p. 369.
74 It should be noted, however, that the action to recourse can be taken only by those who effectively participated
to the performance of the transport, remaining, therefore, excluded the carriers who, having entrusted the route of their
own competence to another carrier have not contributed to the material determination of the loss. Nevertheless, such
carriers might be held liable under article 3 of C.M.R., which governs also the fastispecies of transport with sub-transport.
73
19
undertake an action for damages. The presumption of liability provided by C.M.R. against such
carrier, can be, therefore, always overcome, providing proof to the contrary75.
Another appreciable difference regards the extent of liability borne by the carriers when it is
not possible to ascertain a single carrier liable of the loss: the Italian Civil Code provides that the
carriers are held liable in proportion to their portions of route. Conversely, the C.M.R., pursuant to
article 37, when it is impossible to ascertain the portion of liability attributable to each carrier,
provides the allocation of the compensation due in proportion to the share of the payment for the
carriage which is due to him.
The Convention, moreover, focuses on some specific aspects of the discipline that the Italian
Civil Code does not take into account with specific reference to the “trasporto cumulativo”. In
particular, article 38 provides, where a carriers is insolvent, that the share for compensation due by
him shall be divided among the other carriers, in proportion to the share of the payment due to
them76.
In addition, Article 39, provides that the carrier against whom a claim is made cannot dispute
the validity of the payment made by the carrier making the recourse, if the amount of the
compensation was determined by judicial authority, after the first mentioned carrier had been
regularly given due notice of the proceedings and afforded the opportunity of entering into
appearance77.
The provision lastly mentioned aims to concentrate the judgements concerning the
compensation attributable to the person entitled for the same transport. In fact, the carrier who does
not intervene in a judgement where he has been held liable according to the rules of lex fori, shall not
dispute the amount, determined by the court, paid by the carrier against which the liability action has
been brought78.
4. The case of mixed transport: the transport superposè
As above mentioned, it is not uncommon that, for the will of the parties or due to needs
arisen during the transport, the vehicle where the goods are may be loaded on another means of
transport (ship, aircraft or train), without needing to unload the carried goods79.
A more detailed analysis of the factispecies is relevant not only to better clarify the differences
with the “trasporto cumulativo” or with the successive carriers, but also to underline the different
attitude made by uniform legislator dealing with two various types of international transport. While,
in fact, the case of mixed transport, sub specie of the so-called transport superposè, is expressly
provided, the transport performed by successive carriers, as it will be seen hereafter, is taken into
account only for its mode entirely by road, remaining without a uniform regulation the cases where
to the road leg, one or more non-road legs are added.
75
N. CALLIPARI, op. cit., pp. 223 – 224.
It should point out that, however, article 40 of C.M.R. allows the carriers to agree among them an exemption
to the provision of articles 37 e 38.
77 The provision adds that the carrier who is willing to exercise his right to recourse can submit his claim to the
competent court of the State where one of the interested carriers habitually resides, has his head office, branch or agency
through which has been concluded the contract of transport. The same rule also states that the action under the right to
recourse can be taken jointly (with a single action) against all the interested carriers. Last paragraph provides, finally, that
the limitation periods of the contractual liability claim pursuant to article 32 of the Convention shall apply to the action
for redress. Those limitation periods start to run from the date of the final judgement that fixed the quantum of the
compensation, namely from the date of the effective payment of the claimant.
78 A. PESCE, Il contratto, cit., p. 368.
79 A. PESCE, Il contratto, cit., p. 47.
76
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Article 2 of C.M.R. provides that if, for a leg of the transport, the vehicle where the goods are
located shall be transported by sea, by railway, or inland waterway, by air, without the goods being
unloaded from it, the Convention shall be applied to the entire transport.
This regulation deals with the factispecies of so-called mixed transports (road-sea or inland water
way, road-railway or road-airplane), differentiating the framework according to whether or not the
goods are unloaded from the road vehicle: in the latter case, shall be applied the C.M.R. In the case
in which, vice versa, the goods are unloaded and loaded again on a non-road vehicle, the
Convention shall not be applicable anymore, from the moment when it is made the loading on the
other vehicle80.
In this respect, it has been noted that article 2 represents a solution, although not complete, to
the problem of identification of criteria for the allocation of the risks of transport when for the
performance thereof are utilized different vehicles81.
In reality, the positions with respect to the identification of types of transport regulated by
article 2 of C.M.R. are various and multiples: according to some, the provision shall apply to
multimodal transport, for others to combined transport and, in the view of a third line of thought,
more correctly, to the factispecies of tansport superposè82.
However, it has been stated that the case governed by article 2 shall not be the one referring
to multimodal transport, because the latter is performed through different means of transport,
determining, often, even a separation of the load at the moment of transferring of the goods from
one means of transport to the other. According to such position, then, in a case of multimodal
transport, intended in a technical sense, each part of the voyage should be considered individually
(being regulated by the rules of the specific mode of transport utilized), while the C.M.R. could only
be applied in relation to the road leg and only if it is crossed a national border83.
The provision of article 2 then specifies that the discipline of the Convention shall not apply if
is reached the proof that the loss, damage or delay in the delivery of the load occurred during the
non-road route of the transport, that those harmful events were not caused by an act or an omission
of the road carrier and that the same derived from a fact which could only occur during and as a
consequence of the non-road transport.
In such a case, pursuant to article 2, the liability shall be assessed based on the criteria by
which the non-road carrier liability would have been determined if it had been concluded a contract
80 The application of the Convention is not prevented in the case occurs the unload of the goods from a road
vehicle to another one, unless the period of warehouse is too long and likely to become objectively not compatible with
the continuation of a single contract. Equally, the Convention shall be applied also in the case of unloading, for
inspection, reconditioning or restowage needs, assuming that the transport would go ahead with another road vehicle
(albeit different from the original one). See D.J. HILL, A.D. MESSENT, Contracts for the international carriage of goods by
road,Londra, 1984, p. 17 ff.
81 Si veda G. SILINGARDI, A. CORRADO, A. MEOTTI, F. MORANDI, op. cit., p. 28.
82 For the thesis of multimodal transport see M.A. CLARKE, International Carriage of Goods by Road: CMR, Londra,
1982, p. 71; on the contrary A. PESCE, Il contratto, cit., p. 48. According to the theory of “trasporto combinato” see D.J. HILL,
A.D. MESSENT, op. cit., p. 14 ff.; D.J. HILL, Carriage of goods by Road to the Continent, in Eur tr. law, 1975, p. 182. Finally, J.
LIBOUTON, Convention on the contract for International carriage goods by road, in Eur tr. law, 1973, p. 9, which expresses in terms
of transports superposés.
83 A. PESCE, Il contratto, cit., pp. 48 – 49; G. SILINGARDI, A. CORRADO, A. MEOTTI, F. MORANDI, op. cit., p. 28 ff.
These last scholars, believe that, however, the scenario set out in article 2 of C.M.R. “costituisce una delle più consolidate e
diffuse basi della regolamentazione di una tipica fattispecie di esecuzione del trasporto con l’impiego di diversi veicoli e secondo moduli
differenziati di spedizione, riconducibile al fenomeno del «trasporto multimodale» genericamente considerato” (“represents one of the most
consolidated and widespread ground of legislation of a typical factispecies of performing of the contract of transport
through the utilization of different vehicles according to different forms of shipping, attributable to issue of «multimodal
transport » generally considered” – full Author’s translation).
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of transport between the consignor and the non-road carrier, in compliance with the mandatory
legal requirements concerning non-road transport of goods (so called “réseau system”)84.
Upon the occurrence of the circumstances above mentioned, thus, what acquires importance
is the liability regime dictated by applicable regulation to the hypothetical contract that consignor
would have concluded with the non-road carrier and that would have governed la the non-road leg
of the transport85.
It is appropriate to underline that the Convention shall, however, be applicable in case of
damages due to unknown cause or in respect of which is not found the correct localization both
temporal and spatial, and also when it is not demonstrated the existence of the causal relationship
between the damage and the fact related to the non-road leg and dependent in toto on negligence of
the non-road carrier86.
The application of the “réseau” system is of notable favor for the road carrier, offering him the
opportunity to oppose to the person entitled to delivery of the goods, the exemptions causes and
compensation limits which can be claimed by the carrier who has performed the transport by sea,
inland waterway, rail, road o air. Moreover, the introduction of such system, standardizing the
liability regime of the road carrier with the one of who performs the non-road section, generates an
additional virtuous effect to guarantee the identity between the amount of the compensation paid by
the first one to those entitled to the delivery, and the amount that, in recourse, will have to be
reimbursed by the second one, as liability for the damaged occurred during the non-road leg87.
5. The applicable legislation to the international “trasporto cumulativo combinato”. Dogmatic
perspectives developed in the field of multimodal transport: conclusive remarks.
The factispecies of international “trasporto cumulativo” falling under the C.M.R. discipline, as
anticipated, is exclusively that one of the transport entirely performed by road, remaining outside of
the scope of application of the Convention the events where one or more road segments may be
added to one or more non-road segments, whether be sea, inland waterways, air or rail. Therefore,
with the exception of superposé transport (that is, however, a particular factispecies of mixed transport)
expressly provided by article 2 of the Convention, for the cases, not unusual, of international
“trasporto cumulativo combinato” (“cumulative combined transport”) performed through more modes of
transport, even non-road, the issue of the identification of the applicable legislation arises again88.
To this end, it would be appropriate pointing out that although such factispecies may appear
very similar to multimodal transport, because it is made up of different modes of transport, it
substantially differs from multimodal transport, since, as previously explained, in the multimodal
transport the only liable subject remains the M.T.O., who is solely liable (under the only contract
84 And only in the extent where there are rules of mandatory law, because, otherwise, C.M.R. will be applied. The
ratio of such prescription can be found in the necessity to the carriers to allow the road- carriers to derogate to the
provisions regulated by the C.M.R. with the recourse (albeit within the limit of the non-road section of the transports) to
non-mandatory legal rules, carrying out a systematic replacement of the regulatory regime on road transport dictated in
an imperative way by C.M.R. with a provision (sea air, rail,) derogable (C. ROSSELLO, Tre questioni in tema di CMR, cit., p.
568).
85 G. SILINGARDI, A. CORRADO, A. MEOTTI, F. MORANDI, op. cit., pp. 30 – 31.
86 Obviously, the burden of proof is on the subject who invokes the application of non-road transport regulation.
This because such takes exceptional nature compared to the provisions of C.M.R. (idem, p. 36 – 37).
87 C. ROSSELLO, Tre questioni in tema di CMR, cit., p. 572, which refers for a more detailed analysis of the matters
relating article 2 of C.M.R.a and the réseau regime with particular reference to the requirement of the imperative nature of
the provisions regarding the non-road transport framework (see G. SILINGARDI, A. CORRADO, A. MEOTTI, F.
MORANDI, op. cit., p. 46 ff.).
88 S. BUSTI, Contratto, cit., pp. 384 – 385.
22
concluded with the consignor) of the transport operation as a whole, although he avails himself of
the service of the subcontracting carriers.
The problem of finding the discipline applicable to the international “trasporto cumulativo
combinato”, is substantially the same that has arisen around multimodal transport, which is also
without a uniform legal framework.
It appears, therefore, appropriate dwelling, previously, on the different solutions supported by
Doctrine and jurisprudence about such legal form, from which being able to obtain useful
investigating elements for the purpose of the scope of the present study. Bearing in mind that, at the
bases of different approaches, there is basically the intention to emphasize the unity of multimodal
transport, rather than the single modes of performing it.
A first option is that one provided by the so-called “network liability system”, according to
which it should be applied the specific liability regime of each section of transport where the loss
occurred. There might be, though, numerous disadvantages: (among others) the factispecies would
result fragmented on the legislative ground, in contrast with its unitary nature. Moreover, the system
assumes that it is always possible to locate the damage, occurrence anything but predictable.
Another system is the one so-called “uniform liability system”, which is based on the
application of identical rules regardless of the moment the damage has occurred. If, on the one side,
the uniform liability system would easily solve the issue regarding the localization of the damage, on the
other side, it would threaten to cause drawbacks to the multimodal carrier, because the applicable
regulation which would be referred to would probably be shaped by a more burdensome regime of
liability, among those that governs the different modes of transport (with the exclusion, for example,
of the numerous advantages enjoyed by the carrier at sea in terms of grounds of exemptions and
limitation of liability)89.
It has also been debated another alternative, of compromise between the first two ones90, that
one of the so-called “network modified liability system”, according to which, in general, multimodal
transport should be regulated by uniform rules, but, in the event where it is ascertained that the
damage occurred in a specific section of the route, shall be applied (at least relating to some aspects)
the rules governing that section. Even that system has disadvantages: if can solve the matter of the
localization of damages, leaves open that one concerning the action under the right to recourse of
the M.T.O. against the sub-contracting carriers91.
In respect, more specifically, to the Italian legal system, it can be noted that case law follows
three different positions not entirely homogeneous with respect to the three alternatives
aforementioned. In line with a first hermeneutical approach, it shall be applicable the regulations
provided for the portion of the voyage where the loss or the damage has occurred. According to
what was stated by the Court of Appeal of Milan, decision 7 November 195092, the ratio of such
choice must be found in the fact that if the contract is performed through different modes of
transport, each one governed by its own rules, the parties accept the application of those provisions,
regardless an expressed agreement in that sense.
89 Indeed, when a multimodal carrier avails himself of sub-contracting carriers, these would be liable for any
damages according to the provisions ruling single modes of transport, which could be founded on different principles
compared to that one intended to multimodal carrier liability, making it not possible a full action to recourse, among
others, in the case where the applicable legislation to the sub-contracting carriers allow him to assert grounds of
exemptions of liability, which were not granted to the multimodal carrier.
90 Such position has been adopted in the Geneva Convention of 1980 and in the Rules UNCTAD/CCI, as well
as in many national provisions.
91 M. BRIGNARDELLO, op. cit., p. 1078 ff.
92 In Foro it., 1951, p. 76, con nota di S. FERRARINI, Sulla prescrizione applicabile ad un contratto di trasporto terrestre e
marittimo. Nello stesso senso, Tribunale di Genova, 15 aprile 1950, in Dir. mar., 1950, p. 576.
23
A second orientation consider that the regulation dictated for the prevailing leg of transport93
shall be applied. Indeed, the contract of transport is jointly negotiated by the parties, therefore, since
its conclusion, the different routes have already been provided 94.
Lastly, the predominant orientation believes that, in any case, the common framework
provided by the Civil Code should be applicable 95. In essence, it is affirmed that article 1680 of
Italian Civil Code extends the application of the provisions contained in the Code to all forms of
transport, excluding those governed by special laws. Moreover, the Navigation Code (or other
special law) does not regulate multimodal transport, therefore, being not possible to apply to the
latter one a special discipline, the Civil Code shall be necessarily applied.
Such position, even though supports a better standardization of the governing rules, it does
not take into account the specificity of each single mode of transport, in particular with respect to
the liability regime (which, for example, is much strict in the Civil Code than, in the field of maritime
transport, in the Navigation Code, article 422, or in the Hague-Visby Rules).
Once made clear, in the key elements, the terms of the debate relating to multimodal
transport96, it can be now coped with the matter regarding the applicable regulation to the
international “trasporto cumulativo combinato”, also in the light of the results so far acquired.
In this respect, based on the analysis of the Italian domestic law, it feels right to share, at least
partly, the position of those, de facto aligning with the third jurisprudential strand just examined,
believes not reasonable, considering the indivisibility of the obligation of the “trasporto cumulativo”,
the application of a different regulation on a case-by-case basis, according to the type of means of
transport used in each leg by the cumulative carriers. In that case, in fact, it would reach to a
situation of considerable legal uncertainty, harmful both for the shippers and for the carriers, which
would lead to even worst consequences possibly resulting from not having given, with respect to the
applicable legislation, larger consistency to the specific features of each mode of transport used.
Each successive carrier, in fact, as a result of joint liability bond, could be liable for a loss or damage
to the goods due to a fact which he has not committed, under different rules from those which
regulate the mode of transport by the same adopted during his segment97. Therefore, if in a “trasporto
cumulativo combinato” there is not a predominance of one or the other means of transportation, and
93
See Genoa Court, 12 March 1992, in Dir. mar., 1993, p. 430.
It is quite clear the narrow scope of such position, if only it is considered that it is not always possible to
identify a main section or prevalent compared to the others.
95 In some pronunciations it referred expressly to some provisions, such as those in the area of prescription
(article 2951 civil code), in others it refers generically to national law. In first sense see Appeal Cagliari, 22 September
1969, in Dir. mar., 1969, p. 300; Civil Cassation, 17 November 1978, n. 5363, in Porti, mare e territorio, 1979, p. 92,
comment of E. TURCO BULGHERINI, Trasporto combinato delle merci; Civil Cassation, 14 February 1986, n. 887, in Dir. mar.,
1987, p. 290; Appeal Genoa, 31 March 1990, in Dir. mar., 1991, p. 119; Civil Cassation, 30 November 2000, n. 15329, in
Giust. civ., 2001, p. 2462; Avellino Court, 1° June 2005, in Dir. trasp., 2006, p. 931, comment of A. MIGNONE, P.
D’AMATO, Sulla normativa applicabile al trasporto multimodale terrestre-aereo. In second sense see Civil Cassation, 6 March 1956,
n. 656, in Dir. mar., 1956, p. 197, con nota di S. FERRARINI, Trasporto misto terrestre-marittimo e regime applicabile alla
responsabilità del vettore; T Milan Court, 10 December 1992, in Dir. mar., 1994, p. 817; Civil Cassation., 8 July 1993, n. 7504,
in Rep. Foro it., 1993, voce “Trasporto”; Civil Cassation, 2 September 1998, n. 8713, in Dir. mar., 2000, p. 1349, comment
of L. RAVERA, Trasporto multimodale: un preoccupante vuoto normativo; Genoa Appeal, 8 March 2002, in Dir. mar., 2004, p. 182,
comment of M. RUGGERI, La disciplina applicabile al contratto di trasporto multimodale; Civil Cassation, 14 February 2005, n.
2898, in Giust. civ. mass., 2005, p. 2; Genoa Court, 11 April 2005, in Dir. mar., 2006, p. 1300.
96 It must be noted, therefore, that in terms of multimodal transport have been moved forward several reform
proposals See, Draft Instrument on the Carriage of Goods [Wholly or Party] [by Sea].
97 S. BUSTI, Contratto, cit., pp. 286 - 287.
94
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thus all must be equally deemed as main, would seem more appropriate applying the general
provision contained in the Civil Code concerning the matter of transport98.
Moreover, after the amendment made by the Italian Legislative Decree n. 286 of the 21st
November 2005, to the second paragraph of article 1696 Civil Code, which introduced a reference
to article 23, paragraph 3, of C.M.R., the Civil Code itself, in a logic of increasing homogeneity of
the disciplines, incorporated into domestic law, in the field of international transport, the limitation
of liability of the carrier provided by the C.M.R (in case of absence of willful misconduct and gross
negligence)99.
Thus, notwithstanding in the cases of “trasporto cumulativo” including non-road transport
portions, the direct applicability of the discipline provided by the Convention should be excluded,
following the reasoning set up above, to the carriers involved in international “trasporti cumulativi
combinati” would however find application indirectly, as a result of the expressed reference under the
second paragraph of article 1696 Civil Code, the limitation of liability provided by C.M.R., of 8,33
special drawing rights per kilogram of gross weight shortage of the goods
It should be noted, though, that the application of the national regulations may only occur in
those cases, not particularly frequent, of international “trasporti cumulativi combinati” for which Italian
law is applicable, according to international private law provisions.
In all the other cases, at present, it does not seem possible to provide - with any certainty - an
unambiguous solution concerning the applicable legislation, in the event of a transport operated by
successive carriers with different modes. It is, therefore, becoming increasingly urgent the need for a
clarification proposal of the legislator, national or uniform, in order to remove the large number of
doubts, not otherwise solvable by the only, though valiant, interpretation of the Doctrine and the
Courts.
98
If, instead, there is in a particular case a significant predominance of one mode of transport with respect to the
others, then it might be more appropriate to give importance also to the specific rules applicable to that prevailing mode,
following a line to some extent similar to that one of the mentioned modified liability system.
99 Inter alia, see: M. LOPEZ DE GONZALO, Limitazione del debito del vettore e colpa grave, in Dir. mar., 1980, p. 634 ff.
25