4.6 “performs the carriage or part of it” - what is “part of it”?
In the above, we have first of all discussed what may be described as a type of successive carriage: A performsthe first leg, and B undertakes the final one to the port of destination. However, performing “part of” the carriage may be construed to encompass a number of other situations. Some of these will now be considered.
4.6.1 Lighterage
Lighterage may be seen as a type of successive carriage: the cargo is carried by the lighter from land to ocean-going vessel which is lying on the roads, and the cargo is loaded directly from the lighter to the oceangoing vessel. However, here we have two different situations: either (i) the lighterage may be part of the carrier’s undertaking, or (ii) his period of responsibility may start on receiving the cargo from the lighter (MC Section 274). It is the first situation that is relevant in the present con is the lightering company, engaged by the carrier, a sub-carrier? It seems difficult to avoid the conclusion that in such circumstances, the lightering company would be seen as a sub-carrier in the eyes of the law - even where the lightering distance is short.
4.6.2 «moving the cargo
The central element in cargo carriage is movement of the cargo, and such movement is not necessarily directly connected to movement of the vessel.
One typical example: the cargo received, for example at the line’s warehouse, needs to be moved from there to be next to the vessel, and this is done by an independent contractor engaged by the carrier. Perhaps another person (company) is engaged to perform the actual loading and to secure the cargo on board the vessel. We may have similar movements of the cargo when the cargo is carried to an intermediate port and there transferred to another vessel - sometimes by truck from one terminal to another, some distance away.
Do these contractors perform “part of” the carriage, with the consequence that their liability towards the cargo owner is that of a sub-carrier’s?
The question is discussed in Wilhelmsen, Rett i havn (2006) pp. 106-111, with the conclusion that the “most common sense answer” is that the sub-carrier rules are not applicable.
Given this conclusion, the question then arises of a possible basis for a claim against e.g. the stevedore. Does his liability depend upon general tort rules, or is his tort liability modified by general principles of contract law?
If in our example the stevedore is considered as being a servant, the answer is - as said above (section 4.1) - found in MC Section 282 paragraph two, which states that the carrier’s defences and limits of liability are available for the servant. We should also bear in mind Section 282 paragraph three, which sets out a regulation parallel to Section 287 paragraph two: the cargo owner is not entitled to receive the limitation amount twice by suing both the carrier and his servant.(1) Where there is no specific legislation - as we have in MC Sections 282 and 286 - the law is uncertain regarding the possibility for the tortfeasor to plead the terms of the contract between the cargo owner and the person who has engaged his services. See in particular Rt. 1998 p. 656 (Veidekke) pp. 661-662 and from the transport sector, Rt. 1976 p. 1117 (ND 1976 p. 1) (Siesta). See further Lilleholt, Kontraktsrett og obligasjonsrett (2017) pp. 374-390.
4.6.3 «moving the vessel»
In the lightering example, we may have a tug boat taking the lighter to the side of the ocean-going vessel, and when loading is completed, a tug boat may take the vessel from, say, an estuary, to the open sea. Now, the question is whether such a tug boat, engaged by the carrier, is a sub-carrier. We have an extreme example of “moving the vessel” when the vessel suffers major damage in the early stage of the voyage and is then towed, perhaps for days, to the final destination.(2) For an example of such long towage, see ND 1983 p. 309 (Arica) Norwegian arbitration: The loaded vessel was towed across the Pacific. Practically speaking, the tug master is essential in such cases; he has nautical control over the vessel’s movement, but not direct care of the cargo.
The general view is that tug services are of such a subsidiary nature that the carrier has vicarious liability - the tug is a servant. As regards tort, the tug is mentioned in MC Section 151 as being an entity for which the carrier has vicarious liability, and the same appears to be the case under Section 276, regarding non-liability for cargo damage due to fault or neglect in the navigation of the vessel.
4.6.4 Other modes of transport
It may be the case that the carriage or part of it is performed by another mode of transport. For example, when a vessel suffers damage it may be expedient or necessary for it to go to an intermediate port, discharge the cargo there and have it forwarded to the final destination by truck. We assume that this is not contrary to the transport agreement with the cargo owner.
The truck company’s liability towards the contracting carrier depends upon its undertaking, supplemented (usually) by the rules in the Act on Road Transport 1974 (which is based upon the rules in the Convention on Road Transport 1956 (CMR)). Regarding the truck company’s direct liability towards the cargo owner, here we are clearly outside the scope of MC - in other words: MC Section 286 on sub-carrier’s liability is not applicable.