로테르담 규칙상 이행보조자로서 ‘이행당사자 (performing party)’에 관한 법적 연구

Article 1(6) of the Rotterdam Rules defines the term ‘performing party’ as a person who performs or undertakes to perform any of the carrier’s responsibilities under a contract of carriage and acts, either directly or indirectly, at the carrier’s request or under the carrier’s supervision or control. This notion is broader than ‘performing carrier’ or ‘actual carrier’ used in previous international conventions in the sense that it includes not only the sub-carrier who performs the actual carriage but also other persons involved in the performance of the carriage such as stevedores or terminal operators. But, the Rotterdam Rules do not impose liability on all performing party. Rather, they provide for liability only for the part of them called ‘maritime performing party’. A maritime performing party is vicariously responsible for the acts and omissions, amounting to a breach of his obligations, of any person to which he has entrusted the performance of any of the carrier’s obligations under the contract of carriage. This is true of performing parties, who are not maritime performing parties. They may perform significant services under a multimodal contract with a sea leg and in respect of whom the carrier is vicariously responsible. However, nonetheless, the Rotterdam Rules do not directly impose any duties upon them. The duties owed by non-maritime performing parties are to be determined by reference to the applicable law and not under the Rotterdam Rules. Although the Rotterdam Rules do not impose obligations on parties who have been styled in the text as secondary actors, they do not provide categories of secondary actors with the benefit of its protective provisions under the legal equivalent of a Himalaya clause. The reason is that because the employees are economically dependent on their employers, their disadvantages are ultimately borne by the employer, the carrier or maritime performing parties in this context. Due to their economic dependency, if we denied the defense and limit of liability for the employees, it would result in, in fact, depriving the carrier or a maritime performing party itself of the defense and limit of liability. Thus, the UNCITRAL Working Group, instead of modifying the definition of ‘performing party’, induced specific reference to employees and gave explicit solutions in each place. Article 19(4) explicitly denies the possibility of direct action against the employees under the Rotterdam Rules, article 18(c) treats the acts or omissions of the employee is attributable to the carrier as if it is its own, and article 4(c) extends the Himalaya protection to the employee.