Italy - Delivery of Cargo Without Production of Bills of Lading

In a case decided on 2 August 2005, Silfo S.r.l. c. Costa Container Lines S.p.A., the Tribunal of Genoa dealt with the matter of who is the subject entitled to demand the delivery of goods in case of a non negotiable bill of lading. The Tribunal restated the principle according to which, if the bill of lading is specified as non negotiable, the carrier must deliver goods only to the consignee named in the bill of lading, even without possession of the bill of lading, and in that instance, rather than a document of title, the bill of lading acts more as a record of the receipt of the goods and the agreement to transport them to a specific destination and consignee in return for payment of the transportation charges. 

The claim arose by a carriage of electronic goods from Italy to Havana (Cuba) on board the M/V “Cala Pilar”. At the beginning, the bill of lading named as shipper a subject other than the goods’ owner and contained a clause “not negotiable unless issued to order of”. During the transport, and before goods’ arrival at Havana, the bill of lading was modified and the goods’ owner was specified also as the shipper. On the ship’s arrival at Havana, the goods were delivered to the subject stated as “consignee” in the bill of lading, although the original bill of lading was still in shipper’s hands. The shipper claimed that the carrier delivered the goods to the consignee without presentation of the original bill of lading and sought compensation for damages suffered.  

In the circumstances, the Tribunal, having found that the bill of lading was a “not negotiable” document, i.e. a “non negotiable” straight bill of lading, held that the carrier was entitled to deliver the goods to the person stated to be the “consignee” even without submission of the original bill of lading and that a non negotiable bill of lading could not be set up as a document of title in (legal) strict sense.  

In this case the Tribunal of Genoa has excluded any liability of the carrier who delivered goods to a consignee without previous control of his entitlement with respect to surrender of  the original bill of lading. The Judge decided in this way on the basis of two considerations: a) the bill of lading was issued to a named consignee and b) the issued bill of lading was non negotiable, in so far as it contained a clause “not negotiable unless issued to order of”. 

This decision is consistent with the provisions of Art. 464 and Art. 467 of Italian Maritime Code. In fact Article 464 of Italian Maritime Code states that “The original bill of lading or the original receipt for shipment delivered to the Shipper can be to the holder, to the order or nominative. The transfer of this original is effected in ways and with effects foreseen by the (Italian) civil code for the credit titles to the holder, to the order or nominative. However, for issuance and the transfer of the nominative bill of lading the annotation is not requested in the register of the issuing party, foreseen in art. 2022 and following of the civil code” and Article 467 states that “The holder of the negotiable original bill of lading or of the receipt for the shipment is entitled to the exercise of the right mentioned in the title, on the basis of presentation of same, or of an uninterrupted succession of endorsements or in consequence of the heading in his favour if the title is, respectively, to the holder, to order or nominative.”  

According to these articles, a straight bill of lading is made out to a named person as the consignee and it can be a negotiable document, if contains a clause such as “to order of” or similar clauses or “a non negotiable straight bill of lading”, if it bears an express clause such as “not to order” or similar. This means that only if endorsement of bill of lading has been excluded by issuer by an ad hoc clause, the bill of lading can’t be considered as document of title, but only as instrument proving carriage contract drawn up in favour of a determinate and not interchangeable consignee. On other hand, if negotiability is not expressly excluded, the bill of lading will be considered as a document of title, freely transferable through endorsement and its possession and presentation by the consignee are necessary at the moment of re-delivery of shipped goods. 

Instead, before this decision, the general view, in Italian case law, was that the re-delivery to the consignee, named in a straight bill of lading, is correct also without the need for possession, and surrender, of the original bill of lading and regardless of the control if the straight bill of lading bears, or not, a clause with the purpose of excluding its negotiability.  

In this sense in a recent case, the Tribunal of Civitavecchia (Ordinanza 02.22.2001) has stated that “in the case of issue of a straight bill of lading, the person named as consignee in bill of lading is entitled to obtain the re-delivery of goods without original bill of lading submission”. Also in a previous case, an Italian Tribunal has decided in the same way: in fact in S.N.C. Sesto Export c. Agenzia Marittima Gabriel, (03.04.1987) the Court of Appeal of Florence has excluded any liability of maritime carrier, who delivered the goods to the consignee named in the straight bill of lading, without demanding the exhibition and surrender of the title. In this case the Judge has stated that “In case of issue of a straight bill of lading, the consignee is entitled to re-delivery of goods irrespective of title’s submission”.  

But this tendency of Italian case law does not appear correct with respect to Italian maritime law: as explained above, in fact, according to the Italian legal system, the person named as the consignee on a straight bill of lading, specified as “non negotiable”, has the right to demand performance from the carrier without production of the original document, because only in this case the straight bill of lading is not a document of title. 

For carriers this issue is also of great importance, given that it is concerned with applicability of the Hague-Visby Rules to straight bills of lading and the question whether such a document must be presented to the carrier in order to obtain delivery of the goods. The former issue, applicability of the Hague-Visby Rules, has been raised due the fact that the Rules expressly stipulate that they are only applicable where the document is “a bill of lading or any similar document of title”. 

So, it’s pleasing to see that Italian Judges are likely to enforce the letter of Italian Maritime Code on the basis of correct reading, as the Tribunal of Genoa has in the examined case. 

With thanks to Aldo Mordiglio of Studio Legale Mordiglia, Genoa, for preparing this article.