2. General comments on the shipbroker´s responsibility as an intermediary towards the instructing party
The shipbroker is an intermediary: his role is to bring parties together, typically concluding with a contract of transport or a sale of a vessel. We shall here limit ourselves to the shipbroker`s obligations where the instruction is to sell a fishing vessel, together with its fishing quota. In basic terms, this is a question regarding the extent of the shipbroker`s liability under the relevant contract, but it also raises the question of his employee’s liability.
The shipowner, wishing to sell his vessel, may market the vessel’s sale himself. In this context, the persons employed by him (i.e. his staff) are included in such marketing activity, and their acts are in most respects considered as being his own –as regards both liability under the brokerage contract and also liability towards a third party. The shipowner may also seek assistance from “independent contractors” (ad hoc assistance), and here we encounter the question of whether there are special rules on liability in damages, arising from the performance of a specified task. The answer is generally that it depends upon the individual contract. However, if the “independent contractor” is a “shipbroker”, rather than the owner of the vessel, do the rules then vary?
The contrast with real property is relevant here: for real property, we have detailed regulation of the intermediary`s position contained in the Act on Brokerage (Act 73/2007). This Act defines brokerage and the requirements for acting as a broker, and, most importantly, the manner in which the broker must perform the contracted task. However, there is no equivalent formal regulation for shipbrokers, with instead the rule being that the relationship depends upon the individual contract, supplemented and adjusted on the basis of general principles of contract law. In addition, we have ethical rules that are determined by the Norwegian Shipbrokers Association. Section 2 of these rules defines the broker´s undertaking:
“The role of the shipbroker is, by means of ethical activities, to contribute to the optimal profitability of his principals through promotion of the principal’s needs, services and products. It is also to assist the principal in contract negotiations and assist him while fulfilling the contract.”