Some cases of carrier’s liability are worth examining, since they have been the object of judgment by the Italian tribunal. Is it well known that the carrier’s liability is in principle:
- carrier’s liability for theft of merchandise;
- carrier’s liability for loss of merchandise;
- carrier’s joint liability towards the client;
- carrier’s liability for delay in delivery;
- carrier’s liability as established by the CMR Geneva Convention.
The Italian court’s judgment, however, has highlighted the case of the carrier’s liability for acts carried out for purposes of terrorism, and the consequent obligation for the carrier to provide a compensation for the damage suffered.
Carrier’s joint liability in case of terrorist attack
This is a very peculiar case, concerning acts carried out for purposes of terrorism by the driver of a bus, hired by a carrier, party of a contract with a school for the transport of pupils. Regarding this specific case, the Court of Assize of Milan has ruled – with sentence n. 4 of September 14, 2020 – condemning the school bus driver transporting the pupils of a school located in the town of Crema. To sum up – the driver, while carrying out his duties, kidnapped the pupils, thereby committing an unlawful act for purpose of terrorism.
Why the carrier company has been deemed jointly responsible for the acts of terrorism carried out by their employee
The joint civil liability of the carrier company has been established in the grounds for the decision, due to the company being the defendant’s employer. With this judgment, the Court has confirmed the joint responsibility of the carrier for conducts carried out by their employees. The Tribunal has thus adhered to the traditional case law principle whereby the employer is liable for the negligent or intentional acts put in place by their employee, whenever the duties assigned to the employee have facilitated the commission of the unlawful act. From a civilistic point of view, the circumstance that the driver’s conduct had terrorist purposes has not been considered of any relevance. It should be noted that for the Italian law, liability for a fact committed by a third person is considered in terms of joint responsibility. Joint responsibility for an unlawful act committed by others falls on those subjects who benefit from their duties or mansions. In this specific case, the carrier, responsible for transport, benefits from the duties carried out by their employee, and is therefore held accountable for the unlawful acts committed by the school bus driver.
Acts of terrorism are considered exceptional but no longer unpredictable
The Tribunal has stated that although acts for purpose of terrorism are axceptional, they can no longer be considered unpredictable in todays’ society, and fall within the risks associated to transport of goods and people. It is very interesting to see how the Court has extended the responsibility of the facts to the school, and therefore to the Ministry of Education. As a matter of fact, the Tribunal’s reconstruction highlighted the responsibility of the school, and on behalf of the Ministry, as subject responsible for the control of the activities of the transport company. Essentially, the Ministry is the client of a transport contract stipulated with the carrier, and holder of a supervision and control duty on the services provided by the carrier.
According to the Tribunal, the fact that the carrier’s liability is ascribable to the school within a contract for services, determines the application of strict liability for a third person’s act. In this regard, the abstract possibility for the school to intervene and reprimand the correct fulfilment of the service from the transport company and their personnel has been deemed sufficient, in accordance with the abovementioned demands of social solidarity, which inspire the discipline of art. 2049 of Civil Code.