1. BELÉN GARCÍA ÁLVAREZ ASSISTANT PROFESSOR OF COMMERCIAL LAW UNIVERSITY OF DEUSTO (SPAIN) belen.garcia@deusto.es ROTTERDAM 11-12 SEPTEMBER OF 2014 VIII ECMLR LIABILITY OF THE MARITIME CARRIER AND THE SHIPPER FOR OTHER PERSONS: UNIFORM MARITIME TRANSPORT RULES VS. EUROPEAN CONTRACT LAW

2. SUMMARY I.- INTRODUCTION II.- LIABILITY OF THE MARITIME CARRIER FOR OTHER PERSONS IN MARITIME CONVENTIONS III.- LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN MARITIME CONVENTIONS IV.- LIABILITY OF THE DEBTOR FOR OTHER PERSONS IN EUROPEAN CONTRACT LAW  1.- GENERAL RULE  A. LIABILITY TO THE CREDITOR  B. LIABILITY TO THIRD PERSONS  2.- SPECIAL RULE: THE INTERVENER V.- SPECIAL SITUATIONS. IN PARTICULAR, IN RELATION TO LOADING, HANDLING, STOWING AND UNLOADING OF THE GOODS  1.- LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER PARTY WHO PERFORMS SOME OF THE OBLIGATIONS  2.- LIABILITY OF THE PARTY NOT BOUND TO PERFORM THE OBLIGATIONS IN CASE OF GIVING INSTRUCTIONS VI.- CONCLUSIONS

3. INTRODUCTION Both the carrier and the shipper often entrust to another to perform any of its obligations under the contract of carriage. Classification of third parties:  Employees or servants;  Agents; and  Independent contractors or subcontractors.  In Rotterdam Rules: new terminology: performing party and maritime performing party (arts. 1.6, 1.7 y 4 Rotterdam Rules). Problem: Extension of the liability of the principal for damages caused for other persons. Maritime Law vs. European Contract Law [Draft Common Frame of Reference (DCFR)].

4. LIABILITY OF THE MARITIME CARRIER FOR OTHER PERSONS IN MARITIME CONVENTIONS

5. Art. 4.2. Hague-Visby Rules:  “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: (a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship”;  “(q) Any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage”.

6. LIABILITY OF THE MARITIME CARRIER FOR OTHER PERSONS IN MARITIME CONVENTIONS Hamburg Rules is quite similar to Hague-Visby Rules on this issue, but the Hamburg Rules are more exhaustive: General rule: Art. 5.1. Hamburg Rules : “The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agent took all measures that could reasonably be required to avoid the occurrence and its consequences”. Specific circumstances:  Fire: Art. 5.4. Hamburg Rules.  Live animals: Art. 5.5. Hamburg Rules.  Multiple causes: Art. 5.7. Hamburg Rules: “Where fault or neglect on the part of the ca rrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery, the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided. that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto ”.

7. LIABILITY OF THE MARITIME CARRIER FOR OTHER PERSONS IN MARITIME CONVENTIONS Rotterdam Rules not only devote more attention to this aspect of the legal regime of maritime transport, but also significantly broaden the circumstances in which the carrier shall be liable for damages caused by the conduct of its employees, agents and independent contractors. Art. 18 RR: “The carrier is liable for the breach of its obligations under this Convention caused by the acts or omissions of:  (a) Any performing party;  (b) The master or crew of the ship;  (c) Employees of the carrier or a performing party; or  (d) Any other person that performs or undertakes to perform any of the carrier’s obligations under the contract of carriage, to the extent that the person acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control”.

8. LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN MARITIME CONVENTIONS

9. Art. 4.3. Hague-Visby Rules: “The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants”.

10. LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN MARITIME CONVENTIONS Hamburg Rules is quite similar to Hague-Visby Rules on this issue, but the Hamburg Rules are more exhaustive: General rule: Art. 12 Hamburg Rules: “The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part”. Special rules:  Dangerous goods: art. 13 Hamburg Rules.

11. LIABILITY OF THE SHIPPER FOR OTHER PERSONS IN MARITIME CONVENTIONS Rotterdam Rules not only devote more attention to this aspect of the legal regime of maritime transport, but also significantly broaden the circumstances in which the shipper shall be liable for damages caused by the conduct of its employees, agents and independent contractors. Art. 34 Rotterdam Rules: “The shipper is liable for the breach of its obligations under this Convention caused by the acts or omissions of any person, including employees, agents and subcontractors, to which it has entrusted the performance of any of its obligations, but the shipper is not liable for acts or omissions of the carrier or a performing party acting on behalf of the carrier, to which the shipper has entrusted the performance of its obligations”.

12. LIABILITY OF THE DEBTOR FOR OTHER PERSONS IN EUROPEAN CONTRACT LAW

13. GENERAL RULE: LIABILITY TO THE CREDITOR Liability of the debtor to the creditor for performance of the obligation entrusted to another person (III.-2:106 DFCR).  Whenever it is not necessary that the debtor personally performs the obligation, the creditor cannot refuse performance by a third person if: (a) the third person acts with the assent of the debtor; or (b) the third person has a legitimate interest in performing and the debtor has failed to perform or it is clear that the debtor will not perform at the time performance is due.  However, if the creditor accepts the performance of the service by a third party without realizing any of the circumstances listed above, it is liable to the debtor for damages that such acceptance occurs or produces (III.- 2:107 DFCR). In Maritime Transport Law frequently it is not necessary personal performance by the debtor of the obligations under a contract of carriage.

14. GENERAL RULE: LIABILITY TO THIRD PERSONS Liability of the debtor to third persons for damages caused for their employees and representatives. Two requirements must be met:  a) The third person must have caused the damage in the course of the employment or engagement; and  Problems in case of no permitted behaviors such as theft.  b) the third person must have caused the damage:  intentionally or negligently; or  otherwise is accountable for the causation of the damage.  No mention of independent contractors.  In Maritime Transport Law the carrier and their employees, agents and according to Rotterdam Rules independent contractors too are not entitled to the benefit of especially the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier or the other persons mentioned done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.

15. SPECIAL RULE: THE INTERVENER A third person intervenes in another`s affairs, but the so-called intervener may act:  Option 1º:  a) with the predominant intention of benefiting another, the principal; and  b) the intervener has a reasonable ground for acting; or the principal approves the act without such undue delay would adversely affect the intervener.  Option 2º in case of a third person perform another`s duty:  a) the performance of which is due and urgently required as a matter of overriding public interest; and  b) the intervener acts with the predominant intention of benefitting the recipient of the performance.

16. SPECIAL RULE: THE INTERVENER Reduction or even exclusion of intervener`s liability:  In so far as this is fair and reasonable, having regard to, among other things, the intervener´s reasons for acting.  Other circumstances not mentioned, for instance, the degree of specialization of the intervener, or the possibility of adopting alternative measures.

17. SPECIAL SITUATIONS. IN PARTICULAR, IN RELATION TO LOADING, HANDLING, STOWING AND UNLOADING OF THE GOODS LIABILITY OF THE SHIPPER OR MARITIME CARRIER FOR OTHER PERSONS

18. LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER PARTY WHO PERFORMS SOME OF THE OBLIGATIONS It must interpret the will of the parties concerned; and  Modifying novation of the contract.  Not required any special form: Expressly; or impliedly, in other words, by conclusive facts of the parties.  Their mode of action.  If they act: on its own behalf; or on behalf of another.

19. LIABILITY OF THE DEBTOR IN CASE IT IS THE OTHER PARTY WHO PERFORMS SOME OF THE OBLIGATIONS A simple and general solution: presumption that the party materially performs these operations becomes de facto employee or agent of the debtor. A more considerate solution with the will of the parties is to evaluate whether or not the debtor supervises and/or controls the performance of the obligations and to what extent. Two main hypotheses:  Maritime carrier performs the obligation, although it is not obliged.  on its own behalf; or  on behalf of shipper and/or consignee.  ¿Is there an accessory duty of the maritime carrier to supervise these operations derived from the principle of good faith in the performance of contracts?  Shipper and/or consignee performs the obligation, although it is not obliged.  on its own behalf; or  on behalf of maritime carrier.

20. LIABILITY OF THE PARTY NOT BOUND TO PERFORM THE OBLIGATIONS IN CASE OF GIVING INSTRUCTIONS Situation: party not bound to perform the obligation gives instructions to the debtor, and the latter follow the instructions and because of this occur damages.  Normally exist multiple causes in these type of cases. In particular, it is a relevant issue in relation to loading, handling, stowing and unloading of the goods  It can ask whether or not the carrier has a duty of supervision if the shipper and/or consignee must perform such operations.  Especially, regarding the operation of stowing.  Owing to the seaworthiness of the vessel and the special duty of the carrier in this matter.

21. CONCLUSIONS The liability of the debtor for other persons according to the European Contract Law presents relevant differences with the uniform maritime transport rules.  particularly regarding Rotterdam Rules. European Contract Law requires that the third persons must have caused the damage in the course of the employment or engagement and, at least must have acted negligently in order to the debtor be liable for damages caused. However, in Maritime Transport Law it is often required the first condition only to entitle an employee or agent of the carrier to avail themselves of the defenses, and, especially, limits of liability applicable in principle only to the maritime carrier. European Contract Law make no mention of independent contractors. European Contract Law does not resolve the special situations, in particular in relation to loading, handling, stowing and unloading of the goods.

22. THANK YOU FOR YOUR ATTENTION. ROTTERDAM, 11-12 SEPTEMBER OF 2014