The Italian shipper Zust Ambrosetti SpA (ZA) sued Ferraro & Ferraro (FF), an agent of the Dutch carrier Van Nievelt Goudrien & Co, in the Tribunal of Genoa. ZA claimed that the carrier was liable for its cargo falling into the sea during loading operations. The cargo should have been loaded onto the Zuiderzee (flying the flag of the Netherlands) and should have been carried from Genoa, Italy, to Barcelona, Spain.

FF admitted the carrier’s liability. ZA inferred gross negligence of the carrier, excluding the limits of liability. In any case, even accepting the limits of liability, ZA argued that arts 4, 5, and 9 of the Hague Rules applied.

FF argued that Dutch law applied to the case. FF highlighted that it represented the national law of the carrier and the ship. Moreover, the norm of private international law contained in the Italian Code of Navigation also provided this. FF initially offered ITL 200,000, as provided by the Italian Code of Navigation, and later NLG 1,250 under Dutch law.

Furthermore, FF stressed that the Hague Rules did not apply under art 1.b of the Rules. As the cargo fell into the sea during the loading operations, no bill of lading had been issued.

Held:The claim is upheld.

The Court recognised the liability of the carrier. However, it did not exclude the application of the limits of liability. There was no gross negligence on the part of the official (who was the carrier’s employee) in charge of the loading operations, or on the part of the carrier itself. Limitation of liability could therefore be invoked by the carrier.

The Court was of the view that the Hague Rules applied to the case. The Rules apply to all international maritime transport, where a bill of lading is issued at the request of the shipper. The Court also specified that the notion of 'international transport' is meant as objective (ie between ports of different countries), even if some judgments consider that notion to be understood as subjective (ie the participation in the agreement of parties from other nationalities). The relationship between the parties in the case implies a bill of lading, even if the cargo was lost during the loading operations. Otherwise, there would be a discrepancy between arts 1, 2, and 3 of the Hague Rules. The Court also recalled that the bill of lading has, among other things, the function of a receipt of the goods loaded on board.

Moreover, the Tribunal of Genoa considered that art 1.b of the Hague Rules defines the notion of 'contract of carriage' as a contract of carriage 'covered' by a bill of lading or any similar document of title. It also applies to any bill of lading or any similar document as aforesaid issued under or according to a charterparty from the moment at which such instrument regulates the relations between a carrier and a holder of the same. Notably, the term 'covered' does not refer only to the situation where the bill of lading has already been issued. As described in foreign jurisprudence, the contract of carriage is independent of the mere loading of the goods. The bill of lading identifies the terms of the contract. The Court concluded that the contract of carriage, since its conclusion, is subject to the Hague Rules, being covered since then by the bill of lading. The charterparty represents the exception, where the bill of lading regulates the relationship between the parties since its issuance.

This case concerns liner transport, which is characterised by the issuance of the bill of lading.

In conclusion, the Court found that the limitation of the carrier’s liability applied on a per package basis, as the criterion of limitation per package or unit applies in cases of wholly packed goods.