The liability of the shipper
The definition of “shipper” and of “consignor”
“Shipper” is defined in the Draft Instrument, Art. 1.19 as “a person that enters into a contract of carriage with the carrier”. Reference to the same notion of “shipper” can be found, although indirectly, in the Hague-Visby Rules, Art. I(a), where “carrier” is defined as “the owner or the charterer who enters into a contract of carriage with a shipper”. It has therefore eliminated the ambiguity which was introduced by the definition of “shipper” adopted by the Hamburg Rules, Art. 1.3 according to which “‘shipper’ means any person by whom or in whose name or on whose behalf a contract of carriage by sea has been concluded with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea”. The use of the word “or” as a conjunction indicates a certain degree of incertitude about which of the persons mentioned in Art. 1.3 is entitled to exercise the rights or is subject to the obligations which the Hamburg Rules attribute simply to the “shipper”.
The Draft Instrument qualifies the “person that delivers the goods to a carrier for a carriage” as the “consignor” (Art. 1.3). However, the entire liability regime contained in Art. 7 refers to the shipper only, and the position of the consignor is considered only rarely by the provisions of the Draft Instrument. Since no precise obligation or liability is placed on the consignor, he should then be included among the persons to whom the shipper has delegated the performance of any of his responsibilities and for whose activity he is liable according to Art. 7.8. The obligation of delivering the goods ready for carriage and in such condition that they will withstand the intended carriage and that they will not cause injury or damage is, in fact, expressly mentioned in Art. 7.1.
The shipper will then be liable towards the carrier (but not towards the performing carrier 1
) for the acts and omissions of the consignor, when such acts and omissions are within the scope of that person’s contractual relationship with the shipper. The matter of the liability of the consignor towards the shipper deriving from the said acts and omissions falls clearly outside the scope of application of the Draft Instrument and remains entirely regulated by the contract governing the relationship between them.
There is, in fact, in addition to the shipper, another person whose possible direct involvement in the liabilities deriving from the contract of carriage is expressly provided for in the Draft Instrument: i.e., the person, mentioned in Art. 7.7, who is “identified as ‘shipper’ in the contract particulars, although not [being] the shipper as defined in article 1.19”. If such a person “accepts” the transport document, he is then subject to the responsibilities and liabilities imposed on the shipper and is entitled to the shipper’s rights
* Dean of the Faculty of Law, University of Bologna.
1. See Art. 7.6.
The rest of this document is only available to i-law.com online
If you are already a subscriber, please enter your details below to log in.