− 承运人和雇主应为其受雇人承担间接赔偿责任；
- Carriers and employers should be vicariously liable for their employees; and
− 所谓的“喜玛拉雅条款”保护应当以对雇主适用的同样方式适用于受雇人，而且其适用不应受到契约关系不涉及第三方的原则的限制。
- The protection of the so-called “Himalaya clause” should apply to employees in the same way that it applied to employers and not be limited in operation by the principle of privity of contract.
关于排除铁路承运人的建议
Proposal to exclude rail carriers
132. 有与会者提醒工作组注意其关于将内陆承运人排除在公约草案中之外的政策性决定。
The Working Group was reminded of its policy decision to exclude inland carriers from the draft convention.
133. A/CN.9/WG.III/WP.84所载的一项建议提出，铁路承运人即使在港口内履行了服务，也应排除在“海运履约方”的定义之外。
As set out in A/CN.9/WG.III/WP.84, a proposal was made that rail carriers, even if performing services within a port, should be excluded from the definition of “maritime performing party.” To that end, it was suggested that the following sentence be added at the end of draft article 1, paragraph 7 (the definition of “maritime performing party”): “A rail carrier, even if it performs services that are the carrier's responsibilities after arrival of the goods at the port of loading or prior to the departure of the goods from the port of discharge, is a non-maritime performing party.”
为此，有与会者认为，应在第1条第7款（“海运履约方”定义）的末尾增加下列一句：“铁路承运人在货物抵达装货港之后或在货物离开卸货港之前即使履行了属于承运人责任的服务，也仍是非海运履约方。
As set out in A/CN.9/WG.III/WP.84, a proposal was made that rail carriers, even if performing services within a port, should be excluded from the definition of “maritime performing party.” To that end, it was suggested that the following sentence be added at the end of draft article 1, paragraph 7 (the definition of “maritime performing party”): “A rail carrier, even if it performs services that are the carrier's responsibilities after arrival of the goods at the port of loading or prior to the departure of the goods from the port of discharge, is a non-maritime performing party.”
”
As set out in A/CN.9/WG.III/WP.84, a proposal was made that rail carriers, even if performing services within a port, should be excluded from the definition of “maritime performing party.” To that end, it was suggested that the following sentence be added at the end of draft article 1, paragraph 7 (the definition of “maritime performing party”): “A rail carrier, even if it performs services that are the carrier's responsibilities after arrival of the goods at the port of loading or prior to the departure of the goods from the port of discharge, is a non-maritime performing party.”
134. 为支持这一建议，有与会者指出，虽然从在港口区内为运输而收货或交货这一点来说，铁路承运人可能与其他内陆承运人有些相似，但他们仍与其他内陆承运人有很大差别，因为铁路承运人服务的最终目的基本上完全是为了将货物远距离运入或运出港口，而不仅是在港口内将货物从一个地方运到另一个地方。
In support of the proposal, it was suggested that such an exemption was warranted given the practical reality that although rail carriers might be somewhat similar to other inland carriers in that they collected cargo or delivered it for carriage within a port area, rail carriers differed dramatically from other inland carriers in that the ultimate purpose of their services was virtually exclusively to move goods great distances into or out of a port, and not simply to move goods from one place to another within a port.
鉴于这一实际情况，将铁路承运人排除在海运履约方之外是有道理的。
In support of the proposal, it was suggested that such an exemption was warranted given the practical reality that although rail carriers might be somewhat similar to other inland carriers in that they collected cargo or delivered it for carriage within a port area, rail carriers differed dramatically from other inland carriers in that the ultimate purpose of their services was virtually exclusively to move goods great distances into or out of a port, and not simply to move goods from one place to another within a port.
135. 有与会者问是否有必要作出特定的排除，因为公约草案的现有案文明确指出，此类内陆承运人几乎总是归为内陆承运人一类，而并未包含在海运履约方的定义中，因此不属于公约草案的范围。
It was questioned whether a specific exemption was necessary given that the existing text of the draft convention made it clear that such inland carriers were almost invariably classified as such and not covered by the definition of maritime performing party, thus falling outside of the scope of the draft convention.
对此，有与会者指出，如果不作明文规定，法院就需要进行逐案分析，以确定铁路承运人是否包含在该定义之内。
In response, it was said that without an express provision, courts would be required to undertake an analysis on a case-by-case basis to determine if a rail carrier was covered by the definition or not.
据指出，明文排除会使问题显得清晰，并会减少有关这一问题的官司。
It was said that an express exemption provided clarity and would reduce litigation on that question.
136. 有与会者提出，尚未充分审议一概排除会对铁路承运人产生的后果。
Concern was expressed that the consequences of a blanket exemption for rail carriers had not been fully considered.
所提出的一个问题是，各种承运人都会接二连三地寻求用同样办法被排除在公约草案的适用范围之外。
One issue raised was the problem that a catalogue of carriers of various types might seek to be similarly exempted from the scope of application of the draft convention.
另外，有与会者认为，比一概排除更可取的方法是在案文中更加明确地规定，在既未考虑也未实际采用海洋运输的情况下，公约草案不适用，因为据认为，货代人应当被赋予以其认为适当的方式履行运输合同的灵活性，包括使用最佳运输方式的权利。
In addition, a view was expressed that a preferable approach to a blanket exemption might be to provide more clearly in the text that the draft convention did not apply if maritime transport was neither contemplated nor actually performed, since it was suggested that freight forwarders needed the flexibility to perform contracts of carriage in the manner they saw fit, including the right to use the optimal modes of transport.
137. 此外，有与会者询问这种排除是否应当仅限于铁路承运人。
Further, it was questioned why such an exemption should be limited to rail carriers.
有与会者赞成下述观点：即拟议的排除还应扩大到公路承运人（如A/CN.9/WG.III/WP.90中的建议），并在可能情况下扩大到内陆驳船。
Some support was expressed for the view that the proposed exemption should also extend to road carriers (as suggested in A/CN.9/WG.III/WP.90) and possibly to inland barges.
在这方面，有与会者指出，货车运输业者与铁路承运人不同，可能会履行纯粹的内陆运输，以及完全属于港口区以内的服务，因此对于公路运输的任何排除在措词上应与对铁路运输的排除有所不同。
In that respect it was said that, unlike rail carriers, truckers might perform purely inland carriage as well as services that were exclusively within the port area, and that therefore any exemption for road carriage might need to be formulated in different terms than that which applied to rail carriage.
有与会者认为，既排除公路承运人又排除铁路承运人的措词可能过于宽泛，以致将完全在港口区提供服务并应被视为“海运履约方”的货车运输业者也排除在外。
It was suggested that an exemption for both road and rail carriers might be drafted too broadly and thus exempt truckers who exclusively provided services in the port area and should be treated as “maritime performing parties”.
有一种建议是对该问题采取更加细致的方法，拟定内容大致如下的排除条文：“铁路承运人或公路承运人只有完全在港口区内履行或承诺履行服务的情况下，才是海运履约方”。
One suggestion to allow for a more nuanced approach to the problem was an exemption drafted along the following lines: “a rail carrier or road carrier is a maritime performing party only when it performs or undertakes to perform its services exclusively within the port area”.
该建议获得了一定的支持。
That proposal received some support.
工作组就第6和第7款草案达成的结论
Conclusions reached by the Working Group regarding draft paragraphs 6 and 7
138. 经讨论后，工作组决定推迟就“履约方”和“海运履约方”的定义作出决定，直至根据工作组内所提建议对重新拟定的条文进行审查后再予作出，这些条文包括可能将铁路承运人以及在可能情况下将其他内陆承运人排除在海运履约方的定义之外。
After discussion, the Working Group decided to postpone its decision on the definitions of “performing party” and “maritime performing party” pending an examination of redrafted provisions, including a possible exemption for rail and possibly other inland carriers from the definition of maritime performing party, taking into account the proposals made in the Working Group.
第8款 - “非海运履约方”
Paragraph 8 - “non-maritime performing party”