LIABILITY OF THE MARITIME CARRIER
AND THE SHIPPER FOR OTHER PERSONS:
UNIFORM MARITIME TRANSPORT RULES
VS. EUROPEAN CONTRACT LAW
BELÉN GARCÍA ÁLVAREZ
ASSISTANT PROFESSOR OF COMMERCIAL
LAW
UNIVERSITY OF DEUSTO (SPAIN)
belen.garcia@deusto.es
ROTTERDAM 11-12 SEPTEMBER OF 2014
VIII ECMLR
SUMMARY
 I.- INTRODUCTION
 II.- LIABILITY OF THE MARITIME CARRIER FOR OTHER
PERSONS IN MARITIME CONVENTIONS
 III.- LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN
MARITIME CONVENTIONS
 IV.- LIABILITY OF THE DEBTOR FOR OTHER PERSONS IN
EUROPEAN CONTRACT LAW

1.- GENERAL RULE
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

A. LIABILITY TO THE CREDITOR
B. LIABILITY TO THIRD PERSONS
2.- SPECIAL RULE: THE INTERVENER
 V.- SPECIAL SITUATIONS. IN PARTICULAR, IN RELATION TO
LOADING, HANDLING, STOWING AND UNLOADING OF THE GOODS


1.- LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER PARTY WHO PERFORMS SOME
OF THE OBLIGATIONS
2.- LIABILITY OF THE PARTY NOT BOUND TO PERFORM THE OBLIGATIONS IN CASE OF
GIVING INSTRUCTIONS
 VI.- CONCLUSIONS
INTRODUCTION
 Both the carrier and the shipper often entrust to another
to perform any of its obligations under the contract of
carriage.
 Classification of third parties:

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Employees or servants;
Agents; and
Independent contractors or subcontractors.
In Rotterdam Rules: new terminology: performing party and
maritime performing party (arts. 1.6, 1.7 y 4 Rotterdam Rules).
 Problem: Extension of the liability of the principal for
damages caused for other persons.
 Maritime Law vs. European Contract Law [Draft
Common Frame of Reference (DCFR)].
LIABILITY OF THE
MARITIME CARRIER FOR
OTHER PERSONS IN
MARITIME
CONVENTIONS
LIABILITY OF THE MARITIME CARRIER FOR OTHER
PERSONS IN MARITIME CONVENTIONS
 Art. 4.2. Hague-Visby Rules:
 “Neither the carrier nor the ship shall be responsible for
loss or damage arising or resulting from: (a) Act, neglect,
or default of the master, mariner, pilot, or the servants of
the carrier in the navigation or in the management of the
ship”;
 “(q) Any other cause arising without the actual fault or
privity of the carrier, or without the fault or neglect of the
agents or servants of the carrier, but the burden of proof
shall be on the person claiming the benefit of this
exception to show that neither the actual fault or privity
of the carrier nor the fault or neglect of the agents or
servants of the carrier contributed to the loss or damage”.
LIABILITY OF THE MARITIME CARRIER FOR OTHER
PERSONS IN MARITIME CONVENTIONS
 Hamburg Rules is quite similar to Hague-Visby Rules on this issue, but
the Hamburg Rules are more exhaustive:
 General rule: Art. 5.1. Hamburg Rules : “The carrier is liable for loss
resulting from loss of or damage to the goods, as well as from delay in
delivery, if the occurrence which caused the loss, damage or delay took
place while the goods were in his charge as defined in article 4, unless
the carrier proves that he, his servants or agent took all measures that
could reasonably be required to avoid the occurrence and its
consequences”.
 Specific circumstances:



Fire: Art. 5.4. Hamburg Rules.
Live animals: Art. 5.5. Hamburg Rules.
Multiple causes: Art. 5.7. Hamburg Rules: “Where fault or neglect on the part of the
ca rrier, his servants or agents combines with another cause to produce loss, damage
or delay in delivery, the carrier is liable only to the extent that the loss, damage or
delay in delivery is attributable to such fault or neglect, provided. that the carrier
proves the amount of the loss, damage or delay in delivery not attributable thereto”.
LIABILITY OF THE MARITIME CARRIER FOR OTHER
PERSONS IN MARITIME CONVENTIONS
 Rotterdam Rules not only devote more attention to this aspect of
the legal regime of maritime transport, but also significantly
broaden the circumstances in which the carrier shall be liable for
damages caused by the conduct of its employees, agents and
independent contractors.
 Art. 18 RR: “The carrier is liable for the breach of its obligations
under this Convention caused by the acts or omissions of:


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(a) Any performing party;
(b) The master or crew of the ship;
(c) Employees of the carrier or a performing party; or
(d) Any other person that performs or undertakes to perform any of the carrier’s
obligations under the contract of carriage, to the extent that the person acts,
either directly or indirectly, at the carrier’s request or under the carrier’s
supervision or control”.
LIABILITY OF THE
SHIPPER FOR OTHER
PERSONS IN MARITIME
CONVENTIONS
LIABILITY OF THE SHIPPER FOR OTHER
PERSONS IN MARITIME CONVENTIONS
 Art. 4.3. Hague-Visby Rules:
 “The shipper shall not be responsible for loss or
damage sustained by the carrier or the ship arising
or resulting from any cause without the act, fault or
neglect of the shipper, his agents or his servants”.
LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN
MARITIME CONVENTIONS
 Hamburg Rules is quite similar to Hague-Visby Rules on
this issue, but the Hamburg Rules are more exhaustive:
 General rule: Art. 12 Hamburg Rules: “The shipper is not
liable for loss sustained by the carrier or the actual carrier,
or for damage sustained by the ship, unless such loss or
damage was caused by the fault or neglect of the shipper,
his servants or agents. Nor is any servant or agent of the
shipper liable for such loss or damage unless the loss or
damage was caused by fault or neglect on his part”.
 Special rules:
 Dangerous goods: art. 13 Hamburg Rules.
LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN
MARITIME CONVENTIONS
 Rotterdam Rules not only devote more attention to this
aspect of the legal regime of maritime transport, but also
significantly broaden the circumstances in which the
shipper shall be liable for damages caused by the conduct
of its employees, agents and independent contractors.
 Art. 34 Rotterdam Rules: “The shipper is liable for the
breach of its obligations under this Convention caused by
the acts or omissions of any person, including employees,
agents and subcontractors, to which it has entrusted the
performance of any of its obligations, but the shipper is
not liable for acts or omissions of the carrier or a
performing party acting on behalf of the carrier, to which
the shipper has entrusted the performance of its
obligations”.
LIABILITY OF THE
DEBTOR FOR OTHER
PERSONS IN EUROPEAN
CONTRACT LAW
GENERAL RULE: LIABILITY TO THE CREDITOR
 Liability of the debtor to the creditor for performance of
the obligation entrusted to another person (III.-2:106 DFCR).
 Whenever it is not necessary that the debtor personally
performs the obligation, the creditor cannot refuse
performance by a third person if: (a) the third person acts with
the assent of the debtor; or (b) the third person has a
legitimate interest in performing and the debtor has failed to
perform or it is clear that the debtor will not perform at the
time performance is due.
 However, if the creditor accepts the performance of the service
by a third party without realizing any of the circumstances
listed above, it is liable to the debtor for damages that such
acceptance occurs or produces (III.- 2:107 DFCR).
 In Maritime Transport Law frequently it is not necessary
personal performance by the debtor of the obligations under a
contract of carriage.
GENERAL RULE: LIABILITY TO THIRD PERSONS
 Liability of the debtor to third persons for damages caused for their
employees and representatives. Two requirements must be met:
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a) The third person must have caused the damage in the course of the
employment or engagement; and
 Problems in case of no permitted behaviors such as theft.
b) the third person must have caused the damage:
 intentionally or negligently; or
 otherwise is accountable for the causation of the damage.
No mention of independent contractors.
In Maritime Transport Law the carrier and their employees, agents and
according to Rotterdam Rules independent contractors too are not entitled to
the benefit of especially the limitation of liability if it is proved that the loss,
damage or delay in delivery resulted from an act or omission of the carrier or
the other persons mentioned done with the intent to cause such loss, damage or
delay, or recklessly and with knowledge that such loss, damage or delay would
probably result.
SPECIAL RULE: THE INTERVENER
 A third person intervenes in another`s affairs, but
the so-called intervener may act:

Option 1º:
a) with the predominant intention of benefiting another, the
principal; and
 b) the intervener has a reasonable ground for acting; or
 the principal approves the act without such undue delay would
adversely affect the intervener.


Option 2º in case of a third person perform another`s duty:
a) the performance of which is due and urgently required as a
matter of overriding public interest; and
 b) the intervener acts with the predominant intention of
benefitting the recipient of the performance.

SPECIAL RULE: THE INTERVENER
 Reduction or even exclusion of intervener`s
liability:
In so far as this is fair and reasonable, having regard to,
among other things, the intervener´s reasons for acting.
 Other circumstances not mentioned, for instance, the
degree of specialization of the intervener, or the
possibility of adopting alternative measures.

LIABILITY OF THE SHIPPER OR MARITIME
CARRIER FOR OTHER PERSONS
SPECIAL
SITUATIONS.
IN PARTICULAR, IN RELATION
TO LOADING, HANDLING,
STOWING AND UNLOADING OF
THE GOODS
LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER
PARTY WHO PERFORMS SOME OF THE OBLIGATIONS
 It must interpret the will of the parties concerned; and
Modifying novation of the contract.
 Not required any special form:
 Expressly;
 or impliedly, in other words, by conclusive facts of
the parties.
 Their mode of action.
 If they act:
 on its own behalf; or
 on behalf of another.

LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER PARTY
WHO PERFORMS SOME OF THE OBLIGATIONS
 A simple and general solution: presumption that the party
materially performs these operations becomes de facto employee or
agent of the debtor.
 A more considerate solution with the will of the parties is to
evaluate whether or not the debtor supervises and/or controls the
performance of the obligations and to what extent.
 Two main hypotheses:
 Maritime carrier performs the obligation, although it is not obliged.
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on its own behalf; or
on behalf of shipper and/or consignee.
¿Is there an accessory duty of the maritime carrier to supervise these
operations derived from the principle of good faith in the performance of
contracts?
Shipper and/or consignee performs the obligation, although it is not
obliged.


on its own behalf; or
on behalf of maritime carrier.
LIABILITY OF THE PARTY NOT BOUND TO PERFORM
THE OBLIGATIONS IN CASE OF GIVING INSTRUCTIONS
 Situation: party not bound to perform the obligation
gives instructions to the debtor, and the latter follow
the instructions and because of this occur damages.

Normally exist multiple causes in these type of cases.
 In particular, it is a relevant issue in relation to
loading, handling, stowing and unloading of the
goods



It can ask whether or not the carrier has a duty of supervision
if the shipper and/or consignee must perform such operations.
Especially, regarding the operation of stowing.
Owing to the seaworthiness of the vessel and the special duty
of the carrier in this matter.
CONCLUSIONS
 The liability of the debtor for other persons according to the
European Contract Law presents relevant differences with the
uniform maritime transport rules.
 particularly regarding Rotterdam Rules.
 European Contract Law requires that the third persons must have
caused the damage in the course of the employment or engagement
and, at least must have acted negligently in order to the debtor be
liable for damages caused. However, in Maritime Transport Law it
is often required the first condition only to entitle an employee or
agent of the carrier to avail themselves of the defenses, and,
especially, limits of liability applicable in principle only to the
maritime carrier.
 European Contract Law make no mention of independent
contractors.
 European Contract Law does not resolve the special situations, in
particular in relation to loading, handling, stowing and unloading of
the goods.
THANK YOU FOR YOUR ATTENTION.
ROTTERDAM, 11-12 SEPTEMBER OF 2014