Rights of the Controlling Party

In this article the author examines the rights of the controlling party, emphasizing that persons having an interest in the cargo often need to be in a position to give instructions to the carrier or to agree with the carrier on the change of various elements of the contract of carriage. It must be kept in mind that the relationships deriving from the contract of carriage are autonomous from the relationships deriving from the contract of sale and that the carrier needs to know who is entitled to give instructions to the carrier, the possible content and under which conditions the carrier must comply with the instructions. Article 50 of the Rotterdam Rules, which concerns exercise and extent of right of control, raises the question that the concept and the regulation of right of control doesn’t relate to the idea of the possession of the goods during their carriage by sea, but only to the right for a certain person to give a certain kind of instruction to the carrier and the means to exercise such right. The above mentioned provision clarifies that the controlling party is entitled to unilaterally exercise the right of control, even if the action requested of the carrier must be regarded as a variation of the contract of carriage. Article 50(1)(a) makes reference to the kind of instructions that are usually given to the carrier in relation to his obligation to take care of the custody and preservation of the goods during transit. The provisions contained in letters (b) and (c) refer to the most frequent situations where there might be a need for the shipper to modify the terms of the contract of carriage (as “diritto di contrordine” in Italy). These rights must not be confused up with the right of stoppage in transitu to which they are connected. It should be considered that the right of the controlling party to request delivery of the cargo in another port differ from the right to request delivery at another place during the ancillary land carriage, because in the first case the controlling party is entitled to request delivery only at ports where the vessel is expected to call for commercial purposes on the ground of the original journey plan; on the contrary, during the land leg of the journey, the controlling party is entitled to request delivery at whatever place it decides along the road carriage itinerary, as long as the designated place is safe for the performance of the unloading operations. The controlling party is entitled to exercise the right of control from the time when the carrier or performing party receives the goods for carriage until the moment when the goods are delivered, but it is not clear if the reference to delivery is intended as a reference to delivery under the contract of carriage (and the Convention) or other deliveries by the carrier. Article 51 contains the criteria for the identification of the controlling party, which is dependent on the type of transport document issued. The position as controlling party and the related rights and obligations can be transferred to another person, by following the formalities defined in the Rotterdam Rules. In particular when a non negotiable transport document (or electronic transport record) is issued or when there’s no transport document (or electronic transport record) at all, in the transfer of the position as controlling party the most significant point is the formal declaration of the intention of the “former” controlling party and its notification to the carrier.