A heat exchanger to be carried from Genoa, Italy, to Aqaba, Jordan, was delivered to a terminal managed by Ignazio Messina SpA (IM), waiting for loading onto a ship owned by the same company and carriage by sea to Jordan. During the handling within the terminal by IM's employees, the flat rack container on which the heat exchanger was placed fell from a forklift, resulting in damage. Suisse National Insurance Co (SNI) was subrogated into the owner's rights, and sued IM in the Tribunal of Genoa claiming compensation. IM argued for the application of the time bar provided by the carriage of goods by sea regime.

In April 2002, the Tribunal of Genoa established that IM had to pay ITL 258,000,000 to SNI. IM appealed to the Court of Appeal of Genoa, invoking limitation of carrier liability under the Italian Code of Navigation and art 4.5 of the Hague-Visby Rules. In IM's view, the contract for carriage of the goods included the phase of maritime transport as well as all the preparatory operations aimed at the carriage itself. The carrier liability regime, including its limitation provisions, also regulated those operations. The Court of Appeal of Genoa agreed with the decision of the Tribunal of Genoa (Ignazio Messina SpA v Suisse National Insurance Co, Court of Appeal of Genoa 22.05.2003 (CMI2045)). IM appealed in cassation to the Supreme Court of Cassation against the Court of Appeal decision.

IM reiterated that the custody of the cargo within the terminal was aimed at its carriage, which constituted a legal basis for arguing the existence of a contract for carriage of the goods. Moreover, the conclusion of the contract of carriage was implied in the correspondence between IM and Jas Project SpA (JP), the owner of the cargo. This was reinforced by the transfer of rights from JP to SNI.

Held: The appeal in cassation is dismissed.

The Court distinguished between the purpose of a contract of custody of the goods in the terminal (deposit), and the actual conclusion of a contract for carriage of the goods.

The Court recalled the findings of the Court of Appeal of Genoa, highlighting the absence of any bill of lading, which is the pre-eminent evidentiary document of a contract for carriage of goods by sea, or any other document pertaining to the embarkation of the goods. There was evidence in the correspondence that the machinery was introduced into the terminal in order to be transported to Aqaba. This indicated the purpose of depositing the goods in the terminal, but did not prove that a contract for carriage of the goods had already been concluded at that point.