If a claimant’s claim is in contract, then the appropriate defendant is simply the claimant’s contractual counterparty. The difficulty here, however, is that it is sometimes difficult to identify precisely who that contractual counterparty is. Part of the problem lies in the way ships are used, the way they are chartered and sub- chartered down several layers of charterparties. Another part of the problem and a part of the solution lies in the way bills of lading are signed and by whom.
Is this a problem?
Of course, it may seem strange to present this as a problem: surely having more than one possible defendant is a bonus, not a problem. Moreover, the decision is and should be a commercial, tactical one, rather than a purely legal one. The claimant would be well advised to claim against the defendant with the deepest pocket, with assets in the friendliest, most accessible and most litigation efficient jurisdiction. While all of these factors no doubt play a part in every claimant’s choice of defendant, it is still important to get the choice right in terms of law. Getting it wrong, pursuing a defendant who then successfully points elsewhere not only involves unnecessary cost, but also runs the risk of allowing a time bar to lapse vis- à-vis the proper defendant. The claimant’s objective is to establish that the defendant against whom it wishes to claim (for all the tactical reasons indicated earlier on) is the defendant against whom it can, as a matter of law, bring a claim.
Where the Claimant Is a Charterer
Where the claimant in a cargo claim is a charterer, then its carrier is the party from whom it chartered the ship.
Where the Claimant Is not a Charterer
Where the claimant is not a charterer, then the identity of its carrier will depend on the logo or banner heading of the bill of lading covering the goods and on the manner in which the bill of lading is signed. The latter factor has been particularly significant in providing relatively quick answers to most “identity of the carrier” questions. The main identifier, then, in discovering whom the claimant can pursue in a cargo claim is the signature at the foot of the bill of lading, assisted by the banner logo at the top of the bill of lading.
Claiming against the “Actual” Carrier
If a tort or breach can be proven to have been committed by the Actual carrier, then claims can be made against the Actual Carrier.
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