After which time is a container officially abandoned in Italy?
Cargo must be cleared within 45 days of discharge and will become abandoned if not. Although to be officially abandoned the goods must be declared so by customs and be registered on a specific register.
Does the Member need an official written letter from the customer that he abandons the cargo?
If it’s past the 45 days and cargo is considered abandoned by customs then under the law a declaration by the customer is not relevant. However, the declaration of the customer that he intends to abandon the cargo may be of help for the Carrier in his exercise of the rights on the cargo before this period expires.
Is it possible for the Member to survey, sell, auction or destroy the cargo in this jurisdiction?
Until the time the Custom declares the abandonment of the cargo, the Carrier is entitled to exercise the lien on the cargo in order to recover the amount due by the Customer for freight, demurrage, port storage charges, terminal charges etc...
Both the Civil Code and the Code of Navigation give the Carrier a lien on the cargo for the claims arising under the contract of carriage.
Furthermore, the b/l general terms and conditions usually include a provision entitling the Carrier to exercise the lien on the cargo/documents relating there to for all sums payable by the Customer and giving the Carrier the right to sell the goods at public and private sale without notice to the Customer.
There are two ways, under Italian law, to exercise the lien on the cargo and both of them requires a court order.
Under the Code of Navigation (art. 437) the Carrier can ask the competent court (of the place of discharge) the authorization to store the goods and, if necessary, sell the goods to recover the amounts due by the Customer for freight and demurrage.
Another procedure is established by the Civil Code and is, in brief, as follows:
The Carrier must serve a letter through court bailiff on the Customer putting him on notice to pay the debt and informing him that, in the absence of an immediate payment, the goods will be sold at public auction
The Customer or any other person who have an interest in the goods, have 5 days time to file an appeal to prevent the sale. In case the Customer resides abroad, the time limit to file the opposition is 150 days.
In the absence of an appeal or in case the appeal is dismissed the Carrier is entitled to sale the goods at public auction.
Does the Member need to obtain a court/customs order to have authority to dispose the cargo?
As mentioned above, the possibility for the Carrier to dispose of the cargo is subject to the authorization of a Court. The carrier is prevented from exercising its rights on the cargo if the Custom declares the abandonment.
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