4.5 “performs the carriage or part of it” - actual performance
The most typical, straightforward situation where the identified sub-carrier questions arise is:
A, who has given a promise of transportation to cargo owner B, engages C to undertake the transportation, e.g. according to a voyage or time charter party. C’s undertaking may cover the total transport distance, or part of it: A carries the cargo to an intermediate port, and C takes the last leg to the contractual destination.
Now, if C assigns his duty to D, is C still a sub-carrier within the definition in Section 251, or is it D that deserves the title, or should both be characterized as sub-carriers? The answer seems to depend upon the construction of the word perform (Norw.: utfører): Does it refer to physical performance (in which case D is the sub-carrier) or to the obligation to have the cargo transported from x to y (in which case both C and D are sub-carriers)?
The issue is discussed in the travaux preparatoires to the definition in Section 251:
“In the definition, which corresponds to the Hamburg Rules Article 1 no. 2,(1) This article says, “actual carrier means any person to whom the performance of the carriage has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted”. the sub-carrier is ‘the one who in conformity with an assignment from the carrier performs the carriage or a part thereof’. In this way the definition also comprises successive links in the assignment chain, e.g. the person that performs the carriage or part thereof in accordance with an agreement with the person to whom the carrier first assigned the carriage. That the definition, depending upon the circumstances, may comprise more than one person does not mean that they all are liable for damage as per the draft Section 286. It follows from Section 286 that the person having the cargo in his custody at the time when the damage occurred, will usually be responsible as sub-carrier according to the rules of Chapter 13” (NOU 1993: 36 p. 20).
In ND 2003 p. 83 (Linda), the Finnish Supreme Court had to rule on the sub-carrier concept:(2) The decision is discussed by Selvig in ND 2003 pp. x-xiii.
Two ship owners - Engskip and Langh - had jointly time chartered two vessels to Jit-Trans. Under this agreement, the vessel Linda - owned by Langh and operated by Engskip - carried a cargo of steel from Finland to Germany in accordance with a contract between Jit-Trans (the carrier) and Rautaruukki. The cargo was damaged, and the cargo insurer, who had covered the loss, presented a claim against Engship as sub-carrier. A number of objections were presented - one being that the actual performance was not by Engship. To this, the Court said:
“As against the person giving him the assignment the sub-carrier is clearly responsible for the carriage undertaken, regardless of whether he performs the voyage himself or engages someone else for the actual performance or part thereof. Thus, the question is whether the direct liability of a sub-carrier towards the cargo owner - which is a liability not founded in contract but in law -should in this respect be more limited and only apply to the person actually performing the voyage. On this, there are different opinions, as well as in the international transport literature. There is no certain legal practice; this is the situation not only in Scandinavia, but also in other countries. ...
... From a general point of view it does not seem rational that a carrier should be able to escape a direct liability towards the cargo owner by leaving the actual performance of the transport to another, when he cannot in this way avoid liability towards his own contractual counterparty.”
On this basis, Engship was held liable.