The Carrier and the Maritime Performing Party in the Rotterdam Rules

In this article the writer tries to analyse how a new provision, which gives liability for damage to not only the carrier, but also the performing (or actual) carrier, has been adopted and adapted within the framework of the Rotterdam Rules. At the beginning the notion of “carrier” in the Hague- Visby system is examined, by emphasizing that these Rules, even in Article I(a), contain a definition of carrier, make no provision to identify the carrier, as the Article III(3) only regulates the issuing of the bill of lading. The author considers then how the courts have tried to compensate for the absence of legal criteria for the identification of the carrier, reaching non- uniform conclusions. He goes on to consider the far more detailed regulation of the carriage of goods provided by the Rotterdam Rules, examining the definitions of “contract of carriage”, “carrier” and “transport document”. The most important provisions for the identification of the carrier are articles 36 and 37. Article 36 prescribes to make reference to the name and address of the carrier in the transport document or electronic transport record. Article 37 provides criteria to set the “identity of the carrier” and the provision in article 37(1) seems to codify the position of jurisprudence, that gives prominence to the terms the particular contracting parties have chosen to include which in the contract rather than to pre-printed terms. Another problematic issue is the possible significance of the signature of the transport document by (or on behalf of) the master: it is not clear what would be the consequence of such a signature in the case of a transport document qualifying a person other than the owner of the ship as the carrier. In the event that no person is identified in the contract particulars as the carrier, the registered owner of the ship, whose name is indicated in the contract particulars as carrying the goods, is presumed to be the carrier (art. 37 (2)). This presumption can be rebutted by providing evidence that the ship was under a bareboat charter at the time of carriage and identifying this bareboat charterer and indicating his address or identifying the carrier and indicating his address. The Rotterdam Rules regulate the matter of the elements indicating the quality of the carrier in a way that opens the door to the possibility of identifying, in addition to the carrier who falls within the definition of article 1(5), another person against which the cargo interests can bring their action for damages. Within the Rotterdam Rules system the much wider concept of performing party- as a person that performs or undertakes to perform any of the carrier’s obligations under a contract of carriage- replaces the concept of actual carrier of the Hamburg Rules. For the qualification as a performing party it is not necessary to perform any part of carriage: it is sufficient that the person undertakes to perform actually any of the carriers obligations with reference to the activities mentioned in art. 1(6). The qualification of a person involved in the carriage of the goods as a maritime performing party is important not only because the cargo interests are entitled to bring an action directly against that party, but also because it has an impact on some other issues regulated by the Rules, including the identification of the jurisdictions in which the plaintiff has the right to institute judicial proceeding under the Convention.