SLM recently assisted a cruise company sued by the victims of the terrorist attack occurred during the shore excursion at the Bardo Museum of Tunis on 18th March 2015. The Tribunal of Turin with judgment dated 12.11.2018 and the Tribunal of Verona with judgment dated 24.12.2018 rejected the claims for damages submitted by the victims holding that (i) the duty of care of the Tour Operator required him to consult and follow the official information available on the website of the Ministry of Foreign Affairs, but no more than that (and in the instant case no specific warning has been published by the Ministry) and (ii) the terrorist attack was an unforeseeable and unavoidable event entirely beyond the control of the Tour Operator, for which the Tour Operator could not accordingly be blamed.
The Court of Appeal of Milan recently held that the general rule consisting in the recognition of the right of action for damages to cargo exclusively in favour of the consignee who asked the carrier for delivery (art. 13 CMR and art. 1689 of the Italian Civil Code), also stands in case of partial delivery. The right of action is, in fact, transferred to the consignee upon delivery (or upon request of delivery) and it is irrelevant that delivery then only takes place partially, being the obligation of delivery an indivisible obligation.
Article 31 of the Montreal Convention requires, in case of loss or damage of baggage, that a complaint “in writing” is made within 7 days, failing which “no action shall lie against the carrier”.
In the context of proceedings before the Finnish Supreme Court, the question arose whether a complaint made by phone by the passenger and recorded in writing by the air carrier would satisfy the requirement of art. 31 of the Montreal Convention.
The ECJ, in a judgement issued on 12 April 2018 (case C-258/16, Finnair v. Fennia), having noted that the Montreal Convention aims to “an equitable balance”, held that the requirement of art 31 of the Montreal Convention is satisfied if a complaint is recorded in the information system of the carrier or when, with the knowledge of the passenger, a representative of the carrier has recorded the declaration of loss made orally by the passenger either on paper or electronically.
With judgment dated 20th December 2017, in proceedings n. C-434/15, the EU Court of Justice ruled that the service provided by Uber is an intermediation service, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers that use their own vehicle and persons who wish to make urban journeys. Uber services must be regarded as being inherently linked to a transport service and, accordingly, must be classified as “a service in the field of transport” within the meaning of Article 58(1) TFEU. Consequently, such a service must be excluded from the scope of Article 56 TFEU, Directive 2006/123 and Directive 2000/31.
By judgement no. 21850 issued on 20th September 2017, the Italian Court of Cassation held that the relationship among the air carrier, handling operator and cargo interests does not give rise to a contract for third parties benefit, thus excluding the existence of a contractual relationship between the handling operator and cargo interests. The Court based its decision on the assumption that the handling operator must be qualified just as a carrier’s servant, so that the contractual liability for loss of and/or damage to the goods can be claimed to the carrier only. As a carrier’s servant, the handling operator is subject to the 1999 Montreal Convention and can take advantage of the same exemptions and limitations of liability which are provided in favor of the air carrier.
By judgement no. 21622 issued on 19th September 2017, the Italian Court of Cassation held the validity of an agreement for the choice of jurisdiction referred to in a link contained in an e-mail purchase order. Said judgement is in line with the recent EU Court of Justice case law, according to which this way of concluding agreements for the choice of jurisdiction complies with Art. no. 23 of (EU) Reg. Brussels I, pursuant to which “any communication by electronic means which provides a durable record of the agreement shall be equivalent to writing”. The Court of Justice therefore clarified that the insertion of said agreements in general terms and conditions that can be downloaded through the access to a web site does not prevent the parties to print and save the text of their agreement before the conclusion of the contract, thus allowing its durable record. The judgement of the Italian Supreme Court is going to have significant effects also on tourism and transport of passengers, where the on-line conclusion of contracts is getting very frequent.
On 11th May 2017, the Court of Justice of the European Union issued an important judgment on the interpretation of Article 5 par.1, letter c) and 7 of (EC) Regulation n. 261/2004, which provides common rules on compensation and assistance to flight passengers in the event of denied boarding, cancellation or extended delay. The Court held that passengers who are not informed about the cancellation of the flight at least two weeks before the scheduled departure time shall be entitled to a suitable compensation from the air carrier. Moreover, the Court held that the air carrier shall be liable for said compensation even if the omission of the notice to the passengers about the cancellation of the flight is attributable to its agent, who failed to notify the passengers of the cancellation despite the prompt information that he directly received from the air carrier.
By the judgment no. 02655 of 21st February 2017, the Regional Court of Lazio (TAR) repealed the Italian Ministry of Infrastructures and Transport’s provisions which assessed the road transport minimal costs on the basis of the same formula previously used by the Osservatorio sulle Attività di Autotrasporto. TAR refers to the important decision of the European Court of Justice issued on 4th September 2014, where the Court held that Art. no. 83-bis of the Italian Law Decree no. 112/2008 is contrary to the EU principle of free competition under Art. no. 101 of the Treaty on the Functioning of European Union, insofar as Art. 83-bis provided for the calculation of the road transport fares based on the minimal costs assessed by an entity (the Osservatorio sulle Attività di Autotrasporto) mainly composed of economic operators in the same industry.
By Judgement issued on 28th September 2015, the Civil Court of Turin held that Article no. 7-ter of Legislative Decree no. 286/2005 – concerning the sub-carrier’s legal action direct against the other companies involved in the transport operation – can be applied only among parties financially sound. In particular, the Court clarified that – in case of bankruptcy – the special rules provided for by the Bankruptcy Act must be applied, the said rules being based on the fundamental principle that all creditors must be subject to equal conditions (“par condicio creditorum”).