Operators of the logistics landscape
The handling operations of goods at an international level, whether they are execution of a sale or deriving from different needs of handling or handling of goods, can involve numerous operators in the world of logistics and transport. The goal of this first contribution is to identify the most relevant in the current panorama, briefly defining their nature and offering brief hints to help understand the scope of their respective responsibilities. We will then focus briefly on the figures of the forwarder, the carrier, the forwarder-carrier and the terminal operator, pointing out the most salient differences.
The forwarder is the professional operator who takes care of organizing the transport on behalf of his customer. He is, one could say, the architect of the complex transport operation. The shipping contract is defined by art. 1737 of the Italian Civil Code as “a mandate with which the forwarder assumes the obligation to conclude, in his own name and on behalf of the sender, a transport contract and to perform ancillary operations”. The shipper, having received the instructions from the customer, endeavors to organize the shipment of the goods, taking care, first of all, of appointing the most suitable carrier to carry out the transport. On this point, art. 1739 of the Italian Civil Code specifies that “in choosing the route, the means and the methods of transporting the goods, the shipper is required to observe the instructions of the customer and, failing that, to operate in the best interests of the same”. The customer, therefore, can give the shipper a more or less broad mandate for the organization of the shipment. Once the carrier (for example, a sea carrier) has been identified, the shipper makes the booking of the ship space that will be used for loading, stipulating, in his own name and on behalf of his customer, the transport contract represented by the bill of lading ( or equivalent document) and carrying out the ancillary operations necessary for the success of the transport (including, for example, the location of the container in which the goods will be shipped). If required, but in a context unrelated to the shipping contract, the shipper can also take out insurance on goods.
The carrier, on the other hand, is the person who assumes the obligation to carry out the transport. If it materially performs the service, it will be an effective carrier, otherwise it will have the status of contractual carrier. Based on the provisions of art. 1693 of the Italian Civil Code, the carrier has a presumption of responsibility for the loss and damage of the things delivered to it for transport, unless it proves that the loss or damage is due to unforeseeable circumstances or to a fact outside its sphere of control ( nature and defect of the thing, made by the sender or recipient). In maritime transport, the most widely applied international legislation is the Brussels Convention of 1924 (as amended by the 1968 and 1979 Hague-Visby Rules), usually referred to in the so-called “Paramount Clause” placed, among other general conditions of the contract, on the back of bills of lading issued by shipping carriers. Through this regulatory and contractual system, sea carriers have a well-defined framework of obligations and responsibilities. In principle, the shipping carrier will be liable for damage caused to the goods during transport, within the limits established by the applicable legislation and unless it proves the existence of the c.d. “Dangers excepted”. Substantially similar mechanisms are also provided for by the international conventions that regulate the other modes of transport (air, rail and road).
In addition to the two above, our legal system also contemplates the hybrid figure of the shipper-carrier. This qualification is held by the shipper who “takes on the execution of the transport with his own means or that of others” (Article 1741 of the Civil Code). The fundamental difference between the shipper and the shipper-carrier lies in the legal bond that the latter assumes upon itself, which is more than the obligations of the pure shipper, which also involves the execution – and not just the organization – of the transport. The same liability regime established for the carrier applies to this figure.
Finally, a brief mention of the figure of the terminal operator, who very often operates as a servant / agent of the shipping carrier. In this case, the terminal operator enjoys, by virtue of the so-called “Himalaya Clause” affixed to the back of the bills of lading, of the same benefits applicable to the carrier established in the bill of lading and in international conventions. When not acting as the carrier’s servant, the terminal operator acts as a port services contractor.
To summarize, therefore, the forwarder takes care of organizing the shipment of the goods, finding the most suitable carrier on the market for carrying out the transport and putting in place the necessary ancillary activities. The loading and unloading operations of the goods are delegated by the shipping carrier to the terminal operators, whose work falls under the umbrella of the rules referred to and imposed by the bill of lading issued by the same shipping carrier.
The fundamental difference between the carrier and the forwarder consists, therefore, in the fact that, while the former undertakes to carry out the transport assuming the risks of execution on himself, the latter only obliges himself to conclude with others, in the name and for account of the customer, the transport contract.
The first is an obligation of result; the second, of means (ie diligence). As observed by the Court of Cassation, “[…] while the carrier exhausts its obligations when it has transferred the items received in delivery to the place indicated, without prejudice to its responsibility for any loss or damage, the forwarder completes his task with the conclusion of the transport contract and responds only to any non-fulfillment of the obligation to conclude it “(among many, Civil Cassation Section III, 17/05/1991, n. 5568). The shipper’s responsibilities are therefore limited to the choice (electio) of the carrier, the signing of the related transport contract and the execution of (any) ancillary services, not being liable for damage suffered by the goods or delays in delivery by the carrier.
With the next contributions, we will deepen the issue of the obligations and responsibilities of each operator to better define the demarcation lines of their respective competences.
Giacomo Falsetta Lawyer – Maritime law and transport
LCA Law Firm