Breakthrough in the Relativity of Traditional Contract Subjects: The Case of the International Contract for the Carriage of Goods
DOI:
https://doi.org/10.62051/ijgem.v3n2.54Keywords:
Contract of carriage of goods, The relativity of contract subject, Breakthrough in the relativity of the contractAbstract
The contract of carriage of goods is a typical agreement commonly encountered in both domestic and international trade. Relevant legislation pertaining to this matter can be found dispersed across civil codes, commercial codes, and specialized transport laws in various countries. According to the relativity of traditional contracts, the contracts are only binding on the contracting parties. However, with the development of the economy and the sophistication of the social division of labor, the behavior of goods transportation often involves the interests of third parties other than the contractual counterparts. Hence, the practice has required the breakthrough of the relativity of the contract of carriage of goods. From the views of the subjects, the groups of the shipper, the carrier, and the consignee have emerged. This paper studies the above three subjects, from the perspective of comparative law to recognize the legal phenomenon of the breakthrough in the relativity of the subject of the contract of carriage of goods.
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X.Z. Zheng: Study on the Breach of the Doctrine of Privity of Contract in the Contract relationship of Carriage of Goods by Sea, Dalian Maritime University.
The Guadalajara Convention:
Article 1:
(a) "Warsaw Convention" means the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, or the Warsaw Convention as amended at The Hague, 1955, according to whether the carriage under the agreement referred to in paragraph (b) is governed by the one or by the other;
(b) "contracting carrier" means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or shipper or with a person acting on behalf of the passenger or shipper;
(c) "actual carrier" means a person other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary.
The Hamburg Rules:
Article 1:
(2)"Actual carrier" means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted.
In that case, the defendant airline (the actual carrier) leased seats on a flight to Company T (the charterer who issued the air tickets), which subcontracted a portion of the seats to Travel Agent O. Passenger Ms. H booked a seat on the defendant's flight with Company O. When passenger H boarded the flight, the defendant refused to allow her to board the flight on the grounds that Company T (the charterer) had not paid for the air tickets. The Court of Second Instance held that the air tickets were issued from Company T and not the Defendant, and that the charter contract did not contain any agency clause, so Company T was not an agent of the Defendant, and that the charter contract entered into between Company T and the Defendant was an altruistic contract for the benefit of a third party, the traveler. altruistic contract for the benefit of a third party - the passenger. The charter contract did not expressly give passenger H a direct performance claim against the defendant, and it was left to the judge's direct discretion for Ms. H to obtain such a direct performance claim in relation to the purpose of the charter contract, in accordance with section 328, paragraph 2, of the German Civil Code (BGB).
J.L Du, C. Lu: General Theory of German Debt Law (Law Press, China 2004), p. 584.
Maritime Law of the People's Republic of China:
Article 42:
(2) "Actual carrier" means the person to whom the performance of carriage of goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted under a sub-contract
Article 61:
The provisions with respect to the responsibility of the carrier contained in this Chapter shall be applicable to the actual carrier. Where an action is brought against the servant or agent of the actual carrier, the provisions contained in paragraph 2 of Article 58 and paragraph 2 of Article 59 of this law shall apply.
Civil Aviation Law of the People's Republic of China:
Article 140:
The claims for damages or instructions issued in conformity with provisions of this chapter, whether they are issued to the signatory or actual carrier, have equal effect. But the instructions specified in Article 119 are effective only when they are issued to the signatory carrier.
Article 143:
A legal action over the shipment performed by an actual carrier according to contract can be taken either against the actual carrier or the signatory carrier, or against them both at the same time. The indicted carrier has the right to ask the other carrier to jointly respond to the suit.
T.S Li, "Dualism and Integration of Rights and Responsibilities in the Carriage of Goods by Sea: From the Himalaya Clause to the Maritime Performing Party Regime", Journal of Xiangtan University (Philosophy and Social Science Edition), Vol. 6 (2012), p. 45.
The Rotterdam Rules:
Article 1:
(8) “Shipper” means a person that enters into a contract of carriage with a carrier.
(9) “Documentary shipper” means a person, other than the shipper, that accepts to be named as “shipper” in the transport document or electronic transport record.
D.Y Ma: Study on Seller's Risk under FOB Conditions--Taking Shipper's System as a Perspective, Law and Business Research, (2008) No.4, p. 104.
The Rotterdam Rules:
Article 33:
A documentary shipper is subject to the obligations and liabilities imposed on the shipper pursuant to this chapter and pursuant to article 55, and is entitled to the shipper’s rights and defences provided by this chapter and by chapter 13.
Paragraph 1 of this article does not affect the obligations, liabilities, rights or defences of the shipper.
D.Y Ma: Functional Alienation of the Bill of Lading as Proof of the Contract for the Carriage of Goods by Sea, Contemporary Law, (2005) No.4, p. 110.
H.B Xing: Relators in the Contract for the Carriage of Goods by Sea, Jurist, (2002) No. 3, p. 53.
H.B Xing: The Law of Maritime Bills of Lading (Law Press, China 1999), p. 475.
L.X He: Research on the Legal Problems of Non-Documentary Release of Goods (Law Press, China 2006), p. 56.
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