Carrier. The carrier of goods under a bill of lading to which the. Hague-Visby Rules apply includes the shipowner or the charterer who enters into a contract of carriage with a shipper.
These parties are included so that other parties can also be “carriers”. For example if the Rules apply to the contract of carriage evidenced by a document issued by a freight forwarder which has taken the goods into its charge for carriage, the forwarder can also be a carrier.
The carrier has responsibilities and liabilities if these responsibilities are breached. He also has rights and immunities. From the viewpoint of the owner of goods or the holder of the bill of lading the responsibilities are of greater importance because this party naturally wants to know whom to sue if the goods are damaged or lost after being received or shipped or taken into the charge of the party who has contracted to -be responsible for their carriage. This party is the “contracting carrier” although the actual, physical carriage may not be carried out by him but by others whom he may sub-contract to do so. For example, a freight forwarder may be acting as a “Non Vessel-Owning Carrier” (NVOC), collecting the goods from the exporters and then contracting with a shipping line `to carry the goods. Another possibility is where a charterer appears to the shipper to be entering into the contract of carriage with the latter and even issuing a bill of lading on the charterer’s own forms, but the forms could contain a “demise clause” which indicates that the issuer of the bill of lading is acting only as the agent of the shipowner or demise-charterer. (See Demise clause) In any case, the Hague-Visby Rules permit the “agent” or “servant” of the carrier the same benefits that a carrier has. (Art. IV, r. 2)
The cargo owner thus has to protect his position against the earner who can be any party and the cargo owner must be certain of the identity of the party who can be sued. The “Hamburg Rules” may make this identity problem a little easier. In Art. 1, r. 1 a “carrier” is defined as “ . . . any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper”. The Rules then continue in r. 2 to define an “actual carrier” as any person “ . . . to whom the performance of the carriage of the goods, or part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted”. In this way, sub-contracted, physical carriers also become “carriers” and the cargo claimant has the choice of bringing an action against the party with which he has concluded a contract (the “contracting carrier”) and also against the actual carrier.
If a shipowner issues the bill of lading, he is likely to be the contracting carrier as well as the actual carrier. If the shipowner does not issue the bill of lading but is the actual carrier, the “carrier” can be any person and the responsibilities under the various Rules fall upon this person. The bill of lading is usually signed on behalf of the shipowner, either by the master or by an agent or even by the time charterer or charterer’s agent. In each situation, the owner is generally considered to be the carrier, even if the bill of lading is on the charterer’s form.
The charterer can be the “carrier” which is sued if he is a “demise charterer” and can also be a “contracting carrier” even if he is a time charterer or voyage charterer who enters into a contract with the shipper to carry the goods. In the case of a “demise charterer”, the bill of lading is issued on his behalf, whether or not by the master who may have been appointed either by the shipowner or by the charterer. The reason for this is that the demise charterer is in possession of the vessel and has complete control over its management and employment.
If the charterer, who is not a “demise charterer”, issues a bill of lading on his own form, without a “demise clause”, he can be considered to be the principal “contracting carrier” even if the bill of lading is signed by or for the master who may be the employee of the shipowner. In an Australian case, Namchow v. Botany Bay Shipping, 1982, the charterer’s form was used, the terms of the voyage charterparty were incorporated into the bill of lading and the freight was payable by the cargo interest directly to the charterer. Although the bill was signed “for the master”, the charterer was held to be the “carrier”.
If an exporter entrusts his goods to a freight forwarder, as is common when the manufacturer or exporter does not have a “shipping department”, the forwarder may be acting as an agent of the exporter who is the shipper. However, with transport of cargo becoming more complex, especially with multimodal transport, freight forwarders, especially the larger ones, are taking on the identity of “principal” carriers, entering into the actual contracts of carriage. In the United States, a “Non-Vessel- Operating Common Carrier” (NVOCC) is defined in the United States Shipping Act 1984, as a:
” … common carrier that does not operate the vessels by which the ocean transportation is provided, and is a shipper in its relationship with the ocean common carrier.”
A “common carrier” is one who holds itself out to the public as being prepared to carry goods for payment. Therefore, in the United States the freight forwarder acting as a NVOCC is a carrier The abbreviation NVOCC may be generally changed to NVOC (“Non-Vessel-Operating Carrier”) in countries other than the United States. One reason can be that the “common carrier” has very strict liabilities and being a “public carrier” is different from being a “private carrier” which many carriers are in modern days when cargo is carried under a special contract (for example, a charterparty or a bill of lading) with clauses which exclude and limit liability. Statutes can also exclude or limit liability of a carrier, for example, when cargo is carried under a bill of lading which is subject to the U.K. Carriage of Goods by Sea Act 1971 which implements the Hague-Visby Rules. However, even “private carriers” under contracts of carriage can lose the protection of their contracts if there is a very serious breach by them of their obligations as carriers, for example, if there is an unjustified deviation during a contractual voyage.
If the carrier is a common carrier or public carrier (operating a “general ship” which is not under a charterparty) the liabilities for a breach of obligations under a contract of carriage o£ goods by sea are strict and only certain exceptions to liability are permitted such as: Act of God, acts of public enemies, inherent vice in the goods and negligence of the cargo owner. The common carrier is also protected from liability if the loss to the goods is a “general average sacrifice”, for example, if the goods have to be jettisoned because of some danger to the vessel and/or the other goods. In a strict liability situation the cargo owner does not have to prove the fault of the common carrier, for example, that the carrier was negligent; the carrier has no defence to a claim by the cargo owner.
