A cargo of 1,089 rolls of paper carried on the Lech was unloaded in Naples by Fariello & Luise (FL) and stored by Magazzini Generali Silos & Frigoriferi SpA (MGSF) for Soc Industria Italiana Imballaggi. At the time of delivery, severe damage was found, compensated by Ditta Ed Canali fu Camillo Srl (DECC) on behalf of the insurance company, Hansa Marine Insurance Co Ltd.

DECC sued Flli Cosulich SpA as the agent of the Lech, FL, and MGSF in the Tribunal of Naples, claiming compensation. The charterer and carrier Aros Line AB (Aros Line), subsequently named Brendani AB (Brendani), intervened in the process.

The Tribunal of Naples upheld the claim, ordering Aros Line and FL to pay compensation. All the parties appealed the decision, and in July 1998, the Court of Appeal of Naples held that only the carrier was liable for the damage, highlighting that a presumption of liability of the carrier applied under the Hamburg Rules and referring to its entry into force under art 30.

Brendani and FL appealed in cassation, claiming violations of arts 10, 3.6, and 4 of the Hague Rules and arts 2, 4, 19, and 30 of the Hamburg Rules. The Hamburg Rules were not applicable as the facts occurred in 1983, and the Hamburg Rules only entered into force internationally in 1992. The Court of Appeal decision ignored art 30.1, requiring one year after depositing the 20th instrument of ratification, and arts 30.2 and 30.3. With reference to art 2 of the Hamburg Rules, Italy, which was the State of the port of discharge, had not deposited an instrument of ratification. Nor had Sweden, which was the State of the port of loading and where the bill of lading was issued. Moreover, art 2.e of the Hamburg Rules did not apply as the bill of lading referred to the Hague Rules, which applied to this case under art 10 of the Hague Rules. The regime provided by the Hague Rules is a presumption of the carrier's liability. At the same time, the Court of Appeal considered a regime of strict liability with reference to the Hamburg Rules. Article 4 of the Hague Rules was also applied.

The appellants invoked the application of the three-day time bar for claims related to non-manifest damage of goods, rather than that of 15 days provided by the Hamburg Rules, and argued that the time bar period had expired. The Court of Appeal also violated the presumption under art 3.6 of the Hague Rules, establishing that unless notice of loss or damage and the general nature of such loss or damage is given in writing to the carrier or its agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The appellants noted that the cargo damage was manifest.

Held: The appeal is upheld.

The Supreme Court of Cassation emphasised that once Italy ratified the Visby and SDR Protocols, the original Hague Rules were denounced and no longer in force in Italian law for national or international carriage. The Court also noted that the Hamburg Rules were not in force in Italy.

Furthermore, art 10 of the Hague Rules applied, as Sweden was the country where the bill of lading was issued.

In conclusion, the Court recalled the jurisprudential principle that if the consignee does not immediately verify the loss of or damage to the goods at the time of delivery through a written reservation or after consultation with the master of the ship or the agent of the carrier (or within three days in the case of non-manifest damage), it assumes the burden of proof of overcoming the rebuttable presumption in favour of the carrier of conformity of the goods to the indications in the transport document.