Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - LA GIURISPRUDENZIA ITALIANA IN TEMA DI TRASPORTI
LA GIURISPRUDENZIA ITALIANA IN TEMA DI TRASPORTI edited by Professor Sergio M. Carbone, Director of the Institute of International and Maritime Law of the University of Genoa. Giuffrè, Milan (1988, xviii and 1581 pp.). Hardback.
This volume collects together extracts drawn from decisions in the Italian courts relating to Carriage of Goods by Sea. It is, in effect, a casebook, but one that eschews any kind of comment or discussion of principle beyond that implied by the principle of selection and arrangement. Not unexpectedly, but in sharp contrast to British practice, all references to the facts in the cases decided have been rigorously excluded from the extracts cited.
The task of collecting together such a formidable array of material has been undertaken by more than a score of Italian legal specialists at the Universities of Genoa, Bologna, Rome and Naples under the overall direction of Professor S. M. Carbone, director of the Institute of International and Maritime Law at the University of Genoa, who has in addition contributed a three-page foreword. The whole volume is published as a tribute to honour Professor Sergio Ferrarini, Professor of Maritime Law at the University of Genoa since 1962, on the 40th anniversary of his teaching career.
The extracts from decisions are arranged under some 20 heads, each containing a number of subheads and some with a further subdivision. Each head or topic has been compiled by a different team of researchers from one of the participating institutions. Within each subhead or subdivision, the cases are arranged in strict chronological order to illustrate some overriding principle or rule. To those with a Roman law background the method of organization resembles nothing so much as Justinian’s Code. A synopsis of one of the heads will give a flavour of the whole (though the example chosen is atypical by reason of its relative brevity).
Head 20 concerns Rights and Liens over Freight. It is divided into two subheads: 20.1 Liens in general and their priority, and 20.2 Rights in respect of carriage and over freight. Subdivision 20.1.1 deals with comparison between general and special legal provisions and is organized to illustrate two propositions. The first is (a) whether the regime of maritime liens constitutes a legal category of its own exclusively regulated by the scheme of priority derived from Art. 548 of the Maritime Code. This proposition is demonstrated by short citations of about a paragraph each from three decisions of, respectively, the Tribunal (first instance court) of Florence in 1949, the Florence Appeal Court in 1958 and the Court of Cassation (Final National Appeal Court) in 1965. The second proposition under this subdivision—(b) whether a maritime lien is of a real nature and gives way before a right of action of a temporal character—is illustrated by a single excerpt from another judgment of the Court of Cassation in 1965. The second subdivision of 20.1 and the three subdivisions of subhead 20.2 are similarly organized into propositions illustrated by authorities.
From the comparative and jurisprudential perspective, one may learn much about the different habits of legal thought inculcated within the civil law tradition. To many common lawyers, the dogmatic approach inherent in using the decisions as illustrations of a priori propositions will be difficult. In the absence of context it is more difficult to utilize the decisions themselves as the basis for further argument in the common law tradition. From
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