The carrier's liability for sub-carriers and the sub-carrier's liability : A comparative study between Scandinavian and English law and the Rotterdam Rules

Today it is common practice for the carrier to sub-contract the contracted carriage of goods. For the carrier to perform the carriage himself is now more of an exception. That the carrier will use only one type of transport is also uncommon, as the contracts of carriage today normally will cover the whole carriage, compelling the carrier to use different modes of transportation. When the carriage is sub-contracted, the carrier will use other carriers to perform the contractual obligations for him. This means that there will be a second, and sometimes a third, contractual layer involved. A common feature is a carrier who does not have the capability to perform the carriage at all. These “paper carriers” or non-vessel operating common carriers (NVOCC) will thus sub-contract all parts of the carriage. This thesis will mainly examine the responsibility for and liability of the sub-carrier. The basis will be the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (“Hague Rules”), and Protocol of Signature (Brussels, 25 August 1924) and the Hague-Visby Rules - The Hague Rules as Amended by the Brussels Protocol 1968 (“Hague-Visby Rules”), as the countries compared in this study have all signed and ratified these rules. The thesis will start with a background to the problems posed by these rules with regards to sub-carriers, which are mainly the identity of the carrier, to ascertain who your contractual carrier and sub-carrier is, and the problem with suing the sub-carrier in tort; thereby possible avoiding the defences and limitations available to the carrier. The thesis is a dogmatic, international study, comparing two different legal systems and a new international convention. Focus will also be on the historical development of the carrier's liability for the sub-carrier and the sub-carrier's liability towards third parties. First the solution in the United Kingdom will be presented, as they have stayed true to the Hague-Visby Rules. Secondly the solution in Norway, Denmark, Sweden and Finland (“Scandinavian countries”), with main focus on the Norwegian legislation will be presented. The Scandinavian countries have tried to align their legislation as far as possible with the United Nations Convention on the Carriage of Goods by Sea, 1978 (“Hamburg Rules”) without having to derogate from the Hague-Visby Rules. As a third part of this thesis, the United Nations Convention Rules for the International Carriage of Goods Wholly or Partly by Sea, 2008 (“Rotterdam Rules”) will be presented as an alternative solution