Article by Chester D. Hooper
In the eyes of the law, the terminal is the chameleon of the maritime industry. The law treats the terminal at various times, and occasionally at the same time, as an ocean carrier, an Interstate Commerce Commission (ICC) common carrier, a warehouse, a common-law bailee, an agent of an ocean carrier, an agent of an ICC common carrier, an agent of a cargo shipper, and an agent of a cargo consignee.
This Article will search for methods to minimize the differences in the liability standards between the terminal in its various roles and other participants in the transportation industry. If the entire multimodal system is to operate under one set of laws, the terminal's liability standard should not change with the particular role it is performing at any given moment; rather, it should be as close as possible to the standards of other participants in the contract of carriage. All parties to the multimodal system should be entitled to contract to carry cargo under one contract governed by one set of laws. The uniformity and predictability that would flow from such a system would encourage quicker settlements and more efficient insurance placement.
A recent article by participants of the UNCITRAL Working Group on International Contract stressed the need ‘MMo promote world-wide uniformity of law governing terminal operators' liability in order to facilitate international trade.”’ In an effort to obtain international uniformity, UNCITRAL is drafting an international convention for terminals. It can be strongly argued, however, that a separate convention for terminals would unduly complicate the situation.
Before we decide to establish uniformity, we should ask: “In relation to what does terminal liability need uniformity?” Two possibilities come to mind: (1) uniformity in relation to other terminals and (2) uniformity in relation to other modes of transportation. Uniformity in relation to other modes of transportation, particularly in relation to other modes participating in the single contract of carriage, is the more important aspect and is probably more easily achieved. A large step toward this uniformity can be achieved via a route far simpler than a convention. It can be obtained through the use of a Himalaya clause, or better still, through court approval of the doctrine that a sub-bailee is entitled to all the protection of the bailment contract between the bailor and the original bailee.
First, it may be useful to trace these theories through the various roles into which terminals have been cast. I will begin with the terminal's role as agent for an ocean carrier and then progress through the other more recent roles performed by terminals. While taking this journey, two legal approaches should be kept in mind. One urges unification, reasoning that all participants in the performance of a contract of carriage should be protected by the terms and conditions of that contract. The other and opposing approach urges separate liability standards. It reasons that an agent is liable in common law for its own negligence and would enforce this liability unless specific language in the contract of carriage extends the protection of the contract to the agent. The terminal's role as agent for an ocean carrier provides a basis for analyzing the first approach.
About the Author
Chester D. Hooper. Member, Haight, Gardner, Poor & Havens, New York, New York; B.A. 1963, Hobart College; J.D. 1970, Albany Law School at Union University.
Citation
64 Tul. L. Rev. 595 (1989)