2020-07-20
Source: Peking University Maritime Law Research Center website
The "actual carrier" system is an important system in my country's maritime law. This system is formulated by our country absorbing advanced international legislation experience. However, since its formulation, there have been many confusions in practical applications. How to identify who is the actual carrier and how should the actual carrier be held accountable is not only different in the practices of the parties, but also in the handling of the maritime courts. Clarifying the concept and legal status of "actual carrier" and changing the chaotic situation in practice to achieve the legislative intent of establishing this system has become an urgent problem to be solved.
1. The "actual carrier" system established in my country's Maritime Law
"The actual carrier" is a concept opposite to the "carrier". Article 46 of China's Maritime Law defines these two concepts separately, namely: "Carrier refers to the person who, in his own name, or entrusts others to conclude a contract for the carriage of goods by sea with the shipper"; "The actual carrier, Refers to the person who accepts the entrustment of the carrier to carry out cargo transportation or part of the transportation, including other persons who accept the entrustment of this transportation".
After stipulating the definition of the actual carrier, the Maritime Law further defines the legal liability of the actual carrier in Articles 61 to 64. According to the "Maritime Law", first of all, the actual carrier shall bear the same responsibility as the carrier for the part of the transportation that he actually carries out. This kind of responsibility is also adjusted by the "Maritime Law"; but the carrier bears responsibilities or responsibilities other than those prescribed by law. A special agreement that reduces the rights granted by the law will not have any effect on the actual carrier unless it is agreed in writing by the actual carrier. Secondly, even if all or part of the transportation tasks have been entrusted to the actual carrier, the carrier must still be responsible to the holder of the bill of lading for the entire transportation; the only exception is that the specific transportation is clearly stipulated in the contract of carriage by the specific actual carrier. , And agreed that if the carrier is not responsible, the carrier may not be responsible. Third, if the carrier and the actual carrier are both liable for compensation, they shall be jointly and severally liable within the scope of this responsibility, and the holder of the bill of lading can be held accountable for all of them.
2. The legislative intention to establish the "actual carrier" system
The "actual carrier" system is a relatively new legal system in maritime cargo transportation. In the first two conventions on the carriage of goods by sea, namely the Hague Rules and the Hague/Visby Rules, there is no mention. When the Hamburg Rules were formulated, the "Warsaw Convention" and the The Dalahala Convention established this system. At present, in the domestic legislation of various countries, the adoption of the actual carrier system is also limited to a few countries including my country, the four Nordic countries and the participating countries of the "Hamburg Rules." However, more and more countries have paid attention to the actual carrier system. For example, the United States adopted this system in the 1999 Maritime Carriage of Goods Act (draft).
So why should an actual carrier system be introduced in maritime cargo transportation? Although the legislative intentions of various countries are not completely consistent, the overall view is mainly nothing more than the following three points.
One is to change or clarify the traditional responsibility sharing system in maritime cargo transportation. In our country, the actual carrier system established by the Maritime Law is a departure from the traditional theory of contract law. According to China’s general contract law principles, if one party to a contract entrusts others to perform part or all of the contract’s obligations, the actual performer’s actions within the entrusted scope shall be borne by the entrusting party, and the other party to the contract cannot directly pursue the actual performer based on the contract. responsibility. When this principle of contract law is applied to a cargo transportation contract, it shows that after the carrier signs the transportation contract with the shipper, it entrusts others to carry out part of the transportation. Only the carrier who signed the transportation contract with the shipper will carry the shipper. Full responsibility in the contract, while others are not directly responsible to the shipper. However, after the establishment of the actual carrier system, not only the carrier is still responsible for all transportation, but the actual carrier must also bear the same responsibility as the carrier for the part of the transportation actually performed. As a result, in terms of the part of the transportation performed by the actual carrier, the carrier and the actual carrier are directly responsible to the cargo owner. This increases the rights of the cargo owner and strengthens the protection of the cargo owner. This sharing of responsibilities is considered more fair. Because in actual business, in addition to the carrier who signed the transportation contract with the owner, there are often other people who perform all or part of the transportation tasks, and these people should bear the transportation responsibility. This consideration can be clearly seen from the legislative background materials of the Hamburg Rules. The situation in most civil law countries is the same or similar to ours. There are also some countries, such as those in the Commonwealth law system that recognize "in rem litigation". Under the traditional theory, the person who actually transports the goods may be directly liable to the owner of the cargo because of the relationship with the ship. However, the subject scope and responsibility of such liability For these countries, the actual carrier system can clarify the sharing of responsibilities in their traditional maritime cargo transportation laws.
Second, it is conducive to strengthening the certainty and stability of the maritime cargo transportation law. The laws regulating the maritime cargo transportation contract, including national legislation and international conventions, generally compulsorily stipulate the carrier’s minimum obligations and maximum exemptions, so as to establish a liability system that balances rights and obligations between the carrier and the cargo owner. If the actual carrier participates in transportation but is not restricted by this system, it will not only greatly reduce the scope of application of this system, but also induce carriers that should be restricted to obscure their identity through contractual clauses such as the "Carrier Identification Clause" So as to avoid one's own responsibility. Judging from the history of the development of maritime cargo transportation law, there is always a tendency to include all persons involved in transportation into the mandatory regulations of the law, thereby enhancing the effectiveness and stability of the law. The legalization of Himalayan terms and the addition of the concept of actual shippers all reflect this effort. The actual carrier system is just another example.
The third is to improve efficiency and reduce the burden of litigation. Because if the actual carrier’s negligence during the period in which the cargo is in charge of the cargo causes the loss or damage of the cargo, even if the cargo owner cannot directly claim against the actual carrier but can only claim against the carrier, the carrier will inevitably rely on him and actual The internal contract between carriers seeks compensation from the actual carrier, which triggers circular litigation. The actual carrier is directly responsible to the owner of the cargo to reduce unnecessary litigation.
3. Several legal disputes over the current "actual carrier" system
The "Maritime Law" of our country has established an actual carrier system for some time, but judging from judicial practice, there are not many cases tried using this system, and it seems that it has not fully achieved its legislative intent. This phenomenon is largely due to the fact that there is still a great controversy over the theoretical understanding of the actual carrier system, which makes the parties and the court have doubts about how to understand and use this system. At present, the most controversial issue is the understanding of the concept and legal liability of the actual carrier.
(1) Disputes about the concept of actual carrier
The controversy regarding the concept of the actual carrier mainly revolves around the exact meaning of the terms in Article 46 of the Maritime Law and who meets this definition.
From the definition of Article 46, there are two criteria for the actual carrier: acceptance of the carrier's entrustment or acceptance of the sub-entrustment; the actual transportation of the goods. There are different understandings of these two standards.
First of all, the general view of "entrusted or sub-entrusted by the carrier" is that the entrustment here is not limited to the entrusted agency contract, but generally refers to the situation of appointing others for a certain behavior. However, some people interpreted the "entrustment and sub-entrustment" in the definition of the actual carrier as a narrow interpretation, thinking that the actual carrier is the only person who signs an agency contract with the carrier. What is signed between the charterer and the ship owner is not an agency contract but a charter party, and the freight forwarder and the ship owner are not an agency contract but a contract of carriage. Therefore, there is no actual Carrier.
Secondly, some people think that the "actual transportation of goods" includes two situations in which the actual carrier carries out the transportation in person and entrusts others to perform the transportation on its behalf. Some people think that it only includes the case where the actual carrier personally carried the cargo transportation. According to the latter point of view, when the carrier entrusts others for transportation and the trustee delegates the transportation task to a third party, the trustee only accepts the carrier’s entrustment but does not personally carry out the cargo transportation. The “actually carried out” transportation standard stipulated in the definition is therefore not the actual carrier.
Third, some people have raised doubts about the term "transportation" in the definition of actual carrier. It is generally believed that transportation refers to the maritime transportation of goods loaded on a ship, but the carrier’s obligations under the contract of carriage include not only the maritime transport of the goods from the port of departure to the port of destination, but also often include loading or unloading the goods on the ship. , And storage and even packaging before loading and unloading. The carrier usually assigns these tasks such as loading, unloading, storage, and packaging to a third party to perform. It can be said that these third parties are also people who have been entrusted by the carrier to undertake part of the carrier's transportation obligations under the contract of carriage, but they are not engaged in maritime transportation. So should these people be counted as actual carriers? Moreover, even if "transportation" is limited to sea transportation, does it have to own a ship, or direct the crew, or what other specific acts constitute sea transportation?
(2) Disputes concerning the legal liability of the actual carrier
Although Articles 61 to 64 of the Maritime Law stipulate the legal responsibilities of the actual carrier, they are not simple, leaving many questions on the nature and scope of the actual carrier’s responsibilities and how to implement them, among which the most prominent Is the following:
First, the nature of the actual carrier’s liability.
It is generally recognized that the actual carrier’s liability under my country’s Maritime Law is a statutory liability; as far as its source is concerned, it is not based on the agreement of the parties but on the direct provisions of the law. Some people further believe that this kind of liability provided by law is actually a contractual liability, because the so-called "carrier's liability" is the liability of the contract of carriage, and the actual carrier thus obtains the status of a party to the contract of carriage. But in fact, there are three situations of "carrier's liability": one is the carrier's liability directly stipulated in Chapter 4 of the Maritime Law. This is the most basic and core responsibility of the carrier under the contract of carriage, but not Full responsibility. The second is the carrier’s responsibilities stipulated in the contract of carriage. Such responsibilities cannot contravene the provisions of Chapter 4 of the Maritime Law, but are often more comprehensive and specific than the provisions of Chapter 4. The third is the responsibility of the carrier specified in the bill of lading. This liability should be based on the provisions of the contract of carriage. However, if there is an inconsistency with the contract of carriage, when the holder of the bill of lading is the shipper at the same time, the carrier’s liability shall be subject to the provisions of the contract of carriage; when the holder of the bill of lading is the shipper In the case of other third parties, the carrier’s liability shall be subject to the provisions of the bill of lading. The "Maritime Law" stipulates that the actual carrier shall be subject to the provisions on the responsibility of the carrier in Chapter 4 of the law, so the actual carrier shall bear the responsibility of the carrier directly specified in the "Maritime Law" or the carrier under the contract of carriage Liability, or the carrier’s liability on the bill of lading?
Second, the scope of the actual carrier’s liability.
The first paragraph of Article 61 of the Maritime Law stipulates: “The provisions of this chapter on the liability of the carrier shall apply to the actual carrier.” From a literal view, it seems that the provisions of the fourth chapter on the liability of the carrier shall apply to the actual carrier, that is, the first paragraph. "Carrier" can be replaced by "actual carrier" in the clauses in Chapter 4 that stipulate the liability of the carrier. However, there will be many difficulties in applying the provisions on the liability of the carrier to the actual carrier completely. If the actual carrier is like the carrier, the bill of lading should be issued at the request of the shipper? If both the carrier and the actual carrier have issued a bill of lading, which bill of lading is a valid bill of lading for delivery? Can the bill of lading issued by the carrier bind the actual carrier; or conversely, can the bill of lading issued by the actual carrier bind the carrier? If the actual carrier cannot issue the bill of lading and does not have to be responsible for the delivery of goods without the bill of lading, it becomes an unclear question as to which provisions on the liability of the carrier apply to the actual carrier and which do not apply.
In addition, because Article 61 only mentions "responsibility", and Chapter 4 stipulates not only obligations and responsibilities for the carrier, but also rights, whether these rights should also be granted to the actual carrier, such as whether the actual carrier can claim to collect Shipping costs have also become controversial issues.
The third is the procedure to hold the actual carrier accountable.
What is the time limit for filing a cargo damage claim against the actual carrier? How is jurisdiction determined? How to share the burden of proof? In particular, the "Maritime Law" stipulates that the actual carrier and the carrier are jointly and severally liable within the scope of liability for compensation. What material impact does this provision have on the recovery of the cargo owner? These are issues that are often disputed in practice without clear regulations.
(3) Reasons for disputes over the actual carrier system
There are two main reasons for the fact that the actual carrier system has caused so many disputes soon after it was established in my country. One is that the actual carrier system is a relatively new system. In international maritime cargo transportation, it was established from the beginning of the "Hamburg Rules." Due to the short use time and lack of support in practice and precedents, there are many difficult problems in use. The actual carrier system in my country's "Maritime Law" is basically established by imitating the "Hamburg Rules", lacking both old experience in interpretation and application, and lack of international references and standards. Second, the actual carrier system involves a series of theoretical difficulties. If the actual carrier is relative to the carrier, it will inevitably involve the identification of the carrier, a classic problem in maritime cargo transportation law. In addition, the actual carrier often involves the issue of agency law, and agency law is one of the most different areas in the civil and commercial laws of various countries, and it has not been clearly regulated in the laws of our country. In this way, many problems in the application of the actual carrier system are not difficult to understand.
4. How to correctly understand and improve my country's "actual carrier" system
(1) Understanding and perfecting the concept of actual carrier
The actual carrier system is a special system established in maritime law to achieve specific legislative intent. The different understanding of the concept of actual carrier determines the different scope of application of this special system. Judging from the legislation of various countries, the definitions of actual carriers are not exactly the same. For example, the "Hamburg Rules" defines the actual carrier as: "The actual carrier refers to the person to whom the carrier entrusts the cargo transportation task or part of the cargo transportation task to him, including other persons entrusted with such transportation." Obviously, this The definition emphasizes the entrustment of the carrier, and mainly defines the actual carrier from the relationship with the carrier. As long as the person entrusted or delegated by the carrier, regardless of whether the cargo is actually transported, it is the actual carrier under the "Hamburg Rules." This can be clearly seen from the legislative background materials of the Hamburg Rules. In the United States’ 1999 “Carriage of Goods by Sea” (draft), the actual carrier is defined as “a person who performs or promises to perform any of the obligations of the contract carrier under the contract of carriage, including the performance or promise to perform or organize the performance of the goods Any ancillary service of transportation." This definition obviously emphasizes the performance of the transportation task, and it is irrelevant whether to accept the carrier's entrustment. Judging from the literal meaning of Article 46 of my country's Maritime Law, under my country's law, the actual carrier is required to meet the two standards of accepting the carrier's entrustment or sub-entrustment and actually carrying out cargo transportation. This requirement is already relatively strict. If the two standards are interpreted too narrowly, the applicable scope of the actual carrier system
