2.2 Bills of lading when the line uses chartered tonnage
We now turn to the situation where the line uses chartered tonnage; we assume here that this is permitted under its contract with the cargo side (the booking note).(1) Whether the carrier has such freedom is not regulated in the MC; the answer depends upon the construction of the transport agreement.
The shipper is, as we have seen, entitled to a bill of lading, issued by “the carrier” (MC Section 294). The obligation to issue a bill of lading rests on the line in its capacity as carrier, and the preparatory works to the section make it quite clear that it is not sufficient that a bill of lading is issued, it must be “binding on the carrier”.(2) NOU 1993: 36 p. 45. After having described standard practice on the issuance of bills of lading, it concludes: “The point is that the issued bill of lading shall be binding on the carrier.” And in our context the carrier is the line. Section 295, on the master’s bill of lading, conforms with this approach:
“A bill of lading signed by the master of the ship carrying the goods is regarded as having been signed on behalf of the carrier.”(3) See NOU 1993: 36 p. 45 on the situation where the transport is performed by a ship whereof the carrier is not the operator-owner: “The section removes the doubts that may have existed. A bill of lading signed by the master of the performing vessel is deemed to be signed on behalf of the carrier”.
However, sometimes there is no doubt: the bill of lading is signed by or on behalf of the owner of the vessel, not on behalf of the contracting carrier. In such a case the bill of lading cannot really be said to be evidence of a contract of carriage (Section 292 paragraph one no. 1); it is the contract, binding the owner. There is no doubt that the owner hereby incurs liability according to the rules governing bills of lading, see in particular ND 1955 p. 81 (= Rt. 1955 p. 107) (Lysaker) where the Supreme Court said:
“The bill of lading is signed by the master, who has also designated himself as such, and according to usual rules it is then the owner, not the time charterer, that is bound.”
In any case, the owner will incur liability as a sub-carrier (a performing carrier): see the first sentence of Section 286 paragraph one, stating that a sub-carrier is liable for such part of the carriage as he performs, “pursuant to the same rules as the [contracting] carrier.”
But the line is not – in contrast to what was previously the law(4) See in particular Supreme Court decisions in ND 1903 p. 331 (= Rt. 1903 p. 642) (Gerdt Meyer) and ND 1955 p. 81 (= Rt. 1955 p. 107) (Lysaker) as well as the Swedish Supreme Court decision in ND 1960 p. 349 (Lulu). – thereby free of liability; see the main rule in Section 285 paragraph one:(5) There are important modifications in the second and third paragraphs; the important point in the present context is, however, the principle.
“If the carriage is performed wholly or in part by a sub-carrier [here: the owner of the vessel], the carrier [here: the line] remains liable according to the provisions of this Chapter as if the carrier had performed the entire carriage him- or herself.”
A distinction should be noted: the carrier (the line) is not liable according to his contract (adjusted as the case may be because of the peremptory rules in the MC), but according to the rules of the MC Chapter 13 on the carriage of general cargo.
In addition to the liability following from Section 285, we have the carrier’s obligation to issue a bill of lading, if so demanded by the shipper (regardless of whether or not he is the sender), cf. Section 294. There is no exception, e.g. for the case where another party issues a bill of lading for the cargo. But if the shipper accepts a bill of lading issued by the owner of the vessel, it may be argued that the shipper has waived this right according to Section 294.(6) However, a clause in the booking note stating that there is no obligation on the part of the line to issue a bill of lading would not be valid, even if the line promised a sea way bill as a substitute.
The carrier may have agreed to better terms than those provided by the MC, e.g. that the limitation amount shall not be 667 SDR per unit (Section 280), but instead 1 000. However, this is not binding on the sub-carrier unless he has given his “written consent” (Section 286 paragraph two). With the line’s continued liability, based upon the rules in Chapter 13, it appears that the 1 000 SDR-limitation becomes inoperative when the line exercises an option to use a sub-carrier. The unfortunate result, seen from the cargo side, is a breach of the promise given by the carrier (the line) and a consequence of how the carrier has acted – and for such breach the carrier will be responsible.(7) It may be found otherwise [proposed added wording for clarity: “by the courts”] if it has been made sufficiently clear that a diminished liability may be the consequence of sub-carriage.