4.7 Some conclusions on the sub-carrier issues
We have seen that:
In order to fulfill a promise of transportation, the promisor (the contracting carrier) will need to be assisted, sometimes by a great number of persons (companies/institutions). Our concern relates to those who are participating according to “an assignment” from the carrier - practically speaking: on the basis of a contract. In most instances, these assignees fall into two groups: sub-carriers and “servants” - the latter is overwhelmingly dominant in number. However, there may be assignees that can be characterized neither as sub-contractor, nor as servants, see section 4.6.4.
In most instances, there is no doubt about the classification as sub-carrier or servant. Nevertheless, we have tried to clarify when an assignee is a sub-carrier, in the eyes of the law. We have examined how the importance of this distinction is minimal or non-existent, with regard to liability towards the cargo owner: Regardless of classification, the cargo owner can sue the assignee, and in both instances, the rules in Chapter 13 are applicable - both as the basis for a claim and as the basis for limitation of liability. In addition, suits against the contracting carrier and the sub-carrier do not result in the cargo owner receiving the limitation sum twice. Furthermore, the cargo owner cannot improve his recovery by pleading tort rules, cf. Section 282 paragraph one.
However, before concluding, there are two areas of law requiring some remarks. The first area, on identification when deciding cargo liability questions, is discussed below, and the second area, on the question of forum in cargo liability cases, is considered separately in section 5 below.
The first one concerns cargo liability:
MC Section 285 states that the contracting carrier (A) is liable “as if [he] had performed the voyage him- or herself”. The obvious interpretation is that the contracting carrier shall be adjudged as if he had performed the acts and errors that have in fact been made by the subcontractor (B): the mate’s negligence is considered negligence on the part of his (A’s) own mate, i.e. as a servant of the contracting carrier A. Further, if the sub-contractor’s (B’s) vessel left the port in an unseaworthy condition, the exceptions for error in management of the vessel and for fire do not apply when “a person for whom the carrier is responsible” has not taken “proper care”.(1) Cf. the rules on liability for initial unseaworthiness in MC section 276. We may have some specific problems here in relation to the concept of “seaworthiness by stages”; however, these are outside the scope of this article. Likewise, the exceptions do not protect the contracting carrier A when B, the owner of the performing vessel, is “personally” to blame for the unseaworthiness. Finally, if B, the owner of the performing vessel, has personally caused the loss by such serious acts as are described in MC Section 283, this is also to the detriment of the contracting carrier A: he will not be protected by the unit limitation rules when sued by the cargo owner.
If the person who has negligently caused the damage is considered a servant of the contracting carrier, the contracting carrier will not be exposed to the indicated extended liability.
Conversely, when the sub-contractor is sued, his liability depends upon the “same rules” that apply to the contracting carrier (Section 286). Accordingly, the sub-carrier cannot plead the exceptions if the cause of damage is negligence, by himself or by one of his servants, in making the vessel seaworthy before departure. The decisive point is that the sub-carrier is liable when the contracting carrier is liable. An example of this: the cargo owner has given the contracting carrier information on how to handle the cargo, e.g. in order to prevent fire. The consequence of the contracting carrier’s failure to convey the relevant information to the sub-carrier is that the contracting carrier cannot plead the fire exception. The complementary construction is that neither can the sub-carrier make such a pleading, even if he has acted professionally and correctly, based upon the information at hand.