11.64 ‘The carrier’ is not defined in the text of the Regulation itself. But Recital (22) makes it clear that ‘the term “the carrier” should refer to the party to the contract who undertakes to carry the goods, whether or not he performs the carriage himself’. This repeats the guidance given by the Giuliano–Lagarde Report as to the proper interpretation of the same concept in Article 4(4) of the Convention.145 It reflects an autonomous definition that should be interpreted independently of national traditions.
11.65 The Rome I Regulation, like the Convention before it, is concerned with identifying the ‘contracting’ carrier, the party who undertakes the contractual obligation to carry the goods in question, even though the carriage might be performed by another (the performing or actual carrier).
11.66 This is a distinction which is formally recognized in a number of civil codes. The Nordic Maritime Codes,146 for example, define a ‘carrier’ as any person who concludes a contract with a shipper for the carriage of goods by sea, while an ‘actual carrier’ means any person who has been entrusted by the carrier to perform the carriage of part of it. The principal place of business of the contracting carrier has to be identified on the bill of lading.147
11.67 In practice, especially in carriage of goods by sea, who actually undertakes the contractual obligation to perform the carriage is not always clear. The issue of the ‘identity of the carrier’ is often a very live one in any subsequent dispute as cargo interests try to work out who they can sue.148 A bill of lading containing or evidencing a contract of carriage by sea may be issued on behalf of the owner or the charterer of a vessel, and there are often disputes as to who is contractually bound by it.149 German maritime law, found in the Commercial Code (Handelsgestzbuch (HGB)) requires, (or rather hopes)150 that a bill of lading should specify ‘the name of the carrier’.151 If a bill of lading which is signed by the master or shipowner’s agent does not contain the carrier’s name, it shall be presumed that the carrier is the shipowner.152
11.68 The identity of carrier question may be further complicated if the bill of lading contains a ‘demise’153 and/or an ‘identity of carrier’ clause. A demise clause is a clause in a bill of lading (p. 468) presented by a charterer to the Master for signing that specifies that the bill of lading is intended to be a shipowner’s bill.154 Such clauses are intended to secure the protection of international limitation of liability conventions, but may not reflect actually who is undertaking the carriage.155 In some systems of law, such as in the United States, demise clauses in bills of lading are not conclusive against the shipper and are invalid as a matter of public policy if they attempt to shift the potential liability of the charterer for cargo loss to the shipowner.156 In contrast, in English law, such clauses are not traditionally regarded as invalid, but indeed have in the past been described as commonplace.157
11.69 The potential difficulties caused by such demise and identify of carrier clauses can be demonstrated by the facts of the House of Lords case of The Starsin.158 That vessel was demise chartered by her registered owners to Agrosin (‘A’), who then chartered her to Continental Pacific Shipping Ltd (‘CPS’) on a New York Produce Exchange (‘NYPE’) time charter. Various cargoes of timber and timber products were loaded at Malaysian ports and liner bills of lading issued. The bills were clearly marked with a CPS logo and the signature box on the face of the bills contained the words ‘As Agent for Continental Pacific Shipping (The Carrier)’. Beneath this box was a rubber stamp of CPR’s port agents. Apart from an express choice of English law and jurisdiction, and the express incorporation of the Hague Rules, standard printed clauses on the reverse of the bills of lading159 included (a) an express definition of ‘carrier’ as meaning the party on whose behalf the bill of lading had been signed; (b) an ‘identity of carrier’ clause which said that the contract evidenced by the bill was with the ‘owner of the vessel’, (c) a ‘demise clause’ providing that the bill of lading would only take effect as a contract of carriage ‘with the owner or demise charterer’, and (d) a multipart Himalaya clause modelled on the Conline form, that sought to exclude liabilities of the servants or agents ‘of the carrier’.
11.70 Due to negligent stowage, part of the cargo was damaged by water. The claimants were cargo owners, the ‘notify parties’ to whom the bills of lading had been endorsed. As such they had rights of suit under English law under the Carriage of Goods by Sea Act 1992. By the time of the action, the charterer CPS, who had issued the bills of lading, was insolvent. The clams were therefore brought against both the registered shipowner and the demise charterers A (hereinafter collectively referred to as the ‘shipowners’). At first instance, the judge held that the bills of lading were charterer’s bills and that (the insolvent) CPS had been the contractual carrier. The Court of Appeal, by a majority, held the bills were shipowner’s bills and that the (solvent) shipowners were the contractual carriers, a decision (p. 469) which entitled the cargo owners to sue them in contract in respect of any recoverable loss. On appeal by the shipowners, and cross-appeal by the cargo owners, the House of Lords allowed the shipowner’s appeal (save in the case of one cargo owner) and dismissed the cargo-owners’ cross-appeal. The House of Lords held that greater weight should attach to the terms of a contract specifically chosen by the parties than to standard printed conditions. Since the bills of lading contained a clear and unambiguous statement on their face that the cargo owner’s contracts were made with CPS as sole carrier, they were charterer’s bills; notwithstanding the contrary indications in the ‘identity of carrier’ clause (33) and the demise clause (35).160
11.71 The Starsin was decided under the expressly chosen English law by English courts who are not traditionally hostile to demise and/or identity of carrier clauses. How such clauses might be treated by a court when conflict-of-laws issues are engaged in the absence of party choice of law, especially where the legal validity of such clauses might be in issue, has been the subject of unresolved debate.161 The problem could arise if there was a difference of approach between the applicable law of the contract and/or the lex fori as to whether such clauses were valid or not. A hostile forum might overrule them on public policy grounds. An otherwise favourable forum might be faced, thanks to a choice of law clause, with a foreign law that regarded them as invalid. How such a question would be resolved is a matter of some interest. In such circumstances, a court is likely to adopt a practical approach. Such clauses can either be treated conclusive as against the shipper in identifying the carrier or they are not conclusive. Even in countries like England which were traditionally sympathetic to such clauses, they can be overridden on the particular facts of the case as The Starsin, shows.
11.72 Although modern communications have lessened the role of a master, there may be cases where the existence of a contract of carriage of goods may depend on the authority of a ship’s master to bind the owner. If that does arise, then the question of whether the Master, as an agent for the owner, is able to bind his principal is excluded from the scope of the Regulation under Article 1(2)(g), and will be decided under the conflict rules of the forum.