3.2 Has the cargo owner a claim against the sub-carrier in respect of damage or delay?
When the cargo is damaged or lost while in the custody of a sub-carrier, general principles of tort law may be applicable as regards the sub-carrier’s liability. The main rule is that the cargo owner needs to prove that the sub-carrier, or someone for whom he is responsible, has caused the damage through negligence. Such principles may also cover the loss caused by delayed delivery of the cargo.(1) Cf. Wilhelmsen & Hagland, Om erstatningsrett (2017) pp. 323-333 on monetary loss without connection to physical damage.
However, MC Section 286 has regulated the sub-carrier’s liability parallel to that of the contractual carrier:
“A sub-carrier is liable for such part of the carriage as he or she performs, pursuant to the same rules as the carrier. The provisions of Section 282 and 283 apply correspondingly”(2) As stated in the text below, the contracting carrier is liable for the sub-carrier, cf. Section 285, and Section 282, to which it refers, protects “anyone for whom the carrier is responsible”. Thus, Section 286 paragraph one is superfluous, but is a convenient introduction to paragraph two. (paragraph one).
Difficult questions may arise in determining when the incident (or number of incidents) occurred which resulted in the loss: Was it while the cargo was in the custody of the sub-carrier?(3) However, acts or omissions, occurring prior to the actual custody period, may be relevant. Typically, making the vessel seaworthy for the voyage may require extensive preparations before receiving the cargo. In this respect, the cargo owner has the burden of proof: He needs to show that the incident occurred while the cargo was in the sub-carrier’s custody.
If this first hindrance is overcome, the sub-carrier then needs to prove that neither he, nor a person for whom he is responsible, has caused the damage or delay through negligence. This potential liability is balanced by the sub-carrier’s right to plead the exceptions regarding error in navigation and management of the vessel and fire (Section 276), as well as his right to limit liability according to the unit and kilo limitation rules (Section 280).(4) This works both ways: The sub-carrier cannot insist upon being adjudged in accordance with tort rules (e.g. claim that liability for servants in tort does not encompass the person who has caused the damage).
The liability of the sub-carrier does not exclude liability of the contracting carrier. Section 285 paragraph one says that when the carriage “is performed wholly or in part by a sub-carrier, the [contracting] carrier remains liable according to [Chapter 13]”. Thus, both the contracting carrier and the sub-carrier may be held liable for the same damage or delay, and in such circumstances they are jointly liable (Section 287 paragraph one). However, the cargo owner cannot hereby obtain the limitation amount as per Section 280 twice (Section 287 paragraph two).(5) If a suit is instigated against the contracting carrier and the sub-carrier before the same court, the Civil Procedure Act of 2005 Section 15-6 has rules on joining the two cases: “Cases raising similar questions and shall be treated with the same composition of the court and according to mainly the same procedural rules, may be joined for a joint handling and for a joint decision.” Whether the cases shall be joined, is within the discretion of the court.
MC has no rules on recourse actions between the contracting and performing carriers, except that Section 287 paragraph three, which states that the Code does not preclude agreements on this issue.