Differences among Traditional Freight Forwarders, NVOCC and Multimodal Transport Operators

If the goods are lost or damaged in maritime transport, the parties concerned must first determine the subject of liability, otherwise, according to the provisions of Article 257 1 of China's Maritime Law, if the carrier fails to bring a lawsuit within one year from the date of delivery or due delivery of the goods, the carrier or the shipowner shall be exempted from liability. This provision shows that the litigant who sues the wrong object will not only cause unnecessary losses, but also face the risk that the limitation of action may have expired when re-suing. Although Article 72 of Maritime Law stipulates that "the carrier shall issue the bill of lading at the request of the shipper after the goods are received or loaded", it seems that the person who issues the bill of lading is the carrier, but in practice, it is quite difficult to identify the carrier for various reasons. Generally speaking, the signature on the bill of lading has a certain influence on the determination of the carrier of the contract of carriage of goods by sea, which varies with the mode of operation of the ship.

In liner shipping, the liner company accepts the shipper's booking and issues the bill of lading to the shipper after the goods are loaded. At this time, the bill of lading is usually printed with the person in charge of the liner company, the signature on the bill of lading or the captain's signature, or the signature of the liner company agent representing the carrier. In both cases, the carrier should be a liner company. Sometimes, due to the lack of transportation capacity, liner companies will rent ships from other companies to operate liner transportation by means of lease contracts. In this case, the liner company will generally issue a bill of lading with its own company name after accepting the shipper's booking. The signature on the bill of lading can be the captain's signature, or the agent of the liner company representing the carrier, or the agent of the liner company representing the captain.

In the case that the charterer (in the case of time chartering) is not a liner operator, since issuing bills of lading belongs to the scope of ship operation, time chartering contracts usually stipulate that the charterer has the right to request the captain to issue bills of lading for the transported goods or that the charterer himself or his agent directly issues bills of lading on behalf of the captain or shipowner. In practice, charterers often carry other people's goods by voyage charter, and the signature on the bill of lading also has an important influence on identifying the carrier of the transportation contract evidenced by the bill of lading.

In our country's law, the stipulation in Article 72, paragraph 2, of Maritime Code that "the bill of lading is issued by the captain of the carrying ship and is deemed to be issued on behalf of the carrier" is not helpful for the identification of the carrier in non-liner transportation involving time charter parties. At present, the main view of academic circles is that if the charterer carries the goods of a third party, the identification of the carrier needs to be determined according to the relevant provisions of the charter party, the issuer of the bill of lading and the form of issuance. If the bill of lading is issued by the lessee or his agent in the name of the lessee, and there are no other clauses in the bill of lading that contradict the contents, it shall be regarded as the carrier; If there are carrier identification clauses or bareboat clauses in the bill of lading, according to the basic rules of contract interpretation, the handwritten and printed clauses in the bill of lading should be more effective than those printed in the bill of lading, so the lessee should be determined as the carrier according to the signature in the bill of lading. If the bill of lading is issued by the charterer or agent on behalf of the shipowner or the captain of the cargo ship, it shall be deemed that the contract of carriage evidenced by the bill of lading is concluded between the shipowner and the shipper, that is, the shipowner is the carrier. Because if the issuer has been authorized to issue the bill of lading in this way in the time charter party, this authorization can be regarded as the owner entrusting the issuer to conclude the contract of carriage on his behalf. If there is no such provision in the contract, the theory of agency by estoppel applies. Because of the existence of time charter contract, the shipper has reason to believe that the issuer of bill of lading has this authorization, and the behavior of the issuer of bill of lading constitutes an agency by estoppel. However, if the charter party stipulates that the lessee himself or his agent will issue the bill of lading in the name of the lessee, the carrier shall be determined according to whether the shipper knows this provision in the contract. If the shipper does not know this provision, the lessor and the lessee are both carriers; If the shipper knows this provision, the lessee is the carrier.

It can be seen that there are certain standards for the identification of carriers. In the case that it is really impossible to determine who is the carrier, only by suing the shipowner and charterer at the same time can we avoid the risk of the wrong object of prosecution.