黄海波

When goods are shipped on a chartered vessel by a party other than the charterer, the primary problem facing the shipper or the aggrieved cargo owner in the event of the carg being lost or damaged during transit is that he has to identify the correct carrier against whom the cargo claim can be pursued since the normal rule in common law is that only one party, either the shipowner or charterer, is liable as carrier under any individual carriage contract.[1] The problem is even more serious where the contract is governed by the Hague/Visby Rules under which any cargo claim is barred if it is not instituted within one year of the cargo’s delivery or of the date when the cargo should have been delivered.[2]

In normal circumstances the shipowner would be regarded as the carrier since, notwithstanding the existence of any charterparty, he remains responsible for the management of the ship and the master signs any bills as his agent.[3] Even in the situation where the charterer is apparently a party to the bill of lading contract, he may still transfer contractual liability to the shipowner. One method of achieving this object is to include a demise or identity of carrier clause in the bill of lading. The demise clause stipulates that if the ship is not owned or chartered by demise to the company issuing the bill, then the contract evidenced by the bill is solely with the owner or demise charterer, and that the party issuing the bill of lading (usually the time or voyage charterer) is merely an agent and has no personal liability whatsoever in respect of the contract. The identity of carrier clause, although more direct, has the same effect. It declares that, under the contract evidenced by the bill, the carrier is the shipowner and the time or voyage charterer who issues the bill is only the agent, with no liability.[4]

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