Lloyd's Maritime and Commercial Law Quarterly
CONVERSION OF THE GOLD MONETARY UNIT INTO MONEY OF PAYMENT
Francesco Berlingieri*
As is well known, the Protocols of Montreal of 25 September 1975 to the Warsaw Convention are not yet in force. Italy, which has ratified the Protocols, has, however, implemented by Law No. 84 of 23 March 1983, the provisions of the Protocols relating to the conversion of the limits of liability of the carrier from Poincaré francs, consisting of 65.5 milligrams of gold of millesimal fineness 900, into Special Drawing Rights on the basis of the ratio 15:1. The limit for loss of or damage to the goods carried has thus been converted from 250 Poincaré francs per kilogram to 17 SDRs. The issue of the constitutionality of Law No. 84 of 1983 has been raised by the Tribunal of Genoa on the ground, inter alia, that such law had unreasonably reduced the limit of the Warsaw Convention, as amended by the Hague Protocol. The reasoning of the Tribunal of Genoa was based on the fact that, prior to the coming into force of Law No. 84 of 1983, the conversion of the Poincaré franc into money of payment was made on the basis of the market value of gold. At the time the issue was submitted by the Tribunal of Genoa to the Italian Constitutional Court (7 July 1988), the market value of gold was U.S.$410.25 per ounce, while the SDR was equal to U.S.$1.31061. The dollar equivalent of 250 Poincaré francs was, therefore, U.S.$6,046.06.
By Judgment No. 323 of 6 June 1989,1 the Constitutional Court accepted that Law No. 83 of 1983 had brought about a “drastic reduction” of the limits of the carrier’s liability previously in force but found that the new limits were not unreasonable in view of the fact that they had been adopted by an international instrument, which, though not yet in force, had been ratified by several states including Italy. The court made reference to its previous Judgment No. 401 of 19872 by which the constitutionality of the limit of liability of the carrier by sea had been recognized, stating also that, in respect of the limit of liability of the carrier by air, the fact that full liability could be ensured through a special declaration of value contributed to the assessment of the reasonability of the limit. The Italian Constitutional Court has thus impliedly accepted the view, held by the great majority of the court decisions in Italy in the last decade, that, after the abolition of the official price of gold (1 April 1978), the conversion of the limits expressed in gold into money of payment had to be made on the basis of the market value of gold.
The problem of converting the units of account used in the Brussels and Warsaw Conventions to fix the limits of liability of the carrier in respect of loss of or damage to cargo and, also (in the Warsaw Convention), the limits of liability in respect of
* President, Comité Maritime International.
1. 1989 Diritto Marittimo 46.
2. 1988 Diritto Marittimo 59. noted by Berlingieri [1988] LMCLQ 273.
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