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CARRIAGE OF GOODS BY SEA CONTRACT UNDER QATARI MARITIME
LAW: A COMPARATIVE STUDY OF THE SCOPE OF APPLICATION,
CARRIER’S OBLIGATIONS AND LIABILITIES
A DISSERTATION
SUBMITTED ON THE THIRTEENTH OF NOVEMBER 2016
TO THE SCHOOL OF LAW
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
OF THE GRADUATE SCHOOL
OF TULANE UNIVERSITY
FOR THE DEGREE
OF
DOCTOR OF JURIDICAL SCIENCE
BY
MUNA AL-MARZOUQI
© Copyright by Muna Al-Marzouqi, 2016
All Rights Reserved
i
ABSTRACT
The Qatari Maritime Law No. 15 was enacted in 1980. Since then, no amendment has
been made to it. It is recommended that this law be revisited in view of the developments
that have taken place in the maritime industry. At the national level, the Qatari maritime
sector has undergone substantial changes. More importantly, the introduction of a new
International Convention on Carriage of Goods Wholly or Partially by Sea (“The
Rotterdam Rules”) in 2008 is a second reason for revisiting the Qatari Maritime Law.
This is because, such a convention reflects recent advancements in the international
shipping industry. This dissertation compares the Qatari Maritime Law provisions of the
contract of the carriage of goods by sea to those of international seaborne carriage
conventions namely the Hague Rules, the Hamburg Rules, and the Rotterdam Rules.
Where relevant, the perspectives of the U.S. and the U.K. will also be examined.
There are four major topics analyzed within this dissertation: 1) background information
about the State of Qatar in order to set the context, 2) the scope of the application of the
rules involved in the comparison, 3) the carrier’s obligations, and 4) liabilities. The main
objective of the dissertation is to examine how the Qatari maritime law should be
developed in light of the international conventions on carriage of goods by sea. The
investigation ends by making some recommendations to the Qatari legislature on how to
reform the Qatari Maritime Law so that it is sufficiently robust to cope with modern
maritime practice.
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ACKNOWLEDGEMENTS
I would like to express my utmost gratitude to Allah for granting me the ability to
complete this work.
I feel sincerely grateful and deeply indebted to:
My supervisor, Prof. Martin Davies, for his profound insights and valuable suggestions.
My family for their continuous support. I would never have been able to work hard
without their phenomenal assistance.
Qatar University’s College of Law’s Faculty Members, headed by Dr. Mohammed Al-
Khulaifi, for their guidance on various academic and legal issues related to the
dissertation.
Dr. Mohammed Samer Ashour for his invaluable cooperation and support.
Qatar University for giving me the opportunity to pursue graduate studies and serve my
country.
Last but not least, I would like to convey my thanks to the governmental bodies
and other entities in Qatar for the information obtained from them, which significantly
assist in understanding the maritime sector in the State of Qatar.
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TABLE OF CONTENTS
ABSTRACT………………………………………………………………………………i
ACKNOWLEDGEMENTS……………………...…...…………….…………………...ii
INTRODUCTION………………………………………………………………….……1
PART I: BACKGROUND INFORMATION ABOUT THE STATE OF
QATAR………………………………………………………………………….………10
A. Historical Overview: From Pearl Diving to Oil Drilling…………………...….……10
B. The Economy of Qatar:………………………………..………………………..……12
1. The Hosting of the 2022 FIFA WORLD CUP……………………………….….13
2. Qatar National Vision of 2030 ……………………………….……....…….……14
3. Doing Business in the Digital Era: Employment of Digital Methods in
Commerce…………………………………………………………………......…17
4. Legal Amendments that Serve the Economic Sector………………….......……..20
C. The Growth of the Transport Sector………………..……………….………...……..21
D. The Development of the Maritime Sector…………………………………...………26
1. The Development of Seaports………………………………….….……………..27
a. The Al Ruwais Port…………………………….…………..………..……….27
b. The Mesaieed Port……………………………………………....……..…….28
c. The Ras Laffan Port……………………………………………...……..……28
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d. The Halul Island Port…………………………………………….….…....….29
e. The Doha Port………………………………………………………....……..29
f. The New Hamad Port……………………………………………..….....……30
2. Other Achievements in the Maritime Sector ………………………..…......……35
a. The Single Window System…………………………………………………35
b. Customs Clearance…………………………………….…………………….36
c. Ship Repair Drydocks……………………………………………..…………37
Conclusion…………………………………………………………..……….38
PART II: THE SCOPE OF APPLICATION OF THE RULES.……………………40
A. The Definition of the Contract of the Carriage of Goods by Sea…………..……..…40
1. General Overview of the Definition ………………………….…………………42
2. Parties to the Contract ………………………………...…………………………43
3. Geographic Scope…………………………………………………..……………46
4. Obligations of the Carrier in General ………………………………..…………..47
5. Mode of Transport ………………………………………………………………48
Conclusion and Recommendation…………………………………….…………………49
B. The Documentary Scope of the Rules …………………………....…………………51
1. The Role of the BOL in Forming the Contract of Carriage…………..….………52
a. The Definition of the BOL………………………………………...…………54
b. Types of the BOL ………………………………………...………………….58
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i. Shipped and Received for Shipment BOL…………………………..……59
ii. Charterparty BOL…………………………………………………………61
iii. Direct or Through BOL………………………………………...…………62
c. BOL Particulars …………………………………………..…………………64
d. Evidentiary Effect ……………………………………..……………….……69
e. The Absence of Some BOL Particulars …………….………………….……73
f. Reservation to the BOL Particulars …………………………………………71
Conclusion and Recommendation…………………………………………..……..…….88
2. Other Documents Evidencing the Contract of Carriage …………………...……98
Conclusion and Recommendation……………………………………………………...105
3. The Recognition of e-BOL and e-transport Documents……....……….….……108
Conclusion and Recommendation……………………………………..……………….117
PART III: CARRIER’S OBLIGATIONS…………………….….………….………122
A. Exercising Due Diligence in Providing a Seaworthy Vessel…………………….…123
1. Articulation of the Obligation …………………………………...…………..…126
2. Cargoworthiness…………………………………………….……….…………127
3. The Nature of the Obligation…………………………………………..….……129
4. When to Exercise the Obligation? ………………………………..……………132
5. The Theory of Stages……………………………………………………...……134
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Conclusion and Recommendation……………………………………………...………138
B. Load, Stow, Handle, Discharge, Keep, and Care for the Goods Carried.…………..142
1. The Common Features of the Obligations to Load, Stow, Handle, Discharge,
Keep, and Care for, the Cargo. ……………………………………...…………145
a. Articulation of the Obligations …………………………………….………145
b. Standards Involved in Exercising the Obligations…………….……………148
2. Special Issues Related to the Obligations to Load and Discharge……...………149
3. Special Features of the Obligations to Keep, and Care for, the Cargo…………159
Conclusion and Recommendation……………………………………...………………160
C. Delivering the Goods ………………………………………………………………164
1. Articulation of the Obligation ……………………………………….…………167
2. Timely Delivery…………………………………………………………...……169
3. Proper Delivery ………………………………………………...………………171
4. Special Practical Problems Associated with Delivery …………………………174
a. Where Multiple BOL Holders Claim Delivery of the Goods …………...…176
b. Delivery when Surrender of the Negotiable Document or Record is not
Required.........................................................................................................177
c. Goods Become Undeliverable ……………………………..………………181
d. When no Document or Record is Issued……………………………………185
Conclusion and Recommendation…………………………………………...…………185
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PART IV: CARRIER’S LIABILITY ……………………………………….………191
A. The Nature and Bases of the Carrier’s Liability……………………………………192
Conclusion and Recommendation…………………………………...………………199
B. When Does the Liability of the Carrier Arise? ……………………….……………200
Conclusion and Recommendation………………………………………...…………206
C. Exceptions to Liability………………………………………………………...……209
1. The Fire Exception……………………………………………………...………211
2. Error in Navigation………………………………………………………..……214
3. New and Modified Exceptions of the RR………………………………………215
Conclusion and Recommendation…………………………………………...…………217
D. Clear Exclusions from the Liability Regime……………………………….………221
1. Deck Cargo……………………………………………………………..………222
Conclusion and Recommendation……………………………...………………………227
2. Live Animals ……………………………………...……………………………230
Conclusion and Recommendation……………………………………...………………233
3. Other Circumstances……………………………………………………………234
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E. Period of Responsibility ……………………………………………….…….……236
Conclusion and Recommendation………………………………………..…………….240
CONCLUSION………………………………………………………………..………248
APPENDICES……………………………………………………..……….….………253
Appendix 1: Statistics on the Amount of Tonnage Delivered to the Doha Port Between
2010 and November 2015……………………………………………..….….…….……253
Appendix 2: Statistics on the Number of Containers Received by the Doha Port between
2010 to November 2015…………………………………..………………………….…253
Appendix 3: Table of Articles……………………………………………………...….254
Appendix 4: Decree Law on the Promulgation of the Electronic Commerce and
Transactions Law No. 16 of 2010 ………………………………….…………………..291
BIBLIOGRAPHY………………………………………………………….…….……302
1
INTRODUCTION
It is difficult to imagine how international trade could operate without the carriage
of goods by sea. That maritime transportation of goods has a significant role
internationally is certainly beyond dispute. It facilitates and ensures the movement of
goods, especially those of large bulk, weight, quantity; and it does this efficiently and at
low cost compared to other modes of transportation.1 The vast majority of global
merchandise trade is transported through seaborne carriage.2
The world witnessed major developments in the maritime industry recently. High-
tech telecommunication devices, the advancement of engineering, shipping in containers,
and the sheer volume of international trade are among the new factors positively affecting
the shipping industry. However, these prompted a need for their regulation.
Reconsidering the allocation of risks between the parties is a significant factor in
revising the carriage of goods by sea regimes. Sea carriage, by its nature, has some
degree of risks, which is borne by both parties to a carriage of goods by sea contract: the
carrier and the shipper. A successful regime concerning the carriage of goods by sea
should balance the interests of both of those parties. In an effort to regulate seaborne
carriage internationally, and to address the main disputes, which arise from these
transactions, the international community adopted three conventions between 1924 and
2008. These conventions are: The International Convention for the Unification of Certain
1 Global Shipping: a Dynamic Market, World Ocean Review, http://worldoceanreview.com/en/wor-
1/transport/global-shipping/ (last visited Nov. 8, 2016).
2 Id.
2
Rules of law Relating to Bills of Lading of 1924 (“the Hague Rules”) and its two
amendments of 1968 and 1979 (“the Visby Amendments and the SDR amendment”), The
International Convention on Carriage of Good by Sea of 1978 (“the Hamburg Rules”),
and The International Convention on Contracts for the International Carriage of Goods
Wholly or Partly by Sea of 2008 (“the Rotterdam Rules, hereinafter the RR”). The
international community encourages states to adopt uniform maritime sea carriage
regimes to simplify exchanges of goods internationally, and to have more predictable
contractual relationships, rights, and duties amongst the parties to the contract of carriage
of goods by sea.
The State of Qatar is investing billions of dollars to improve its transport
infrastructure and develop its cargo handling operations.3 Qatar is a major oil and gas
exporter to the world. Despite this, it imports most other types of manufactured goods
and raw materials from different states such as livestock, stones for infrastructure
projects, grains, vegetables, fruits and so forth.4 Qatar is considered a shipper state and
not a carrier state as it exports oil, gas, and other petroleum products while importing
different types of goods from other countries.5
3 Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, Oxford Business Group
(2015) http://www.oxfordbusinessgroup.com/overview/upgrades-qatars-transport-infrastructure-kick.
4 Qatar’s Import Classified by Commodity,
http://www.mdps.gov.qa/en/statistics/Statistical%20Releases/Economic/ForeignTrade/2016/Q2/Importd_b
y_Commodity(HS)Q2-2016.pdf (last visited Nov. 1, 2016).
5 Facts and Statistics on the Sources of Wealth in Qatar, BBC
http://www.bbc.com/arabic/business/2013/06/130626_qatar_gaz_oil (last visited Nov. 9, 2016) (translated
from Arabic); see also Qatar's Government Works Towards Economic Diversification, Oxford Business
Group (2015)http://www.oxfordbusinessgroup.com/overview/broader-base-government-making-efforts-
diversify-economy.
3
The booming economy and the dynamic shipping market of Qatar highlight the
latest issues affecting the development of cargo shipping. The achievements of the State
of Qatar in the transport, business, and maritime sectors as well as the National Vision of
Qatar for 2030 are substantially shaping the future of the country in the sea transport
field. Therefore, it is of crucial importance that the carriage of goods by sea provisions
articulated in the Qatari Maritime Law No. 15 of 1980 (“the QML”) be examined to see
whether the law adequately addresses the development of maritime practice and the
shipping industry at both national and international levels. It has to be borne in mind that
since the adoption of the QML in 1980, the international shipping industry has witnessed
several changes especially with the advent of container vessels and multimodal carriage.
Because of the development of the maritime industry worldwide, the RR were adopted to
modernize the previous international conventions (i.e. the Hague-Visby and the Hamburg
Rules) and regulate the latest practices of the maritime shipping industry.
Hence, the principal research question of the dissertation is: How the QML
compares to, and might be made harmonious with international conventions on the
carriage of goods by sea namely the Hague-Visby Rules, the Hamburg Rules, and the
RR? In order to answer this broad question, more specific questions must be addressed.
These are:
Is the QML outdated?;
If so, what trend should Qatar adopt to reform the law?; and
Why is the suggested trend significant to Qatar?
The qualitative research method is used to address these questions. A descriptive
methodology is used to describe and clarify the QML, mainly (but not limited to) articles
4
143 to 167 of the QML, based on an analytical approach of the authoritative legal
references from the Middle East and other jurisdictions. The dissertation then undertakes
a thorough literature review and establishes the context for the comparative study. These
entail the bringing into focus the differences and similarities between the QML and the
international conventions on carriage of goods by sea; and in some particular parts the
approaches adopted in the U.S. and the U.K.. The QML is read in the context of
international carriage of goods by sea conventions. A proposal for revisiting the QML
will be outlined after every section in this dissertation. The questions this dissertation is
addressing are based on the interest of Qatar and what would serve its current and future
shipping industry.
Methods of qualitative research (desk-based) have been employed to collect
information related to the topic. These were essentially library research and internet
searches. As textbooks and journal articles on the QML are in short supply, this
dissertation has been written and explained according to other countries’ laws particularly
the Gulf Corporation Council Countries and Middle Eastern countries such as Egypt,
Lebanon, Iraq and Jordan. It is worth noting that these countries share a similar maritime
law and system (i.e. a civil law jurisdiction). In addition, a few judicial decisions of the
Qatari courts were collected to analyze the trend of the judicial body adjudicating cargo
loss claims. General information about Qatar were collected from various sources such
as:
Records and statistics from the Qatar Ports Management Company (“QPMC”);
5
Interviews with legal experts and employees working in the field of maritime
shipping; and
Newspaper articles to support the first part of this dissertation on the background to
Qatar. These articles were used to analyze the current status and the future of the
maritime, economic and transport sectors of Qatar; and based on the findings, to make
recommendations to the legislature. As some of the articles refer to figures and
statistics from studies and reports conducted in Qatar, they further support the views
provided.
There are particular reasons for selecting Qatar, the U.S. and the U.K. to conduct
the comparison. Being a Qatari citizen and caring about the development of the country,
the main law to be discussed in this dissertation is Qatari laws (in the context of the
carriage of goods by sea).
The U.S. and the U.K. were historically significant carriers. When steam-powered
vessels replaced sailing vessels in the eighteenth century, British vessels became the
dominant carriers of transatlantic cargo. Since shippers were increasingly shipping goods
by sea to the colonies, the problem of allocation of risks between shippers and carriers
arose and had to be addressed internationally. The U.S. and the U.K. took a prominent
step in developing a fair risk allocation theory. However, the conflict between American
and British courts regarding risk allocation motivated the international efforts to
standardize and regulate the matter.
To solve the disputed risk allocation between carriers and shippers, the U.S. and
the U.K. tried to contractually modify the terms of the carriage of goods by sea contract.
6
However, their views were sharply divergent. While British courts upheld the carrier’s
exoneration from liability clause in the contract, the United States courts refused to do so,
holding that such an approach contradicted public policy. At the end of the nineteenth
century, the United States took the lead in the movement to regulate the law for ocean
carriage. Thus, in order to protect the interests of shippers, the U.S. Congress enacted the
Harter Act of 1893.
It is prudent to analyze how the historical and contemporary laws of these two
leading states operate in the field of maritime law, since the battle of the allocation of
risks between carriers and shippers was first brokered between the U.S. and the U.K.
before the adoption of the Hague Rules of 1924. The latter was adopted after the first
attempt of the U.S. to legislate on the carriage of goods by sea contract as embodied in
the Harter Act. It is worth noting that the U.S. and the U.K. have distinct trends regarding
their legal framework on the carriage of goods by sea. The Hague-Visby Rules apply in
the U.K. by virtue of the Carriage of Goods by Sea Act 1971 and its 1994 amendments
(“the U.K. COGSA”). Whereas, the U.S. has adopted only the Hague Rules and applies
them through the Carriage of Goods by Sea Act of 1936, 46 U.S.C. §30701 (“the U.S.
COGSA”). Qatar, ratified none of the international conventions pertaining to seaborne
carriage. The different approaches of the U.S. and the U.K. will hopefully produce a
fruitful comparison.
The dissertation’s investigatory focus will specifically be on the scope of the QML
and international conventions (“the Rules”) and the obligations and liabilities of the
carrier. Such a focus is of practical significance as most cargo loss claims resulted from
disputes arising from carriage of goods by sea. A new carriage of goods by sea regulatory
7
work, which this dissertation is trying to seek in light of international practice and
national developments, should play a vital role in reducing cargo claims as well as
boosting the economy and the maritime sector. The maritime sector should be supported
by legal certainty as embodied in an updated set of rules. Economic expansion and the
export and import trade are heavily dependent on a modern maritime carriage of goods.6
Thus, a sound and modernized legal framework that addresses new issues which arise in
the shipping industry is of utmost importance.
To the best of the author’s knowledge, the dissertation topic has never been
explored before. Hence it is innovative. Notwithstanding the wealth of literature on
comparative studies of the international conventions on seaborne carriage, there is an
apparent lack in references dealing with the sea leg carriage of goods under the QML.
Thus, this dissertation is potentially the first comparative study analyzing the QML
provisions on the contract of the carriage of goods by sea. There are, to date, no
textbooks or journal articles specifically written about the Qatari Maritime Law. There is
nevertheless a book that describes the maritime laws of the Gulf Corporation Council
Countries (“GCC”)7 in general. There is also a brief article on the carrier period of
responsibility under the QML published in an Arabic journal.8 Therefore, many important
6 RICHARD PRICE & ANDREAS HABERBECK, THE MARITIME LAWS OF THE ARABIAN GULF
COOPERATION COUNCIL STATES 1-2 (1989).
7 See generally id. The Gulf Corporation Council is a regional organization whose membership consists of
six states. These are the States of Qatar, Bahrain, Saudi Arabia, Oman, United Arab Emirates, and Kuwait.
8 Hashim R. Al-Jazairy, The Period of the Maritime Carrier’s Liability under the Qatari Law, 1 Arab L.Q.
430 (1985-1986).
8
aspects of this dissertation have been crafted with heavy reliance being placed on the
existing literature especially those related to international conventions.
Since this dissertation will be the first of its kind to deal mainly with the Qatari
Maritime Law, it will serve as the starting point for advanced educational practice.
Topics covered in this dissertation will be taught at Qatar University’s College of Law. It
will also be used as a reference when writing legal manuscripts and textbooks about the
QML. More importantly, the recommendations made in this dissertation are addressing
issues of national concerns. Thus, legislatures and policy makers would be made aware of
the findings and suggestions.
Maritime law, in general, is a set of legal rules that regulate maritime commerce.9
It encompasses rules pertaining to administrative law, criminal law, public international
law, and commercial law for transactions that occur at sea or the subject matter of which
relates to the sea. This dissertation deals only with the commercial aspects of maritime
law. This dissertation’s scope also excludes some issues related to the contract of the
carriage of goods as will be seen in the following paragraphs. The contract of the carriage
of goods by sea may take several forms. The dissertation limits itself to a discussion of
the bill of lading (“BOL”) evidencing the contract of the carriage of goods. Other
transport documents have some of the BOL’s functions as will be seen in Part II, chapter
B. Hence contracts such as charterparties, volume contracts, tonnage contracts, and
contracts of affreightment are excluded because the aim of the dissertation is to protect
9 KAMAL HAMDI, THE MARITIME LAW 5 (3rd ed. 2007) (translated from Arabic).
9
shippers from the bargaining power of carriers which threaten their interests. Under the
excluded contracts, the shipper is protected based on the freedom of contract principle.
Although the contract of the carriage of goods by sea regulates the relationship
between the carrier and the shipper, the obligations and liabilities of the shipper are
beyond the scope of this dissertation. The analysis focuses on three topics covered under
the contract of the carriage of goods by sea: the Rules’ scope of applications, the carrier’s
obligations, and the carrier’s liabilities.
Thus, when navigating through the provisions of the QML’s contract of the
carriage of goods by sea, one has to be aware of Qatar’s economic, transport and
maritime sectors. This information is provided in Part I of this dissertation. Then, the
scope of application of the Rules covered by this dissertation is fleshed out in Part II. Part
III analyzes the obligations of a maritime carrier. The liabilities of a carrier are covered in
Part IV. Recommendations and conclusions are provided at the end of every section.
Lastly, the dissertation ends with a conclusion that wraps up the findings, the major
changes proposed, and the justifications for adopting certain trends to reform the QML.
10
PART I: BACKGROUND INFORMATION ABOUT THE STATE OF QATAR
This part aims to highlight the most significant historical, economic, transport, and
maritime related facts about Qatar to help the reader understand the past, present and
future of the country. This background information will also aid understanding of the
trend chosen for Qatar on how to develop the provisions of the QML, and help justify the
recommendations and conclusions made to the Qatari legislature. This part will be
divided into:
A. Historical Overview: From Pearl Diving to Oil Drilling
B. The Economy of Qatar
C. The Growth of the Transport Sector
D. The Development of the Maritime Sector
A. Historical Overview: From Pearl Diving to Oil Drilling
The people of Qatar have long been well-known for their maritime-related skills,
such as fishing, pearling, ship building, international carriage of goods and so forth. The
geographic and strategic location of Qatar (a Middle Eastern peninsula attached to the
larger Arabian Peninsula) plays a significant role in shaping the global and regional
maritime industry, improving navigational skills, and propelling international trade.
Shipping in Qatar flourished in the early 19th century. Since then, its ports have engaged
in trade with other countries. Ships built in Qatar and pearls were among the early goods
11
exported internationally; whereas spices, woods, and perfumes were among the foremost
types of cargos imported into Qatar.10
ultimately 11In 1935, oil was discovered for the first time in the Al Dukhan field,
leading to the demise of the pearl and fishing trades. Although Qatar was gravely affected
by the regional economic crisis which took place in 1930 as a result of the end of the
pearl trade period, the discovery of oil and its rapid development considerably
Oil and gas amount to 55% of the country’s 12transformed the economy of Qatar.
gas The State of Qatar today maintains the third largest natural 13economic production.
At the global level, Qatar is one of the largest producers of 14reserves in the world.
15liquefied natural gas.
Although oil and gas are Qatar’s number one exports, the economy of Qatar has
begun to diversify under the wise leadership of its Emir H.H. Sheikh Tamim Bin Hamad
Al Thani. The government of Qatar recognized that oil and gas are non-renewable natural
resources. Thus, the trend of being heavily dependent on natural resources has been
10 Interview with Dr. Youssif Al-Abdulla, Associate Professor of History, Qatar University (Sep. 10, 2016).
11 Organization of the Petroleum Exporting Countries,
http://www.opec.org/opec_web/en/about_us/168.htm (last visited Aug. 9, 2016).
12 See Pearl civilization in the Arabian Gulf, Akhbar AlKhaleej, http://www.akhbar-
alkhaleej.com/12789/article/15848.html (last visited Sep. 20, 2016) (translated from Arabic).
13 Id.
14 Gas Exporting Countries’ Forum, https://www.gecf.org/countries/qatar (last visited Aug. 9, 2016).
15 Id.
12
changed recently to accomplish the National Vision of 2030, which places emphasis on
the diversification of the current economy to secure sustainable development for future
The country is strongly encouraging the significant role and great 16generations.
For that reason, the diversification.contribution of the private sector to boost economic
country is developing its financial, legislative, and administrative sectors to facilitate the
Despite the decline in oil prices, the state’s wise policies and 17process of doing business.
plans have proved efficient during such crises, as the national income from non-
The discussion of the current economy 18hydrocarbon products has increased by 13.5 %.
of Qatar is further discussed in the following chapter.
B. The Economy of Qatar
Due to the visionary leadership of the Father Emir Sheikh Hamad Bin Khalifa Al
Thani and the current Emir of Qatar Sheikh Tamim Bin Hamad Al Thani, Qatar has
witnessed a dynamic and fast-growing economy at national and international levels in the
last decade. There are a number of major factors that play a positive role in shaping the
country’s current and future economy. Amongst these factors are: the hosting of the 2022
FIFA WORLD CUP, the government’s continuous commitment to accomplish the Qatar
National Vision 2030, the employment of digital methods in doing business, and the
16 See infra Part I, Ch. 2, section 2.
17 Qatar Entering a New Era of Economic Diversification, Alraya Newspaper (June. 6, 2014)
http://www.raya.com/home/print/f6451603-4dff-4ca1-9c10-122741d17432/0824de6e-3165-4590-bcdd-
aa6d8c4eb187 (translated from Arabic).
18 The Growth of the Non-Petroleum Sector in Qatar Exceeds 10% for the First Time in 2015, Alsharq
Newspaper (Dec. 23, 2015) http://www.al-sharq.com/news/details/393589 (translated from Arabic).
13
legislative authority’s role in supporting the economic sector.
1. The Hosting of the 2022 FIFA WORLD CUP
Qatar’s imports from different countries are greatly expanding due to it hosting the
2022 FIFA WORLD CUP. A vast number of huge transportation infrastructure projects,
the medical and education sectors’ projects, and the tourist sector in Qatar are all rapidly
developing. Hence the supply of building materials for such projects is highly
important.19 In 2015, imports increased due to the expansive entry of machines and
transport equipment.20 Statistics compiled by the QPMC on the amount of tonnage
delivered to the Doha Port between 2010 and November 201521 reveals that the overall
amount of tons for imports and exports carried by vessels increased dramatically in 2014
and 2015. By November 2015, imports exceeded exports by about 20 times. However,
exports during the last year dropped due to the significant international decrease in oil
demand and oil price.22 The country’s economic growth nevertheless rose slightly from
3.3% in 2014 to 3.7% in 2015 as recently declared by the Qatari Minister of Economy
19 See Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, supra note 3.
20 40 Billion Trade Surplus in the Third Quarter, Alraya Newspaper (Nov. 30, 2015)
http://www.raya.com/news/pages/9f64b3e7-d3b5-49bc-96b5-b1c3c8ee660c (translated from Arabic).
21 See infra appendix 1 (Statistics on the Amount of Tonnage Delivered to the Doha Port Between 2010 –
November 2015 [QPMC] (Dec. 2015).
22 See 40 Billion Trade Surplus in the Third Quarter, infra note 17.
14
and Trade H.H. Sheikh Ahmad Bin Jassin Al Thani, in the twelfth Global Economic and
Islamic Forum in Jakarta.23
The growth in population, in addition to the guests expected for the upcoming
FIFA WORLD CUP, mandated enlarging the landscape of the infrastructure sectors for
sea, air, road, and most recently rail transportation projects.24 Projects must be completed
on time and the imports must arrive with no delays. Thus, the government is paying more
attention on upgrading the efficiency of transportation means to ensure that imports are
delivered on time and projects are completed before 2022.
2. Qatar National Vision of 2030
The government acknowledges the importance of strategically planning for the
future of Qatar and the positive effects that such plans can have on different fields. Hence
during the last few years, Qatar National Vision 2030 was launched. This development
plan consists of four main pillars: social development, human development,
environmental development, and economic development. The main objective of the
The economic development of the Vision significantly impacts on the country’s
current and future economy and guides the way Qatar conducts business. To develop a
competitive and diversified economy, to meet the needs of current and future citizens,
23 Minister of Economy: Qatar Achieved Stable Growth Rates, Alraya Newspaper (Aug. 3, 2016)
http://www.raya.com/news/pages/1f1d1a93-f245-4e4e-b029-bd8db337fb82 (translated from Arabic).
24 Starting Trans 4 with Local and Gulf Wide Participation, Alwatan Newspaper (Nov. 27, 2013)
http://archive.al-watan.com/viewnews.aspx?n=C556ED96-D436-49E6-9ED4-
98D3040518B7&d=20131127 (translated from Arabic).
15
Vision is to boost Qatar’s sustainable development and ensure a decent life for the current
and future generations.25
and to assure a high living standard, are the integral goals on which the economic
development of the Vision was built. 26 To achieve the economic vision, short term goals
must be implemented.
First, the government must ensure a sustainable and stable business environment.27
This can be accomplished by enacting laws that reduce the barriers for doing business
and which facilitate the establishment of businesses. In this vein, the Qatari legislature
has adopted a new Commercial Companies Law of Qatar in 2015, which eliminates some
of the significant barriers for doing business in Qatar. For instance, the new law is meant
to eliminate the requirement for a minimum capital of 200,000 Q.R. for limited liability
companies.28 The aim of such a reform is to encourage small and medium segment
businesses to enter the Qatari market.
25 Qatar National Vision 2030,
http://www.qu.edu.qa/pharmacy/components/upcoming_events_material/Qatar_National_Vision_2030.pdf
1 (last visited Aug. 9, 2016).
26 Id.
27 Id.at 13.
28 Santhosh V. Perumal, Qatar Lifts Minimum Capital Norm for LLCs and to Support SMEs, Gulf Times
(Dec. 10, 2015) http://www.gulf-times.com/story/466118/Qatar-lifts-minimum-capital-norm-for-LLCs-to-
support.
16
Second, governmental and non-governmental bodies must build a “knowledge-
based economy characterized by innovation, entrepreneurship, excellence in education
and provide a world-class infrastructural backbone”.29 A good example of a way to
achieve such a goal is that which Qatar University is currently implementing in terms of
research. Qatar University encourages faculty members to conduct research and offers
funds for this purpose.30 Other examples are the mega infrastructure projects like the
state-of-the-art Hamad International Airport and the new Hamad Port.
Third, the government emphasized a diversification of the economy away from
natural resources, and it enhanced the role of the private sector.31 The State of Qatar is
aware of the non-renewable nature of the oil and gas on which the economy is heavily
dependent, irrespective of the high production percentage and it having the third largest
natural gas reserves worldwide.32 It also urges the private sector to engage in small and
medium segment businesses to ensure sustainable development and the widening of
29 See Qatar National Vision, supra note 25, at 15.
30 See generally Research for the Future,
http://www.qu.edu.qa/offices/research/rff/Research_for_the_future_ENGLISH.pdf (last visited Aug. 9,
2016).
31 See Qatar National Vision, supra note 25, at 15.
32 See Gas Exporting Countries Forum, supra note 14.
17
involvement in different sectors. This model would be different from one that is heavily
reliant on the economic revenues of the oil and gas sectors.33
3. Doing Business in the Digital Era: Employment of Digital Methods in Commerce
In the fifth Annual Arab Future Cities Summit 2016, H.E. Minister of Transport
and Communications discussed the sustainable development in Qatar which necessitates
the transforming of Doha (the Capital of Qatar) into a digital and smart city.34 He
additionally encouraged Qataris to benefit from current communication technologies and
emphasized that those will be advanced in future. Building IT-friendly businesses in
Qatar would likely contribute to the rapid development of the business sector. Thus, the
country is stimulating the use of technology in business by undertaking several steps.
First, the Ministry of Transportation and Communication conducted “The Digital
Evolution of Business” seminar in May 2016, to draw the attention of commercial
companies to recent technological developments in the business sector.35 The way
companies deal with and engage digital data in their businesses will shape the future
growth of such companies and their competitiveness.36
33A Joint Workshop between the Ministry of Economic and Trade and Business Entrepreneurship Center,
http://www.qu.edu.qa/ar/newsroom/view.php?id=3220 (last visited Aug. 9,2016) (translated from Arabic).
34 H.E. Minister of Transport & Communications Inaugurates 5th Annual Arab Future Cities Summit 2016
Monday, http://www.ictqatar.qa/en/news-events/news/he-minister-transport-communications-inaugurates-
5th-annual-arab-future-cities (last visited Aug. 9, 2016).
35 MOTC Organizes Seminar on Digital Transformation, http://www.ictqatar.qa/en/news-
events/news/motc-organizes-seminar-digital-transformation (last visited Aug. 9, 2016).
36 See H.E. Minister of Transport & Communications Inaugurates 5th Annual Arab Future Cities Summit
2016 Monday, supra note 34.
18
Second, the government hosted an e-commerce forum in October 2015. It gathered
“more than 700 businesses, policymakers, and other stakeholders who wanted to be part
of Qatar’s e-commerce future”.37 The forum was a great platform for viewing different
perspectives from different parts of the world about the latest cutting-edge technology
and development in the global e-commerce to help shape the future of Qatar’s
economy.38
Third, the government is taking further steps to transform the way the public sector
renders its services. The Ministry of Transport and Communication adopted the “Qatar
Digital Government Strategy of 2020”.39 This strategy aims to digitally transform the
public sector. To better achieve this goal, the H.E. Minister of Transport and
Communication signed an agreement with Microsoft for the latter to assist in building a
technology platform, which would offer e-services tools and several other benefits. The
government of Qatar should be fully digitally transformed by 2020. In December 2015,
the number of transformed governmental services reached 681.40 This number is going to
37 Id.
38 E-Commerce Forum Drew More Than 700 Attendees and Renowned Experts from Companies such as
Google, PayPal, and Uber, http://www.ictqatar.qa/en/news-events/news/e-commerce-forum-drew-more-
700-attendees-and-renowned-experts-companies-such-google (last visited Aug. 9, 2016).
39 Ministry of Transport and Communications, Microsoft Sign Agreement to Broaden E-services
Implementation, http://www.ictqatar.qa/en/news-events/news/ministry-transport-and-communications-
microsoft-sign-agreement-broaden-e-services (last visited Aug. 9, 2016).
40 Government Entities Are Embracing Social Media to Improve Service Delivery and Engage with
Stakeholders, a New Report Reveals, http://www.ictqatar.qa/en/news-events/news/government-entities-are-
embracing-social-media-improve-service-delivery-and-engage (last visited Aug. 9, 2016).
19
increase to 1000 by 2016.41 This kind of transformation will indeed speed up document
processing and subsequently facilitate the procedures of doing business.
The findings of Qatar’s ICT (information and communication technology)
Landscape 2016 business report, which studies the level of access to informational and
communication technology among businesses in Qatar, revealed an important fact about
the use of the internet. “Since 2010, Internet penetration has shown a steady increase and
currently stands at 70 percent among business establishments in 2015”.42 Thus, online
business activities, such as marketing and consumer support, e-banking, and e-
governmental services have increased in the last five years. The report showed that e-
commerce is amongst the major areas of radical development. A research study about
Qatar’s economy reveals that expanding e-commerce and the use of the most recent
technology in doing business would increase the country’s GDP to QR 38.2 billion by
2020.43
In the Seminar on Digital Transformation, it has been illustrated that at the global
level “one third of the top 20 companies in every industry will have been disrupted by
digitally transformed competitors by 2018”.44 Thus, the business sector in Qatar must be
41 Id.
42 New Report Reveals How ICT Is Helping to Transform Businesses in Qatar,
http://www.ictqatar.qa/en/news-events/news/new-report-reveals-how-ict-helping-transform-businesses-
qatar (last visited Aug. 9, 2016).
43 H.E. Minister of Transport & Communications Inaugurates 5th Annual Arab Future Cities Summit 2016
Monday, supra note 34. See also MOTC Organizes Seminar on Digital Transformation, supra note 35.
44 MOTC Organizes Seminar on Digital Transformation, supra note 35.
20
aware of that fact to maintain its existence in the upcoming future. This seminar sent an
important message to the business sector and urged it to digitally transform its various
activities.
4. Legal Amendments that Serve the Economic Sector
The Qatari legislature is aware of the new trends of doing business in Qatar. This
authority also acknowledges the role of legal reforms to regulate new issues taking place
in the economic and business arenas. Reforming the laws for the sake of supporting the
business sector is critical in building an open, flexible, and healthy business environment.
In addition, legal reforms diminish the barriers businessmen encounter in Qatar and
stimulate the private sector to enter into Qatari markets. To catch up with commercial
reality, the Qatari legislature amended and enacted new laws to assist the business sector
and to achieve Qatar National Vision 2030. Subsequently, a new Qatari Commercial
Companies Law No. 11 was issued in 2015. Several amendments were made to: the
Qatari Commercial Law No. 27 of 2006, the Qatari Foreign Investments Law No. 11 of
2000, the Qatari Commercial Register Law No. 25 of 2005. Recently, the legislature also
amended the Qatari Law on Regulating Commercial Agencies No. 8 of 2002 in 2016.45
Having discussed the growth and steady development of the economy in Qatar, the
discussion is now directed at the sector that receives a lot of attention in the economic
sector: the transport sector. There is always a link between the expansion in the economic
45 Law No. 2 of 2016 amending some provisions of the Qatari Commercial Agents Law No. 8 of 2002.
21
sector of any country and the development of its transport sector. The most critical factor
driving sustainable economic development is the effective role of the transport sector.
Hence, economic growth and goods mobility are not feasible without the presence of a
strong transport sector and a well-developed infrastructure.46
C. The Growth of the Transport Sector
The role of the transport sector is vital for all other sectors such as social,
economic, construction, and shipping. Hence the country is engaging in several transport
infrastructure projects. To this effect, the Qatari leadership established the Ministry of
Transport in June 2013.47 When the communication sector was combined with the
Ministry of Transport in 2016, the Ministry became known as the Ministry of Transport
and Communication.48 It is headed by H.E. Jassim Bin Saif Al Sulaiti. The main tasks of
the Ministry are to organize the various modes of transport, improve and develop
transportation and communication services, and oversee and implement new projects.
Presently, significant development in the transport sector is also attributed to the
impending 2022 FIFA WORLD CUP, and to the rapid increase in the Qatari population
and guest workers. More importantly, the flow of goods and the expansion of the
46 The Transport Sector is the Top Amongst Infrastructure Projects, Alraya Newspaper (July 8, 2015)
http://www.raya.com/news/pages/7d51d038-f226-424f-8903-4d9755ea544e (translated from Arabic).
47 Prior to the establishment of the Ministry of Transport, the transport sector was mainly handled by the
Ministry of Economic and Trade.
48 An Amiri Decree Amending the Formation of the Council of Ministers, Alraya Newspaper (Jan. 28, 2016)
http://www.raya.com/news/pages/f2fccd07-cef9-4e71-b027-ce6c7c3cc2b9 (translated from Arabic).
22
economy demand a developed transport system.49 Mega infrastructure projects are
underway and are reporting steady progress. The government is keen to complete these
before the beginning of 2022. The public expense on new projects will reach 200 billion
USD by 2022, most of which are allocated for mega transportation infrastructure
projects.50
The Ministry of Transport and Communication has prepared a comprehensive
long-term strategy and policy for the transport sector. The strategy was articulated after
consulting government entities, the private sector, and other stakeholders.51 The aim of
such a strategy and policy is to have a world class transportation infrastructure that
facilitates the mobility of people and goods. The Minister of Transport and
Communication expressed that “Qatar's modern transport sector will aim for financial
and ecological sustainability, innovation, accessibility … and enabling economic
diversification.”52 This giant leap will ensure the achievement of Qatar National Vision
2030 which stresses sustainable development for current and future citizens.
49 95% of the Infrastructure Projects Are Allocated for Road Transport Investment, Alraya Newspaper
(June 19, 2015) http://www.raya.com/Mob/GetPage/f6451603-4dff-4ca1-9c10-122741d17432/18e8191f-
ecfd-4c8e-984b-73bcf85a87d4 (translated from Arabic).
50 The Launch of the Umm Alhoul Economic Channel at a Cost of 1.3 Billion Riyals, Alraya Newspaper
(Mar. 15, 2016) http://www.raya.com/news/pages/4c5b6d61-f254-442c-96e5-cbe3c295b355 (translated
from Arabic). See, 79 Billion Dollars is the Cost of Transport Infrastructure Project, Alraya Newspaper
(Sep. 16, 2015) http://www.raya.com/news/pages/24924a35-5c2a-46ce-906c-6c884c93bc2c (translated
from Arabic).
51 Ministry of Transport and Communications Launches Policy and Strategy Development Project,
http://mot.gov.qa/en/MediaCenter/Pages/Ministry-of-Transport-and-Communications-launches-Policy-and-
Strategy-Development-Project.aspx (last visited Aug. 9, 2016).
52 Id.
23
The expansion of the transport sector was so monumental that globally Qatar ranks
14th out of 140,53 according to the 2015- 2016 Global Competitiveness Report's index
published by the World Economic Forum (“WEF”), in the effort to develop high quality
infrastructure for sea ports, airports, and roads.54
Qatar is taking a leading role in the development of multimodal transport.55 The
Ministry of Transport and Communication is keen on providing an integrated transport
system among all modes of transport: sea, air, road, and rail. Several projects on different
transport modes were inaugurated in the last few years and will continue until 2022.
As far as air transportation is concerned, a new “Hamad International Airport” was
opened in May 2014 with a capacity for 36 million passengers per year.56 The airport has
a cargo terminal for air freight purposes, the current capacity of which is 1.4 million tons
per year. The terminal will nevertheless undergo further operations to expand its capacity.
After the completion of the operations, the capacity of the terminal will reach 2.5 million
53 Global Competitiveness Index, World Economic Index, http://reports.weforum.org/global-
competitiveness-report-2015-2016/economies/#economy=QAT (last visited Sep. 19, 2016).
54 Qatar Makes Giant Leaps in Roads, Ports and Airport Infrastructure Quality,
http://mot.gov.qa/en/MediaCenter/Pages/Qatar-Makes-Giant-Leaps-in-Roads,-Ports-and-Airport-
Infrastructure-Quality.aspx (last visited Aug. 9, 2016).
55 See The Transport Sector is the Top Amongst Infrastructure Projects, supra note 46. See Integrated
Transport System Strengthens Efforts to Diversify the Qatari Economy, Alsharq Newspaper (Jan. 16, 2016)
http://www.al-sharq.com/news/details/397615 (translated from Arabic).
56 Report Qatar 2015: Transport, Oxford Business Group (2015)
http://www.oxfordbusinessgroup.com/qatar-2015/transport
24
tons.57 According to a local report, the Hamad International Airport’s cargo terminal is
handling increased tonnages yearly.58
With respect to rail carriage, an enormous achievement was made when a rail line
for both passengers and goods was established for the first time in the history of Qatar.
The project’s critical target was to enhance national and interregional connectivity, and to
better handle the growth in population and goods flow. The railway projects are managed
by the Qatar Railways Company (also known as “Qatar Rail”). There are three railway
projects: the Doha Metro for carrying passengers, the Lusail Light Rail Transit also for
transporting passengers, and a long-distance railway for carrying passengers and goods.59
These projects will be connected to the major cities and industrial areas, the Hamad port,
and express highways.60 At the regional level, the GCC countries have agreed on
implementing a massive railway network project that connects the respective states. The
State of Qatar has been assigned the task of preparing a timeline to complete such a huge
project.61 The GCC rail line will be connected to the long-distance passenger and rail
57 Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, supra note 3.
58 Id.
59 Id.
60 Id.
61 The Formation of Five Committees to Follow Up on Transport Projects in the GCC, Alraya Newspaper
(Oct. 16,2015) http://www.raya.com/news/pages/d42be606-b363-40ed-ae4e-e47157071732 (translated
from Arabic).
25
network in Qatar.62 The significance of establishing a rail network at national and
interregional levels lies in the stimulation of goods flow between Qatar and the rest of the
GCC countries, thereby boosting the economy in general and the shipping industry in
particular. It is worth noting that a single train from the long-distance freight rail system
has a capacity equivalent to the freight capacity of 400 trucks.63
Land roads are also subject to the overall transport development in the country. An
expressway program has been adopted by the government to develop the roads, bridges,
and tunnels.64 The government is committed to spending 12 billion USD to improve the
current land roads and build a new roads network.65 200 bridges and 30 tunnels are under
construction.66 In addition, the Ministry of Transport and Communication is aiming to
extend the current land roads by 8500 km.
The sea ports of Qatar are also subject to an expansive overhaul. The achievements
of Qatar in the maritime sector are highlighted later in chapter D. The airport, land roads,
and rail network will all be connected to the Qatar Hamad Port, a new commercial port.
62 Report Qatar 2016: Infrastructure Projects and Population Growth Spell a Busy Time Ahead for Qatar,
Oxford Business Group (2016) http://www.oxfordbusinessgroup.com/overview/moving-forward-huge-
infrastructure-projects-and-rapidly-growing-population-guarantee-busy-time-ahead.
63 79 Billion Dollars is the Cost of Transport Infrastructure Project, supra note 50.
64 Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, supra note 3.
65 95% of the Infrastructure Projects Are Allocated for Road Transport Investment, supra note 49.
66 Id.
26
As can be seen, the integrated transport system will connect the different modes of
transport. This is critical to the economy and shipping industry in Qatar. The integrated
system will stimulate trade and economic growth, enhance the flow of people and goods,
and improve the quality of life of those living in and visiting Qatar.67 This will also
ensure economic diversification as the announcement of mega projects encourages the
participation of the private sector and opens the door for foreign investors to engage in
infrastructure projects.68 Upon the completion of the transport infrastructure projects, the
State of Qatar will be turned into a great regional hub for the multimodal carriage of
goods.69
Now we will discuss the development of the maritime sector as the most significant
achievement of the country in the field of transport.
D. The Development of the Maritime Sector
The significant growth in the transportation sector is mainly attributed to the
massive efforts of the Ministry of Transport and Communication, the Qatar Navigation
Company (“Milaha”), the QPMC Company, RasGas, and Qatar Petroleum. The
contribution and cooperation of these bodies ensures the efficient management, operation,
and development of the six maritime ports in Qatar for various cargo types such as
general cargo, break bulk cargo, bulk cargo, and containerized cargo. Notable
67 Qatar Keen on Integrated Transport System: Sulaiti, Doha Tribune (Feb. 27, 2015) http://archive.qatar-
tribune.com/viewnews.aspx?d=20150227&cat=nation1&pge=1.
68 Integrated Transport System Strengthens Efforts to Diversify the Qatari Economy, supra note 55.
69 The Launch of Umm Alhoul Economic Channel at a Cost of 1.3 Billion Riyals, supra note 50.
27
developments in the maritime sector have been witnessed in the last few years. This
chapter consists of the following two sections: 1) the development of the seaports and, 2)
other achievements in the maritime sector.
1. The Development of Seaports
The carriage of goods by sea is accomplished through six operational seaports in
Qatar: the Mesaieed Port, the Ras Laffan Port, the Halul Island Port, the Al Ruwais Port,
the Doha Port, and the new cutting-edge Hamad Port. The State of Qatar is exerting
continuous efforts to develop its seaports to meet the growing import and export needs.
Each of these ports is discussed separately below.
a. The Al Ruwais Port
The Al Ruwais Port is a new commercial facility located in the northern part of the
country. It was established by the Emiri Decree No. 76 of 2014. According to article (2)
of the decree, the aim of the port is to facilitate the exchange of goods, imports and
exports, the entry of travelers, and the entry and exit of vessels for the northern gate of
the country.
In September 2015, the Ministry of Transport and Communication launched a new
development project for the port. The project encompasses the development of the “water
channel, the operating equipment, the plan on the entry and exit of vessels, goods
shipping, import and export, and equipment in the port’s facilities, including the terminal
28
and the administrative building”.70 The main goal of the project is to operate the port
according to the best international standards. The next phase of the project is to deepen
the depth of the navigational channel and increase the capacity of the port.
b. The Ras Laffan Port
The Ras Laffan Port serves as a liquefied natural gas (“LNG”) export facility, the
size of which is 56 km2 and it accommodates six LNG operational berths. Thus, it is
considered the largest gas export outlet for different parts of the world.71 Gas is exported
to other countries in the world’s largest LNG fleet.72 The Qatar Petroleum Company and
the Ras Gas Company are handling the operation of the port. Although the total number
of vessels entering the port declined by an average of 1.81% per month from January to
September 2014, the total cargo tonnage handled expanded by an average of 18.54%
monthly. 73
c. The Mesaieed Port
The Mesaieed Port is an industrial port serving the city of Mesaieed, located on the
south-east coast of the country where a number of factories are located. It also serves the
70 Premier Launches Al Ruwais Port Development Project, The Peninsula (Jan. 9, 2015).
http://www.thepeninsulaqatar.com/news/qatar/315583/premier-launches-al-ruwais-port-development-
project.
71 A Successful Investment: Ras Laffan Port, RasGas, http://www.rasgas.com/Operations/RLICPort.html
(last visited Aug. 10, 2016).
72 Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, supra note 3.
73 Id.
29
Mesaieed Industrial City which was established by the Qatar Petroleum Company in
2006. The city is a critical exporter of raw materials such as crude oil, hydrocarbons,
petrochemicals and metallurgical products.74 The port provides dedicated container
handling services at a container terminal operated by Milaha.75
d. The Halul Island Port
The Halul Island Port is located on the coast of the Halul Island, around 80
kilometers northeast the city of Doha.76 It is a petroleum port exporting oil produced from
offshore oil fields. The oil is imported from a number of offshore oil fields to Halul
Island Port tankers through subsea pipelines or from the Al Shaheen onshore field
through tanker vessels.
e. The Doha Port
The Doha Port is the commercial gateway located in the center of the City of Doha.
It was established in 1971, linking Qatar to the rest of the world.77 It is a hub for
importing all types of cargo, such as containerized and break bulk cargo (but not liquid
bulk cargo). It handles livestock cargo, consumable goods, food, cars, equipment,
74 Id.
75 Mesaieed CT7, Milaha, http://www.milahaml.com/pages/view/29/mesaieed-ct7 (last visited Aug. 10,
2016).
76 Halul Island, Qatar Petroleum,
http://www.qp.com.qa/en/QPActivities/QPOperations/Pages/IndustrialCitiesDetails.aspx?IID=5 (last
visited Agu. 10, 2016).
77 Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, supra note 3.
30
machines and other types of general cargo. Given the country’s rapid economic growth
and engagement in infrastructure projects, its container capacity was maximized from
500,000 to 750,000 TEU per year.78 The container berths and vessel quays were likewise
expanded. Despite these expansions, the port is still unable to cater for the needs of the
ever growing flow of goods. Consequently, the need for a new port was at the top of the
country’s transport infrastructure agenda.
The significance of the Doha Port has gradually reduced through the opening of the
new Hamad Port, where its operations will be fully transferred to the latter. In the
upcoming years and before the 2022 FIFA WORLD CUP, the Doha Port will be
transformed into a tourist port and a hub for tourist vessels to enhance cruise ship tourism
in the country.79
f. The New Hamad Port
Qatar’s maritime sector experienced a quantum leap with the launch of the Hamad
Port in the south part of the City of Doha.80 In 2007, H.H. Sheikh Hamad Bin Khalifa Al
Thani issued an Emiri Decree No. 37 stipulating the establishment of the largest state-of-
the-art seaport in the Middle East. The port is today the largest greenfield port in the
78 Prime Minister Opens Doha Port Services Complex, The Peninsula (Apr. 25, 2014).
http://www.thepeninsulaqatar.com/news/qatar/281124/prime-minister-opens-doha-port-services-complex.
79 Report Qatar 2016: Infrastructure Projects and Population Growth Spell a Busy Time Ahead for Qatar,
supra note 62.
80 See New Port Project, http://www.npp.com.qa/ (last visited Aug. 10, 2016).
31
world.81 A total of 19 billion Qatari riyals are being spent on this huge project which
stretches over 26 km2 and which will be established in multiple phases.82 Phase one has
been completed and the port can now handle vehicles, equipment, machineries and
livestock cargoes.
To ensure the maritime security of Qatar, the port encompasses an off-shore
naval base for the Qatari Emiri Naval Force. The port also includes multi-purpose
terminals: a general cargo terminal (with a capacity of 1.7 million tons per year), a
vehicle terminal (with a capacity of 500,000 vehicles per year), a livestock terminal,
In addition, 83and a bulk grain terminal (with a capacity of 1 million tons per year).
the port will hold three container terminals. In fact, the capacity of the new port is
eight times more than the Doha port. The capacity of the container terminal will also
attract carriers to use the facilities of the new port as they will be able to store the
84goods in safe warehouses.
81 Id.
82 Id.
83 Id.; The Basic Structure of the State: On the Path of Development, Qatar Construction Guide,
http://www.qatarconstructionguide.com/index/index.php?id=3&art=620&lang=ar. (last visited Aug.
10,2016) (translated from Arabic).
84 The Limited Capacity of the Port Hinders the Shipping Sector, Alraya Newspaper (Oct. 28, 2013)
http://www.raya.com/Mob/GetPage/f6451603-4dff-4ca1-9c10-122741d17432/ef5a0cd6-7163-4678-9369-
957adee10ef5 (translated from Arabic); H.E. the Prime Minister Inaugurates Services Complex Building
and Expansion, Qatar Ports Management Company,
http://www.mwani.com.qa/En/Media/News/Pages/NewsDetails.aspx?NewsID=20 (last visited Aug. 10,
2016).
32
Furthermore, a Qatar economic zone will be located adjacent to the new port. Due
to the location of this zone, the exportation of non-petroleum products is likely to
increase as would the products of processing industries.85 This zone will also be equipped
with an integrated logistics service and industrial facilities. This economic hub will act as
a catalyst to foster the movement of imports and exports, and will eventually expand
economic diversification especially with the capacity to store goods in special terminals
(the “roll-on, roll-off” facilities, general cargo facilities and live animals facilities) with
huge capacity, reducing the possibility of damage and serving non-containerized cargo.86
New opportunities are and will be offered to small and medium businesses, thus
propelling the dynamic role of the private sector.87
To enhance the integrated transport system and multimodalism, an integrated
logistics yard has been created to link the port to the GCC rail freight network, express
highways, and the long-distance freight line. Such linkage of the seaport to other modes
of transport will substantially decrease the cost of the carriage of goods from sea to
carriage by road and rail. This advantage, coupled with the availability of cutting-edge
85 His Highness Sheikh Abdullah Bin Hamad, Vice Emir Christens and Immerses the New Port, Qatar Ports
Management Company, http://www.mwani.com.qa/en/Media/News/Pages/NewsDetails.aspx?NewsID=27
(last visited Aug. 10, 2016).
86 Due to the limited capacity of the Doha Port and the limited storage for goods, goods may get damaged
so easily especially perishable goods. See generally The Limited Capacity of the Port Hinders the Shipping
Sector, supra note 84. See also Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off,
supra note 3.
87 Qatar a Global Trade Center, Alraya Newspaper (Nov. 22, 2015)
http://www.raya.com/news/pages/3dea96dc-6077-4978-82ab-4f2323c873e8.
33
technology for loading and unloading equipment, will position Qatar as a regional hub in
the shipping industry.88
To strike a balance between economic expansion and sustainability, environmental
protection was the foremost concern when establishing the new port. Master
environmental strategies were implemented, such as sustainable resource use and waste
management.89 Thus, its hugely environmentally-friendly architecture is considered the
largest greenfield in the world today.
The strategic location of the port and its access channel will accommodate the
Owners of 90shipping of goods in transit.largest vessels in the world and promote the
the world’s largest vessels prefer to deal with a seaport that is fully equipped and able
to receive such kind of vessels. Qatar ports are equipped with the most developed
loading and discharging equipment and enough cargo storage terminals, thus the
vessel’s stay at the port will be significantly reduced. Supporting this key objective,
the new port will ensure a fast operation and less loading and discharging time to save
hat vessels are able to continue their time and avoid excessive demurrage fees so t
88 His Highness Sheikh Abdullah Bin Hamad, Vice Emir Christens and Immerses the New Port, supra note
85. See also, Qatar Keen on Integrated Transport System: Sulaiti, supra note 67.
89 Report Qatar 2016: Jassim Bin Saif Ahmed Al Sulaiti, Minister of Transport and Communications:
Interview, Oxford Business Group (2016) http://www.oxfordbusinessgroup.com/interview/shipping-
forecast-obg-talks-jassim-bin-saif-ahmed-al-sulaiti-minister-transport-and-communications.
90 Hamad Port Revived a Group of 40 Masters Level Students From the Technical University Munich
Germany, Qatar Ports Management Company,
http://www.mwani.com.qa/en/Media/News/Pages/NewsDetails.aspx?NewsID=29 (last visited Aug. 10,
2016).
34
This is so because the Hamad Port is equipped with massive 91economic activities.
cargo handling services based on the latest global technology methods. The port will
A single crane can carry 92es.shore cranes and 38 yard cran-ot-encompass 12 ships
93and weighs 80 tons. 2at the same time, and each container is 40 f two containers
The loading and unloading operations at the port will comply with high
international safety standards and practices in the industry to reduce the likelihood of
cargo damage. The safer the port operations are, the less cargo insurance rates will be.
Consequently, the cost of freight will be reduced too.94 The classification and ranking of
the port are prominent factors in determining the freight and insurance rates. Based on
such facts, the new world class port which features cutting-edge technology will secure
safe cargo loading, discharging, and handling operations, thus significantly impacting on
the freight and insurance rates in the shipping industry. The Hamad Port’s
competitiveness is more likely to increase compared with other ports in the region.
It is important to note that the development of the seaports in Qatar increased the
volumes of the cargo entering Qatar in 2015. According to the Milaha’s Port Services
91 The Launch of the Doha Port New Service Complex was able to reduce the handling operation time from
48 hours to 3 hours. See infra note 89.
92 Building the New Port, New Port Project, http://www.npp.com.qa/Construction.html (last visited Aug.
10, 2016).
93 Hamad Port Converts Qatar Into a Global Trade Center, Alraya Newspaper (Feb. 9, 2015)
http://www.raya.com/news/pages/e7cd97c2-acce-4bf3-9e60-9e80c555ea7c (translated from Arabic).
94 Studies and Research Center: Asharqiya Chamber, Sea Carriage in the Framework of the World Trade
Organization Report 5 (2009)
https://www.chamber.org.sa/sites/Arabic/InformationsCenter/WTO/Publication_documents/SeaTrans.pdf
35
Unit, the volume of containerized cargo and general cargo increased by 15 percent and
127 percent respectively, compared to the volume percentage of 2014.95
2. Other Achievements in the Maritime Sector
The State of Qatar is aware of the current and future needs of the maritime sector.
Therefore, it always takes significant steps to upgrade its maritime services in order to
make Qatar a global gateway to the shipping industry. Besides the construction of a new
port with the best features for the shipping industry, development projects for the current
operational seaports,96 and the plans to connect the Hamad Port to other modes of
transport; the State of Qatar has made some other remarkable achievements in the
maritime field. These include a) the implementation of a single-window system at the
Doha port, b) the introduction of a new custom clearance system, and c) the development
of a world-class shipyard.
a. The Single Window System
The Doha Port launched a new service complex in 2014 to create a single window
system which brings several offices involved in the shipping industry under one roof.
These are: the QPMC, the General Authority of Customs, and Milaha..97 The services
95 Doha Port Saw about 15% rise in Container Volumes in 2015, The Peninsula (Mar. 20, 2016)
http://www.thepeninsulaqatar.com/news/qatar/374857/doha-port-saw-about-15-rise-in-container-volumes-
in-2015
96 See supra Part I, ch. D, section 1.
97 See H.E. the Prime Minister Inaugurates Services Complex Building and Expansion, supra note 84.
36
rendered at the complex ranged from issuing entry and exit permits to the port, collecting
customs revenues, collecting handling and demurrage fees, providing customs clearance
services, and the recording of goods details.
The fast processing of requests and services at the complex reduces the overall
shipping processing time from forty eight hours to three hours.98 That is indeed a notable
time reduction. The Minister of Transport and Communication is keen to reduce this even
further to just two hours.99 The two hours target is likely to decrease after the full transfer
to the Hamad Port. The new system will indeed facilitate the business for all
stakeholders, shippers, consignees, carriers, and agents. It will also have a great effect on
the delivery of goods on time. This is especially important for those involved in mega
projects like the 2022 FIFA WORLD CUP.100 The services at the Doha Port were
recently upgraded to eliminate some obstacles until the completion of the new port.
b. Customs Clearance
The Qatari General Authority of Customs has implemented a new system for
customs clearance purposes.101 This system enables the personnel involved in the sea
shipping industry to store cargo data, fulfill all customs clearance requirements, and pay
98 Id.
99 Id.
100 Id.
101 This system applies to all modes of transport in Qatar be they sea, land, rail, or air.
37
customs revenues online from any part of the world.102 Thus, all these procedures can be
done even prior to the arrival of the cargo to save time.
One of the most important goals of this system is to completely substitute the use
of paper documents. However, the Qatari General Authority of Customs encountered
some obstacles that hindered the achievement of this goal because of the absence of a
legal framework for regulating digital documents.103 Yet, paper-based documents have
been partially substituted with electronic versions.
c. Ship Repair Drydocks
In terms of shipbuilding and dry docks, the Erhama Bin Jaber Al Jalahma shipyard
located in the Ras Laffan industrial city (in the northern part of Qatar) was named as the
best regional shipyard and ship repair facility.104 This selection was made at the 2015
Maritime Standard Middle East and Indian Subcontinent Awards ceremony held in
November 2015 in Dubai.105 In the same year, the shipyard won an award for using the
world’s first M-type Gas Injection (ME-GI) retrofit project, which involved modifying
102 3.5 Million Customs Transactions Processed Through the Alnadeeb System, Alraya Newspaper (Feb.
25, 2016) http://www.raya.com/news/pages/c06b55ec-5228-468c-aad2-fd376bd7aba4.
103 Id.
104 The World-class Erhama Bin Jaber Al Jalahma Shipyard was Named Best Regional Shipyard at TMS
Awards 201, Naqilat, http://www.nakilat.com.qa/News/News_1260 (last visited Aug. 10, 2016).
105 Id.
38
the Naqilat-owned Q-MAX vessel “Rasheeda” to run on LNG as an alternative to marine
diesel fuel.106
The shipyard (which is operated by the Qatar Gas Transport Company Ltd. known
as “Naqilat”)107 is committed to providing the shipbuilding and repair sector with world-
class marine and offshore services and projects. The most significant impact of the
shipyard project is the decrease in greenhouse gas emissions. The shipyard is fully
equipped to serve the shipbuilding industry at high quality standards.
Conclusion
Qatar’s economy in the early days was dependent largely on the revenues from the
pearling trade. However, the significance of this trade was considerably affected by the
exploration and exploitation of oil in 1935. The trading in oil, liquefied natural gas, and
other hydro carbon products positioned Qatar as one of the world’s major oil and gas
exporters.
The fast growth recently witnessed in Qatar’s economic, transport, and maritime
sectors is impressive due to the government’s continuous efforts to commit to the Qatar
National Vision 2030, which concentrates on economic diversification to ensure
economic sustainability. Realizing that oil and gas are non-renewable natural resources,
the Qatari leadership has offered many opportunities to the private sector to engage in
building a strong economy, which depends on the importation and exportation of non-
106 Id.
107 See Qatar Gas Transport Company Naqilat, http://www.nakilat.com.qa/Home?lang=en-US (last visited
Aug. 10, 2016).
39
petroleum products. In addition, the preparation for the 2022 FIFA WORLD CUP is a
major factor that contributes to the overall growth of the country.
Legal reforms are also needed to support the commercial and economic sectors in
any country and to better serve the needs of a fast growing society in terms of
technology, trade, and economy. In light of the legislative amendments of business
related law,108 The QML should also be revisited by the legislative authority. Such an
initiative would help identify any gaps in its provisions and reveal whether it is consistent
with national and international developments in the shipping industry.
108 The Qatari legislature amended these laws: Commercial law, Foreign Investment Law, Commercial
Agency Law, and Commercial Register Law. A new Commercial Companies Law was issued in 2015. See
Part I, Chapter 2, Section 1.
40
PART II: THE SCOPE OF APPLICATION OF THE RULES109
The main objectives of this part of the dissertation is to: analyze the definition of
the contract of the carriage of goods by sea under the Rules; identify the transport
documents they cover; and clarify the period over which they apply. These topics are
covered in two chapters:
A. The Definition of the Contract of the Carriage of Goods by Sea
B. The Documentary Scope of the Rules
A. The Definition of the Contract of the Carriage of Goods by Sea
The analysis in this chapter will be on the QML’s definition of the contract of the
carriage of goods by sea, the position of international conventions namely the Hague
Rules and its two amendments (“the Hague-Visby Rules”), the Hamburg Rules, and the
RR. The stand taken by the QML on seaborne carriage is then compared to those of the
international conventions.
There are two intrinsic types of contract of the carriage of goods by sea: contracts
that are evidenced by a BOL or other similar documents; and carriage under
109 The word “Rules” stands for the QML, the Hague-Visby Rules, the Hamburg Rules, and the RR.
Reference of the U.S and U.K. COGSA are made in some points. The phrase “the Hague-Visby Rules” will
be used to refer to both the Hague Rules of 1924 and its SDR and Visby amendments. When reference is
made only to the Hague Rules of 1924, the phrase “the Hague Rules” will be used.
41
charterparties. The focus of this dissertation is on the first type.110 The contract of the
carriage of goods by sea is deemed as a commercial contract as the Qatari Commercial
Law No. 27 of 2006 lists carriage of goods by sea as one of the acts it regulates.111
However, the QML is a special law regulating maritime carriage and must be first applied
by the court. Should there be no rules under the QML to regulate a disputed maritime
matter, a legal basis may first be found within the maritime customary rules.112 If no rule
is found under the latter, then matter is subject to commercial law or the general
principles of law found in the Qatar Civil Law No. 22 of 2004.113 The civil law will be
applicable in the absence of a suitable legal rule under the commercial law. Judicial
decisions and the opinion of jurists are used as secondary sources of persuasive effect to
interpret the law.114 The contract of the carriage of goods by sea is further discussed in
five sections:
1. General Overview of the Definition
2. Parties to the Contract
3. Geographic Scope
110 This dissertation aims to shed light only on carriage under a BOL and other similar transport documents.
This is because, the purpose is to discuss the carriage of goods issues from a shipper’s perspective since
Qatar is described as a shipper country. Charterparties are excluded because both parties to the contract
have equal bargaining power. Thus, parties to the charterparty are free to agree on their obligations and
liabilities.
111 The Qatari Commercial Law No. 27 of 2006, art. 5(11).
112 HAMDI, supra note 9, at 14.
113 Id. at 16.
114 Id.at 17.
42
4. Obligations of the Carrier in General
5. Mode of Transport
1. General Overview of the Definition
According to article 143 of the QML, the contract of the carriage of goods by sea is
defined as “a contract whereby the carrier whether a ship-owner or charterer, agrees to
carry goods in a vessel to a specified port against payment”.
The contract of carriage definition is expressly mentioned and defined in the
international conventions related to carriage of goods by sea: the Hague-Visby Rules
article 1(b),115 the Hamburg Rules article 1(6),116 and the RR article 1(1).117 From the
previous provisions, we can deduce that every convention has defined the contract with
some distinctions as follows: the Hague-Visby’s poor drafting only focuses on the
documentary scope of the application as the central aim of the convention was to regulate
the BOL. It says that the rules apply to the contract of carriage evidenced by a BOL or
any equivalent document of title, and a BOL issued under a charterparty when negotiated
to a third party. The Hamburg Rules and the RR, however, move a step forward in
defining the contract by emphasizing on the position of the carrier as a party to the
115 See the Hague-Visby Rules art. 1(b) infra Appendix 3, Table of Articles, General definitions article.
116 See the Hamburg Rules art. 1(6) infra Appendix 3, Table of Articles, General definitions article.
117 See the RR art. 1(1) infra Appendix 3, Table of Articles, General definitions article.
43
contract, who undertakes to carry goods from one port to another according to the
Hamburg Rules, and from one place to another in the RR.
The definition provided in the QML is in line with the Hamburg Rules and the RR,
with some differences pertaining to the lack of recognition of other modes of transport in
the contract. The QML’s legislature succeeded over the drafters of the Hague-Visby
Rules as the Qatari version illustrates several elements of the contract of carriage in the
definition rather than focusing on the transport document.
2. Parties to the Contract
As far as the parties to the contract are concerned, the contract of carriage under the
QML is concluded between the carrier or its agent and the shipper or a person acting on
its behalf. It can be deduced from the definition of the contract of carriage under article
143 of the QML that the carrier is the person, whether a charterer or ship-owner, who
enters into a contract of carriage and agrees to carry goods to a specified port.118 The
Hague-Visby Rules in article 1(a)119, the Hamburg Rules in article 1(1)120, and the RR in
article 1(5)121 expressly define the term ‘carrier’ as the person who enters into the
contract of carriage with a shipper.
118 Art. 143, “a contract whereby the carrier whether a ship-owner or charterer, agrees to carry goods in a
vessel to a specified port against payment”.
119 Art. 1(a), “[c]arrier" includes the owner or the charterer who enters into a contract of carriage with a
shipper”.
120 Art. 1(1), "[c]arrier" means any person by whom or in whose name a contract of carriage of goods by
sea has been concluded with a shipper”.
121 Art. 1(5), “[c]arrier” means a person that enters into a contract of carriage with a shipper”.
44
In addition, the QML recognizes a distinction between the contracting carrier and
the actual carrier. The carrier referred to in article 143, which defines the contract of
carriage of goods by sea, is the contracting carrier as it entered with the shipper into the
contract of carriage. However, the concept of actual carrier is inferred from article 166,122
who is not a party to the carriage contract between the contracting carrier and the shipper.
Article 166 governs the liability of the contracting carrier under a single direct BOL
covering various carriage stages. Thus, the contracting carrier under article 166 is the one
who entrusts the carriage operation to one or more actual carriers. The actual carrier has
no contractual relationship with the shipper. Thus, the contracting carrier is liable for the
whole phase of carriage even if performed by other carriers. In recognizing the position
of the actual carrier, the QML’s trend is similar to the Hamburg Rules. The Hamburg
Rules define “actual carrier” in article 1(2)123 as the person who does not have a
contractual relationship with the shipper, however, it is entrusted with some or all
obligations of the contracting carrier. The concept of actual carrier underwent a
significant change in the RR. The term used is no longer “actual carrier” and it is
nowreferred to as a “maritime performing party”.124 This term is defined under article
122 Art. 166, "[w]here the carrier issues a direct bill of lading undertaking to transport the goods from a
specific place in consecutive stages, the carrier shall be liable for all the obligations arising from the bill
until the end of the last stage of transportation. The carrier shall act as a guarantor for the acts of the
subsequent carriers who shall handle the transportation of the goods”.
123 Art. 1(2), "[a]ctual carrier" means any person to whom the performance of the carriage of the goods, or
of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such
performance has been entrusted”.
124 The RR regulator introduced new unique terms: “performing party” and “maritime performing party”.
The “performing party” undertakes any of the carrier’s obligations related to receiving, loading, stowing,
handling, carrying, caring of cargo, discharging, and delivering of the goods in the shore side of the
contract of carriage. Thus, a land carrier who carries the goods from the warehouse of the shipper to the
45
1(7) of the RR.125 The maritime performing party acts “within a port area” such as an
actual carrier carrying goods from port-to-port, stevedores, the trimmers, the port pilots
and the terminal operator intervening (directly or indirectly) at the request of the
carrier.126 The scope of the RR is wider than the QML’s actual carrier as in the RR,
parties acting within a port area directly or indirectly under the carrier’s control are
described as maritime performing parties. However, a QML’s actual carrier undertakes to
perform a phase or phases of the carriage to the final destination.
The other party to the contract of carriage is the shipper as mentioned in article 144
of the QML.127 It has to be noted that like the Hague-Visby Rules, there is no special
article defining the term shipper under the QML. In contrast, the Hamburg Rules and the
RR define the term shipper in articles 1(8)128 and 1(3)129 respectively. It has to be noted
that the RR provide a new term similar to shipper, “documentary shipper” under article
departure port is qualified as a performing party. See generally Stefano Zunarelli, The Carrier and the
Maritime Performing Party in the Rotterdam Rules, 14 Unif. L. Rev. 1011 (2009).
125 Art. 1(7), “[m]aritime performing party” means a performing party to the extent that it performs or
undertakes to perform any of the carrier’s obligations during the period between the arrival of the goods at
the port of loading of a ship and their departure from the port of discharge of a ship. An inland carrier is a
maritime performing party only if it performs or undertakes to perform its services exclusively within a
port area”.
126 Zunarelli, supra note 124, at 1021.
127 Art. 144, “[t]he contract of maritime transport shall be proved by a document to be known as Bill of
Lading (B/L). The Bill of Lading dated and signed by the carrier or the carrier representative must indicate:
1. the carrier's name and domicile; 2. the shipper's name and domicile…”.
128 Art. 1(8), “[s]hipper” means a person that enters into a contract of carriage with a carrier”.
129 Art. 1(3), "[s]hipper" means any person by whom or in whose name or on whose behalf a contract of
carriage of goods by sea has been concluded with a carrier, or any person by whom or in whose name or on
whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea”.
46
1(9).130 The latter is not a shipper, however, it accepts to be a shipper under a transport
document or electronic transport record.
3. Geographic Scope131
The phrase describing the scope of the carrier’s obligation “agrees to carry goods
to a specified port” impliedly means that the QML is applied to the carriage between the
ports of Qatar and contracts involving international sea carriage (from Qatar to other
countries or vice versa).132 However, when it comes to the liability of the carrier, the
legislature conferred the parties to the contract the right to exclude the carrier liability
regime in coastwise voyage.133Additionally, there is a special law regulating coastwise
carriage in Qatar134 that must govern the carriage between the national ports of Qatar.
However, in the absence of an article that regulates the matter, the QML should govern.
130 Art. 1(9), “[d]ocumentary shipper” means a person, other than the shipper, that accepts to be named as
“shipper” in the transport document or electronic transport record”.
131 It has to be noted that this topic is not included in the comparison with international conventions since
there are special rules regarding the application of the conventions, which are not relevant to the
dissertation. The international convention needs to regulate this topic differently to identify when the
application of a given international convention is triggered based on geographic criteria. This application of
any of the conventions is conditional upon certain factors that should be met, so that the court applies the
international convention.
132 See generally Francesco Berlingieri, A Comparative Analysis of the Hague-Visby Rules, the Hamburg
Rules and the Rotterdam Rules, Paper delivered at the General Assembly of the AMD, Marrakesh 3-4
(2009) (a comparison of the geographical scope of the international conventions pertaining to the carriage
of goods by sea is provided).
133 Art. 162, “[i]t is admissible to contract out of the carrier liability provisions in the following cases: 1. in
coastwise carriage…”.
134 See generally The Qatari Law on Coastwise Carriage No. 16 of 1980.
47
4. Obligations of the Carrier in General
In the QML, the subject matter of the contract is the carrying of goods in a vessel
to another specified port, and this constitutes the core and intrinsic obligation provided
under the contract of the carriage of goods by sea. If there is no obligation to carry goods
and move them from one place to another, there will be no contract for carriage by sea.
The carrier’s other obligation is to carry the cargo and deliver it to the port specified in
the contract of carriage. In case the carrier breaches this obligation, liability for delay in
the delivery of cargo would arise. The liability for delay in delivery is further discussed
within Part IV.
The Hamburg Rules and the RR articulated the carrier’s main obligations of
carriage and delivery in the definition as well. Nevertheless, the Hague Rules mentioned
nothing in the definition about the carrier’s obligations. They are instead confined to the
documentary scope of application.
Besides the obligations of the carrier, the definition shows the obligation of the
second party to the contract, the shipper who would have to pay the carrier for the
carriage service (freight).135 This is obvious from the Hamburg Rules and the RR as well.
Additionally, the carrier should agree to carry the goods handed in by the shipper and no
other goods unknown to the carrier or not mentioned in the contract. Article 148 of the
135 The obligations of the shipper are beyond the scope of this dissertation. See generally Berlingieri, supra
note 132.
48
QML conferred to the carrier a right to refuse and to discharge goods shipped without its
consent.
It is deemed unnecessary to mention all the obligations of the carrier under the
definition. The definition’s purpose is mainly to show the main obligations of the carrier.
The other obligations are found in other articles discussed in greater detail in part III.
5. Mode of Transport
The phrase “carry goods in a vessel” in the QML’s definition (article 143) means
the rules are applied so long as the carriage contract provides for the sea leg carriage only
and not to other modes of transport like rail, air, or road found in a through BOL. To put
it differently, if the carrier agrees with the shipper to carry goods from door-to-door
under a through BOL, the QML’s operation is limited to the sea carriage phase. However,
the parties may contract to apply the QML to the pre-loading and post-discharge periods.
It is worth noting that the Hamburg Rules recognize the multimodal transport in
article 1(6) stating that “a contract which involves carriage by sea and also carriage by
some other means is deemed to be a contract of carriage by sea for the purposes of this
Convention”. However, its rules are applied to the maritime voyage only. On the other
hand, the RR extend its application to other phases of carriage. This particular point is
subject to further discussion under Part IV of this dissertation.
Although the QML’s definition of the contract of carriage shares common features
with the RR, it does not highlight the possibility of carrying goods under a multimodal
transport document. The QML’s definition of the contract of carriage emphasizes the
application of the rules to carriage that takes place at sea only as it obliges the carrier to
49
“carry goods in a vessel” and not other means of transport including a vessel or carriage
beyond the sea leg. Nonetheless, according to the RR, “[t]he carriage shall provide for
carriage by sea and may provide for carriage by other modes of transport in addition to
the sea carriage”, thus reflecting a new development in the shipping industry where air,
rail, and road are combined with sea carriage.
Conclusion and Recommendation
After pointing out the differences and similarities between the QML’s definition of
the contract of carriage of goods by sea and those of international conventions’, it is
recommended that the Qatari legislature improve the definition by having a
comprehensive structure in which the advantages of the three carriage of goods by sea
conventions are stated to fill in the gaps in the current definition. Hence, the legislature
should take into consideration some vital elements.
The QML should provide a definition of the terms: carrier, shipper, consignee,
holder of transport document, and actual carrier. There should be separate sections
identifying and describing the parties to the contract of carriage and clarifying to whom
the right of action is conferred so that the cargo owner knows who is the potential
defendant in a claim for cargo loss, damage, or delay. When the parties to the contract of
carriage are not clearly defined and described, this causes confusion of the party interest
as to whom and by whom a legal action is initiated.
50
Recognizing other modes of transport is of crucial importance in order to cope with
recent advancements in sea carriage which is greatly dependent on other modes of
transport. The journey of goods transported by sea does not usually stop at ports, but
continue to land carriage segments. The current position of shipping by water is not as
simple as it was in the era of the Hague-Visby Rules where vessels were the most
significant mode of transport. Hence, there was no need to regulate the carriage when
more than one mode of transport, including sea carriage, is used to move cargo from one
nation to another. Moreover, the Ministry of Transport and Communication is working to
provide an integrated transport system linking the sea, road, air and rail transport.136
Qatar is heading in the direction of multimodalism as the new infrastructure of the
Hamad Port is linked to rail and land roads to carry goods from door-to-door. Besides,
the Ministers of Transport of the GCC have decided to link the states by a rail network,
which will boost trade among the countries.137 Thus, it is highly likely that the number of
transport documents covering more than one leg of carriage will increase.138
To sum up, all the recommendations above pertain to definitions, which are
necessary in the course of carriage. The main goals of these recommendations are two-
136 See generally supra Part I, ch. D.
137 GCC Rail Network to Link all 6 Gulf States by 2018, Gulf News, http://gulfnews.com/news/uae/transport/gcc-rail-network-to-link-all-6-gulf-states-by-2018-1.1248632 (last
visited Nov. 2, 2016).
138 See generally Rail Network Project to Link GCC States Begins, Middle East Eye,
http://www.middleeasteye.net/news/rail-network-project-link-gcc-states-begins-1070205078 (last visited
Aug. 10, 2016).
51
fold: first, to have a trend similar to international conventions which have a “Definition”
article defining the most important terms mentioned in the conventions to add clarity,
certainty, and predictability. Generally, any definition article will clarify the application
of the rules and make it easy to follow the law as we do not have to read the whole
document to build a general understanding about the key terms therein. Second, the
recommendations purport to widen the QML’s scope of application and fill in the gaps of
some issues raised in the 21st century such as carriage beyond the sea leg. New issues in
sea carriage are of high practical significance and should be covered in the QML.
The common feature between the international conventions as a whole and the
QML is the absence of a formation requirement for the contract. However, some legal
regimes provide that the contract of carriage can be evidenced by a BOL, or any
equivalent document of title, or other transport documents. This necessitates an
examination of all the previously mentioned documents to understand the various types
of sea transport documents to which the international conventions and the QML can be
applied.
B. The Documentary Scope of the Rules
Various transport documents are used in practice to evidence the contract of the
carriage of goods by sea. For example, the contract of carriage evidenced by a BOL or
other documents of title assimilated to the BOL are regulated under the Hague-Visby
Rules.
52
There are other transport documents such as sea waybills and data freight receipts
which are not covered by the Hague-Visby Rules. However, they fall under transport
documents in the Hamburg Rules article 18139 and the RR article 35.140
In addition, recent shipping practice reveals the use of electronic transport
documents due to the advancement in technology such as the e-BOL and e-sea waybills.
Transport documents taking the electronic forms are called “electronic records” and they
are regulated under the RR chapter 3. These points are further addressed in three main
sections:
1. The Role of the Bill of Lading in Forming the Contract of Carriage
2. Other Documents Evidencing the Contract of Carriage
3. The Application of the Rules to e-BOL and e-transport Documents
1. The Role of the Bill of Lading in Forming the Contract of Carriage
The BOL is the most popular document of seaborne carriage141. However, the
importance of this document has dramatically been challenged by the advent of other
139 See the Hamburg Rules art. 18 infra Appendix 3, Table of Articles, Documentary scope.
140 See the RR art. 35 infra Appendix 3, Table of Articles, Documentary scope.
141 See MAHMOUD ABABNEH, THE PROVISIONS OF THE CONTRACT OF CARRIAGE 80 (2015)
(translated from Arabic).
53
transport documents, such as sea waybills.142 Irrespective of that fact, the BOL received
the attention of the Qatari legislature as it provides detailed provisions regulating the
BOL only. No reference has been made to other transport documents. For that reason, the
main focus of this section is, first to examine the BOL, its types, evidentiary effect,
particulars, reservations, and the absence of one or more particulars. Second, this is
followed by a discussion of other transport documents. Third, the recognition of the e-
transport documents is fleshed out. This section is divided into six subsections:
a. The Definition of the BOL
b. Types of the BOL
c. BOL Particulars
d. Evidentiary Effect
e. The Absence of Some BOL Particulars
f. Reservation to the BOL Particulars
142 Francis Reynolds, Transport Documents under the International Convention, in THE CARRIAGE OF
GOODS BY SEA UNDER THE ROTTERDAM RULES 271, 276 (D. Rhidian Thomas ed., 2010).
54
a. The Definition of the BOL
There is no definition of the BOL under the QML.143 However, one can deduce the
definition from article 144.144 The BOL can be best defined as the document that
evidences the contract of carriage of goods by sea.145 Therefore, the BOL is not the
contract of carriage itself. Rather, it is the best evidence of an existing contract of
carriage between the carrier and shipper that should be signed by the carrier or a person
acting on its behalf. The BOL has several functions. It serves as a document of title of the
goods, evidences the receipt of the goods by the carrier, and is a prima facie evidence of
the BOL particulars.146
The BOL is regulated differently in international conventions than it is in the QML.
Under The Hague-Visby Rules and similar to the QML, there is no specific definition of
the BOL. It is understood from the definition of the contract of carriage pursuant to
article 1(b)147 of the Hague-Visby Rules that the BOL is a document covering the sea leg
art. 9 of the Jordanian Maritime Authority withthe lack of a BOL definition under the QML, Compare 143
Law No. 47 of 2002 (defining the BOL) (“[t]he BOL is a document evidencing the contract of carriage and
regarded as a prima facie evidence of the condition and reception of the goods, ready to be loaded and
carried, by the carrier, and conferred its holder the right to claim delivery of the goods.”). See also
ABABNEH, supra note 141.
144 See the QML art. 144 infra Appendix 3, Table of Articles, Documentary scope.
145 It is worth noting that the BOL is regulated under the QML, specifically in the contract of carriage of
goods by sea chapter. However, under the US jurisdiction, the BOL is regulated under the Federal Bill of
Lading Act (The Pomerene Act), 49 U.S.C §§80101 – 80116.
146 1 ROBERT FORCE, A. N. YIANNOPOULOS & MARTIN DAVIES, ADMIRALTY AND
MARITIME LAW 12 (2012).
147 See the Hague-Visby Rules art. 1(b) infra Appendix 3, Table of Articles, General definitions article.
55
carriage of goods. That article is slightly wider in scope than the QML. It expressly
extends the coverage of the rules to documents similar to the BOL. With that being said,
the Hague-Visby Rules failed to define documents of title similar to the BOL. What types
or names of documents that fall under the ambit of “similar document of title” is an
ambiguous issue.148 In our opinion, sea waybills are analogous to BOL with a slight
difference. The value of a sea waybill, as a non-negotiable receipt, is not less than the
straight BOL. Like the BOL, a sea waybill evidences the contract of carriage of goods by
sea, on which the name of the person entitled to delivery is written, and it is regarded as a
receipt of the goods.149 Unlike the non-negotiable BOL, the seaway bill holder is not
required to surrender the bill to gain delivery of the goods. At the international level, the
CMI Uniform Rules for Sea Waybills of 1990 allows, in article 4(i),150 for the contract of
carriage to be subject to national laws or international conventions. Thus, the sea waybills
may be subject to the Hague-Visby Rules.151
In 152The Hamburg Rules move a step forward and define the BOL in article 1(7).
that article, the functions of the BOL are inferred from the following wording: “a
148 See generally JOHN RICHARDSON, A GUIDE TO THE HAGUE AND HAGUE VISBY RULES 34
(3rd ed. 1994).
149 1 WILLIAM TETLEY, MARINE CARGO CLAIMS 19 (4th ed. 2004).
150 Art. 4(i), “[t] contract of carriage shall be subject to any International Convention or National Law
which is, or if the contract of carriage had been covered by a bill of lading or similar document of title
would have been, compulsorily applicable thereto. Such convention or law shall apply notwithstanding
anything inconsistent therewith in the contract of carriage”.
151 RICHARDSON, supra note 148, at 20.
General definitions 3, Table of Articles, Appendix infrathe Hamburg Rules art. 1(7) See 152
article.
56
document which evidences a contract of carriage by sea and the taking over or loading of
the goods by the carrier”. An additional function, about serving as evidence to the order
of the goods and goods’ specifications at the time the carrier takes the goods into its
Crucially, in contrast to the stand 153.of the Hamburg Rules charge, is found in article 16
of the QML, the Hamburg Rules’ application is not confined to the BOL. It also applies
154.article 18to other transport documents evidencing the contract of carriage as per
There is nothing in the Rules that defines or mentions the designation or the type of such
other transport documents.
The most vital change in the documentary scope of application at the international
level originates in the RR definition of transport document and electronic transport record
The RR do not limit their application to the BOL, nor 155.in article 1(14) and 1(18)
expressly mention the transport documents they apply to. However, the defining features
and functions of such documents are mentioned in the convention as will be clear under
this chapter later. The RR make a significant difference from 1924 to 2008 by setting up
the criteria for the documents that evidence the contract of the carriage of goods.
Thereupon all types of transport documents written or electronically exchanged are
a carrier may 156subject to the provisions of the RR. According to article 35 of the RR,
153 Art. 16(2), “[i]f the carrier or other person issuing the bill of lading on his behalf fails to note on the bill
of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the
goods were in apparent good condition”.
154 See the Hamburg Rules art. 18 infra Appendix 3, Table of Articles, Documentary scope.
155 See the RR art. 1(14) & 1(18) infra Appendix 3, Table of Articles, General definitions article.
156 See the RR art. 35 infra Appendix 3, Table of Articles, Documentary scope.
57
issue a paper printed transport document (“document”) after the conclusion of the
contract of carriage, which usually happens orally or by issuing a booking note or
through other correspondences between the carrier and the shipper. The carrier may also
issue an electronic transport record (“record”) that enables him to send it to the shipper
They serve 157electronically. The RR state the functions of the document and the record.
as evidence of the receipt of the goods by the carrier or performing party, and evidence of
the contract of carriage and its terms. Furthermore, they are also regarded as a prima
158evidence of the document particulars.facie
Under the RR. there is no specific type of transport document the carrier is obliged
to issue under a contract of carriage. The RR do not mention the name of the transport
document or electronic transport record, they just provide the specifications of the
document or record. This is indeed a wise choice so that the RR cover as many transport
documents as possible which evidence the contract of carriage of goods.
Since the carrier is at freedom to either issue a document or record, one may
wonder about the differences between them. Records contain information communicated
For instance, the carrier may create a record using a 159by electronic communication.
computer including correspondences between him and the shipper, goods manifest,
Appendix 3, Table of Articles, Evidentiary effect of the transport document. infrathe RR art. 41 See 157
3, Table of Articles, Reservation to the contract particulars. Appendix infrathe RR art. 40 See 158
General definitions article.3, Table of Articles, Appendix infrathe RR art. 1(18) & 1(17) See 159
58
booking notes, the name of the port of final destination, address of the shipper, and other
information. This information is saved electronically.
b. Types of the BOL160
It is unfortunate that the QML is extremely limited in its documentary scope. In
fact, it only regulates one intrinsic document evidencing the contract of the carriage of
goods by sea: the BOL.161 Whatever the type of the BOL is, whether it is shipped BOL or
received for shipment, charterparty BOL, or direct BOL; these types are discussed and
compared to the BOLs mentioned in the international conventions pertaining to carriage
of goods by sea. This subsection covers three points:
i. Shipped and Received for Shipment BOL
ii. Charterparty BOL
iii. Direct or Through BOL
160 Under this subsection, the types of the BOL mentioned in the QML will lead the discussion. Thus, the
types of BOL are listed based on their presence in the QML.
161 There is another type of receipt referred to as “delivery orders” regulated under the QML art. 150. It has
to be noted that such order does not constitute a new type of transport document since the BOL is always a
pre-requisite (delivery orders are issued in exchange for the BOL) for the issue of such documents.
According to article 154, a person entitled for delivery of the goods can request the carrier to issue a
delivery order to deliver a specific amount of the cargo conditional upon an express statement in the BOL.
The essential function of these documents is stated in article 154. It gives its legitimate holder the right to
claim the delivery of the goods from the carrier. The shipper tends to sell the goods while they are in transit
(before their arrival at their final destination) to different buyers. Thus, a BOL cannot be issued for every
buyer. In such cases, one BOL will be issued, but multiple delivery orders are made to the buyers to enable
them to get the goods delivered. It has to be noted that such order does not constitute a new type of
transport document since the BOL is always a pre-requisite (delivery orders are issued in exchange of the
BOL) for the issue of such documents.
59
i. Shipped and Received for Shipment BOL
Usually, the carrier will issue a shipped BOL to the shipper if the vessel to carry
the goods is known and the loading operations have started. On the other hand, the carrier
may issue a received for shipment BOL to the shipper when it has received the goods
from the shipper and before the commencement of cargo loading operations.162 This kind
of bill enables the shipper to send it to the consignee before the actual loading of the
goods in the vessel, acknowledging the reception of the goods by the carrier.163 As such,
the document functions as evidence of the receipt of the goods in good order and
evidenced the conclusion of the contract of carriage between the carrier and the shipper.
This kind of BOL is increasingly used when the vessel on board of which the
goods are to be loaded is not yet known to the carrier. This is true when the vessel has not
yet arrived at the port or is waiting for its turn at berth. It is worth mentioning that such
document may amount to a shipped BOL and has the evidentiary effect of the shipped
BOL at the request of the shipper, if certain conditions are met. According to article 150
of the QML,164 these conditions are: the actual loading of the goods in the vessel, the
inclusion of information required under article 144165, and the word “shipped” is stated
162 See the QML art. 150, supra note 164. See generally TETLEY, supra note 149, at 522.
163 ADEL ALI ALMEQDADI, THE MARITIME LAW 108-09 (1998) (translated from Arabic).
164 Art. 150, “[t]he carrier may hand over to the shipper a receipt of receiving the goods before the goods
are loaded onboard the Vessel and he shall substitute this receipt with the bill of lading at the request of the
shipper after unloading the goods. The receipt shall be considered as being equivalent to the bill of lading if
it contains the information provided for in Article 144 and has the word shipped indicated on it”.
165 See the QML art. 144 infra Appendix 3, Table of Articles, Documentary scope.
60
on the face of the BOL. The goal of the latter is to add the name of the vessel on which
the goods are carried and the date of loading.166
Like the QML, the Hague-Visby Rules in article 3(7) and the Hamburg Rules167
article 15(2)168 grant the carrier the option of issuing a received for shipment BOL before
loading, which can be transformed into a shipped BOL by the commencement of loading
operations. Moreover, the Hamburg Rules apply to shipped BOL and received for
shipment BOL since they are BOLs regulated under article 15(2).169 Nothing regarding
received or shipped BOL is mentioned under the RR. Nevertheless, they all fall under the
ambit of the documents or records, which are broadly defined.170 Therefore, the RR are
applicable to such types of BOLs.
166 ABABNEH, supra note 141, at 83.
167 Art. 3(7), “[a] the goods are loaded the bill of lading to be issued by the carrier, master, or agent of the
carrier, to the shipper shall, if the shipper so demands, be a "shipped" bill of lading, provided that if the
shipper shall have previously taken up any document of title to such goods, he shall surrender the same as
against the issue of the "shipped" bill of lading, but at the option of the carrier such document of title may
be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships
upon which the goods have been shipped and the date or dates of shipment, and when so noted, if it shows
the particulars mentioned in paragraph 3 of Article 3, shall for the purpose of this Article be deemed to
constitute a "shipped" bill of lading”.
t particulars.3, Table of Articles, Contrac Appendix infrathe Hamburg Rules art. 15(2) See 168
169 Id.
General definitions article.3, Table of Articles, Appendix infrathe RR art. 1(14) & 1(18) See 170
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ii. Charterparty BOL
Although the QML has no application to charterparties, it governs BOLs issued
under a charterparty from the time it regulates the relationship between the charterer and
the third party holder of the BOL only and not the shipper.171 Thus, if the BOL is issued
between the charterer and the shipper, the QML does not apply to the BOL. It has to be
noted that such holder should always be a third party to the charterparty contract.
Otherwise, the BOL will be regarded merely as a receipt between the charterer and the
shipper.
There is a consensus between the QML and the international conventions with
respect to the exclusion of the application of their provisions on charterparties.172 Indeed
this makes sense as the international community efforts were made to regulate the
relationship between the carrier and the shipper to strike a balance between the interests
of the carrier and the shipper. Most likely the aim of such clauses is to exonerate the
carrier from liability or to lessen its liability under the contract. The shipper must be
protected against the misleading clauses that carriers tend to insert in transport
documents. This sort of protection is not needed when it comes to charterparties as the
.3, Table of Articles, Freedom of Contracts Appendix infrathe QML art. 164 See 171
172 Art. 6 para. 2 of the Hague Rules, “[t]he provisions of this Convention shall not be applicable to charter
parties, but if bills of lading are issued in the case of a ship under a charter party they shall comply with the
terms of this Convention. Nothing in these rules shall be held to prevent the insertion in a bill of lading of
any lawful provision regarding general average”; art. 2(3) of the Hamburg Rules, “[t]he provisions of this
Convention are not applicable to charter-parties. However, where a bill of lading is issued pursuant to a
charter-party, the provisions of the Convention apply to such a bill of lading if it governs the relation
between the carrier and the holder of the bill of lading, not being the charterer”; art. 6(1) of the RR, “[t]his
Convention does not apply to the following contracts in liner transportation: (a) Charter parties…”.
62
vessel owner and charterer have equal bargaining power in negotiating the terms of the
contract. For the same aforementioned reasons, the RR exclude from their application a
contract for the use of space in a ship’s “slot charter” in the liner trade, or contracts issued
in the non-liner trade when no contract for the use of a space in a ship is issued.173
iii. Direct or Through BOL
Different transportation arrangements require the issuance of different transport
documents. Therefore, the Qatari legislature recognizes the existence of the concept of
on-carriage or through carriage in article 166 of the QML174 only for sea segments of the
voyage as no article in the QML indicates the concept of multimodalism. Article 166
confers the carrier the right to issue a single direct BOL covering the entire sea carriage
from the point of origin to the final destination,175 and when carriage actually involves
two or more ports of call.176 The contracting carrier (who enters into a contract of carriage
of goods by sea with the shipper) under such document entrusts the performance of all or
some sea voyages to other carriers and accepts having to be liable for the all sea phases
3, Table of Articles, Freedom of contract. Appendix infrathe RR art. 6 See 173
174 See the QML art. 166, supra note 122.
175 The relationship between the contracting principal carrier and the actual carrier is regulated through the
issuance of an indirect BOL by the actual carrier which is subsequently handed to the principal contracting
carrier. See AMAL MOHAMED KELANI, LITIGATION IN CONTRACT OF CARRIAGE OF GOODS
BY SEA 92-3 (2012) (translated from Arabic).
176 However, the QML provides no express definition of a direct BOL. Compare the QML’s lack of a
definition with the Jordanian Maritime Commercial Law No. 12 of 1972 as amended by Law No. 35 of
1983, art. 208 (defining the direct BOL). See generally Erling Selvig, Through-Carriage and On-Carriage
of Goods by Sea, 27 Am. J. Comp. L. 369 (1979).
63
even when performed by an actual carrier. It is worth noting that the contracting carrier
has a valid recourse against the actual carrier on whose phase the cargo loss, damage, or
delay occurred. Thus, the QML recognizes the concept of “actual carrier” and through
carriage, brought by the Hamburg Rules only for the maritime phase of carriage. Direct
BOL can cover multimodal transport if the carriage includes carriage by other modes of
transport along with carriage by sea. However, the application of the QML on on-carriage
situation is only valid for intermodal transport. There is no sign in the QML that indicates
the recognition of combined transport arrangements. When the carriage is entrusted to an
on-carrier, the period of responsibility of the contracting and actual carriers is confined to
the tackle-to-tackle period as per article 164 of the QML.177
The QML is praised for addressing the direct ocean BOL as it has several
advantages for the shipper. The shipper under such type of BOL is dealing with one
carrier only for the whole carriage transaction even when transporting to the final
destination includes other voyages performed by on-carriers. Hence, the contracting
carrier must be liable for the acts of carriers with whom it has contracted regardless of the
phase in which the loss of or damage to cargo occurred. Thus, in case anything happened
to the cargo, the shipper can easily sue one person, the “the contracting carrier”, who
guarantees the performance of successive carriers, for cargo loss, damage, or delay
claims as per article 166 of the QML.178 The purpose of such document, holding one
person liable for the entire carriage, is logically fair as the shipper dealing with the
177 See infra Part IV, ch. D.
178 ALMEQDADI, supra note 163, at 103.
64
contracting carrier has no clue about the identity of on-carriers and no contractual
relationship exists between him and the latter.
c. The BOL Particulars179
Every BOL must include some particulars. To enjoy the legal effects stated by the
QML in article 147, the BOL must include the following information pertinent to:
Parties: name and domicile of the carrier, shipper, or consignee, if applicable.
Goods: nature, leading marks, quantity, quality of the goods or weight of packages or
pieces. So, it is either the quantity or weight that must be inserted in the BOL. The
description of the goods, as the case may be, according to the statements presented by
the shipper. Also, the apparent condition of the goods and packages must be
included.
Place of issuance of the BOL and the number of copies issued.
Port name: the name of the loading and discharging ports and the date of loading and
discharging operations.
Vessel: name of the vessel, its tonnage, the master’s name, freight and its
computation.
These, indeed, are examples of mandatory terms and the minimum of BOL
particulars mandated by the QML to grant the BOL its function of evidencing the
condition and description of the goods thereto. The BOL is considered a prima facie
179 This is referred to the BOL under the QML, BOL and transport documents under the Hamburg Rules,
and transport documents and electronic transport records under the RR. The international conventions’
provisions on particulars applied to both BOL and other transport documents. See infra Part I, ch. B,
section 2.
65
evidence of the information stated thereto as per article 151 of the QML.180 The parties
may insert other particulars if they wish to. These might be added if the circumstances so
require. Some of these could be a statement in relation to deck cargo, an increase in
carrier liability, the price of the goods declared by the shipper etc.
Under the Hague-Visby Rules articles 3(3)(a),(b), and (c),181 BOL particulars are
enumerated and confined to those furnished by the shipper, such as the quantity,
numbers or pieces to be loaded, marks identifying the goods, and weight and goods
condition. Thus, the QML has a wider spectrum of particulars than those found in the
Hague-Visby Rules.
The QML is in conformity with the Hamburg Rules article 15(1)182 with regard to
the BOL particulars. However, the particulars of the latter are enumerated in greater
detail. There are particulars that are not mentioned in the QML article 147,183 namely the
name and principal place of business of the carrier, and the date or the period of delivery
of the goods at the port of discharge if the date is expressly agreed upon between the
parties.
icles, Evidentiary effect of the transport document. 3, Table of Art Appendix infrathe QML art. 151 See 180
., Table of Articles, Contract particularsAppendix 3 infraVisby Rules art. 3(3) -the Hague See 181
182 See the Hamburg Rules art. 15(1) infra Appendix 3, Table of Articles, Contract particulars.
3, Table of Articles, Contract particulars. Appendix, infrathe QML art. 147, See 183
66
The particulars of the document or record under the RR are very akin to those
provided by the QML. A significant difference is nevertheless found in the way the RR
classify the particulars as there are three sets of contents to be included: the first set is
furnished by the shipper,184 the second is supplied by the carrier,185 and the last one are
optional particulars to be inserted if the nature of the carriage requires its inclusion.186
The latter set of particulars is furnished by the shipper, such as the name and address of
the consignee. However, the rest must be stated by the carrier like the vessel’s name,
place of delivery, and the outbound and inbound ports.
Another substantial difference between the RR and the QML in particular is found
in article 36(4) of the RR.187 The QML articulates the obligation of the carrier to state in
the BOL the apparent condition of the goods at the time of receipt from the shipper.
However, it fails to elaborate on the word “apparent” like the RR do. The latter states
under article 36(4) that the apparent order and condition of the goods refer to reasonable
external checking of the packed goods when the shipper hands them in to the carrier,
performing party, or any additional inspection by the carrier or the performing party prior
to the issuance of the document or record.188
3, Table of Articles, Contract particulars. Appendix infrathe RR art. 36(1) See 184
3, Table of Articles, Contract particulars. Appendix infrathe RR art. 36(2) See 185
3, Table of Articles, Contract particulars. Appendix infrathe RR art. 36(3) See 186
Articles, Contract particulars.3, Table of Appendix infrathe RR art. 36(4) See 187
188 See the RR art. 36(4) infra Appendix 3, Table of Articles, Contract particulars.
67
Having discussed the particulars of the transport documents evidencing the contract
of the carriage of goods by sea, it is important to shed light on one of the vital issues that
may arise when a BOL is issued in pursuance of a charterparty. It is questionable whether
the incorporation of charterparty terms into the BOL has any effect vis-à-vis a consignee
or a third party BOL holder. It is equally questionable whether the third party holder of a
charterparty BOL is bound by the terms of the charterparty which regulate the
relationship between the ship-owner and the charterer, because the third party was not a
party to the charterparty. Can the carrier invoke a term in the charterparty when there is a
proper incorporation of or a reference clause in the BOL to the charterparty terms? This
problem is practical in nature and the solution of which is found in other laws, legal
jurisprudence and judicial precedents. No solution is expressly stated in the provisions of
the QML nor in the international conventions of the carriage of goods by sea.
Highly qualified scholars in the field of maritime law from the Middle East,
particularly Egypt, provided a solution to such a problem based on judicial
decisions rendered by the Egyptian Court of Cassation. Dr. Ali Jamal Aldeen and
Dr. Sameer Alsharqawi illustrated that a third party holder of a BOL
incorporating the terms of a charterparty is bound by the terms of the charterparty
(whether whole or part referral is provided therein) if the referral provided in the
Additionally, the third party must at the 189BOL is clear and expressly written.
time of concluding the contract of carriage evidenced by the BOL know or should
189 ALI JAMAL ALDEEN AWAD, THE CARRIAGE OF GOODS BY SEA 480-01 (1992) (translated
from Arabic). See also SAMEER ALSHARQAWI, THE MARITIME LAW 348 (2001) (translated from
Arabic).
68
A judicial decision rendered by the 190have known about such incorporation.
Qatari First Instance Court Supports this view. According to the reasoning of the
court, if a charterer issues a bill of lading and referred to an arbitration clause in
the charterparty, this referral is deemed as part of the BOL as well. Since the
incorporation was clear in the BOL, the court decided that both the holder of the
subject to the BOL and the charterer are bound by such incorporation and
192therefore no jurisdiction to rule on the case. dhe court haT 191.arbitration clause
There is a U.K. test developed by the author John Wilson to determine whether
invoking the terms of a charterparty into a BOL is effective. He stated in a three tier test
that: the incorporation clause must be inserted in the BOL, this clause must explain the
specifications of the charterparty incorporated term, and the incorporated term must be in
accordance with the rest of the charterparty terms.193 The latter test is somehow similar to
the view of Arabic authors with one single distinction, namely on the description of the
charterparty in the BOL. The latter point is also clear in the U.S..194 In addition, in the
190 AWAD, supra note 189. See also ALSHARQAWI, supra note 189.
191 Court of First Instance, Civil & Trade Division, No. 001078, session of Nov. 30, 2011 5-7 (Qatar)
(translated from Arabic).
192 Id.
193 TETLEY, supra note 149, at 84.
194 Id. at 83 (“It is clear that if the bill of lading has been issued and it invokes the terms and conditions of
the charterparty and specifically describes it by the type and date of signature, the charterparty terms will
apply”).
69
U.S. if the description of the charterparty is not clear, then the incorporation is considered
invalid.195
d. Evidentiary Effect
The particulars of transport documents evidencing the contract of the carriage of
goods by sea are regulated in a similar way in the QML and international conventions.
All of these rules enumerated the minimum particulars that the transport document must
encompass. The purpose of such list is to reflect the elements of the contract of carriage,
thus reducing litigation as much as possible about some missing particulars.
If the transport document includes the minimum mandatory particulars, the
document will constitute a prima facie evidence as to such particulars. However, in
practice, the case is not so as some carriers or shippers fail to state one or more
particulars, hence, this would affect the evidentiary effect of the transport document. The
condition of the goods mentioned in the documents evidencing a contract of carriage is
regarded as a prima facie evidence of the external and apparent condition only that is
obvious by external inspection as per article 144 of the QML.196 Therefore, the carrier is
not required to state the actual order of the goods and can rebut the prima facie evidence
by proving that the bad order of the goods was not apparent at the time of external
inspection. The carrier may escape liability for cargo loss or damage by proving the
inherent vice of the goods which cannot be discovered by external inspection as per
195 See Hawkespere Shipping Co., Ltd. v. Intamex, S.A. 330 F. 3d 225, 233-34 (4th Cir. 2003). See
Generally, JURISDICTION AND FORUM SELECTION IN INTERNATIONAL MARITIME LAW 32
(Martin Davies ed., 2005).
196 See the QML art. 144 infra Appendix 3, Table of Articles, Documentary scope.
70
article 158(15).197 In that regard, the issue of carrying goods using containers is raised.
With the advent of carriage by containers worldwide, it is of crucial importance to
discuss the issue of apparent good order in such carriage.
The QML and the international conventions refer only to the apparent order of the
goods. In case of carriage by containers, the carrier cannot check the apparent order of
goods loaded by the shipper in containers as these are always sealed and securely locked.
According to article 151 of the QML, the BOL is regarded as prima facie evidence
between the parties to the contract (the carrier and the shipper). Thus, providing evidence
contrary to what was stated in the bill by the shipper is admissible. On the other hand, the
BOL shall be regarded as conclusive evidence between the carrier and third parties to
protect third parties’ interests. Accordingly, the carrier cannot provide evidence contrary
to the BOL particulars. However, third parties can do so. The reason behind that is fairly
logical. The third parties do not know about the contract of carriage between the shipper
and the carrier, and have not taken part in concluding it. Thus, the law grants the BOL an
irrevocable value that cannot be overturned by the carrier.
The received for shipment BOL mentioned in the QML shall be deemed as a prima
facie evidence between the parties to the contract.198 It is also a prima facie evidence
197 See the QML art. 158(15) infra Appendix 3, Table of Articles, Exceptions to liability.
198 Art. 155, “[t]he carrier may hand over to the shipper a receipt of receiving the goods before the goods
are loaded onboard the vessel and he shall substitute this receipt with the bill of lading at the request of the
shipper after unloading the goods. The receipt shall be considered as being equivalent to the bill of lading if
it contains the information provided for in Article 144 and has the word shipped indicated on it”.
71
between the carrier and third parties if it lacks or has less particulars than required by the
law to be included in the shipped BOL. That being said, a received for shipment shall
have equal evidentiary value to that given to a shipped BOL if it contained all particulars
provided for in article 144.
The Hague-Visby Rules article 3(4)199 is similarly worded to the QML article
151.200 The Hamburg Rules are also similar to the QML except for the requirement that
the transport document holder was acting in good faith and in reliance of the particulars
to gain the protection of the conclusive evidence of the BOL and the carrier estoppel.201
Under article 16(2) of the Hamburg Rules,202 if the carrier or a person acting on its behalf
inserted no statements as to the goods’ apparent condition, it is deemed that it has
received the goods in good order. Evidentiary effect of other transport documents is
mentioned in the Hamburg Rules since the latter apply to all types of sea transport
documents, unlike the QML. It is worth noting that documents other than the BOL have
an identical credibility and evidentiary value to those granted to the BOL under the
199 Art. 3(4), “[s]uch a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods
as therein described in accordance with paragraph 3(a), (b) and (c). However, proof to the contrary shall not
be admissible when the Bill of Lading has been transferred to a third party acting in good faith”.
200 See the QML art. 151 infra Appendix. 3, Table of Articles, Evidentiary effect of the transport document.
201 Art. 16(3), “[e]xcept for particulars in respect of which and to the extent to which a reservation
permitted under paragraph 1 of this article has been entered: (a) the bill of lading is prima facie evidence of
the taking over or, where a "shipped" bill of lading is issued, loading, by the carrier of the goods as
described in the bill of lading; and (b) proof to the contrary by the carrier is not admissible if the bill of
lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance
on the description of the goods therein”.
202 Art. 16(2), “[i]f the carrier or other person issuing the bill of lading on his behalf fails to note on the bill
of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the
goods were in apparent good condition”.
72
Hamburg Rules article 18.203 They evidenced the contract of carriage and receipt of
goods by the carrier as described in the document particulars.204
In a similar fashion to the QML, the RR in article 41(a)205 provides that the
documents and records are deemed as prima facie evidence between the parties thereof.
However, they are considered as conclusive evidence for third parties. Thus, the carrier
cannot provide a proof contrary to the description provided in the document or
record.206Unlike the QML, the RR encompass more complex and detailed information
about evidentiary effect in article 41.207 The carrier may not show a contrary proof to the
document or record particulars against third parties acting in good faith who relied on the
particulars. The latter statement is true only if those particulars related to the description,
apparent condition, the number and types of containers, and the carrier’s address.208
However, proof to the contrary of the types and identifying numbers of the container
seals is admissible against third parties.209
203 See the Hamburg Rules art. 18 infra Appendix 3, Table of Articles, Documentary scope.
204 Id.
.3, Table of Articles, Evidentiary effect of the transport document Appendix infrathe RR art. 41(a) See 205
206 See the RR art. 41(b) infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.
207 See the RR art. 41 infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.
208 See the RR art. 41(c) infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.
209 See the RR art. 41(c)(ii) infra Appendix 3, Table of Articles, Evidentiary effect of the transport
document.
73
e. The Absence of Some BOL Particulars
It is of great importance to highlight the issue of the absence of the BOL particulars
as such issue disables the BOL from functioning as a prima facie evidence of its
particulars from the time the carrier takes over the goods into its charge. Thus, this would
affect its evidentiary value if a dispute arises where the parties or third parties are
involved.
Article 144 of the QML lists the particulars that must be included in the BOL and
states in article 151210 that the BOL is a prima facie evidence of the particulars211
mentioned thereof. However, the legal effect of a BOL that lacks some of the particulars
required by the QML is unknown. Contrary to the Hamburg Rules and the RR, the QML
has not covered the issue of the absence of one or more particulars of the BOL expressed
in article 144 and the evidentiary effect of a bill lacking some particulars required by
law. The absence of such particulars will not render the contract of carriage void, though,
because the requirement to write the BOL212 and its terms is just a requirement to prove
the contract of carriage of goods by sea and not a condition for entering into the contract.
According to Article 144, “the contract of carriage is proved by a document named a bill
210 See the QML art. 151 infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.
211 The one listed under the QML, art. 144. See the QML art. 144 infra Appendix 3, Table of Articles,
Documentary scope.
212 See the QML art. 144 infra Appendix 3, Table of Articles, Documentary scope.
74
of lading etc”. Highly qualified authors from the Middle East wrote on that matter.
According to Dr. Wajdi Hattom, a Lebanese author commenting on the issue of the
absence of BOL particulars which is not addressed by the Lebanese Commercial
Maritime law too, the value of the BOL as an evidence of the carriage contract is
subsequently reduced as it is generally difficult to prove terms that are not enumerated in
the BOL. Dr. Ali Jamal Aldeen supports this view and demonstrates that when one or
more particulars are not included in the BOL, the BOL will not economically function as
a tool enabling the holder of which to undertake legal acts while the goods are in transit.
A good example would be when the shipper wishes to resell the goods to a consignee
while the goods are at the sea on its way to the final destination.213 As such, reductions in
the particulars reduce the value of the BOL when proving the description of the goods. A
third view illustrated by Dr. Mahmoud Ababneh revealed that the absence of one or
more of the BOL particulars reduced the legal value of the BOL as a prima facie
evidence and hence the absence of any particular requires that the particular be proven.214
Under article 201 of the Jordanian Maritime Commercial Law No. 12 of 1972, a BOL
lacking some information cannot stand alone as a prima facie evidence. However, it is
permissible to prove the missing particulars by witnesses.215 In fact, the effect of the
absence of some particulars varies depending on the nature of the particular. For
example, in the absence of the goods’ condition, the goods are presumed to have been
213 AWAD, supra note 189, at 463.
214 ABABNEH, supra note 141, at 75.
215 ALMEQDADI, supra note 163, at 99.
75
handed to the carrier in good order. Yet, the absence of the carrier’s name can lead to
serious practical problems in identifying the person likely to be liable for cargo loss,
delay, or damage.216
The Hamburg Rules in article 15(3) address the issue of the absence of some
particulars of the transport document.217 This article states that the evidentiary effect of
the BOL will not be affected upon the absence of one or more particulars. For the BOL to
maintain its legal value (as a prima facie evidence) under the Hamburg Rules, the
requirements set out in article 15 of the convention218 be met. However, the Hamburg
Rules provide solutions for the absence of some contents of the BOL or transport
document. For instance, the absence of particulars pertaining to freight and demurrage
are dealt with in article 16(4).219 To provide the shipper with further protection, the
Hamburg Rules state that if freight and demurrage are not specified in the BOL, the BOL
will be prima facie evidence that payment has been fulfilled to the carrier and no more
amount is payable by the consignee. Thus, proof to the contrary is merely admissible
between the carrier and shipper. It is clear that the carrier is estopped from claiming
216 See WAJDI HATOOM, THE SEA CARRIAGE 48 (2011) (translated from Arabic).
Appendix 3, Table of Articles, The absence of some transport infrathe Hamburg Rules art. 15(3) See 217
document particulars.
Appendix 3, Table of Articles, Contract particulars. infrathe Hamburg Rules art. 15 See 218
219 Art. 16(4), “[a] bill of lading which does not, as provided in paragraph 1, subparagraph (k), of article 15,
set forth the freight or otherwise indicate that freight is payable by the consignee or does not set forth
demurrage incurred at the port of loading payable by the consignee, is prima facie evidence that no freight
or such demurrage is payable by him. However, proof to the contrary by the carrier is not admissible when
the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in
reliance on the absence in the bill of lading of any such indication”.
76
money from the consignee. Moreover, according to article 16(1) of the Hamburg
Rules,220 in the absence of information about the goods’ condition, it is deemed that they
were handed over to the carrier in a good order and condition.
Yet, the RR deal with the issue of the absence of contract particulars slightly
differently from the Hamburg Rules. The document or record shall maintain its legal
character and evidentiary effect if particulars (1), (2), and (3) of article 36 of the RR are
absent.221Unlike the QML, the RR solve some problems related to the absence of some
particulars. If a date is mentioned in the document or record but it is not clear to what it
refers, then the date should be regarded as the date the carrier or performing party
received the goods from the shipper. Furthermore, like the path of the Hamburg Rules, if
a statement in relation to the apparent order and conditions of the goods is absent, the
goods are regarded as having been handed over to the carrier or performing party in good
condition as per article 39(3) of the RR.222
220 Art. 16(1), “[i]f the bill of lading contains particulars concerning the general nature, leading marks,
number of packages of pieces, weight or quantity of the goods which the carrier or other person issuing the
bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the
goods actually taken over or, where a "shipped" bill of lading is issued, loaded, or if he had no reasonable
means of checking such particulars, the carrier or such other person must insert in the bill of lading a
reservation specifying these inaccuracies, grounds of suspicion or the absence of reasonable means of
checking”.
221 The three paragraphs of art. 36 list the particulars provided by the shipper and the carrier. It also has a
number of additional particulars. See the RR art. 36(1) infra Appendix 3, Table of Articles, Contract
particulars.
222 See the RR art. 39(3) infra Appendix 3, Table of Articles, The absence of some transport document
particulars.
77
f. Reservation to the BOL Particulars
It is unfair to hold the carrier liable for particulars provided by the shipper as the
latter is more knowledgeable on the nature of goods they ship. In addition, the carrier in
some circumstances cannot check the accuracy of the particulars furnished by the
shipper. This can either be because it does not have reasonable means for checking the
goods or that sometimes verification is not feasible visually because the goods are sealed
in containers or packages. For such reasons, the carrier is entitled to qualify the
information supplied by the shipper in the document evidencing the contract of the
carriage of goods by sea. The carrier in the circumstances mentioned may insert in the
document evidencing the contract of carriage (e.g. BOL) clauses, such as “said to
contain”, “packed or declared by the shipper”, or “weight, number, and quantity
unknown”.223 Adding such clauses enable the carrier to escape from the prima facie
evidence of the document particulars and shift the burden of proof as to the weight,
number, and quantity to the shipper.224 The permission to insert such clauses is of crucial
importance to carriage by containers since in such type of carriage, the carrier is not
required to state the number of packages or pieces loaded in the container.225 He is
instead allowed to add a clause that reads, for instance, as “number and condition are
unknown”. However, a U.S. decision rendered by the second circuit came to the
conclusion that the carrier is, nevertheless, liable for reserved information in regards to
223 TETLEY, supra note 149, at 665.
224 See Daewoo International (America) Corp. v. Sea-Land Orient Ltd., 2000 AMC 197, 201 (3rd Cir.
1999).
225 See TETLEY, supra note 149, at 665.
78
the weight of containerized cargo because weight is verifiable by the carrier.226 In
Plastique Tags, Inc. v. Asia Trans Line, Inc.227 a case supporting the latter conclusion, the
judges acknowledged that the BOL is considered as a prima facie evidence of the
particulars inserted thereto under the U.S. COGSA. The carrier in the present case issued
a BOL, but it was not clean. For the BOL to be regarded as clean, it must not contain a
reserved particular like “shipper’s load and count” or a particular that can be verifiable.
Thus, in case there is a limiting language in the BOL, the information to which the
limiting language refers is verifiable by the carrier. Such information is a prima facie
evidence and the carrier is bound by it.228 Referring to Plastique Tags, Inc. v. Asia Trans
Line, Inc.,229 although the weight of the goods was reserved by the carrier, it can be
verified by the latter. The BOL was regarded as a prima facie evidence of the weight at
delivery to the BOL holder despite the existence of a limiting language in the BOL. Thus,
a BOL is a prima facie evidence irrespective of a limiting language thereof, only if the
terms the limiting language referred to are verifiable by the carrier.
Both the QML and the international conventions involved in the comparison allow
the carrier to insert reservations in the document evidencing the contract of carriage. The
226 See Westway Coffee Corp. v. M.V. Netuno, 675 F.2d at 33 (2nd Cir. 1982).
227 Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir. 1996).
228 See Westway Coffee Corp. v. M.V. Netuno, 675 F.2d at 33 (2nd Cir. 1982).
229 Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir. 1996).
79
QML states in article 147230 that the carrier or its agent may refrain from stating
particulars provided by the shipper relating to the “trademarks of the goods, their number,
quantity or weight” if they doubted their accuracy or lacked reasonable means for
checking the accuracy of the particulars. This provision is in line with the Hague-Visby
Rules article 3(3)(c)231 and the Hamburg Rules articles 16(1),(2), and (3).232
However, article 16(1) of the Hamburg Rules is slightly different from article 147
of the QML233 as it requires the carrier to insert the reservation in the BOL, point out the
inaccuracies and the grounds for suspicions or the unavailability of reasonable means to
check the cargo. Notably, if the requirements set forth for a valid reservation are not met,
then the reservation will have no effect and cannot constitute a prima facie evidence
against the shipper. 234
The reserved particulars constitute a prima facie evidence between the parties to
the contract in the QML as per article 147,235 article 3(3)(c) of the Hague-Visby Rules,236
230 See the QML art. 147 infra Appendix 3, Table of Articles, Contract particulars.
231 See the Hague-Visby Rules art. 3(3)(c) infra Appendix 3, Table of Articles, Contract particulars.
Appendix 3, Table of Articles, Reservation to the contract infrathe Hamburg Rules art. 16 See 232
particulars.
233 See the Hamburg Rules art. 16(1) & the QML art. 147 infra Appendix 3, Table of Articles, Reservation
to the contract particulars.
234 AWAD, supra note 189, at 471.
235 See the QML art. 147 infra Appendix 3, Table of Articles, Contract particulars.
.Appendix 3, Table of Articles, Contract particulars infraVisby Rules art. 3(3)(c) -the Hague See 236
80
and article 16(3)(a) of the Hamburg Rules.237 However, this information is conclusive
evidence against third parties. Protection for a third party holder of the bill who acted in
good faith is maintained in the QML article 147,238 the Hague-Visby Rules article 3(3)(c)
and the Hamburg Rules article (16)(3)(b).239 Proving information to the contrary to the
particulars of the BOL or other document particulars against third parties is inadmissible.
A similar provision is found under the RR article 41.240
If the carrier or the master has not included any reservation to the document
evidencing the contract of carriage (a clean BOL has been issued), the QML, the Hague-
Visby Rules, the Hamburg Rules, and the RR state that the shipper shall be responsible
237 See the Hamburg Rules art. 16(3)(a) infra Appendix 3, Table of Articles, Reservation to the contract
particulars.
238 See the QML art. 147 infra Appendix 3, Table of Articles, Contract particulars.
239 See the Hamburg Rules art. 16(3)(b) infra Appendix 3, Table of Articles, Reservation to the contract
particulars.
.Appendix 3, Table of Articles, Evidentiary effect of the transport document infrathe RR art. 41 See 240
81
for the false statements provided by him only if such inaccuracies caused damage to, loss
of, or delay in delivery of, the cargo.241
Sometimes the shipper would ask the carrier to issue a clean BOL or other
document (a bill that does not contain any reservations to the particulars thereof). In such
a case, the carrier would ask the shipper for a letter of indemnity242 in exchange for a
clean BOL or transport document. The importance of the letter of indemnity lies in the
protection it provides the carrier from liability should the inaccuracies of the transport
document cause cargo loss, delay, or damage. The shipper also undertakes to refrain from
suing the carrier where goods are lost, damaged, or delayed because of the incorrect
information stated in the BOL.243 The shipper must indemnify the carrier in the latter
instance.The advantages of such a letter are significant to the shipper. The shipper may
wish to avoid the issuance of a non-clean BOL in which a reservation of the goods
description is stated which can subsequently affect the evidentiary credibility of the BOL.
241 The QML art. 147, “[t]he shipper shall submit in writing the statements relating to the goods before
shipping. Such statements shall be registered in the bill of lading, and the carrier or his representative shall
abstain from registering the statements relating to the trademarks of the goods, their number, quantity or
weight if not certain of its correctness or cannot verify the information using normal methods for checking.
The shipper shall be held liable before the carrier for the indemnity of damage caused by the incorrectness
of the information…etc”; the Hague-Visby Rules art. 3(5), “[t]he shipper shall be deemed to have
guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as
furnished by him, and the shipper shall indemnity the carrier against all loss, damages and expenses arising
or resulting from inaccuracies in such particulars…etc”; the Hamburg Rules art.17(1), “[t]he shipper is
deemed to have guaranteed to the carrier the accuracy of particulars relating to the general nature of the
goods, their marks, number, weight and quantity as furnished by him for insertion in the bill of lading. The
shipper must indemnify the carrier against the loss resulting from inaccuracies in such particulars…etc”;
the RR art. 31(2), “[t]he shipper is deemed to have guaranteed the accuracy at the time of receipt by the
carrier of the information that is provided according to paragraph 1 of this article. The shipper shall
indemnify the carrier against loss or damage resulting from the inaccuracy of such information”.
242 See generally ABABNEH, supra note 141, at 84.
243 HATOOM, supra note 216, at 74.
82
The clean BOL allows the shipper to obtain a letter of credit from a bank as banks require
a clean BOL to be presented in exchange for a letter of indemnity.244 In addition,
sometimes the shipper may wish to sell the cargo while it still at sea before the arrival to
its final destination and the buyer would be hesitant to buy goods represented by a non-
clean BOL, if the quantity or description of the goods is unknown, for instance.245
The Hamburg Rules, unlike the QML, the Hague-Visby Rules, and the RR,246
address the issue of the letter of indemnity, which is provided by the shipper to gain a
clean BOL from the carrier, when the carrier has reasonable grounds to doubt the
accuracy of the statements furnished by the shipper. The Hamburg Rules in article
17(2)247 allow the parties to issue the letter of indemnity, but the carrier must not include
any reservations in the BOL. The letter is only effectuated between the shipper and the
carrier. Hence, in the case where a third party BOL holder incurred cargo damage, loss,
or delay in delivery due to the inaccuracy of the shipper’s statements, the carrier is held
liable and cannot claim that the shipper by issuing the letter of indemnity is the party
liable to third parties. Instead, it is the carrier who is liable towards third parties, but it
can recover from the shipper as per the letter of indemnity.
244 Id.
245 Id.
246 In a similar fashion, neither the Lebanese nor the Jordanian legislature includes a provision about letter
of indemnity in their Maritime Commercial Law.
247 See the Hamburg Rules art. 17(2) infra Appendix 3, Table of Articles, Contract particulars.
83
It must be noted though that the validity of the letter of indemnity between the
carrier and shipper is conditioned upon the carrier having acted in good faith.
Accordingly, if the carrier omitted inserting reservations in the BOL (issuing a clean
BOL) in exchange for a letter of indemnity to deceive a bona fide holder of the BOL
acting in reliance of the BOL particulars, the carrier shall lose the indemnification right
from the shipper and the right to limit its liability.248 Crucially, the omitted statements in
the BOL must only relate to the information provided by the shipper. Hence, the letter of
indemnity is considered void and of no effect if it contains reservations to the apparent
condition of the goods, which is always a duty of the carrier.249
However, the carrier would be at risk if it agrees to issue a clean BOL against a
letter of indemnity. Assume the cargo interest suffer damages resulted from false
statements of the clean BOL, the carrier is such case will refer to the shipper for
indemnification, however, the shipper will not be able to pay the carrier if it has declared
its bankruptcy.250 As to the validity of the letter of indemnity, the Arabic jurisprudence
and judicial decisions were split in their opinions.251The proponents of the letter of
indemnity regard these letters as valid and having legal effect just between the parties;
248 See the Hamburg Rules art. 17(3) & (4) infra Appendix 3, Table of Articles, Contract particulars.
249 ABABNEH, supra note 141, at 85. See also, Tokio Marine & Fire Insurance Company Ltd v Retla
Steamship Company [1970] 2 Lloyd’s Rep 91 (US 9th Circuit CA). Tokio Marine & Fire Insurance
Company Ltd v Retla Steamship Company [1970] 2 Lloyd’s Rep 91 (the RETLA clause was rejected by the
court).
250 Discussion with Professor Michael M. Butterworth, Adjunct Associate Professor of Law, Tulane
University School of Law (Aug. 23, 2016).
251 See HATOOM, supra note 216, at 74-05.
84
however, the carrier is estopped from proving the letter against third parties.252The
opponents to such letter, on the other hand, believe that such letters are based on a forged
act as third parties will rely on false information not representing the actual information
about the goods.253 We are in full agreement with the latter view as the disadvantages of
the of the letter of indemnity (deceiving third parties and the risk the carrier bears should
the shipper had declare its bankruptcy) outweigh its advantages (issuing a clean BOL to
be able to take legal acts while the goods are in transit).
One of the unique and innovative elements in the RR is the reservation provision.
The RR set out a detailed scheme for reservation in a number of articles that are
considerably different from the QML’s sole article for reservation. Particulars related to
the description of the goods, quantity, weight, number of packages, and leading marks
can be qualified by the carrier under article 40 of the RR.254 Like the Hamburg Rules, in
order to consider the reservation valid, the carrier must either have actual knowledge of
the particulars being false or misleading or the carrier has reasonable grounds for
doubting the accuracy of the information. The result for qualifying the particular supplied
252 See HATOOM supra note 216, at 75-06 (this is the French view in the law regarding charterparties and
maritime letters of credit of 1966. The Egyptian Court of Cassation and the Lebanese legal jurisprudence
and judicial decisions also agreed that the letter of indemnity has no effect between the carrier and third
parties); See also ABABNEH, supra note 141, at 85 (this is the trend of the Jordanian Court of Cassation).
253 See HATOOM, supra note 216, at 75.
Appendix 3, Table of Articles, Reservation to the contract particulars. infrathe RR art. 40 See 254
85
by the shipper is to waive the carrier from liability against the shipper. The manner of
qualification should be in line with articles 40(3) and 40(4).255
The RR under articles 40(3) and 40(4) differentiate between the manner of
qualification based on whether the cargo is containerized or non-containerized. The
conditions for qualifying information related to the description, the marks, the number, or
quantity of the goods differ from qualifying information related to weight. Article 40(3)
applies to both containerized and non-containerized cargo. On the other hand, article
40(4)256 only applies to containerized cargo, and the carrier may qualify the information
as follows:
First, qualifying is related to the description of the goods, its leading marks
necessary for identification purposes, the number of packages or pieces, or the quantity of
the goods257, is made when the carrier or performing party has not inspected the contents
of the container or vehicle in which cargo is loaded, or that the carrier or performing
party does not actually know about the goods being loaded in the container or vehicle
before they issue a document or record.
255 See the RR art. 40(3) & (4) infra Appendix 3, Table of Articles, Reservation to the contract particulars.
256 See the RR art. 40(4) infra Appendix 3, Table of Articles, Reservation to the contract particulars.
257 See the RR art. 40 infra Appendix 3, Table of Articles, Reservation to the contract particulars.
86
Second, the requirement for qualifying the goods’ weight in article 40(4)(b) is
distinct from that in article 40(4)(a) of the RR.258 The carrier or performing party may
qualify the good’s weight if:
They have not weighed the container or vehicle, and have not agreed with the shipper
about weighing the container or vehicle and including the weight in the carriage
contract.
They have no reasonable practical or commercial means of checking the weight of
the container or vehicle.
Obviously, article 40 of the RR pertaining to the carrier’s obligation to qualify
information supplied by the shipper is significantly different from the QML’s reservation
to the shipper’s statements. It is very detailed and covers instances where goods are
loaded in containers or vehicles.
The RR is not the only convention to include articles in relation to the weighing of
containerized cargo. The International Convention for the Safety of Life at Sea of 1974
(SOLAS) does too. In fact, the carrier is allowed to add such limiting language especially
where the cargo is containerized, as weighing the cargo is the responsibility of the
shipper. The amended version of the International Convention for the Safety of Life at
Sea (SOLAS) imposes on the shipper the obligation to weigh the cargo by methods
258 See the RR art. 40(4)(a) infra Appendix 3, Table of Articles, Reservation to the contract particulars.
87
specified in the Verified Gross Mass (“VGM”) guidelines.259 The shipper must
communicate with the shipping line (carrier) and submit the VGM, which will be relied
upon by the vessel’s master to prepare the cargo stowage plan.260 If the carrier faced a
discrepancy between the weight of the cargo before arriving at the loading terminal and
when the goods are actually in the terminal being weighed by the carrier, the master of
the vessel has the ultimate decision to refuse to load the cargo if the shipper has not
satisfied the SOLAS’ VGM requirement or has not produced a VGM.261 The carrier may
alternatively weigh the cargo with the shipper bearing the cost for this.262 Since the
shipper is the person responsible for weighing the cargo, any damage incurred by the
carrier because of a misstatement of the weight, the shipper is liable towards the
carrier.263
259 Guidelines Regarding the Verified Gross Mass of a Container Carrying Cargo of 2014,
http://www.imo.org/en/OurWork/Safety/Cargoes/Containers/Documents/MSC.1%20Circ.1475.pdf (last
visited Nov. 1, 2016).
260 Id. Guideline 13.
261 Id. Guideline 14.
262 Id. Guideline 13.
263 Turnbull, Elizabeth & Perucca, Marcia, Small Change, Big Impact: SOLAS Container Weight
Verification: the Implications for Carriers, Clydeco, http://www.clydeco.com/insight/article/small-change-
big-impact-solas-container-weight-verification-the-implication (last visited Nov. 1, 2016). See also
Turnbull, Elizabeth & Perucca, Marcia, Small Change, Big Impact: SOLAS Container Weight Verification:
the Impact on Port Terminals, Clydeco, http://www.clydeco.com/insight/article/small-change-big-impact-
solas-container-weight-verification-the-impact-on-p (last visited Nov. 1, 2016).
88
Conclusion and Recommendation
The BOL Particulars
As for the BOL particulars, the QML has not included some particulars compared
to the Hamburg Rules and the RR. These include the name of the carrier, its place of
business, and the date and place of delivery.264 The name of the carrier is of crucial
importance so as to enable the shipper to know the party against whom a legal proceeding
may be initiated in the case of cargo loss, damage, or delay in delivery. The date of
delivery is equally important, as it will assist knowing whether the carrier fulfills its
obligation to deliver the goods by the time specified in the contract of carriage. It is
equally important to know the delivery period to calculate the statute limitation period for
filing a cargo claim.265 Delay in delivery is computed from the date of delivery stipulated
in the transport document.266 If the goods were delivered after the lapse of the delivery
time agreed upon in the BOL or transport document, the carrier is liable for the delay in
delivery. In addition, the date of delivery, if agreed upon in the contract, will assist the
264 Compare the QML art. 144, with the Hamburg Rules, art. 15, and the RR, art. 36. See the text of these
articles infra Appendix 3, Table of Articles.
265 Art. 167, “[i]n all cases, all rights arising from the maritime transport contract shall prescribe after the
expiry of one year from the date of delivery of the goods or from the date when the goods were supposed to
be delivered. However, the prescription period shall be extended for more than a year by agreement
between parties where there is a need to refund what was illegally paid. In this case the period shall
commence from the day on which the right to refund arose”.
266 Id. See generally Part III, ch. C.
89
shipper to calculate the time bar for filing a legal suit against the carrier as per article 167
of the QML267in case of delay in delivery.
A unique point in the RR that is recommended for the QML is article 36(4)268
which requires the carrier to insert information in the transport document or electronic
transport record about goods being inspected at the time they were handed over by the
shipper. The carrier may not include such information, however, it is obliged to do so if it
is mandated by law that more information be provided as to the condition of the goods
beyond that which can be gained from external inspection.
Another difference between the QML and the RR regarding the transport document
particulars concerns the classification of particulars as to those furnished by the shipper,
other particulars supplied by the carrier, and a number of optional particulars (inserted if
the circumstance requires). Such classification would add more certainty if included in
the QML as to what every party to the contract of carriage is obliged to furnish and be
liable for their inaccuracies.
Another area of suggestion regards the carrier’s duty to state in the BOL the
apparent order of the goods. Since there is no definition for the word “apparent”, it is
recommended to follow the RR article 36(4)269 in defining such word. This is so because
267 See art. 167, supra note 265.
Appendix 3, Table of Articles, Contract particulars. infrathe RR art. 36(4) See 268
269 Id.
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it will guide the carrier towards what it is supposed to do when providing information
about the goods, therefore adding more clarity to the existing law.
The Incorporation of Charterparty Terms in a Charterparty BOL
As far as the incorporation of the charterparty terms included in the BOL is
concerned, the common factor between the views illustrated (Qatar’s judicial decision
and other jurisprudence) under the “BOL particulars” subsection, is to bind the carrier
and a third party holder of the BOL by a mere referral in the BOL to the charterparty.
This is not conditioned upon attaching the charterparty to the BOL. If the case is so, the
interests of third parties in possession of the BOL would be negatively affected. Thus, a
modification to that article is highly recommended to protect the interest of third parties.
A clear and express clause in the BOL referring to the charterparty terms does not
necessarily mean the BOL holder is aware about it. Even if we assume the BOL holder
should have known because they can read the terms of the BOL and have required the
charterparty contract to read the same, in most cases this is not true.
The approach adopted by Qatari courts regarding referral to the charterparty terms
in maritime cases governed by the QML differs from the approach adopted by the Qatari
Commercial Law No. (27) of 2006, under the maritime sale contract provisions, article
149.270 This article states that when the seller has to send a BOL to the buyer and such
91
BOL refers to some terms of a charterparty, a copy of the latter must be attached
therewith. We see no reason for excluding such solution from the present case. In
addition, according to article 152 of the QML,271 the legislature states that should any
dispute arise between the ship-owner and the charterer, the terms of the charterparty must
prevail. However, the charterer and the third party BOL holder are subject to the terms
and conditions of the BOL unless a clause in the BOL requires that the charterparty be
applied. The article does not oblige the charterer to attach a copy of the charterparty to
the BOL. In such case, the holders of a bill of lading may find themselves bound by the
terms of the charterparty without notice, due to the tiny printed clauses at the back of the
BOL. There is no protection for third parties in such case, as they have no knowledge of
the charterparty because they are not a party thereof. 272 To protect the BOL holder from
270 The Qatari Commercial Law No. (27) of 2006, art. 149 “[t]he Seller shall send to the Buyer without delay
a clean and negotiable shipping document specifically relating to the sold goods. It must include proof of
loading on the date or within the period specified for shipment. The Seller shall authorize the Buyer or its
representative to receive the goods by endorsing or transferring this right to him in the appropriate legal way.
If the document relates to the shipping fee then it shall be endorsed on the day of shipping by the transport
company with a record of the completion of loading. A list of the goods and the insurance document or
certificate shall be attached to the bill of lading which shall also include the basic terms which the bearer
shall be entitled to. Documents that may be required by the Buyer to prove that the goods are as provided for
in the contract, certificates of origin and other documents shall also be included. Where reference is made in
the bill of lading to a leasing agreement in respect of the ship, then a copy of this contract shall be attached”.
271 Art. 152, “[w]here there is a contradiction regarding the relationship between the lessor and lessee,
between the lease agreement of the Vessel and the bill of lading, the terms of the lease agreement shall
prevail. Where there is a contradiction regarding the relationship between the lessee and the shipper the
terms in the bill of lading shall prevail unless it is expressly agreed that the terms of the lease prevail over
the bill of lading”.
OF MARITIME LAW 147 (1983) (translated from Arabic). ALI ALBAROODI, THE PRINCIPLES 272
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terms of a contract that it is not a party thereto, a provision like the one found in the
Commercial Law of Qatar is therefore better added to the QML. 273
The latter view of protecting third parties from BOL terms referred to in a
charterparty if no copy of the latter is attached to the BOL, is further supported by the
view of the author Richard Price in his article “The responsibility of a carrier of goods by
sea under the laws of the Arabian Gulf States: The exceptions and the rule”.274 The author
discussed the laws and practices regarding the liability of carriers of goods by sea of the
GCC countries, of which Qatar is a member. The author acknowledged that courts in the
GCC countries would not give effect to the small print clauses at the back of the bill of
lading.275 The ground for refusal is that the nature of this clause reduces the liability of
the carrier and thus it will be deemed void.276 It is worth noting that in countries having
civil law jurisdictions, the terms of contracts are to be construed in favor of the weaker
party in the contract. This would be the shipper since it does not have a bargaining power
to negotiate the terms of the contract.
Furthermore, the referral in the BOL to the charterparty terms must specifically
define the term incorporated and clearly identify the name, date, and other information
about the charterparty. General referrals shall have no legal effect towards third parties.
273 The trend of the French Court of Cassation is to reject the BOL’s referral to the charterparty terms
unless a copy of the charterparty contract is attached to the BOL, id.
274 Richard Price, The Responsibility of a Carrier of Goods by Sea under the Laws of the Arabian Gulf
States: The Exceptions and the Rule, 2 Arab L.Q. 29 (1987).
275 Id, at 30-01.
276 Id.
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The Absence of Some BOL particulars
It has been observed that both the Hamburg Rules and the RR include a provision
about situations when the transport document evidencing the contract of carriage lack
some particulars mandated by both conventions. Indeed, such problem may affect the
evidentiary effect of the document. Thus, a similar approach is recommended for the
QML. Every particular in the document indicates important information. For instance, the
absence of the carrier’s address affects the interest of the shipper, who may want to file a
suit against the carrier for cargo loss, damage, or delay. In respect of the delivery date or
period, the absence of such information makes the case more complicated when the
shipper has encountered delay in delivery. The calculation of the one year time bar will
be equally difficult. Referring to the duty of the carrier to insert the apparent condition of
the goods in the BOL, the international conventions hold a presumption that serves the
interest of the shipper. They state that the absence of the goods’ condition is a
presumption that the goods were received in good order by the carrier.277
The issue of the evidentiary effect of a BOL lacking some particulars mandated by
national laws and international conventions was subject to a variety of Arabic legal
jurisprudence views. All the three previously discussed views in the absence of some
BOL particulars subsection reached a consensus that the absence of one or more
particulars reduces the evidentiary effect of the BOL. The one that must prevail, though,
is the third one. According to that view, although the value of the BOL is reduced, the
absent information can be proved by means such as oaths and witnesses. This is actually
277 See Part II, ch. B, section 1, subsection e.
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the trend of the Jordanian legislature and the Syrian Court of Cassation.278 Thus, to solve
the issue of the absence of particulars, it is recommended that the QML follow the path of
the international conventions and the prevailing views of the Arabic legal jurisprudence
and judicial decisions.
Reservations to the BOL particulars
In respect of reservation to the BOL particulars, the wording of the QML is very
poor compared to the Hamburg Rules and the RR for two reasons. First, the Hamburg
Rules set out the requirements for a valid reservation even if they differ from the RR’s
wording, which is favorable to the carrier. The Hamburg Rules require the carrier to
insert in the BOL not only the reserved particular. However, the carrier or the person
acting on its behalf must also: 1) point out the reserved information whose accuracy the
carrier has reasonable doubts about, and 2) substantiate the grounds for its doubt or
highlight the lack of reasonable means of checking the accuracy of the information.
Although the RR is similar to the QML, they do not oblige the carrier to insert in
the BOL the reasons for their doubts. Thus, the Hamburg Rules are recommended to
protect the shipper’s interests in Qatar and because it will hamper the carrier from
including a mere limiting language in the BOL without justifying why it suspects that the
information supplied by the shipper is inaccurate. The carrier will think before inserting
such reservation which will ultimately affect the evidentiary effect and the value of the
clean BOL.
278 ABABNEH, supra note 141, at 75.
95
In addition to the requirements for a valid reservation, it is suggested that the RR
provision on qualifying information be also added. Obviously, article 40 of the RR279
pertaining to the carrier’s obligation to qualify information supplied by the shipper
significantly differs from the QML article 147.280 It is very detailed and covers instances
where goods are loaded in containers or vehicles. It is fair enough to confer the carrier the
right to qualify information relating to the goods loaded in containers or vehicles, as it is
practically unfeasible to check the contents of sealed containers or vehicles. The carrier is
only obliged to externally inspect the condition of the goods. The modern maritime
shipping industry heavily depends on carriage by containers. To cope with such
development, issues that arise as a result for using concurrent ways of carrying goods
must be addressed by the law to give a clear guidance on how to qualify information
when the carrier or its representative is asked to carry containerized or non-containerized
cargo. The RR state in detail the manner of qualification whether goods are containerized
or non-containerized. The provisions of the RR therefore significantly differ from its
previous international conventions on carriage of goods by sea and appear to be definitely
more clear and complete.281
Another crucial point to be considered when reforming the QML is the issue of
qualifying the weight of cargo. The current QML allows for limiting language referring
to the weight to be added in the BOL. That indeed applies to containerized and non-
279 See the RR art. 40 infra Appendix 3, Table of Articles, Reservation to the contract particulars.
280 See the QML art. 147 infra Appendix 3, Table of Articles, Reservation to the contract particulars.
281 See Berlingieri, supra note 132, at 25.
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containerized cargo such as break bulk cargo. However, the U.S. trend towards such issue
is just the opposite. In Westway Coffee Corp. v. M.V. Netuno, the Second Circuit Court in
the U.S. held that the BOL is a prima facie evidence and is considered a clean BOL
regardless of the existence of a limiting language about the weight of the containerized
cargo because the weight of containers can be verifiable by the carrier.282 Likewise, any
information that the carrier is able to verify, cannot be reserved in the BOL.
It is needless to elaborate on the importance of knowing the weight of the cargo for
balancing the stability and ballasting of the vessel when stowing the goods. The QML
must reflect the new issues emerging at the global level and make clear the obligations
and rights of the interested parties when it comes to the weight of the cargo and the safety
of the vessel.283 In one of the Qatari Court of Cassation cases, the appellant claimed for
compensation for grave damage incurred to his caravan. 284 The caravan fell on the quay
of the Doha Seaport while loading it on board of the carrier’s (respondent’s) vessel. The
court held that the appellant is partially liable because he did not provide a true statement
of the caravan’s weight, thus his fault contributed to the damages sustained. The court
then assessed the compensation based on the mutual fault principles.
Milaha, which undertakes stevedoring operations at Qatar’s seaports,285 seeks to
protect the vessel, crew, and goods from casualties caused due to the imbalance in the
282 Westway Coffee Corp. v. M.V. Netuno, 675 F.2d at 33 (2nd Cir. 1982).
283 Qatar ratified the SOLAS Convention of 1974 by the Emiri Decree No. 84 of 1980 and its two protocols
of 1978 and 1988.
284 Court of Cassation, Civil & Trade Division, No. 51, session of Aug. 17, 2008 1-2 (Qatar).
285 See generally Part III, ch. B (more info about Milaha).
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stowage of containers on board of a vessel.286 It also referred to cases when the containers
affect the truck moving the containers by land to the vessel in preparation for loading
operation or moving it to the container yard at the port post-discharge operations. To
ensure the latter, Milaha mentioned about the recent technological means invented to
check the weight of containers in the new Hamad Port.287
It is recommended that the QML reflect the obligations mentioned in the ISM code
pertaining to cargo weight. Thus, the shipper must bear the responsibility for inaccurate
cargo weight for both containerized and non-containerized cargo if the weight is not
accurate according to the VGM provided by the shipper. If the shipper fail to submit the
VGM, or the weight was inaccurate, then the vessel’s master should weight the cargo if
possible, otherwise the master has the right to refuse loading the cargo into the vessel.
286 Interview with the Port Services Department Manager, Qatar Navigation Company [Milaha] (Apr. 19,
2016).
287 Id.
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2. Other Documents Evidencing the Contract of Carriage
In Part II chapter B: “The Documentary Scope of the Rules”, light was shed on the
types of transport documents covered and regulated by the QML and international
conventions pertaining to carriage of goods by sea. It is clear from the overall discussion
that the QML applied solely to BOLs. This is not always the case in the shipping practice,
as the parties to the carriage of goods contract may not issue a BOL at all or regulate their
relationship by transport documents other than the BOL. These two scenarios should be
examined. The main objective of this section is to illustrate to what extent the QML
applies to cases when the BOL is absent (i.e. not issued at all) or when the parties choose
to issue a distinct transport document.
If the contract of carriage of goods by water is evidenced by the BOL, the case is
straightforward as the QML’s provisions on such type of document will govern the
dispute. However, the BOL is not the one and only transport document evidencing the
carriage of goods by sea contract. In reality, such contract may take the form of other
transport documents. Sometimes the parties tend not to even have their agreement
written, they instead conclude the agreement orally or by way of exchanging
correspondences. Hence, it is questionable whether the QML applies to the aforesaid
scenarios since it only regulates BOLs. One can argue that the QML will have no
application if no BOL has been issued, whether because other transport documents have
been used to regulate the relationship between the parties or that the parties chose not to
issue one (e.g. when the BOL or other documents were contemplated). How does the
Qatari law deal with the two situations?
99
Other transport documents may take the form of non-negotiable receipts, such as
waybills, data freight receipts, and mate receipts. 288 Some carriage contracts may be
concluded without any particular type of transport documents evidencing it. Furthermore,
the transport document is only evidence to the existence of a contract of carriage. Thus,
the real agreement is not the BOL itself, as this only serves as the best evidence of the
contract of carriage. Thus, the real contract as described by the author William Tetley is
“the offer, the arrangement for shipment, the advertisements of the carrier, the booking
note, the acceptance of the shipper, the statement of agents, etc., as well as the BOL
itself, all taken together”.289 The QML asserts that the real contract of carriage is not the
BOL in article 144 and it is just used as evidence.290 The article requires that a BOL be
issued in a written form to act as evidence to the contract of carriage. Thus, it is not an
element required to enter into a carriage of goods contract, and instead it is a requirement
for proving the contract.291 Accordingly, the parties may choose:
To not write the BOL, but it was intended.
To conclude the contract by other means mentioned earlier by William Tetley. To put
it differently, neither a BOL nor other transport document has been issued.
To issue another transport document such as a sea waybill.
288 See generally TETLEY, supra note 149, at 446.
289 Id. at 526.
290 See the QML art. 144 infra Appendix 3, Table of Articles, Documentary scope.
291 See HATOOM, supra note 216, at 34-05.
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In the three circumstances above, it is unreasonable to say there is no contract of
carriage between the parties because the QML has not stated any penalty for the non-
issuance of a BOL. The BOL is not a prerequisite to enter into a contract of carriage of
goods by sea. To that end, it is still questionable whether the QML is applicable to the
three mentioned possibilities. To answer that question, it is deemed important to know
whether there is an article regulating such issue in other laws of Qatar and to discern the
opinion of Arabic legal jurisprudence on that particular matter. The elaboration on such
question is made in three points: when the BOL is not written, but contemplated; no BOL
or other transport document was written; and if the parties agree to regulate their
relationship by the issue of other transport documents. A discussion on what parties to the
carriage of goods contract can issue to regulate their relationship is followed.
First, since the writing element of the BOL is required as a simple mean of proving
the contract of carriage, in case of dispute, if the BOL is not written, the parties can prove
the contract by other means equivalent to writing like admissions, oaths, or
correspondences.292 A U.K. precedent supports that view. The judge in Pyrene Co. v.
Scindia Steam Natvigation Co.293 held that:
[e]ven when no preliminary document and no bill of lading have been issued but
a bill of lading were contemplated, the carrier’s normal bill of lading is the
contract or at least evidence of the contract…once of the contract of carriage is
concluded and a bill of lading will in due course be issued in respect of it, that
contract from its creation covered by a BOL, and therefore from its inception a
contract of carriage within the meaning of the rules and to which the rules apply.
292 See HATOOM, supra note 216, at 35.
293 Pyrene Co. v. Scindia Steam Natvigation Co., [1954] 1 Lloyd’s Rep. 321, 329 (U.K.).
101
Second, when no BOL is issued, but there are signs from the circumstances and
facts of a dispute such as letters, correspondence, telegrams, proving that a contract has
been impliedly entered into by the parties or the parties start implementing their
obligations imposed by the contract like if the carrier loads the vessel with the shipper’s
cargo. Letters, correspondences, and telegrams can be approved by the court only if they
are signed by the sender to be taken as evidence. The legal basis for such analysis is
found in the Qatari Civil and Commercial Procedure Law No. (13) of 1990 article 222.294
Referring to the previous article, copies of the cables (such as letters, correspondences,
and telegrams) are deemed to be consistent with their originals, unless evidence to the
contrary is proved. In addition, article 222 of the same law provides that if there are no
originals for such cables, it cannot be relied upon unless for reference purposes, thus they
will only have persuasive legal effect. The cables must be a prima facie evidence of the
carriage contract as well as of the conditions of the goods at the time the carrier takes
over the goods.295 Thus, the value of the cables is less than the BOL, as proof to the
contrary is allowed against the parties to the contract including third parties.296 This
294Art. 222, “[l]etters duly signed shall have the evidential value of a conventional exhibit. Cables shall also
have such value if the original deposited in the despatch office has been signed by the sender. A cable shall
be considered to accord with its original until proof to the contrary has been established. However, if a
cable has no original, the cable shall be relied upon solely for reference purposes”. The trend of the
Egyptian Court of Cassation is to give the letters and telexes (cables) a value equal to the one given to
conventional exhibits presented in any case as a written evidence, only if they have been signed by their
senders, ALBAROODI, supra note 272, at 143.
295 See HATOOM, supra note 216, at 34-05.
296 See Id.
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construction is similar to the Hamburg Rules article 18,297 which regards other transport
documents as having a prima facie evidence against the shipper and third parties.
In the third and last scenario, in which a transport document other than a BOL has
been issued, the QML will apply to such document because based on the analysis of the
second scenario (explained prior to this point), it is fair and logical for this to be regarded
as an evidence between the parties of their agreement. If the second scenario has a role in
showing a carriage contract and is deemed as a prima facie evidence to the contract of
carriage, the issuance of other transport document is no exception as the terms and
conditions agreed upon and found in the other document just like when letters, cables,
and correspondences are all together considered the carriage of goods contract. The
English Court of Appeal came to the same conclusion when a document other than a
BOL was issued, which encompassed a number of the contract clauses.298 Moreover, the
U.S. Supreme Court approved this conclusion in cases that have similar facts.299
Therefore, the U.K. and U.S. positions on the issue are alike and support the view
presented for the third scenario (when document other the BOL has been issued).
What the parties should issue to regulate their relationship is a matter that deserves
further discussion. Referring to article 150 of the QML,300 the carrier shall issue a
Appendix 3, Table of Articles, Documentary scope. infrathe Hamburg Rules art. 18 See 297
298 TETLEY, supra note 149, at 529.
299 Id.
300 See art. 150, supra note 164.
103
received for shipment BOL to the shipper either before loading, or a shipped BOL post-
loading operations. Similarly, it is provided under article 3(3) of the Hague Rules301 and
the Hamburg Rules article 14302 that the carrier shall issue a BOL at the request of the
shipper after receiving the goods into its charge. The Hague-Visby Rules will not be
applicable on documents other than the BOL unless these documents are similar to the
BOL.303 The Hague-Visby Rules are applicable to cases where the BOL was not issued
but contemplated.304 Under the Hamburg Rules, the parties may agree on issuing other
types of transport document as per article 18 (other than a BOL).305 These transport
documents are considered a prima facie evidence between the parties and against third
parties.306
301 See the Hague-Visby Rules art. 3(3) infra Appendix 3, Table of Articles, Contract particulars.
Appendix 3, Table of Articles, Electronic transport record. infrathe Hamburg Rules art. 14 See 302
303 Samuel Robert Mandelbaum, Creating Uniform Worldwide Liability Standards for Sea Carriage of
Goods Under the Hague, COGSA, Visby and Hamburg Conventions, 23 Transp. L.J. 471, 486 (1995-1996).
304 TETLEY, supra note 149, at 529.
305 See the Hamburg Rules art. 18 infra Appendix 3, Table of Articles, Documentary scope.
306 Unlike the conclusive effect of the BOL, which estopped the carrier from invoking the BOL terms
against third parties.
104
In article 35 of the RR,307 the carrier and the shipper have the option of whether to
have a transport document or electronic transport record regulating their relationship.308
They also have a second option of not issuing any transport document as per their
agreement customs, usage, or practice which does not necessitate producing one. Doubts
relating to the three scenarios mentioned above will never arise under the RR because the
RR apply to all documents and records (the RR encompass written and electronic
documents evidencing the contract of carriage). Therefore, if no document or record has
been issued, there will definitely be some electronic or written correspondences of any
kind evidencing the contract of carriage, such as a booking note, parties’
correspondences, cargo manifest, any document for custom clearance etc. It is
noteworthy that article 3 of the RR states that the following must be in a written form:
notices, confirmation, consent, agreement, declarations, and other communications
including electronic writing. Obviously, the writing requirement is important for
evidentiary purposes.309
Appendix 3, Table of Articles, Documentary scope. infrathe RR art. 35 See 307
308 It is worth noting that under the RR, the term BOL has not been mentioned at all, instead the RR
regulate “transport documents” and “electronic transport record”, See the RR art. 1(14) & 1(18) infra
Appendix 3, Table of Articles, General definitions article.
309 Art. 3, “[t]he notices, confirmation, consent, agreement, declaration and other communications referred
to in articles 19, paragraph 2; 23, paragraphs 1 to 4; 36, subparagraphs 1 (b), (c) and (d); 40, subparagraph
4 (b); 44; 48, paragraph 3; 51, subparagraph 1 (b); 59, paragraph 1; 63; 66; 67, paragraph 2; 75, paragraph
4; and 80, paragraphs 2 and 5, shall be in writing. Electronic communications may be used for these
purposes, provided that the use of such means is with the consent of the person by which it is
communicated and of the person to which it is communicated”.
105
Conclusion and Recommendation
The production of new transport documents in contemporary maritime practice is
due to the advancement in the international shipping industry, which uses recent
technology to support carriage of goods. It is also due to multimodal carriage of goods
from its origin to its final destination. One of the factors that may increase the number of
combined transport documents is the implementation of an integrated transport system in
Qatar, connecting the four modes of transport: air, sea, road, and rail.310 Furthermore, the
expansion of the economy and the shipping industry in Qatar, as have been shown in Part
I of this dissertation, means that Qatar in the coming future will deal with parties from
different parts of the world including those from the most developed countries who will
use various types of transport documents to facilitate the shipping transaction. Those
documents may not have the whole functions of traditional ocean BOL, yet play a
significant role in the course of carriage and in proving the existence of a contract of
carriage of goods by sea.
The RR and the Hamburg Rules were aware of the emergence of new transport
documents beside the traditional BOL. However, the application of the QML is expressly
confined to the BOL, although the contract of carriage can be evidenced by other means
as has been discussed in the prior subsection on “The Absence of a BOL or the Issuance
of a Transport Document other than the BOL”.
310 See supra Part I, ch. C.
106
International conventions is moving in the direction of widening the documentary
scope of the contract of the carriage of goods wholly or partly by sea.311 From the BOL
and similar documents in the Hague-Visby Rules, the BOL and transport documents in
the Hamburg Rules, to the transport documents and electronic transport records in the
RR.
The QML is very narrowly written and limited its application to the BOL whether
it is shipped or received for shipment, a charterparty BOL, or a direct BOL. One would
wonder whether the transport documents evidencing the contract of carriage under the
QML are satisfactory to the extent that they serve the current shipping industry of Qatar.
The coverage of the QML is even less than the Hague-Visby Rules that cover the least
types of transport documents among other international conventions because the Hague-
Visby Rules apply not only to the BOL, but also to similar documents of title.
For that reason, the documentary scope of the QML should be significantly wider
to cover all current types of transport documents used in contemporary maritime industry
and what would have been developed in the future. The broader the scope, the better
protection the shipper gains as the rules are to be applied to a plethora of transport
documents.
The RR have the best approach in enlarging the scope of documents to which the
rules are applied. The RR regulate in great detail two types of documents: transport
documents and electronic transport records. The scope of application on documents or
311 See generally TETLEY, supra note 149, at 6.
107
records does not depend on a specific name, such as a BOL or a sea waybill. The RR
deemphasize such classifications. Instead, they provide specifications and functions for
the documents and records, which is a wise choice to encompass as many transport
documents as possible, evidencing contract of carriage. In reality, there are various
transport documents pertaining to carriage of goods which need articulation and
regulation. The open wording of the article allows the rules to cover a large spectrum of
documents including those that will emerge gradually in the future with the advent of the
shipping industry.312 Through this, sea waybills and non-negotiable receipts would gain
protection due to the steady development and increasing usage of such types of contracts
in the maritime practice.
Furthermore, the approach taken by the RR can dramatically lessen the confusion
that relates to legal disputes involving other transport documents (other than the BOL).
The court will be guided by law and the parties to the contract can predict their
prospective rights and liabilities. Otherwise, the court should examine the documents or
correspondences on a case by case basis which may raise the likelihood of deciding cases
having similar facts differently based on the judges understanding of the case and
interpretation of the contract of carriage.313
If the QML will govern door-to-door carriage, then it must include and regulate
documents like multimodal documents or combined transport BOLs. The shipping
312 Gertjan van der Ziel, Delivery of the Goods, in THE ROTTERDAM RULES 2008 189, 193 (Alexander
Von Ziegler, Johan Schelin & Stefano Zunarelli eds., 2010).
313 It is worth noting that judges in civil law jurisdictions are not abiding by judicial precedents (unlike the
judges in common law jurisdictions). They decide cases based on statutory laws and apply the provisions of
statutes on the disputed issues.
108
industry in Qatar is moving towards multimodalism.314 The new method of carriage in
Qatar must be addressed to promote the industry and manage international trade and the
economy.
3. The Recognition of e-BOL and e-transport Documents
Technology is rapidly entering into our lives, businesses, homes, offices etc. The
world is rapidly changing, thanks to digital technology! The way of doing business and
trade have also been subject to such change through the concept of going paperless and
conducting paper- related work just by our keyboard clicks! One of the aspects that has
been affected by technology is the way in which the carrier and the shipper conclude a
carriage of goods contract. Paper BOL, traditionally, is the most popular type of transport
document parties tend to agree upon. Nonetheless, technology found a more efficient and
speedy manner to issue a transport document.
Upscale developments in the shipping industry, such as the advent of faster ships,
the handling of containerized cargo which can be loaded and unloaded more quickly, and
the emergence of multimodal transport necessitate the rise in using e-BOLs and e-
transport documents such as sea waybills.315
314 See supra Part I, ch. C.
315 OCEAN BILLS OF LADING: TRADITIONAL FORMS, SUBSTITUTES, AND EDI SYSTEMS 21
(Athanassios N. Yiannopoulos ed., 1995).
109
The need for more a technologically advanced way of issuing transport documents
using the electronic data interchange system is a vital step in coping with developments
in the way of doing business. The term “electronic data interchange” refers to computer
to computer exchange of information in predetermined formats.316 It has been expressed
by Amelia H. Boss, a scholar in the field of international electronic commerce, that
“while electronic commerce is used for a relatively small percentage of international
commerce, its eventual dominance as the primary method of conducting international
business communication seems inevitable”.317
It is equally important to overcome the disadvantages of the traditional BOL,
especially those related to its delay in arrival to the shipper particularly when goods are
carried by containers as the containerized cargo are loaded and unloaded more quickly
nowadays. Consequently, the goods may arrive on time; however, the holder of the BOL
cannot claim delivery because the BOL has not yet arrived. In addition, the BOL is the
sole document of title accepted by banks for letters of credit in Qatar.318 If the BOL is
delayed, the shipper will not be able to get financial support from a bank in a timely
316 Id. at 21.
317 Amelia H. Boss, The International Commercial Use of Electronic Data Interchange and Electronic
Communications Technologies, 46 Bus. Law. 1787, 1787 (1991).
318 Interview with Shipping Agency Department, Qatar Navigation Company [Milaha] (Apr. 19, 2016).
110
manner. Thus, the traditional BOL and other paper-based transport documents are
nowadays substituted by e-BOLs319 or e-transport documents.320 The rapidly increasing
usage of electronic data interchange is due to the ease in conducting transactions between
persons in different parts of the world.
Giving the undeniable importance of electronic transport documents, the national
laws of some maritime nations engaged in the shipping industry should recognize the fact
that electronic documents are fast substituting paper-based documents.
In fact, the parties to the carriage of goods contract can issue either negotiable
documents such as negotiable e-BOLs321 or non-negotiable transport documents. If the
parties wish to issue a non-negotiable transport document made to a named person, the
parties may agree to issue a non-negotiable e-BOL or e-sea waybills. The former is made
to a named person and requires surrender to claim delivery based on a clause in the bill.
However, the latter does not require surrender, just identification of the person claiming
delivery. In general, non-negotiable documents are sought between the parties to secure
payment of the carriage transactions. Non-negotiable electronic documents (such as e-
BOLs and e-sea waybills) are more adaptable to electronic data interchange than
KELANI, SeeThis term can be best defined as: a BOL that is written and signed by electronic means. 319
supra note 175, at 35; See generally MOHAMED IBRAHEEM MUSA, ELECTRONIC BILLS OF
LADING: THE REALITY AND HOPE (2016); WAEL HAMDI AHMAD, THE ELECTRONIC
CONTRACT OF INTERNATIONAL CARRIAGE OF GOODS BY SEA (2013).
320 See the RR art. 1(18) infra Appendix 3, Table of Articles, General definitions article (the definition of
“electronic transport record” encompasses any electronic based document evidencing the contract of
carriage of goods by sea).
321 This is an alternative to the traditional straight BOL.
111
negotiable electronic documents because the seller of goods in an international sale of
goods contract may require the buyer to show a non-negotiable document to ensure
payment.322 In this section, the aim is to answer this question: Does the QML recognize
e-BOLs, other e-transport documents such as e-sea waybills and what is the position of
international conventions towards that particular issue?
It is unfortunate that the QML provides nothing about the possibility of issuing an
electronic BOL or promoting electronic data interchange. Additionally, nothing has been
mentioned about an electronic signature on the BOL.323 Therefore, one could think that
the QML will not apply in case a dispute arises from a carriage contract covered by an e-
BOL or where the contract of carriage is found in a series of electronic communication324
between the parties. Since there is no article regulating the matter at hand in the QML,
other legal bases must be found in other Qatari Laws. Neither the Qatari Commercial
Law nor the Civil Law provides any assistance to answer the question. The precise
answer is instead found in the Qatari E-Commerce and Transaction Law No. (16) of
2010. This law defines electronic contracts and electronic signatures and these topics are
the most important elements of a paperless transaction.
322 Yiannopoulos, supra note 315, at 21-02.
323 But see Egyptian legislature recognizes the electronic signature, AHMAD SHARAF ALDEEN, THE
BASIS OF PROOF IN CIVIL AND COMMERCIAL PROVISIONS 110 (2004). The French legislature
also recognizes e-documents that fulfil the guidance of the EU and confers them the same evidentiary effect
as paper-based documents, id.
324 See the RR art. 1(17) infra Appendix 3, Table of Articles, General definitions article (the definition of
“electronic communication”).
112
The Qatari legislature recognizes the electronic data interchange in e-commerce in
general, but not in the context of maritime shipping industry. However, a judge sitting on
a carriage contract case evidenced by electronic data interchange will most likely apply
the e-commerce and transactions law to decide on the requirements of electronic
transactions,325 the evidentiary effect of the e-contract,326 the electronic signature,327 and
so forth. An electronic transport document and electronic signature shall have evidentiary
value equal to the ones given to the BOL328 under the QML, if certain conditions are
met.329
In case other electronic transport documents are used, they will only be regarded as
a prima facie evidence against the shipper and third party BOL holders just like other
paper or traditional transport documents mentioned under the previous subsection on
“The Absence of a BOL or the Issuance of a Transport Document other than the BOL”. It
is worth noting that if the requirements for electronic transactions are met, the acceptance
of e-BOLs, other e-transport documents, and E-communications in commerce remain
325 See Decree Law on the Promulgation of the Electronic Commerce and Transactions Law No. 16 of 2010
art. 4-19 infra Appendix 4.
326 See id. art. 20-07.
327 See id. art. 28-34.
328 See generally MOHAMMED SHAREEF ABDULRAHMAN AHMED, PROVING CONTRACTS
CONCLUDED BY AUDIO AND VISUAL MEANS (2007).
329 See Decree Law on the Promulgation of the Electronic Commerce and Transactions Law No. 16 of
2010, art. 20-07 infra Appendix 4 (for Effects and Authenticity of Electronic Transactions under the Decree
Law).
113
conditioned upon the validity of the electronic signature as provided by law.330 It is also
important, for the successful application of electronic signatures and transport documents
to have a secured IT system or software used for exchanging electronic data. This is due
to the increasing number of fraudulent transactions especially in developing countries.
It is noteworthy that the Hague-Visby Rules were adopted in 1924 when
technology and electronic data exchange was not feasible, thus the issue of electronic
carriage contracts has not been governed, a trend identical to the QML. The Hamburg
Rules, in contrast, were written during the beginning of the technology revolution, thus
article 14(3) recognizes the electronic signature reflecting what the practice was in the
shipping industry during the 1970s. Article 14(3) stated that:
[t]he signature on the bill of lading may be in handwriting, printed in facsimile,
perforated, stamped, in symbols, or made by any other mechanical or electronic
means, if not inconsistent with the law of the country where the bill of lading is
issued.
It is obvious that the Hamburg Rules widen the means by which the BOL is signed,
which are altogether new ways advanced by the technology significantly encouraging
paperless transactions. Furthermore, it also recognizes the e-BOL which is a substantial
means of evidencing a contract of carriage imposed by the new international carriage
practice.331
The RR further expand the use of electronic means in maritime transactions. What
have been added in the RR pertaining to electronic transactions are wider than the
330 See id. art. 4-19 (for the requirements of electronic transactions), see also id. art. 24-08 (pertaining to
electronic signature).
331 KELANI, supra note 175, at 50-01.
114
Hamburg Rules’ attempt. The RR is a forward-looking convention as it regulates
“electronic transport record” and promotes “electronic communication” as a major effort
in regulating the increasingly used paper substitute, which emerge to serve consumers,
shippers, and merchants and speed up the business transactions.332 The workable step
taken by the RR propels the shipping industry towards a paperless era of commerce, the
apparently 21st century way of doing business.333 A great endeavor from the drafters of
the RR relates to the articles’ flexibility and efficiency to reflect the needs of modern
international commerce and the shipping industry, therefore allowing parties to the
carriage contracts to conclude their agreement by electronic means.334 The RR set up the
legal framework for the use of an electronic alternative to traditional paper-based
transport documents. The relevant provisions are found in: article 1(17)335 “electronic
communication, article 1(18)336 ”electronic transport record”,337 and article 1(20)338 “non-
332 E.g., E-BOL, E-waybills, and DFRs.
333 SHAREEF MOHAMMED GHANNAM, THE OBLIGATIONS AND LIABILITY OF THE SHIPPER
38 (2012) (translated from Arabic).
334 See generally Miriam Goldby, Electronic Alternatives to Transport Documents: a Framework for
Future Development, in THE CARRIAGE OF GOODS BY SEA UNDER THE ROTTERDAM RULES
225 (D. Rhidian Thomas ed., 2010).
335 See the RR art. 1(17) infra Appendix 3, Table of Articles, General definitions article.
336 See the RR art. 1(18) infra Appendix 3, Table of Articles, General definitions article.
337 Electronic transport records may be used to substitute negotiable BOLs.
338 See the RR art. 1(20) infra Appendix 3, Table of Articles, General definitions article.
115
negotiable transport record”. Hence, the RR give the parties two options for electronic
transactions: either to issue a negotiable electronic transport record (such as a negotiable
e-BOL) or a non-negotiable transport record (such as a non-negotiable e-BOL or an e-sea
waybill).
In fact, chapter 3 of the RR confers an equal value to both the written transport
document and the electronic transport record. The electronic transport record evidences
the receipt of the goods by the carrier or performing party, and evidences the contract of
carriage and its terms. It is additionally a prima facie evidence of the document
particulars.339 Therefore, the evidentiary effects of both types of transport documents
(whether electronic or paper-based) are alike. This can be contrasted to an analysis of the
QML which reveals that cables or other documents used to evidence the contract of
carriage have less evidentiary effect than the traditional BOL. Chapter 3 of the RR, also
sets out the conditions for the use of electronic transport records and the replacement of a
written transport document with an electronic transport record.340 The parties have the
option of replacing the paper transport document with an electronic transport record and
vice versa. That record must be signed electronically by the carrier or a person acting on
339 See the RR art. 40 infra Appendix 3, Table of Articles, Reservation to the contract particulars.
340 Berlingieri, supra note 132, at 57; the RR art. 10, “[i]f a negotiable transport document has been issued
and the carrier and the holder agree to replace that document by a negotiable electronic transport record: (a)
The holder shall surrender the negotiable transport document, or all of them if more than one has been
issued, to the carrier; (b) The carrier shall issue to the holder a negotiable electronic transport record that
includes a statement that it replaces the negotiable transport document; and (c) The negotiable transport
document ceases thereafter to have any effect or validity. 2. If a negotiable electronic transport record has
been issued and the carrier and the holder agree to replace that electronic transport record by a negotiable
transport document: (a) The carrier shall issue to the holder, in place of the electronic transport record, a
negotiable transport document that includes a statement that it replaces the negotiable electronic transport
record; and (b) The electronic transport record ceases thereafter to have any effect or validity.
116
its behalf in accordance with article 38(2).341 It must be stated that if the carrier wishes to
embody the contract of carriage in the form of an electronic transport record, it should do
so based on the shipper’s prior consent.
Thus far, the QML is in line with the Hague Rules, in that it provides no options
for the electronic signature. This can be contrasted with the Hamburg Rules article
14(3)342 and contracting by electronic means provided by the RR. Although the Qatari
legislature provides no articles on electronic means of issuing e-BOL or other e-transport
documents, it regulates electronic commerce and transactions under the Decree Law on
the Promulgation of the Electronic Commerce and Transactions Law No. 16 of 2010. The
QML is unlike the RR because the latter regulate in detail and have quite a complete
scheme on the issuance of electronic transport records as the equivalent of paper transport
documents, and provide a definition of electronic communication. Whereas the QML
regulates the e-commerce and transactions in general, not paying attention to the special
nature, intrinsic features, and the roles, and interests of parties involved in sea carriage
(e.g. the rules applicable to the negotiability and non-negotiability of transport document
or its electronic counterpart like the RR electronic transport record).
341 Art. 38(2), “[a]n electronic transport record shall include the electronic signature of the carrier or a
person acting on its behalf. Such electronic signature shall identify the signatory in relation to the
electronic transport record and indicate the carrier’s authorization of the electronic transport record”.
342 See the Hamburg Rules art. 14(3) infra Appendices no. 3, Table of Articles, Electronic transport record.
117
Conclusion and Recommendation
Modern maritime practice is moving towards a continuous development of
electronic communication and increasing reliance on e-commerce. The electronic means
of doing business in the shipping industry prompt the emergence of new documents
evidencing the contract of carriage other than the traditional BOL. The BOL is one of the
documents that was able to cope with the recent developments in the modern maritime
industry. Nowadays, the e-BOL has been used in the shipping industry, sea waybills are
equally largely used.343
Although the QML is silent on the regulation of e-BOLs and e-transport documents
whether negotiable or non-negotiable, those kinds of documents are subject to another
body of law which is the Decree Law on the Promulgation of the Electronic Commerce
and Transactions Law No. 16 of 2010. Despite the existence of the latter law, E- BOLs
and e-transport documents require special rules regarding, for instance, their
negotiability, surrender, and E-communication.
The inclusion of e-BOLs and e-transport documents is necessitated by the practice
in sea carriage as Qatar is encountering such types of contracts.344 However, there is no
legal framework regulating such documents in the maritime context. Consequently, this
absence of a special law in the context of maritime field adds more difficulties to the
courts rendering decisions in cases involving e-BOLs or e-transport documents.
343 See Alba M., Electronic Commerce Provisions in the UNCITRAL Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea, 44 Tex. Int’l. L.J. 387, 387-88 (2009).
344 Interview with Captin Essam, Qatar Ports Managements Company (Jun. 10, 2014).
118
There must be a body of law that acknowledges the electronic alternative to the
traditional paper BOL and regulates the issue of liability to facilitate the parties to the
contract of carriage transaction and promotes the maritime industry.345 The more
boundaries and restrictions there are in international transactions, the more adverse
effects that the economy and business would encounter. The current situation in Qatar
negatively affects the shipping industry as the absence of an adequate legal framework to
conduct an e-maritime transaction does not encourage the parties to enter the e-commerce
world.346 The QML must have a sustainable plan for future and upcoming generations.
On several platforms, the Ministry of Transport and Communication have stressed
on the important role that e-commerce will play for Qatar to become a Smart Nation. He
therefore urged companies to take into consideration recent technological and digital
ways of doing business.347 Thus, shipping companies must transform to the digital way of
doing business to cope with the current development in the business sector. They are
otherwise threatened of being diminished and being disabled from competing nationally
and internationally in the future.
Electronic transport documents and e-BOLs were driven by the latest technologies
and the use of electronic data systems in the context of maritime trade. The lack of
345 Goldby, supra note 334, at 238.
346 Michael F. Sturley, General Principles of Transport Law and the Rotterdam Rules, in THE UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL CARRIAGE OF GOODS
WHOLLY OR PARTLY BY SEA 63, 80 (Meltem Deniz Guner-Ozbek ed., 2011).
347 See generally supra Part I, Ch. B, section 3.
119
legislative rules regulating such types of transport documents will threaten the shipping
companies in Qatar because of their hesitancy to adapt to the new technology which is
not yet legally recognized in the country. Also, digital transformation in the economic
sector of Qatar has been hampered as described by the Qatari Authority for Customs. The
latter governmental body developed an online system to substitute the use of paper-based
documents. However, the lack of legal rules regulating such documents was a major
obstacle.348
Due to the development in the shipping industry and the overall development of
the country as highlighted under Part I of this dissertation, it is expected that the shipping
industry would rapidly grow. Qatar’s Hamad Port will receive more vessels and will deal
with more persons involved in the carriage chain from the rest of the world and from
large maritime nations. In addition, it is highly likely to see a rise in litigation on issues
not covered by the current Decree Law on the Promulgation of the Electronic Commerce
and Transactions Law No. 16 of 2010. Thus, the QML must recognize the electronic
substitute of paper transport documents. The regulation of e-transport documents will
serve as guidance for the courts to decide cases having similar key facts in the same
manner. Accordingly, justice is secured and the rights of the parties are protected under a
mandatory law.
348 See 3.5 Million Customs Transactions Processed Through Alnadeeb System, supra note 102. See also
supra Part I, ch. 4.
120
Legal recognition of e-BOLs and e-transport documents would reduce the
disadvantages of the paper-based BOL, which is heavily relied upon in Qatar, especially
those related to its delay in arrival to the shipper or consignee by mail.349 Technology has
found a more efficient and speedy manner to conclude transport documents to overcome
the disadvantages of the traditional BOL.
The concurrent issue of e-BOLs and e-transport documents in connection with
maritime carriage is a gap that must be filled by a special body of law analogous to
chapter 3 of the RR for several reasons. First, the RR include a detailed legal framework
for e-transport records whether negotiable or non-negotiable, and cope well with the
current shipping industry which is heavily dependent on communicating through
electronic means. Second, the rules that provide a substitute to paper-based transport
document are applicable in the future whatever system is developed by technology to
conduct an e-transaction.350 Third, developing a comprehensive system for e-transport
documents similar to the RR will highly likely lead to the use of less papers (less
pollution), the reduction of mistakes and financial expenses, an increase in efficiency and
speed in operations.351
349 This causes delay in financing the carriage of goods by sea transactions by a bank as the BOL is a
prerequisite for processing letters of credits.
350 Berlingieri, supra note 132, at 57.
351 GHANNAM, supra note 333, at 39.
121
One could argue that e-transactions are risky due to hackers who can easily steal
the information of the users, thereby affecting the credibility of the e-contract.
Nevertheless, the risks associated with the use of electronic means may be overcome just
like using e-banking services and SWIFT, which enable users to transfer huge amounts of
money globally by electronic means.352 If a system for e-transport documents is invented,
it must take into consideration the security issues, the negotiability of the document, and
the protection of the rights of the parties. Nowadays, many carriers design a special
system for secured electronic transaction, such as tracking cargo and other e-transport
documents services. In fact, there is a special system adopted by the Doha Port to receive
e-BOLs currently in use. However, the absence of laws governing electronic documents
of the maritime industry have led to the difficulties expressed above in the
recommendations. It is time to modernize the QML by regulating electronic maritime
transactions and facilitating the shift to paperless commerce.
352 See generally Yiannopoulos, supra note 315, at 21.
122
PART III: CARRIER’S OBLIGATIONS
Moving goods from one location to another is the core of a carrier’s obligations. This
entails carrying and delivering the goods to their final destination on time, and in the
quantity specified in the BOL or other transport documents. This obligation is derived from
the definition of the contract of carriage in article 143 of the QML,353 article 1(6) of the
Hamburg Rules,354 and article 1(1) of the RR.355 To guarantee its fulfillment, the carrier is
entrusted with three main obligations. These are to be fulfilled before the commencement
of the voyage, during the course of carriage, and upon arrival at the final port. As will be
discussed below, these obligations are of crucial importance to ensure the safe carriage of
the goods to their final port of call. In addition, international conventions pertaining to
carriage of goods by sea and national laws impose another set of obligations relating to the
procedures for preserving the condition of the goods until arrival to the person entitled to
their delivery. Finally, upon arrival of the vessel, the carrier is entrusted with the obligation
of putting the cargo into the hands of the BOL holder or other transport document holder,
or person/s acting on their behalf.
It is important to discuss the carrier’s obligations in order to clarify the effects of the
contract of carriage of goods by sea. Once one of these obligations is breached, the relevant
353 Art. 143, “[t]he contract of maritime transport is a contract according to which the carrier, whether the
carrier was the owner of the Vessel or its provider or lessee, undertakes to transport the goods onboard the
Vessel to a specific port in consideration of rent”.
354 See the Hamburg Rules art. 1(6) infra Appendix 3, Table of Articles, General definitions article.
355 See the RR art. 1(1) infra Appendix 3, Table of Articles, General definitions article.
123
carrier liability regime is triggered. The carrier’s obligations and liabilities are therefore
inter-linked. To understand the liabilities and better define their scope, the various
obligations of the carrier should firstly be analyzed. This part will discuss the carrier’s three
main obligations. First, the obligation to exercise due diligence in providing a seaworthy
vessel is discussed. Second, emphasis is placed on the obligations enumerated in article
3(2)356 of the Hague-Visby Rules relating to loading, stowing, handling, discharge, keeping
and caring of the cargo. Third, the delivery of goods obligation is analyzed. These topics
are discussed in the following order:
A. Exercising Due Diligence in Providing a Seaworthy Vessel
B. Load, Stow, Handle, Discharge, Keep, and Care for the Goods Carried
C. Delivering the Goods
A. Exercising Due Diligence in Providing a Seaworthy Vessel
The classic and foremost obligation of a carrier that has never been changed over the
years is the obligation to exercise due diligence in providing a seaworthy vessel.
Additionally, the carrier is obliged to ensure the cargo-worthiness of the vessel. The
ventilation systems, holds and chambers would therefore need to be in conditions capable
of keeping, preserving, accommodating and carrying the cargo.
Appendix 3, Table of Articles, The Obligations to load, Stow, infraVisby Rules art. 3(2) -the Hague See 356
Handle, Discharge, Keep, and Care for, the Cargo.
124
The due diligence obligation to make the vessel seaworthy has three aspects.357 First,
securing the physical condition of the vessel: to fulfill this aspect, the carrier must, for
instance, furnish a vessel in a good condition which is valid for the intended voyage,
equipped with tools and navigational devices required for the entire voyage, secured to face
the perils of the sea, and supplied with necessary materials and documentations. Second,
manning the vessel: the carrier must properly man the vessel with qualified crew members
and ensure that their numbers are sufficient for the contemplated voyage. Third,
maintaining the vessel’s documents: the carrier must satisfy and maintain the
documentations required by international organizations, conventions and domestic laws.
The carrier must also take into consideration the nature of cargo carried, the weather
during the course of carriage and the type of voyage involved.358 For example, carrying
food for human consumption necessitates certain measures such as ventilation, which
differs from when carrying dry-bulk cargo. With regard to the weather, carrying cargo in
heavy weather in the Mississippi river during hurricane season requires different measures
to sailing on a regular voyage in normal weather conditions. With respect to the voyage,
carrying goods in internal waterways is significantly distinct from goods being carried in
the high seas exposed to greater sea perils. Hence, in judging whether a carrier has
357 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the
vessel seaworthy (this art. states what the carrier must fulfill in every aspect of seaworthiness); See
generally Cresswell in Papera Traders Co. Ltd. v. Hyundai Merchant Marine Co. Ltd. [2002] 1 Lloyd's
Rep. 719 (U.K.) (the three aspects of seaworthiness are related to the competence of the master and crew,
the condition of the vessel and other parts and the adequacy of vessel documentation).
358 TETLEY, supra note 149, at 898.
125
exercised due diligence to make the vessel seaworthy and has fully fulfilled its obligation,
it must show due diligence for all aspects of seaworthiness and also take into account the
type of cargo carried, the weather and the contracted voyage.
It is worth noting that the exercise of such obligations facilitates the carriage of the
goods safely to their final destination. If the vessel has been unseaworthy and subsequently
caused loss of, damage to or delay in delivering the cargo, the carrier would be held liable
for breaching its obligations. For that reason, many jurisdictions around the world
expressly state the obligations in their carrier liability regime. Others provide for an
implied application of the obligations. We now examine such obligations in the QML and
international conventions in five parts: articulation of the obligation of seaworthiness in
the laws; cargoworthiness; nature of the obligations; when to exercise the due diligence
obligation in providing a seaworthy vessel; and the theory of stages. The analysis is divided
into five sections:
1. Articulation of the Obligation
2. Cargoworthiness
3. The Nature of the Obligation
4. When to Exercise the Obligation?
5. The Theory of Stages
126
1. Articulation of the Obligation
The obligation of exercising due diligence in providing a seaworthy vessel is
The breach of such obligation triggers the 359mentioned in article 125 of the QML.
o which holds the carrier liable for lack of due diligence t 360,application of article 157
make the vessel seaworthy, causing loss of, damage to and delay in delivering the
cargo, unless the carrier proves that it or its agents have exercised due diligence to
Visby -Thus, the QML’s standpoint is similar to the Haguemake the vessel seaworthy.
362and the RR article 14. 361(1)3ules article R
The Hamburg Rules do not articulate the obligation. A general liability provision
which holds the carrier in presumed fault in the 363is nevertheless made in article 5,
case of a loss of, damage to or delay of cargo when the goods have been under its
custody. The carrier is not exempted from liability unless it shows no fault from its side
or that of its servants. The Hamburg Rules promulgate a general rule that may be
applicable to the breach of all carrier’s obligations arising from the contract of carriage,
irrespective of the type of obligation, whether it is due diligence to make the vessel
Appendix 3, Table of Articles, The obligation to provide seaworthy vessel. infrathe QML art. 125 See 359
360 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the
vessel seaworthy.
Appendix 3, Table of Articles, The obligation to provide infraVisby Rules art. 3(1) -the Hague See 361
seaworthy vessel.
Appendix 3, Table of Articles, The obligation to provide seaworthy vessel. infrathe RR art. 14 See 362
363 See the Hamburg Rules art. 5 infra Appendix 3, Table of Articles, The obligation to provide seaworthy
vessel.
127
seaworthy or something else. Having discussed the articulation of the obligation of the
carrier, the subject of cargoworthiness is now considered.
2. Cargoworthiness
One intrinsic aspect of the seaworthiness obligation is the physical condition of
concerned with the external condition and the good order of the vessel. This is not only
worthy if its internal l is only considered cargoA seaworthy vesse 364the vessel’s hull.
parts, such as the holds, chambers, ventilation system and other parts are also fit for the
placing, preserving, keeping and carrying of the contemplated cargo.
“Cargoworthiness” thereby refers to a carrier’s obligation to ensure that the internal
parts of the vessel allotted for stowing goods are in good working condition and to
maintain and preserve the goods, taking into consideration the nature of the cargo, as
For instance, the 365different cargo types require different diligence requirements.
obligation of due diligence to carry animals differs from that to carry bananas, as the
former need extra care and supervision. However, carrying bananas must involve a
vitalization system with a temperature agreed upon beforehand, in order to ensure they
arrive in good condition.
It 366The cargoworthiness obligation is articulated in article 125 of the QML.
states that the carrier is not liable for a failure to prepare “suitable holds, cooling rooms
and all the other sections allocated for shipping the goods in a way that such places are
364 PAUL TODD, PRINCIPLES OF THE CARRIAGE OF GOODS BY SEA 63-04 (2016).
365 AWAD, supra note 189, at 496-97.
366 See the QML art. 125 infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.
128
valid for placing the goods, transporting and preserving them” if it succeeds in showing
that due diligence has been exercised to make the vessel cargoworthy.
The Hague Rules and the RR similarly impose the obligation of cargoworthiness
on the carrier. Some variations in the RR can nevertheless be observed from those in
the QML and the Hague-Visby Rules. Notably, articles 14(a) and (b) of the Rotterdam
e carrier in worthiness to containers furnished by thend the obligation of cargoRules ext
This is indeed a prominent addition in the era of containerization and 367article 14(c).
the increasing usage of carriage containers. The insertion of an obligation of this kind
stresses the idea that containers are regarded as part of the vessel, thus suggesting its
368other parts of the vessel.to that cargoworthiness obligation as being no less than
The duty relating to the containers’ cargoworthiness, as indicated under article
14(c),369 requires the carrier to provide a container fit for the cargo carried.370 By way of
example, if the cargo will be contaminated if not refrigerated, then the carrier must
provide a refrigerated container, which works in a sound and proper manner.371
ppendices no. 3, Table of Articles, The obligation to provide seaworthy infrathe RR art. 14(c) See 367
vessel.
368 Theodora Nikaki, The Carrier's Duties Under the Rotterdam Rules: Better the Devil You Know? 35 Tul.
Mar. L.J. 1, 17 (2010-2011).
369
370 Nikaki, supra note 368.
371 Id.
129
Cargo interests have long argued about the reason for relieving the carrier of
liability for an intrinsic obligation of cargoworthiness for containers, since maritime
carriage practice allows the carrier to insert a clause in the BOL or other transport
documents to discharge itself from liability for the provision of defective containers.372
This is indeed unfair and affects the interests of cargo owners who must be protected
from the carrier’s fault and negligence. It is noteworthy that this situation is no longer
valid under the RR, as according to article 79,373 the carrier cannot escape liability for
obligations of a public order nature, such as the one discussed above.
3. The Nature of the Obligation
Referring to article 125 of the QML, the carrier is obliged to exercise due
diligence to make the vessel seaworthy. Thus, from this wording, it appears that the
obligation is not stringent because of the “due diligence” phrase. This is analogous to
the nature of the obligation under the Hague Visby Rules article 3(1)374, the Hamburg
Rules general standard of diligence for all carriers’ obligations under article 15375 and
the RR article 14(1).376 The obligation does not require the carrier to ensure the
372 Andrew Nicholas, The Duties of Carrier’s under the Conventions: Care and Seaworthiness, in THE
CARRIAGE OF GOODS BY SEA UNDER THE ROTTERDAM RULES 113, 114 (Rhidian Thomas ed.,
2010).
Appendix 3, Table of Articles, Freedom of contract. infrathe RR art. 79 See 373
Appendix 3, Table of Articles, The obligation to provide infraVisby Rules art. 3(1) -the Hague See 374
seaworthy vessel.
375 See the Hamburg Rules art. 15 infra Appendix 3, Table of Articles, Contract particulars.
Appendix 3, Table of Articles, The obligation to provide seaworthy vessel. infrathe RR art. 14(1) See 376
130
seaworthiness of the vessel, it rather requires exercising due diligence to furnish a
seaworthy vessel.377
In addition, article 157 of the QML378 states that the carrier cannot exculpate
itself from liability in the absence of due diligence unless showing that it and its agents
exercised due diligence to make the vessel seaworthy. Rebutting the assumption of
fault by proving no fault from the carrier’s side assures that the obligation is not
stringent.
Furthermore, the obligation of due diligence is an overriding obligation just like
the Hague Rules. In the case of Maxine footwear,379 Lord Somervell found that
seaworthiness was overriding in the sense that if that obligation had not been fulfilled,
the list of exclusions found in article 4(2)380 was not applicable. The construction of
that article was based on article 4(1)381, which states that the carrier is not responsible
for unseaworthiness unless caused by the carrier’s fault. The following paragraph then
lists the exceptions to liability. Thus, if the seaworthiness obligation is not fulfilled, the
carrier has no recourse to exceptions even if the loss of, damage to or delay in delivery
377 TETEY, supra note 149, 879-880.
378 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the
vessel seaworthy.
379 Maxine Footwear Company, Ltd. and Morin v. Canadian Government Merchant Marine, Ltd [1959] 2
Lloyd’s Rep. 105 (U.K.).
Appendix 3, Table of Articles, Liability exceptions. infraVisby Rules art. 4(1) -the Hague See 380
381 Id. art. 4(2).
131
of cargo is partly caused by unseaworthiness beside a cause listed in article 4(2). If the
obligation is not an overriding obligation, wording like “subject to article 4(1), must be
found in the chapeau of article 4(2)” is necessary.
Article 157 of the QML, which makes the carrier liable in case of lack of due
diligence, has similar wording to article 4(1) of the Hague Rules. Additionally, article
158 of the QML382 is similar to article 4(2) of the Hague Rules. Therefore, what applies
to the Hague-Rules (particularly the construction of the overriding obligation of
seaworthiness) applies to the QML. Following this reasoning, when the cause of
damage or loss is in part due to a failure in due diligence to make the ship seaworthy
and in part caused by an expected peril, the carrier will be liable for the whole loss. 383
The QML differs from the Hamburg Rules and the RR because both conventions
consider the obligation not of an overriding nature. According to article 5(7) of the
Hamburg Rules,384 the carrier is liable only to the extent that the loss, damage or delay
in delivery is attributable to its fault or neglect, or that of its agents or servants.
Reading article 5(1)385, which draws a general basis of liability in conjunction with
article 5(7) we come to the conclusion that the obligation is not overriding because it
382 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
383 Sofia Bengtsson, The Carriage of Goods by Sea Conventions – A comparative study of Seaworthiness
and the list of exclusions 20-01 (2010) (unpublished Masters thesis, Lund University).
Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5(7) See 384
385 Id. art. 5(1).
132
allows the carrier to establish cause of loss or damage not attributed to its fault or that
of its servants or agents.
The obligation is not an overriding one based on article 17(2) of the RR386,
which is quite similar to the content of article 5(7) of the Hamburg Rules. Hence,
theQML differs from the RR in that regard. In the RR the carrier will be liable to the
extent that the loss of, damage to or delay in delivery is attributed to lack of due
diligence. The carrier may still be able to escape liability if an expected peril,
mentioned in article 17387, contributed to loss, damage or delay.
4. When to Exercise the Obligation?
It is clear from article 125 of the QML that the carrier must exercise the obligation
before and at the beginning of the voyage, just like the position articulated in article 3(1)
of the Hague-Visby Rules.
In that regard, the QML has not followed the trend of the RR wherein article
imposed an ongoing obligation of seaworthiness on the carrier, thus expanding 38814
the carrier obligation to include the course of carriage to the final destination agreed
upon with the cargo interests. It should be noted that this extension of the obligation to
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(2) See 386
387 Id. art. 17.
Appendix 3, Table of Articles, The obligation to provide seaworthy vessel. infrathe RR art. 14 See 388
133
cover the entire voyage has not been left without criticism. The main criticisms relates
389to when the obligation ends.
In light of article 14 of the RR390, the obligation is to be carried out at loading, at
the commencement of the voyage and during the voyage. The language of the article
makes it clear that the starting point for the obligation is the commencement of loading.
The interpretation of “at loading” applied in the Hague-Visby Rules applies equally to
the RR, since they have the same starting point for the obligation.391
Case law worldwide has reached a uniform interpretation for the phrase “at
loading”. According to the courts, the period from which the obligation begins is the
commencement of the loading operation.392 Despite this fact, the question of when the
seaworthiness obligation ceases is not clear in the RR. Is it upon the vessel’s arrival to
its final destination but before the commencement of the discharge operations? Or is it
after the completion of the discharge operations? We now refer to jurisprudence to find
an appropriate interpretation of the obligation duration under the RR.
389 Nikaki, supra note 368, at 13-04.
390 Id.
391 Bengtsson, supra note 268, at 26-07.
392 Nikaki, supra note 368, at 17-08; see also Christopher J. Giaschi, Carriage of Goods, Bills of Lading,
and Charterparties, U.B.C. Mar. L. 332, 17 (2001).
134
The first construction of the article illustrated that the obligation ceased upon the
arrival of the vessel at the last port of call.393 A second argument is made for the
inclusion of the discharge operations in the carrier’s obligation, where the obligation
ends when the discharge is completed. The loading operations are included in the
obligation duration, and so it is viewed as unreasonable to exclude discharge and
confine the obligation to the arrival of the vessel, as by doing so, article 14 will lose
much of its value.394 This dissertation supports this second viewpoint. Since loading is
the starting point for the operation of the due diligence obligation when goods are
stowed in the vessel, discharge is the last action to remove the goods from the vessel. If
the vessel must be seaworthy during loading, it must be so during discharge as well.
For instance, where the hull is damaged, it is pointless to exclude obligation for
improper discharge where the goods were lost or damaged, because they have been
mixed with seawater.
5. The Theory of Stages
This topic is neither found in the QML nor in the international conventions. It is
therefore necessary to address it by referring to jurisprudence and judicial decisions to
assist the Qatari legislature with respect to the time when the obligation of due diligence
in providing a seaworthy vessel is supposed to be exercised in voyages involving a
number of intermediary ports, and to better define the scope of this obligation. The main
393 Bengtsson, supra note 268, at 26-07.
394 Id.
135
question to be answered in this section is whether the obligation applies to all ports of
call or only the first port, which is obviously the first loading or departure port. To
address this question, a definition of the theory is our starting point.
The theory of stages arises where the carriage contract, although involving only
one voyage, is performed through different stages. For instance, cargo carried from the
Doha port to the Kuwait port will be in transit at the Jabal Ali port in the UAE. The old
doctrine of stages stated that when a voyage is divided into stages, the vessel should be
seaworthy at the beginning of each stage she is going to undertake.395 This was prior to
the Hague-Visby theory, and is no longer applicable. Article 3(1) of the Hague-Visby
Rules396 makes clear that due diligence is to be exercised only before and at the beginning
of the first voyage.397
There is a vital issue related to the exercise of due diligence for the different stages
of the voyage which is not found under the QML. However, it makes an appearance in
maritime law jurisprudence. The issue in question is a case involving a contract of
carriage involving calls at multiple ports before reaching its final destination (goods in
transit), which is a very popular kind of carriage in the era of containerization. Therefore,
395 Ahmad Hussam Kassem, The Legal Aspects of Seaworthiness: Current Law and Development 126
(2006) (unpublished P.hD, Swansea University); see also TODD, supra note 364, at 65-06.
Appendix 3, Table of Articles, The obligation to provide infraVisby Rules art. 3(1) -the Hague See 396
seaworthy vessel.
397 But see Kassem, supra note 395, at 128-29 (some jurisdictions still apply the theory of stages); see
generally Waleed Khalid Atteia, The Legal Aspects of Seaworthiness: Comparative Study Between
Maritime Laws, Hague Rules, Visby Rules, and the Hamburg Rules, 5 AL- Mouhakiq Al-Hilly Journal for
Legal and Political Science 259 (2013).
136
addressing it is a necessity.398 Thus, the crucial question is whether the carrier is obligaed
to exercise due diligence in making the vessel seaworthy before every voyage if the
contract of carriage involves intermediary ports.
The answer is found in Leesh River Tea Co. v. British India Steam Navigation
Co..399 According to this case, the carrier must exercise due diligence at the first port
where the cargo is loaded. As a result, if loss or damage occurred at an intermediary port,
when the vessel was seaworthy at the beginning of the voyage at the first loading port,
the carrier is relieved from liability. However, if the cargo has been loaded in a number
of ports, but is heading to one destination, it is held that the obligation applies before and
at the beginning of the voyage until it reaches the final loading port and commence its
voyage. 400
It is also of crucial importance to briefly discuss bunkering. Bunkering means
supplying the vessel with fuel, coal and supplies of fresh water and food which are
necessary for the vessel’s crew, as well as water to enable the carrier’s boilers and engine
to undertake the voyage to her destination.401 This is an issue that must be considered
under the theory of stages and the QML. Since the current doctrine of stages requires the
exercise of due diligence only prior to and at the commencement of the first stage of the
398 Nicholas, supra note 372, at 116-17.
399 Leesh River Tea Co. v. British India Steam Navigation Co. [1966] 2 Lloyd’s Rep. 193 (C.A.).
400 TETLEY, supra note 149, at 895.
401 Kassem, supra note 395, at 130.
137
voyage, the question that arises is whether the carrier is in breach of its duty to bunker
the vessel,402 if the vessel runs out of fuel, coal, water, food etc. during the voyage?
This can be answered in the affirmative. The current theory of stages does not
require the due diligence obligation to operate before and at the commencement of
every stage. However, when it comes to bunkerage, the carrier must plan for this before
and at the commencement of the first leg of the voyage, and make sure it is sufficient
until the vessel reaches its final destination. If the carrier makes the necessary
bunkerage arrangements for all stages before the first leg of the carriage, it satisfies its
duty of due diligence even where the bunkerage has not been sufficient during one of
the stages.403 On the other hand, if the carrier fails to plan and arrange for the
bunkerage for all the stages, and a loss of, damage to or delay of cargo was caused by
insufficient bunkerage at any stage, the carrier will be held liable. 404
By and large, the theory of stages holds no significance under the RR because,
unlike the QML, the conventions impose an ongoing obligation of due diligence
throughout the voyage. To put it differently, the carrier must exercise due diligence in
making the vessel seaworthy even where the carriage transaction involves one or more
intermediary ports of call.
402 This is obviously a part of the carrier’s seaworthiness obligation.
403 Kassem, supra note 395, at 130.
404 Id. (“most vessels are machinery vessels and the voyages are usually long, it would be impossible to
carry enough bunkers to cover the whole voyage, and therefore, the carrier is not obliged to supply its
vessel with sufficient fuel or coal to take her to her final destination; instead it can divide the voyage into
many bunkering stage”).
138
Conclusion and Recommendation
The current nature of the obligation under the QML should not be changed. It
takes into account the new international maritime regimes, as the old maritime regimes
405imposed an absolute obligation of seaworthiness.
Moreover, the overriding nature of the obligation should not be altered as it has
long been established in civil jurisdictions that wrongdoers can rebut a lack of due
diligence only by proving the contrary. In other words, the carrier can only escape
liability by showing that it and its servants have exercised due diligence. They cannot
rebut the presumption of fault by showing an expected peril.
When it comes to when to exercise the due diligence obligation, a continuous
obligation of due diligence in providing a seaworthy vessel (like the approach of the RR)
is a better option for the QML for several reasons.
First, problems associated with the interpretation of the phrase “before and at the
beginning of voyage” will likely be eliminated, thus allowing for an easier application of
the law. Moreover, if the obligation runs throughout the voyage, then there is no room for
discussing the theory of stages, as the carrier is under a constant obligation during the
course of carriage. The significance of the ongoing obligation of seaworthiness is clear in
405 Id. at 3-4.
139
cases where cargo loss, damage or delay took place during the voyage and after the
commencement of the voyage, as well as in the case of carriage between two or more ports
of call.
Second, the continuous obligation would be in the shipper’s interest as it is unfair to
discharge the carrier from liability for unseaworthiness that took place after the
commencement of the voyage.406 This would lead to a rise in negligent carriers who are
not encouraged to rectify unseaworthiness because they can be legally exonerated from
liability for unseaworthiness that occurred after the commencement of the voyage.
Third, a carrier under a continuous obligation will incur a greater burden in fulfilling
its obligation to avoid liability for failure to exercise due diligence. The carrier will be more
prudent and is highly likely to be well prepared for any incidents of unseaworthiness during
the course of voyage, in order to avoid liability for loss of, damage to and delay in
delivering cargo.
Fourth, an ongoing obligation of seaworthiness conforms to current maritime
practices. The reason why the Hague-Visby Rules confine the obligation to the loading
period and before the start of the voyage is historically related to poor navigational tools,
aids and devices. As soon as the vessel leaves the port, the carrier has no control over the
vessel. However, nowadays, advancements in navigation tools, devices, and
communications at sea allow the carrier to contact the nearest port or intermediate ports for
406 Berlingieri, supra note 132, at 6 (“[t]here is in fact no reason why, once the ship has sailed from a port,
the owner should be relieved from any duty to ensure its seaworthiness. He may not, of course, take the
same kind of actions when the ship is in a port, but nevertheless the actions that are possible must be
taken”).
140
assistance. This makes the process of rectifying seaworthiness easier, and the carrier is
more capable of exercising control over the vessel even where the vessel is actually on the
high seas. 407
Fifth, the carrier must exercise due diligence in making the vessel seaworthy during
the voyage because such obligation is mandated by the provisions of the International
Management Code for the Safe Operation of Ships and for Pollution Prevention of 1993
(“ISM Code”), which reflects the current maritime practices.408 The code imposes on the
carrier duties relating to vessel seaworthiness.409 According to articles 6(1)410 and 10 of the
407 Bengtsson, supra note 268, at 25.
408 TETLEY, supra note 149, at 938.
409 Id. at 941-45.
410 Art. 6, “6.1 [t]he Company should ensure that the master is: properly qualified for command; fully
conversant with the Company's SMS; and given the necessary support so that the Master's duties can be
safely performed.
6.2 The Company should ensure that each ship is manned with qualified, certificated and medically fit
seafarers in accordance with national and international requirements. 6.3 The Company should establish
procedures to ensure that new personnel and personnel transferred to new assignments related to safety and
protection of the environment are given proper familiarization with their duties. Instructions which are
essential to be provided prior to sailing should be identified, documented and given. 6.4 The Company
should ensure that all personnel involved in the Company's SMS have an adequate understanding of
relevant rules, regulations, codes and guidelines. 6.5 The Company should establish and maintain
procedures for identifying any training which may be required in support of the SMS and ensure that such
training is provided for all personnel concerned. 6.6 The Company should establish procedures by which
the ship's personnel receive relevant information on the SMS in a working language or languages
understood by them. 6.7 The Company should ensure that the ship's personnel are able to communicate
effectively in the execution of their duties related to the SMS”.
141
ISM Code411, the carrier must take steps to ensure the safety of the vessel by maintaining
its seaworthiness. These steps include inspecting the vessel and its mechanisms, properly
manning it and undertaking corrective measures during the voyage. Thus, the obligation
does not expire after the voyage has commenced. Rather, it covers the whole voyage. The
ISM Code establishes an international standard of seaworthiness. Compliance with its
requirements serves as evidence that due diligence in making the vessel seaworthy has been
exercised. In contrast, non-compliance is regarded as prima facie evidence of the absence
of due diligence.412 It is questionable whether the extension of the obligation brought by
the RR is a significant change in carrier liability regimes internationally.413
411 Art. 10, “10.1 [t]he Company should establish procedures to ensure that the ship is maintained in
conformity with the provisions of the relevant rules and regulations and with any additional requirements
which may be established by the Company.10.2 In meeting these requirements the Company should ensure
that: inspections are held at appropriate intervals; any non-conformity is reported with its possible cause, if
known; appropriate corrective action is taken; and records of these activities are maintained.10.3 The
Company should establish procedures in SMS to identify equipment and technical systems the sudden
operational failure of which may result in hazardous situations. The SMS should provide for specific
measures aimed at promoting the reliability of such equipment or systems. These measures should include
the regular testing of stand-by arrangements and equipment or technical systems that are not in continuous
use.10.4 The inspections mentioned in 10.2 as well as the measures referred to 10.3 should be integrated in
the ship's operational maintenance routine.
412 Nikaki, supra note 368, at 12.
413 It should be noted, however, that if the carrier has not been held liable for loss, damage, or delay caused
by unseaworthiness of the vessel during the voyage, the carrier would most probably be liable for lack of
due care to cargo. Nevertheless, the difference is in the nature of both obligations; the due diligence is an
overriding and of due diligence nature, whereas the due care to cargo obligation is not an overriding one
and is a stringent obligation.
142
To sum up, the current version of the QML, whose scope of seaworthiness obligation
is limited, is not in line with wider shipping industry practices. It is time to bring it into
conformity with contemporary maritime practices.414
B. Load, Stow, Handle, Discharge, Keep, and Care for the Goods Carried
The carrier, under any given contract of carriage of goods by sea, is obliged to
transport the goods carried from the port of departure to their final destination. The
process of transporting the goods undergoes several stages and requires various
operations to complete the main obligation of moving the goods from one place to
another. Every stage of sea-borne carriage requires specific work to be carried out by the
carrier or the persons acting on its behalf. At the outbound port, the carrier is under an
obligation to load, stow and handle the cargo. It means that the carrier must make sure
that the cargo is loaded safely on board a proper vessel, loaded without delay, handled
with care and stowed in such a manner that it can be easily found for quick and safe
discharge.415 In addition, there should be a proper stowage plan.416 It is worth noting that
there are two distinct stowage obligations. One is the obligation to exercise due diligence
to make the vessel seaworthy by ensuring a safe stowage that has no effects on the
414 See generally Nikaki, supra note 368, at 42. It is worth noting that if the carrier has not been held liable
for lack of due diligence to make the vessel seaworthy, he is highly likely to be liable for failure to care for
cargo.
415 TETLEY, supra note 149, at 1247.
416 See HATOOM, supra note 216, at 97.
143
stability of the vessel.417 The second is the one we are concerned with here, which is the
obligation to stow the goods in a way that does not affect the condition of the cargo.
During the voyage, there are obligations to carry, keep and care for the cargo.
These obligations are of crucial importance and they run throughout the voyage, unlike
the obligation to exercise due diligence in providing a seaworthy vessel, which ceases
once the vessel commences its voyage.418 The carrier has liability if an incident takes
place in the course of carriage which endangers the cargo and causes the goods to arrive
in a bad condition. This is because the carrier is under a duty to undertake measures to
preserve the good condition of the cargo until it reaches its final destination. One
example is the duty to re-stow the goods if they have been moved from their place.
Another example is that when goods are stowed in reefers, the carrier is obliged to
maintain the temperature agreed upon to preserve the condition of the goods.
Upon the vessel’s arrival at the inbound port, the carrier must properly and
carefully discharge the goods, and then deliver them to the person entitled to delivery.
The foundation of all illustrated obligation is found in article 3(2) of the Hague-Visby
417 If the carrier breaches such an obligation, it will most likely be held liable for failure to exercise due
diligence to make the vessel seaworthy; nonetheless, if the carrier breaches the second stowing obligation,
then it is liable for breach of care to cargo because the stowage affected the cargo and not the vessel.
418 The continued characteristic of the obligation to care for the cargo is clear in the RR art. 13(1). It is
noteworthy that such obligation under the RR runs during the period of responsibility of the carrier (from
receiving the goods until handing them over at the final destination). This means it covers the period
beyond the sea voyage until the goods are delivered to the consignee. Compare the RR, art. 13(1), with the
Hague-Visby Rules, art. 3(1) (the continuous obligation is implied).
144
Rules.419 However, delivery is excluded. The RR in article 13(1)420 maintain the original
wording of their predecessor, the Hague-Visby Rules in article 3(2).421 The former article
adds the delivery obligation, unlike the Hague-Visby Rules, which have not expressly
dealt with the delivery of goods.
In the upcoming paragraphs, the foremost features of the obligations of loading,
stowing, handling, discharging, keeping and caring for the goods are discussed. These
obligations remain unchanged from the time the Hague-Visby Rules were adopted to the
present. They are articulated in article 3(2) of the Hague-Visby Rules422 and article 13(1)
of the RR.423 For the purpose of analysis, it is appropriate to group the obligations as
follows: first, the obligations to load, stow, handle and discharge; second, the obligations
to keep, carry and care for the cargo. The discussion is divided into three sections:
1. The Common Features of the Obligations to Load, Stow, Handle, Discharge, Keep
and Care for the Cargo.
2. Special Issues Related to the Obligations to Load and Discharge
3. Special Features of the Obligations to Keep, and Care for, the Cargo
Appendix 3, Table of Articles, The Obligations to load, Stow, infraVisby Rules art. 3(2) -the Hague See 419
Handle, Discharge, Keep, and Care for, the Cargo.
420 Id. art. 3(1).
421 Id. art. 3(2).
422 Id.
423 See the RR art. 13(1) infra Appendix 3, Table of Articles, The Obligations to load, Stow, Handle,
Discharge, Keep, and Care for, the Cargo.
145
1. Common Features of the Obligations to Load, Stow, Handle, Discharge, Keep
and Care for the Cargo
There are some general features that characterize these obligations as a whole.
They are addressed as follows:
a. Articulation of the Obligations
b. Standard Involved in Exercising the Obligations
a. Articulation of the Obligations
It is interesting to note that the QML does not contain any articles with respect to
loading, stowing, handling and discharging of goods, neither explicitly nor implicitly.
The case is somewhat different when it comes to the obligations to keep and care for the
cargo. Although the QML has not imposed a positive and clear obligation to keep and
care for the cargo, the obligation is implied from articles 158 and 161. Referring to article
158, the carrier is liable for the loss of and damage to the cargo, unless one of the perils
highlighted in article 158 is proven.424 The carrier, during its period of responsibility, is
therefore obliged to keep and care for the cargo. It would otherwise shoulder liability.
Article 161 allows the carrier to contract out this obligation, but only for the period
424 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
146
beyond its period of responsibility (beyond the tackle-to-tackle period).425 This implies
that during the period of responsibility, the carrier is under an obligation to keep and care
for the cargo.
In fact, the approach of the QML is different from that taken by the Hague-Visby
Rules and the RR, both of which impose a positive obligation on the carrier to keep and
care for the cargo. These are expressed in articles 3(2) and 13(1) respectively. It is clear
that the QML follows the path of the Hamburg Rules. To put it differently, neither the
QML nor the Hamburg Rules impose a positive and express obligation of loading,
stowing, handling, discharging, keeping, carrying and caring for the cargo, in contrast to
the trend in the Hague-Visby Rules and the RR. The Hamburg Rules do not place any
express obligation on the carrier. It provides a general rule that applies to all of the
carrier’s obligations derived from the BOL or any other transport documents. The
obligations mentioned in the present section can be implied from article 5(1), which
imposes a general duty on the carrier to take all reasonable measures to avoid any event
that may cause cargo loss, damage or delay.426 Therefore, the carrier is presumed to be at
fault if the goods that have been under its custody arrived in a bad condition.
Article 158 also has some indications as to the nature of the obligation to care for
cargo. It is inferred from the latter article that these obligations are of stringent nature.
425 See the QML art. 161 infra Appendix 3, Table of Articles, Freedom of contract.
426 TETLEY, supra note 149, at 1283-84.
147
This is because the phrase “due diligence” is only found in respect to the obligation to
provide a seaworthy vessel under article 125. Thus, the carrier is not relieved from strict
liability for cargo loss, damage or delay caused by breaching its previously mentioned
obligations, unless it is able to prove one of the perils listed in article 158. Rebutting the
presumption of fault for strict obligations requires proving an expected peril that could
not be avoided by the carrier has occurred. However, the carrier cannot argue that it has
exercised due diligence in undertaking its obligations, as the nature of such obligations
differs from the obligation to provide a seaworthy vessel.427 The nature of the obligations
is described as strict (absolute), and does not deprive the carrier of the opportunity to
invoke the liability exception under our analysis of the QML. This is similar to what is
found in the Hague-Visby Rules and the RR, because both conventions have not preceded
the obligations with the phrase “due diligence”. The adverbs “properly and carefully” are
used instead. The carrier is not asked to “exercise due diligence” as with the obligation to
furnish a seaworthy vessel.
It is worth nothing that the RR provides the most recent version of article 3(2).
Although it maintains the wordings of article 3(2) of the Hague-Visby Rules, there is a
significant addition and a unique point not found in the Hague-Visby Rules. Article 11 of
the RR obliges the carrier to carry the goods to their final destination and deliver them.
Additionally, article 13(1) adds the obligation to deliver the goods to the traditional
427 The carrier is liable for cargo loss or damage caused by the failure to exercise due diligence to make the
vessel seaworthy, unless it proves the contrary. HATOOM, supra note 216, at 84-05.
148
obligations of the carrier.428 The delivery obligation is a new element in the RR. This
obligation is worth discussing in the following section.
b. Standard Involved in Exercising the Obligations
Given the absence of express obligations to load, stow, handle, discharge, keep and
care for the cargo, it is important that the interpretations of international conventions and
Arabic legal jurisprudence be analyzed in order to fill the gap left by the QML on the
standard involved in exercising those tasks. It is worth noting that Qatar ratified the
Convention of Load in Lines of 1966.429 This provides courts and arbitral bodies with a
reference and guidance to the standard and practices followed while undertaking loading,
stowing and discharging operations.
In actual fact, the standard of exercising the obligations is found in the Hague-
Visby Rules and the RR. Both conventions require the obligations to be exercised
“properly and carefully”.430 The carrier, in exercising its obligations under article 3(2) of
the Hague-Visby Rules, must be skillful, apply a sound system, take into consideration
the existing professional standard related to the current maritime practice and abide by
up-to-date industry norms.431 While following the aforementioned standard to exercise
the obligations, the carrier must be aware of the type of vessel, type of cargo and the
Appendix 3, Table of Articles, The Obligations to load, Stow, Handle, infrathe RR art. 13(1) See 428
Discharge, Keep, and Care for, the Cargo.
429 Amiri Decree on Rafting the International Convention on Load Lines of 1966 No. 50 of 2015.
430 The case law of the Hague Rules on the interpretation of “properly and carefully” is still valid and can
be relied on to interpret the carrier duties under the Rotterdam Rules. See Bengtsson, supra note 268, at 30.
431 TETLEY, supra note 149, 1254-55.
149
voyage in order to act accordingly. For instance, loading and stowing plans for high seas
voyages differ than those for river voyages. High seas voyages require a much higher
degree of preparation than sailing in internal waterways.
The term “properly” means abiding by a sound system and knowledge of the
carrier and taking into consideration the nature of the cargo and voyage.432 Judging
whether the carrier has followed a sound system depends on the knowledge the carrier
had or should have had in relation to the cargo, vessel and cargo types.433 Since the
carrier is addressed by the loading lines convention in Qatar, the court must also refer to
the standards and systems laid down in the convention.
Nevertheless, the standard used in the Hamburg Rules is somehow different than
the one provided in the Hague-Visby Rules and the RR. Firstly, the Hamburg Rules have
not used the phrase “properly and carefully”. They instead require the carrier to undertake
reasonable measures to avoid cargo loss, damage or delay as per article 5(1). It has been
argued that such a standard is not as strict as the standard of care found in the Hague-
Visby Rules and the RR. 434
2. Special Issues Related to the Obligations to Load and Discharge
As far as the obligations to load and discharge are concerned, the discussion of
who is responsible for them, and thus liable in the event of cargo loss, damage or delay, is
432 Bengtsson, supra note 268, at 30.
433 Nikaki, supra note 368, at 22-01.
434 TETLEY, supra note 149, at 1309.
150
of utmost importance. The central questions to be addressed are whether these obligations
are delegable (i.e. can be shifted to the shipper or the consignee), and if they are, whether
the carrier is still liable or would liability instead be shouldered by the shipper or the
consignee, as the case may be. These issues are controversial, as some jurisdictions
impose such obligations principally on the carrier such as the Kuwaiti approach. Others,
in contrast, allow shifting them to the shipper or the consignee, such as the U.K. and
UAE jurisdictions.
In light of the text of the QML, it is not clear whether the carrier or the shipper is
obliged to undertake such obligations, as there is no article that imposes them on either
party.435 This said, the maritime practice in Qatar reveals that these obligations are
performed by an independent juridical person, Milaha.436 Milaha has been established
since 1957 as the first joint stock company in Qatar. The QPMC is obliged under the Law
Decree No. (29) of 1966 Regulating the Qatari Maritime Ports to undertake the loading
and discharging obligations. However, the QPMC is contracted with Milaha to run
Qatar’s Doha Port, Mesaieed Port (only CT7 vessel quay) and the new Hamad Port. It is
435 Compare HATOOM, supra note 216, at 87 (the Lebanese Maritime Commercial Law lacks a provision
for the obligations to load, stow, handle and unload), with the Kuwaiti Legislature, UAE legislature, and the
Omani legislature imposing these obligations on the carrier in the Maritime Law articles 186, 227(2) and
294, respectively. The Egyptian legislature also imposes such obligations on the carrier, however, the
parties can agree to shift the obligations and liabilities to the shipper or the consignee. See
ALSHARQAWI, supra note 189, at 349-50, But see HANI DWEDAR, THE MARITIME AND AIR LAW
229 (2008) (translated from Arabic) (this states that the obligation and liability of cargo handling operations
is imposed on the shipper principally, however, the parties may agree otherwise).
436 Interview with the Port Services Department manager, Qatar Navigation Company [Milaha] (Apr. 19,
2016).
151
responsible for certain activities under the concession agreement with QPMC. These are
primarily, but not limited to, stevedoring services (loading, unloading, stowing,
handling), delivering the goods to consignees at port, the carriage of oil, gas and other
petroleum products, ports services, logistics services and ship repair.437 The company
also own and charter vessels, and because Milaha undertakes stevedoring services, it is
actually considered as a carrier representative.438 Thus, both parties, based on the contract
of carriage (the shipper and the carrier), are not allowed to undertake the obligations to
load, stow, handle and discharge, as Milaha has an ultimate monopoly on such
operations.439
437 See generally Milaha http://www.milahaml.com/ (last visited Aug. 11, 2016); see also 1095 Billion
Milaha’s Gross Profit, Alraya Newspaper (Feb. 24, 2016) http://www.raya.com/news/pages/b61d503c-
2a54-41d0-8e98-b1d419dd513c (translated from Arabic) (“[w]ith the transformation of global freight and
shipping methods from brake bulk to containerized cargoes the company decided to adapt to that change
and started a new building campaign focused on specialized container vessels while selling the aging
vessels from the fleet”.).
438 Qatar is similar in this regard to Kuwait, as the Kuwaiti Port Authority is in charge of delivery. See
YAQOOB YOUSSIF SARKHOUH, THE EXPLANATION OF THE KUWAITI MARITIME LAW 362
(1985) (translated from Arabic). In some jurisdictions, the vessel’s agent may have several descriptions, for
example as an agent of the carrier who acts on its behalf, or a shipper’s agent who also acts on its behalf;
however, this is not the case in Qatar because Milaha is an independent entity which works for the Qatar
Ports Management Company as per their contract. See generally DWEDAR, supra note 435, at 229 (this
explains the role of the vessel’s agent).
439 The positions of Kuwait and Qatar are alike on the issue of the loading and discharging obligations of
their terminal operators. See SARKHOUH supra note 438, at 348-49 (the former Commercial Law of
Kuwait allowed the parties to agree upon whose party the obligations were imposed on. However, because
of the disadvantages of such an approach, the new Kuwaiti Decree Law Issuing the Kuwaiti Maritime
Commercial Law No. 28 of 1980 imposes that the obligations are solely placed on the carrier), But see
ADEL ALI ALMEQDADI, THE OMANI MARITIME LAW 231 (2011) (translated from Arabic) (this
states that the Omani Maritime Law No. 35 of 1981 allows the parties in the contract of carriage of goods
by sea to agree on shifting the carrier’s cargo handling obligations to the shipper or consignee).
152
Practically, the terminal operator Milaha is responsible for taking over the goods
from the shipper before loading, storing them after discharge and delivering them to the
consignee. There is an increasing usage of terminal operators worldwide to undertake
these obligations, which are fundamentally imposed on the carrier, because vessels,
especially those operating in the liner-trade, are supposed to leave the port as soon as they
can after discharge in order to fulfill their other commitments at other ports of call in their
schedule. Having to wait for the consignees to come and discharge the goods from the
vessel and to then collect them would hamper the carrier’s loading and discharging
operations. As these would adversely affect the carrier’s interests, terminal operators help
save time and enlarge the shipping investment of carriers.
Despite Milaha’s responsibility for loading and discharging, the carrier is liable for
the loss of, damage to or delay in the delivery of the cargo while it is under the custody of
Milaha for the following reasons. The obligations concerned here440 are, as a general
principle, non-delegable.441 Thus, the carrier cannot shift the liability to the shipper or the
consignee. It can nevertheless legitimately take legal action against Milaha.442
Furthermore, the non-delegable obligations fall within its period of liability, known as
440 Loading, unloading, discharging and handling.
441 ABABNEH, supra note 141, at 88.
442 The insurance companies after paying damages to those with cargo interests who suffered from loss of,
damage to or delay in delivery of cargo refer to the carrier as the main liable person (telephone interview
with Mohammed Samer Ashour, Former Legal Expert at Qatar Ports Managements Company (Jun. 12,
2016).
153
“tackle-to-tackle” under article 164.443 When the goods are under the custody of the
carrier during its period of liability, it is liable for cargo loss, damage or delay. Moreover,
according to article 160, any stipulation in the BOL to exonerate or lessen the carrier’s
liability for cargo loss or damage444 caused by breaching the obligations imposed by the
QML is void. Therefore, the carrier is not allowed to escape from liability for cargo loss
or damage that took place when the cargo was loaded into a vessel or when it was
removed from the vessel by Milaha.
It is also worth noting that the carrier cannot contractually exonerate itself from
liability for loss of or damage to, or delay in the delivery of the cargo that occurred while
loading or discharging operations were undertaken by Milaha. This is because these
obligations fall within its period of responsibility, and the obligations arise from the
contract of carriage. Hence, the carrier is liable for such operations.
According to a number of Arabic legal jurists, a clause in the BOL to empower the
master to choose a stevedore to work for the shipper or consignee, at the latter’s risk, is
very popular.445 It is submitted that this sort of clause is void as it purports to ultimately
exonerate the carrier from liability for its non-delegable obligations under the liability
regime.446 If the liability regime aims at conferring upon the carrier the right to alter such
Appendix 3, Table of Articles, Period of responsibility. infrathe QML art. 164 See 443
444 It is unfortunate that this article does not cover delay in cargo. See infra Part IV, ch. B.
445 ABABNEH, supra note 141, at 88.
446 Id.
154
obligations and liability, it must do so expressly, stressing the parties’ freedom of
contract.
Under the ambit of the Hague-Visby Rules, loading and discharging are the
carrier’s obligations. They are expressly mentioned in article 3(2).447 Therefore, such
obligations cannot be transferred to the shipper or consignee. 448 The risk of the
obligations is not borne by the shipper or consignee even by agreement, as article 3(8)
renders any clause purporting to relieve or lessen the liability of the carrier as null and
void.449 The QML, unlike the Hague-Visby Rules, lack any express obligations for
loading and discharging. However, they share the non-permissibility of shifting the
obligations and any liabilities to the cargo interests.
Like the QML, there is no express obligation of the carrier to load and discharge in
the Hamburg Rules. However, article 5(1) provides a general rule for all obligations to
come into play. Referring to article 4 of the Hamburg Rules, the carrier’s period of
responsibility commences from the time the carrier receives the goods at the initial port,
and ends at the port of delivery.450 Thus, if the carrier receives the goods from the party
with the cargo interest property, the carrier is not covered by the Hamburg Rules from the
Appendix 3, Table of Articles, The Obligations to load, Stow, infraVisby Rules art. 3(2) -the Hague See 447
Handle, Discharge, Keep, and Care for, the Cargo.
448 See ALI SAYED QASSIM, A BRIEF ABOUT THE UAE MARITIME LAW 131 (2014) (translated
from Arabic). See also HATOOM, supra note 216, at 88.
Appendix 3, Table of Articles, Freedom of contract. infraVisby Rules art. 3(8) -the Hague See 449
(this article Appendix 3, Table of Articles, Period of responsibility infrathe Hamburg Rules art. 4(2) See 450
clarifies to whom the carrier may deliver the goods upon arrival at the last port of call).
155
time it received the goods from the shipper beyond the port area and until arrival at the
loading port. Likewise, the Hamburg Rules cease to apply when the inbound cargo leaves
the port facility on its way to the shipper’s premises. However, the general principles of
liability apply beyond the port-to-port period, as this period falls outside the carrier’s
period of liability.451 Since loading falls within the carrier’s period of responsibility, the
Hamburg Rules, especially their liability regime, apply to loading and discharge.
Therefore, the carrier is obliged to fulfil these obligations. As such, the carrier, just as in
Qatar, cannot shift the risk of loading and discharging operations onto the shoulders of
cargo owners.452
In contrast to the QML, the RR allow the parties in the contract of carriage to
transfer the obligations of loading and unloading to the cargo interests in pursuance of
article 13(2).453 The carrier is nevertheless not liable for the work done by the cargo
interests as per article 17(3)(i),454 which relieves the carrier from loss of or damage to, or
delay in the delivery of cargo that occurs while the consignee, shipper or documentary
shipper undertakes loading, handling, stowing or discharge. However, the same article
451 KAMAL HAMDI, THE INTERNATIONAL CONVENTION ON CARRIAGE OF GOODS BY SEA
OF 1978: THE HAMBURG RULES 48 (2008) (translated from Arabic).
452 Id. at 62.
453 Theodora Nikaki & Bariş Soyer, A New International Regime for Carriage of Goods by Sea:
Contemporary, Certain, Inclusive and Efficient, or Just Another One for the Shelves? 30 Berkeley J. Int’l
L. 303, 310 (2012).
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(3)(i) See 454
156
does not relieve the carrier from such liability if it has undertaken the obligations on
behalf of the cargo interests. The drafters of the RR aim to address the practical issues
that may be encountered by the parties of the contract of carriage in an attempt to clarify
their respective rights and obligations.
The main objective of delegating the carrier’s obligations of loading and unloading
is to allow the cargo interests, who can individually, without the assistance of the carrier
or persons acting on their behalf, arrange to load, stow and discharge the goods, thus
reducing the costs of stevedoring services and also serving the limited multimodal
coverage of the RR. For instance, if the carrier agrees to carry goods door-to-door, the
shipper can stow the container at its premises and then load this, based on its own
knowledge of the nature of the goods, into the vessel. This is true for large merchant
companies that own their own equipment, have technical knowledge, packaging, loading
and discharging services or can hire a person acting on its behalf for such purposes.455
This is an innovative point among all prior international conventions serving the interests
of up-to-date door-to-door carriage. It is interesting to note that an FIO clause is
permitted under the RR as opposed to the most prevailing view of some jurisdictions and
international conventions.456
455 The carrier usually contract with stevedores to undertake the cargo handling operations.
456 Philippe Delebecque, Obligations of the Carrier, in THE ROTTERDAM RULES 2008 71, 84-05
(Alexander Von Ziegler, Johan Schelin & Stefano Zunarelli eds., 2010). See also Nikaki & Soyer, supra
note 453, at 310; Nikaki, supra note 368, at 19; Marel Katsivela, Overview of Ocean Carrier Liability
Exceptions Under the Rotterdam Rules and the Hague Hague/Visby Rules, 40 Rev. Gen. 413, 454 (2010).
157
In the U.K., the carrier can validly transfer the obligations to the shipper or
consignee,457 a position adopted by the UAE,458 but which contradicts the position of the
QML. It is equally acceptable to transfer the liability for loading and discharging
obligations from the carrier to the shipper or consignee under the U.K. COGSA. This
view is traced back to Mr Justice Devlin’s decision in Pyrene Co. v. Scindia Steam
Navigation Co.,459 where he granted the parties to the contract the freedom to decide on
their respective duties.460 The U.K. trend is based on the interpretation that such shifting
of obligations and liability do not amount to derogation from article 3(8) of the Hague-
Visby Rules.461 Additionally, the U.K. does not view article 3(2) of the Hague-Visby
Rules as signifying that the carrier cannot shift the obligations of loading and discharging
to the shipper or consignee.462
The highly acclaimed legal jurist, Scrutton, endorsed the English courts’ view. He
argued that the Hague-Visby Rules do not obligate the carrier to perform the duties of
457 This is the approach of the courts in United Arab Emirates. See QASSIM, supra note 448, at 131.
458 TETLEY, supra note 149, at 1265. See Delebecque, supra note 456, at 84; Nikaki, supra note 368, at
19.
459 Pyrene Co. v. Scindia Steam Navigation Co. [1954] 1 Lloyd's Rep. 321 (U.K.). See Delebecque, supra
note 456, at 84; Nikaki, supra note 368, at 19.
460 The House of Lords agree on this view in G.H. Renton & Co. Ltd. V. Palmyra Trading Corporation of
Panama [1956] 2 Lloyd’s Rep. 379 (H.L.) (U.K.); The Jordan II [2005] 1 Lloyd’s Rep. 57 (H.L.) (U.K.).
under Appendix 3, Table of Articles, Freedom of contract ( infraVisby Rules art. 3(8) -the Hague See 461
this article the carrier cannot insert in the BOL a clause which purports to lessen or ultimately exonerate
himself from liability).
462 See supra note 322.
158
loading and discharging, and that the parties to the contract may agree on whose
shoulders the duties should fall.463 If the cargo owner agrees to undertake the obligations,
the carrier is not liable for their actions unless the carrier intervenes in the performance of
such activities.464
In contrast to the stance taken by the English courts, the American courts expressed
two opposing views regarding the validity of transferring the obligations to load and
discharge. On the one hand, the second and fifth circuit courts both came to the same
conclusion by regarding the obligations as non-delegable.465 Thus, to their minds, the
carrier is responsible for such obligations. Any contractual stipulations to the contrary
would contradict section 1303 of the U.S. COGSA. On the other hand, a district court
within the second circuit, the ninth circuit and the United States District Court for the
Western District of Kentucky provided decisions which allow the obligations and any
attending liabilities to be shifted to the shipper or consignee.466 However, the carrier is
463 USTICE EDER QC ET AL., SCRUTTON ON CHARTERPARTIES AND BILLS OF LADING 431 (22nd
ed. 2011).
464 Id.
465 Nikaki, supra note 368, at 20. See also Nikaki & Soyer, supra note 453, at 310.
466 TETLEY, supra note 149, at 1258-60 (the carrier is still liable towards third parties in case a loss of or
damage to cargo occurred while the shipper was undertaking the obligation; the right of the carrier to
recourse to the shipper is preserved, however. It is improper for a carrier to invoke such clauses against a
consignee or endorsee of a BOL who has nothing to do with the arrangement between the carrier and the
shipper. The clauses purport to reduce or eliminate the carrier’s ultimate responsibility and therefore
ultimate liability for loading, stowing and discharging).
159
still liable for its own negligence if it had exercised some sort of control over the loading
and discharging operations.467
3. Special Features of the Obligations to Keep, and Care for, the Cargo
The main and intrinsic feature of these fundamental obligations is that they are
non-delegable. Accordingly, the carrier cannot transfer the performance of the obligations
to the shipper or consignee.468 The reasonable and logical consequence of this is that
liability cannot be shifted to the latter.469 There are cases where the carrier assigns the
exercise of the obligations to a trusted and competent sub-contractor.470 Even in such
cases, the carrier is liable for the sub-contractor’s acts because the obligation is of a
personal nature.471
It is noteworthy that such obligations commence from the time the goods are under
the custody of the carrier. They run throughout loading, stowing, carriage by sea and
discharging, until the cargo is handed over to the consignee.472 After discharge, Milaha is
467 Nikaki, supra note 368, at 20.
468 The approach of QML is like that of the U.K. and the U.S. courts. Both jurisdictions gave decisions
stressing the non-delegable nature of the obligation. See TETLEY, supra note 149, at 1319.
469 As opposed to other obligations found in art. 3(2) of the Hague-Visby, namely to load, stow, handle and
discharge, the U.K. position is to respect the freedom of contract between the parties who may agree on
shifting the responsibility and liability between themselves. Therefore, the carrier is not responsible and
liable for such work unless it contractually agrees to it. Id. at 1255.
470 Id. at 1320.
471 AWAD, supra note 189, at 496. The U.K. position is similar to the QML. See TETLEY, supra note 149,
at 1319 (the U.K. position).
472 HATOOM, supra note 216, at 104; DWEDAR supra note 435, at 232.
160
responsible for keeping and caring for the cargo. Whenever loss of or damage to the
cargo occurs while the goods are under the custody of Milaha, the carrier is liable
because it is responsible for the goods until actual delivery takes place. Nevertheless, the
carrier has a valid recourse against Milaha. Further analysis of the carrier’s post-
discharge liability (i.e. after the lapse of this period of responsibility) is provided in Part
IV under chapter E.
Conclusion and Recommendation
The carrier’s fundamental obligations of loading, discharging, handling, stowing,
keeping and caring for the cargo are regarded as non-delegable in the Hague-Visby Rules
and the U.S. jurisdiction. They cannot be shifted to the shipper or consignee. However, in
the U.K. for instance, the obligations of and responsibilities relating to loading and
discharging may be transferred to the shipper or consignee.
Since these obligations which are enumerated in article 3(2) of the Hague-Visby
Rules are absent from the QML, a similar article is indeed recommended for the Qatari
legislature from which the parties to the contract of carriage of goods by sea can
understand what they can expect from each other. It is also advisable to legally clarify the
party upon whom the obligations are imposed. Not only that, the proposed article will
highlight the standard against which the obligations are to be exercised, so as to offer the
carrier guidance on how to perform its duties. In addition, the consequences of breaching
the obligations will be clear too. Importantly, liability for breaching some of article 3(2)’s
obligations is already mentioned in the QML, specifically the obligations to keep and
care for the cargo. Consequently, there is no justifiable reason for omitting an express
article imposing the obligations.
161
As for the loading and discharging obligations, it is not clear on whose party the
obligations of loading and unloading are imposed. Is it the carrier or the shipper? If it is
the carrier, is its obligation delegable? In other words, can the carrier shift the obligation
as well as liability for the loading and unloading operations? The Qatari legislature has
different comparative approaches to choose from and adopt in order to fill this existing
loophole. What is the best trend for Qatar? Is it the U.K. or the U.S. trend?
Based on the analysis and findings about Qatar and the QML, the U.S. approach
would better serve the interest of parties to the contract of carriage. Loading and
discharging must be imposed on the carrier and described as non-delegable, to protect the
shipper and consignee from FIO and similar clauses in the BOL designed to relieve the
carrier from liability, especially during loading and discharging where cargo loss and
damage mostly takes place.473 This means that even where the carrier inserted an FIO or
similar clauses to negate its liability and place it on the person undertaking the handling
operations, the carrier is liable. The carrier would be estopped from invoking the FIO
clause shifting the risk of handling operations to the shipper or alleging that Milaha is
undertaking such obligations. Although the terminal operator Milaha is in charge of
exercising the obligations as the carrier’s representative, the carrier must be liable for
cargo damage or loss which has occurred while the goods are under the custody of
Milaha. Why should the shipper bear such risk when the concerned obligations are
principally imposed on the carrier, and are completed within its period of responsibility,
473 Delebecque, supra note 456, at 84.
162
which starts from loading and ceases upon the completions of discharging operation? The
carrier should be liable towards the shippers and then recover what it paid from Milaha.
The trend of allowing a terminal operator (as a carrier representative) to undertake
loading and discharging obligations in Qatar is indeed commendable, and does not need
to be changed for a number of reasons. It is always preferable for a qualified entity to
undertake such obligations which require high technical skills and special equipment to
protect the cargo, harbor and port. In addition, when the operation is complete, time is
saved and the cargo can be delivered and stored in a more efficient and organized way.
The more parties involved in such obligations (such as the shipper or stevedores acting on
its behalf), the more problems could be caused and the more injurious this could be to the
shipping industry. Milaha acknowledges and follows the practice standards and
guidelines known in Qatar maritime practice, since it has been doing such work for
several years.
It is necessary to mention that articles 121474 and 122475 of the QML are concerned
with the period during which loading and discharging are to be performed. The language
474 The QML art. 121, “[w]here the two parties disagree on a specific period for loading or unloading the
goods, they should refer to the custom provisions. In case the loading or unloading did not take place during
the original period specified in the agreement or custom, an additional period not exceeding the original
period shall be granted. The lessor shall be entitled to compensation in accordance with the law or to
compensation on a daily basis as provided for in the agreement or custom. In case the loading and unloading
did not take place within the extended period granted, a second additional term not exceeding the first one
shall be granted, and the lessor shall be entitled to a daily compensation similar to the previously agreed
terms for granting addition periods, without prejudice to the other entitled compensation. The daily entitled
compensation for the additional period shall be considered as one of the wages supplements and shall be
subject to its provisions”.
475 The QML art. 122, “[t]he initial period for loading and unloading shall commence from the day the captain
is notified that the Vessel is ready to load or unload the goods. The period shall be calculated per day and the
parts of the day shall be calculated on an hourly basis. If the loading took place before the expiry of the
163
of both articles implies the possibility of shifting those obligations onto the shipper or
consignee. However, these articles constitute clear contradiction to the maritime practice
in Qatar’s port, since Milaha is, as previously emphasized, the sole operator of the port,
and is fully in charge of loading and unloading. Even if those articles are kept to cover
future incidents (e.g. if the policy is changed and the QPMC allows the cargo interests to
perform the loading and discharge operations), this trend is not welcomed and is opposed
to the opinions expressed that relate to the negative impacts associated with that
approach. Cargo interests may not come on time to collect their cargo, thereby causing
delays and affecting the interests of carriers.476 For the reasons mentioned earlier, it is
advisable for articles 121 and 122 to be modified. Also, the articles imply the possibility
of transferring the obligations of loading and discharging to the shipper or consignee, a
trend which runs counter to the recommendation of the U.S. approach’s non-delegable
view of carrier’s loading and unloading operations.
It is worth noting that the obligations of the carrier to make the vessel seaworthy
and to care for cargo are general obligations which apply to both carriers in the liner trade
(who carry goods based on BOL or other transport document)477 and bulk cargo carriers
contractual period, the rest of the days shall not be added to the unloading period unless otherwise agreed.
An agreement shall be reached on granting the lessee a remuneration for completing the loading or unloading
as soon as possible. Official holidays or holidays set up by custom shall not be included in the original period
except if they were spent loading or unloading goods from the Vessel and this period shall cease to count in
case of a force majeure. Where an additional period has been granted, holidays shall continue to count
irrespective of the occurrence of a force majeure. However a ruling issued shall determine whether or not the
compensation for the first additional period shall be decreased in case of the continued occurrence of the
force majeure”.
476 See generally SARKHOUH supra note 438, at 349.
477 See Part II, chapter B.
164
(who transport cargo based on a charterparty agreement). However, the carrier’s
obligations are not limited to those mentioned in part III of the dissertation, as the parties
to the contract of carriage may agree on other obligations, especially those related to
special conditions of carriage necessitated by the nature of the cargo carried. For
instance, the carriage of fruits is to be in reefers. The carrier is obliged to ventilate the
cargo as per the shipper’s instructions. When it comes to carriage of liquid bulk like
crude oil, the contract of carriage imposes on him further special obligations such as
ventilating some types of oil to control the percentage of expansion and contraction of the
oil.478 Some other types of oil require heating instead in case the tanker vessel will sail in
a cold region.479
C. Delivering the goods
Delivery is the carrier’s final obligation emanating from the contract of carriage of
goods by sea. It begins upon the arrival of the goods at the final port of destination. It is
therefore unfeasible for this to occur while the goods are still at sea on board a vessel.
478 Telephone interview with Mohammed Samer Ashour, former Legal Expert at Qatar Ports Managements
Company (Jun. 12, 2016).
479 Id.
165
There is no clear cut definition of “delivery” in the QML or in any other
international convention, including the RR, which governs this obligation in a number of
articles. There is also no U.S. Supreme Court decision on the definition of this term.480
In addition, the Harter Act under section 30704481 oblige the carrier to properly deliver
the goods, but there is no definition for delivery under the act. The legal jurist William
Tetley has nevertheless argued that delivery may be actual (i.e. by handing over the
goods to the consignee or its agent), or it may be constructive (i.e. when the consignee
has been given notice of the arrival of the goods, the time of discharge, the place in which
goods are placed and a time to move the goods into its custody).482 In addition, the fifth
circuit in Servicios Expoarma, C.A. v. Industrial Maritime Carriers Inc.483 described
delivery as the transfer of the goods from the carrier’s custody into the custody of the
480 TETLEY, supra note 149, at 1365. In American President Lines, Ltd. v. Federal Maritime Board, the
court specified the requirements of a proper delivery ascribed to “general Maritime Law”, 317 F. 2d 887 at
p.888 1963 (D.C. Cir. 1962). The requirements has been followed by the first circuit in Stockman v. John T.
Clark & Son of Boston, Inc. 539 F.2d 364 at 276 (1st Cir. 1976) ; Mannesman Demag Corp. v. M/V Concert
Express, 225 F.3d 587 at p. 592(5 Cir 2000). The fifth Circuit in Servicios Expoarma, C.A. v. Industrial
Maritime Carriers Inc., defined delivery based on case law and COGSA’s legislative history as: “delivery”
occurs when the carrier places the cargo into the custody of whoever is legally entitled to receive it from
the carrier”, 135 F. 3d 984 (5 Cir. 1998).
481 46 U.S. Code § 30704, “[a]carrier may not insert in a bill of lading or shipping document a provision
avoiding its liability for loss or damage arising from negligence or fault in loading, stowage, custody, care,
or proper delivery. Any such provision is void”.
482 TETLEY, supra note 149, at 1364.
483 Servicios Expoarma, C.A. v. Industrial Maritime Carriers Inc., 135 F.3d 984 (5th Cir. 1998).
166
person entitled for delivery.484 These exact wordings have also been used by Dr. Ali
Jamal Aldeen Awad, an Arabic legal Jurist.485
It is of crucial importance that the term be defined so as to ascertain when the
carrier’s obligation towards cargo interests cease and the contract of carriage comes to an
end. When delivery occurs, the goods are transferred from the carrier’s custody into the
custody of cargo interests, consequently transferring the duty of care for cargo and its
risks. Therefore, if goods handed over to the person entitled to delivery are in good
condition, the carrier is no longer liable for cargo loss or damage that occurred after
delivery. Furthermore, it is equally important to know when proper delivery occurs in
year suit bar under article 167 of the -int for the oneorder to compute the starting po
486QML.
It is deemed necessary to cover the issue of delivery in four parts: the articulation
of the obligation under the QML and international conventions; the concept of proper
delivery; the time during which delivery must take place; and special maritime problems
that may be encountered during delivery. The topics are discussed in this order:
1. Articulation of the Obligation
2. Timely Delivery
3. Proper Delivery
4. Special Practical Problems Associated with Delivery
484 Id. at 992.
485 AWAD, supra note 189, at 502.
486 See art. 167, supra note 265.
167
1. Articulation of the Obligation
In relation to the QML, the delivery obligation is mentioned in the definition of the
contract of carriage of goods by sea. In addition, article 153 imposes an obligation on the
master (who acts as the carrier’s agent) to deliver the goods to the legitimate holder of the
BOL.487 This includes the person named in the BOL in the case of a nominative BOL or
Unlike the QML, the Hague-Visby Rules have not regulated delivery at all. The
sole reference to the word “delivery” is provided in article 3(6),488 which regulates the
time bar period which commences when delivery of the goods takes place. It can be
understood from the Hague-Visby Rules that the carrier can validly exonerate itself from
liability or lessen the liability by incorporating clauses in the BOL to that end, for the
period before loading and post discharge. In other words, the carrier can contract out of
the rules for the duration beyond its period of responsibility under the Hague-Visby
The carrier Appendix 3, Table of Articles, Delivery obligation and problems. infrathe QML art. 153 See487
is obliged to “properly deliver” under the U.S. Harter Act of 1893. The Harter Act imposes a duty of care
on the carrier post discharge until prior to delivery of the goods to the person entitled to delivery. However,
delivery is not defined in the Harter Act, the U.S. COGSA, and in the U.K. COGSA.
488 Art. 3(6), “[u]nless notice of loss or damage and the general nature of such loss or damage be given in
writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods
into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or
damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by
the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice
must be given within three days of the delivery of the goods.The notice in writing need not be given if the
state of the goods has, at the time of their receipt, been the subject of joint survey or inspection. Subject to
paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in
respect of the goods, unless suit is brought within one year of their delivery or of the date when they should
have been delivered. This period may, however, be extended if the parties so agree after the cause of action
has arisen…etc".
168
Rules, known as tackle-to-tackle.489 Since delivery occurs post discharge, the carrier can
escape liability as it falls beyond the period of liability. This analysis is analogous with
the situation in Qatar, as the period of the carrier’s liability finds its roots in the Hague-
Visby Rules. Whether the carrier can escape liability post discharge is a question that will
be addressed under part IV.
The Hamburg Rules are similar to the QML, as they recognize the delivery
obligation in the definition of the contract of carriage.490 It is there stated that under the
contract of carriage, the carrier undertakes to deliver the goods in exchange for a
transport document. This is an obvious assertion of the obligation to deliver the goods as
a last step in performing the contract of carriage. In addition, the obligation falls within
the carrier’s period of responsibility, as article 4 provides that the carrier is deemed to be
in charge of the goods from the time it takes custody of the goods until the time it
delivers the goods at the port of discharge.491 The article then provides for the manner in
which delivery is made. The typical situation is one where the goods are handed over to
the consignee or its agent when the transport document is presented. Some of these
approaches are similar to the one provided by the QML under article 155.492 The other
manners of delivery are highlighted in the last section, no. 4.
(allowing ppendix 3, Table of Articles, freedom of contract A infraVisby Rules art. 8 -the Hague See 489
contracting out beyond the tackle-to-tackle period).
490 See the Hamburg Rules art. 1(7) infra Appendix 3, Table of Articles, General definitions article.
Appendix 3, Table of Articles, Period of responsibility. infrathe Hamburg Rules art. 4 See 491
Appendix 3, Table of Articles, Delivery obligation and problems. infrathe QML art. 155 See 492
169
Under the RR, but similar to the QML, the delivery obligation is referred to in the
definition of the contract of carriage. However, in contrast to the QML, article 11
final theirprovides that the carrier must deliver the goods to of the RR expressly
Moreover, article 13(1) listed delivery as one of the fundamental 493ination.dest
obligations of the carrier. Furthermore, the RR regulated several matters pertaining to
Most of these matters are not covered by the QML. The 494delivery in articles 43 to 48.
RR have detailed articles about the manner in which delivery should happen. The manner
depends to a great extent on the type of document or record. If delivery took place
the carrier is entitled to refuse 495without following the requirements specified in the RR,
delivery for all types of documents or records. Having discussed the topic of delivery
articulation in the QML and international conventions, the issue of when delivery must
take place is analyzed in the following section.
2. Timely delivery
The carrier is under an obligation to deliver the goods to the person entitled to
delivery in accordance with the time framework specified in the contract. Otherwise, its
liability for delay in the delivery of the cargo may be invoked as per article 158 of the
QML.496 The QML, despite maintaining a liability regime for delay in the delivery of
cargoes, has not specified the time framework during which delivery should take place.
Appendix 3, Table of Articles, Delivery obligation and problems. infrathe RR art. 11 See 493
Appendix 3, Table of Articles, Delivery obligation and problems. infra08 -R art. 45the R See 494
495 Id.
496 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
170
Even article 144, which enumerated the BOL particulars that must be incorporated
therein, has not listed any details relating to the time of delivery.497 It seems that the
legislature have left this issue for the parties to decide in accordance with the doctrine of
freedom of contract. However, uncertainty remains regarding this matter in the QML.
To resolve the dilemma, answers need to be sought from textbooks from Middle Eastern
jurisdictions and international conventions for carriage of goods by sea. According to Dr.
Ammal Kelan, if the time for delivery was not agreed upon by the parties, the goods
should be delivered during the period which an ordinary carrier would deliver the
goods.498 Cargo interests should prove such a period to succeed in a claim for cargo loss,
damage or delay. The carrier may rebut that allegation by showing that an expected peril
hampered delivery on time.
Both the Hamburg Rules and the RR are a step ahead, as they regulate the time for
delivery. The Hamburg Rules stipulate in article 5(2) that the carrier is liable for delay in
delivery if goods have not been delivered within the time period agreed upon; or in the
absence of such an agreement, within a reasonable time as required from a diligent
carrier.499 The reasonableness of the time period is determined by the court on a case by
case basis. In a similar fashion, the RR stress the period of cargo delivery and require in
article 43 for the carrier to deliver goods in the time agreed upon in the document or
497 See the QML art. 144 infra Appendix 3, Table of Articles, Contract particulars.
498 KELANI, supra note 175, at 388.
Appendix 3, Table of Articles, Liability for delay. infrathe Hamburg Rules art. 5(2) See 499
171
record.500 In the absence of such an agreement, the time is calculated by taking into
consideration the “customs, usage, or practices of the trade, and carriage circumstances”.
It should be noted that in a claim relating to cargo loss, damage or delay, judges have
wide discretionary powers to decide on what is a reasonable delivery time. They will take
into consideration the elements mentioned in article 43 of the RR, namely the customs,
usage or practices of the trade, and carriage circumstances.501
3. Proper Delivery
The carrier must deliver the goods in the same condition and quantity as specified in
the BOL, to the person entitled to the delivery. The concept of proper delivery is a key
issue. Upon its execution, the carrier would no longer be responsible for the goods under
the contract of carriage. In this section, the typical situation of a delivery will be
demonstrated. There are, however, some circumstances (as will be shown in section no. 4)
that impede proper delivery. When delivering under such circumstances, the carrier will be
shielded from liability.
Proper delivery is an obligation that requires several actions from the carrier. These
actions are not written in the QML or international conventions for carriage of goods by
500 Art. 43, “[w]hen the goods have arrived at their destination, the consignee that demands delivery of the
goods under the contract of carriage shall accept delivery of the goods at the time or within the time period
and at the location agreed in the contract of carriage or, failing such agreement, at the time and location at
which, having regard to the terms of the contract, the customs, usages or practices of the trade and the
circumstances of the carriage, delivery could reasonably be expected”.
501 See generally Alexander von Ziegler, Delay and the Rotterdam Rule, 14 Unif. L. Rev. 997, 999-1000
(2009) (information about the agreement to deliver in a specified time period).
172
sea in one single article. Instead, a number of articles must be read in conjunction with one
other in order to understand the notion of proper delivery.
A number of legal jurists and judicial decisions have provided a definition for proper
delivery. According to jurist Titley,502 under the Hague-Visby Rules and the COGSA,
delivery is only regarded as complete when the carrier completely discharges the goods out
of the vessel, gives the consignee a notice of arrival at the port of final destination and
gives the consignee a reasonable time to inspect the goods and place them under their
custody.503 He therefore highlighted the criteria that are used to ascertain whether the
delivery obligation is completely fulfilled by the carrier.
A number of Arabic jurists have emphasized that the proper delivery that ends the
contract of carriage is the actual delivery of the goods to the person entitled to delivery or
a person acting on its behalf. Thereby, the custody of the goods will be transferred from
the carrier to the person entitled to delivery who will be given the opportunity to inspect
and check the goods’ condition as per the BOL particulars.504 A case rendered by the
Egyptian Court of Cassation supported the meaning illustrated above for proper delivery
502 TETLEY, supra note 149, 1364-65. See also Centerchem Products v. A/S Rederiet Odfiell, 1972 AMC
373, 374-75 (E.D. Va. 1971) (proper delivery occurs when the goods are separated from other goods,
designated and a notice is given to the consignee with a time period for moving the goods into its custody).
503 See David Crystal, Inc. v. Cunrad Steam-Ship Co., 339 F.2d 295 (2nd Cir. 1964) (supporting the final
element of proper delivery, which is the actual custody of the goods by the consignee who has inspected
them).
504 AWAD, supra note 189, at 511. ALSHARQAWI, supra note 189, at 362. HATOOM, supra note 216, at
105.
173
in several decisions.505 Thus, the carrier is responsible for delivery to the point at which
the goods are handed over to the cargo interests. If the cargo is found to be in good
condition, then the carrier is no longer liable. However, the reverse would trigger the
application of the carrier’s liability regime.
Based on the analysis, the contract of carriage of goods under the QML comes to
an end when the carrier notifies the person entitled to delivery about the time at which the
goods will arrive, delivers the goods to the legitimate holder of the BOL506 and allows
him to inspect the condition of the goods.507 The same applies to the documents and
records under the RR. The Hamburg Rules state in article 4 how delivery is
accomplished, but in normal circumstances delivery is made to the consignee or a person
acting on its behalf.508
Compared with the contents of articles 45-48 of the RR, it seems that the articles in
the QML pertaining to delivery are very poor. The RR provide more details on the way
505 AWAD, supra note 189, at 511.
506 See the QML art. 153 infra Appendix 3, Table of Articles, Delivery obligation and problems.
507 Art. 163, “[w]here goods are destroyed or damaged, the person who has the right to receive them shall
notify the carrier or his representative by way of the a written notice at the port where the goods are
unloaded before or at any time during the unloading with the destruction or damage of the goods and with
the nature of this destruction or damage and he shall not presume that it was delivered to him in the
condition described in the bill of lading unless the receiver prove the contrary. However, if the destruction
or damage was not visible, the written notice must be served within three days from the date of delivery, if
the last day was an official holiday, it shall be extended to the following day. A written notice shall be of no
effect if the goods were examined in the receiver's presence”.
Appendix 3, Table of Articles, Period of responsibility. infrathe Hamburg Rules art. 4 See 508
174
delivery must occur depending on the type of the document or record. 509 The Hamburg
Rules are slightly different from articles 153 and 155 of the QML because they give the
carrier more options for delivery if the goods cannot be handed over to the consignee.
The QML provides for the normal situation of delivery which occurs when the
carrier transfers the custody of the goods to the person entitled to delivery by actual
delivery. However, there are also instances where delivery is hampered, and subsequently
made to someone other than the consignee. This type of delivery (“constructive
delivery”) is highlighted in the following section.
4. Special Practical Problems Associated with Delivery
The absence of any delivery obligations in the Hague-Visby Rules and the limited
coverage of delivery in the Hamburg Rules, have led to several concrete problems. The
main problem is when the carrier still holds the goods after its period of responsibility, for
a wide range of reasons. The drafters of the RR have put great effort into addressing as
many maritime practice problems as possible and filling the gaps left by prior international
conventions. Since delivery is a key issue under the RR, the articles of that convention will
play a significant role in the discussion.
When it comes to delivery, the typical case in ordinary circumstances is as follows.
The holder of the transport document (e.g. BOL) or record claims delivery from the carrier
by presenting the document or record. The goods are then transferred from the custody of
the carrier into the custody of the holder thereof. The carrier’s obligation ceases upon such
Appendix 3, Table of Articles, Delivery obligation and problems. infra07 -the RR art. 45 See 509
175
proper delivery. However, liability does not cease unless the holder of document or record
has inspected the goods and found them in good condition.510 If delivery takes place as
such, then it is called actual delivery. This said, there are some problems associated with
delivery that hamper actual delivery and lead to constructive delivery,511 for instance, if the
consignee has not claimed the delivery of the goods from the carrier, or if the consignee
could not be reached to notify him about the arrival of the goods at the discharge port. The
aims of this section are as follows: to explore some of the problems that significantly
obstruct proper delivery; to explore the solutions provided in the QML, the RR and the
Hamburg Rules (if applicable) for those problems; and lastly, to determine whether the
solutions discharge the carrier from responsibility. The problems are discussed in the
following order:
a. Where Multiple BOL Holders Claim Delivery of the Goods
b. Delivery when Surrender of the Negotiable Document or Record is not
Required512
c. Goods Become Undeliverable
d. When no Document or Record is Issued
510 See supra Part III, ch. C, section 3 (proper delivery definition).
511 Actual delivery always takes place between the carrier and the person entitled to delivery or its agent.
Constructive delivery is handing over the goods to an authority or a person other than the person entitled to
delivery or its agent. Constructive delivery is the solution for many problems, which render delivery to the
holder of BOL impossible.
equired in negotiable transport document, an express clause in the document or If surrender is not r 512
record must be incorporated, as the application of art. 47(2) of the RR is conditioned upon such
requirement. See the RR art. 47(2) infra Appendix 3, Table of Articles, Delivery obligation and problems.
176
a. Where Multiple BOL Holders Claim Delivery of the Goods
Article 153 of the QML provides a solution for when multiple BOL holders claim
delivery of the goods.513 This problem is anticipated when a negotiable BOL is issued
and several copies thereof are used. If more than one BOL holder claims delivery of the
goods, the carrier is obliged to deliver the goods to the bona fide holder who has the
earliest endorsement date.514
This is not the only practical problem which arises when more than one BOL
holder claims delivery. If the carrier has delivered the goods as per article 153, there is a
possibility for the appearance of another BOL holder who has the earliest endorsement
date among all previous holders. In such a case, the QML protects the first bona fide
holder, who acquired the actual custody of the goods.515 This is because the bona fide
holder had actual possession of the goods, whereas the other subsequent holders only
have symbolic possession in the form of the BOL. Actual possession must have priority
over symbolic possession, as stated in the Civil Code of Qatar No. 22 of 2004, article
513 See the QML art. 153 infra Appendix 3, Table of Articles, Delivery obligation and problems.
514 See generally FAYEZ NAEEM RODWAN, THE MARITIME LAW 379 (1984) (translated from
Arabic).
515 AWAD, supra note 189, at 512-13
177
951.516 In addition, claiming delivery by surrendering one of the BOL copies invalidates
the other copies, according to article 145 of the QML.517 In contrast to the QML, the RR
and the Hamburg Rules have not dealt with the problem of multiple BOL holders
claiming the delivery of the goods.
b. Delivery when Surrender of the Negotiable Document or Record is not Required
There is another problem encountered by carriers when they want to deliver the
goods. This particular problem arises when a negotiable document or record that does not
require surrender is issued.518 If surrender is not required in the negotiable transport
document, an express clause to that effect must be incorporated in the document or
record. This requirement is specified in article 47(2) of the RR.519 The general rule is to
516 See ALSHARQAWI, supra note 189, at 366. The Qatari Civil Code art. 951 reads “[t]he delivery of
documents in connection with the goods entrusted to the carrier or stored in warehouses shall be as
effective as the delivery of the goods themselves, provided that if a person receives such documents and
another person receives the goods, and both act in good faith, the person who received the goods shall have
priority”.
517 Art. 145, “[t]he bill of lading must be issued in two original copies one to be handed over to the shipper
and the other to the carrier. The original that is kept by the carrier shall be signed by the shipper or by his
representatives and it shall be mentioned therein it is not negotiable .The original bill issued to the shipper
shall be signed by the carrier or his representative, and confers on the holder, entitled in accordance with
Article 140 herein, the right to the delivery of the goods thereby specified, the possession to the same and
right to dispose them. The transfer of this original bill is effected by the delivery of the title, if the bearer; by
endorsing the title and signing of the endorser, if holder; by transfer made by noting on the title the name of
the acquirer to be made by the person who has issued the bill of lading or by endorsement authenticated by a
notary, if nominated. Several similar copies of the copy delivered to the shipper can be made. Each copy
should be numbered and signed by the captain or his representative and it shall be mentioned therein the
number of the copy made. And each copy shall replace the others, which means that in case of losing one of
them the other copies shall be considered as repealed in relation to the carrier”.
If a negotiable transport document that requires surrender is issued, article 47(a)(b) and (a) is applied. 518
See the RR art. 47(a)(b)(c) infra Appendix 3, Table of Articles, Delivery obligation and problems.
519 Id. art. 47(2).
178
surrender the negotiable document or record to obtain delivery of the goods.520 This is a
fundamental obligation under the contract of carriage.521 Surrender is a central obligation
allowing the document or record to function as a document of title.522 Therefore, the
delivery of cargo without the simultaneous presentation of a document or record is
regarded as a reckless act, undertaken with knowledge that damage would probably
occur.523
Parties to the contract of carriage tend to specify in the negotiable document or
record that surrender is not required to obtain delivery of the goods. Where a negotiable
document or record that does not require surrender has been issued, the RR cover this
issue based on maritime practice. Many complications associated with the surrender of
negotiable documents or records have arisen. The main problem is when the goods have
arrived at the final port of destination, but the document or record is not available for
surrender to obtain delivery.524 Hence, the RR addresses this issue in article 47(2).525
520 See Berlingieri, supra note 132, at 7
521 See Simon Baughen, Misdelivery Claims under Bills of Lading and International Conventions for the
Carriage of Goods by Sea, in THE CARRIAGE OF GOODS BY SEA UNDER THE ROTTERDAM
RULES 163, 163 (Rhidian Thomas ed., 2010).
522 Ziel, supra note 312, at 208.
523 Baughen, supra note 526, at 171.
524 See generally Ziel, supra note 312, at 210 (mentioning the reasons for delay in sending the document or
records to the consignee).
525 See the RR art. 47(2) infra Appendix 3, Table of Articles, Delivery obligation and problems.
179
The solution involves the shipper or the documentary shipper issuing a letter of
indemnity.526Thus, if the person entitled to delivery has not arrived to claim delivery, or
if it refuses the delivery or cannot be located, the carrier shall deliver the goods after
getting instructions from the shipper or the documentary shipper, and after receiving a
letter of indemnity from them. The carrier may choose to invoke article 48 instead of
article 47(2). Article 47(2)(c) provides a carrier with statutory indemnity from the
shipper.527 The carrier shall request from the shipper or the documentary shipper, giving
instructions for delivery, an indemnity letter to avoid being liable for a bona fide
document or record holder which acquired this description after delivery of the goods. To
avoid the consequences in the event that the letter of indemnity is abolished by the
shipper in practice, the RR, through a statutory mandate, guarantee that the carrier will be
indemnified. This will, of course, encourage the shipper to provide the carrier with
accurate information about the person entitled to delivery.528 The carrier that delivers
goods in conformity with article 47(2)(b) is discharged from the responsibility to deliver
the goods to the person entitled to delivery.529
526 See AWAD, supra note 189, at 518 (this jurist’s opinion supports the issuing of a letter of indemnity
when the BOL is not duly ready upon arrival of the goods).
527 See the RR art. 47(2)(c) infra Appendix 3, Table of Articles, Delivery obligation and problems.
528 Ziel, supra note 312, at 209.
529 See the RR art. 47(2)(b) infra Appendix 3, Table of Articles, Delivery obligation and problems.
180
Although the document or record will no longer function to obtain delivery of the
goods, it will still have some value and confer limited rights to its bona fide holder.530
Article 47(2)(c),(d), and (e) grants the bona fide holder entitled to delivery some rights
when goods have been delivered to another person in pursuance of the shipper’s or the
documentary shipper’s instructions.531 Thus, the bona fide holder’s rights as vested in
such a document or record are not diminished after delivery. Only the right to claim
delivery is extinguished. His other rights, as referred to in the RR, would be clear from
the document or record. For instance, if the goods received are damaged, the holder can
claim damages from the carrier. This idea is derived from section 2(2) of the U.K.
Carriage of Goods by Sea Act 1992.532 Under article 47(2)(e) of the RR,533 the holder, in
order to be granted the rights vested in the document or record, must not have knowledge
of the delivery of the goods. If the time of delivery is incorporated into the document or
record, and the holder has not exerted efforts to claim delivery, or where it could have
530 When the same matter arises, but a negotiable transport document that requires surrender is issued, the
RR art. 47(1)(a),(b) & (c) will govern. This means that if a bona fide holder has taken custody of the goods
and a subsequent holder claims delivery, the holder’s document or record will have no effect based on
article 47(2)(b).This problem is addressed by the QML article 145. See supra Part III, ch. C, section 4,
subsection 1. See the RR art. 47 infra Appendix 3, Table of Articles, Delivery obligation and problems.
531 See the RR art. 47(2)(a) infra Appendix 3, Table of Articles, Delivery obligation and problems.
532 Ziel, supra note 312, at 210-11.
533 See the RR art. 47(2)(e) infra Appendix 3, Table of Articles, Delivery obligation and problems.
181
known that delivery may occur, it will lose its rights derived from the document or
record.534
c. Goods Become Undeliverable
There are some circumstances when goods become undeliverable to the person
entitled to delivery due to some reasons. The QML addresses two circumstances. The
RR, however, have a wider scope as they cover more problems and grant the carrier
additional solutions when the goods become undeliverable.
The QML, under article 155, provides solutions for the carrier for the delivery of
goods which are undeliverable either because the person entitled to delivery has not
claimed the delivery, or has refused it (e.g. when the specification of the goods does not
match the BOL particulars). In these two circumstances, the master or his representative
is given the right to resort to the court for permission to place the goods at the disposal of
a person appointed by the court, without prejudice regarding what had been agreed upon
between the contracting parties in the carriage contract. Thus, the master will only refer
to the court if there is no clause in the BOL regarding the options given to the carrier
when the person entitled to delivery has not claimed or has refused delivery. Delivery in
pursuance of article 155 of the QML relieves the carrier from responsibility of delivering
to the person entitled to delivery.535
534 Ziel, supra note 312, at 210.
Appendix 3, Table of Articles, Delivery obligation and problems. infrathe QML art. 155 See 535
182
The Hamburg Rules, like the QML, address the issue of when the person entitled to
delivery has not received the goods. The reasons for non-reception by the consignee are
not mentioned in the Hamburg Rules. It is therefore left open to encompass any incident
in which the consignee has not received the goods. Where goods remain undelivered, the
carrier is given more options under the Hamburg Rules than under article 155 of the
QML. Referring to article 4(2) of the Hamburg Rules, the carrier is discharged from its
obligations to deliver the goods if it hands over the goods to an authority or third party.536
No further guidance is given under the Hamburg Rules for such a delivery. In such cases,
the contract of carriage comes to an end irrespective of whether the consignee accepts the
delivery.537 This does not, however, mean that the carrier is discharged from liability in
the case of cargo loss or damage.538 In those events, the applicable law (a national law)
will govern. The delivery obligation of the carrier will come to an end upon such delivery
To put it differently, the carrier is relieved from its responsibility to deliver the goods to
the person entitled to delivery.539
Similarly to the QML, the RR have issued article 48, which deals with goods that
remain undeliverable. It grants the carrier wide discretion and power in choosing what to
do with goods that remain in its custody involuntarily. The scope of the RR’s article is
Appendix 3, Table of Articles, Period of responsibility. infrathe Hamburg Rules art. 4(2) See 536
537 CHRISTOF F. LUDDEKE & ANDREW JOHNSON, A GUIDE TO THE HAMBURG RULES 8
(1991).
538 Id.
539 Id.
183
wider than the QML because it covers relatively more situation where goods remain
undeliverable. In addition to situations such as when the person entitled to delivery is not
present, or when it refuses to take over the custody of the goods, the RR add the situation
in which the consignee cannot be located or reached, and the situation in which the
carrier has refused delivery. Also included are situations where the person whom the
carrier may seek delivery instructions from cannot be reached, the carrier is not allowed
to deliver the goods due to some legal or regulatory restrictions and any other factors that
render the goods undeliverable.540
Thus, upon the occurrence of any of the problems listed above, the RR give the
carrier the power to invoke article 48 (options to deal with the undelivered goods) or to
seek delivery instructions from the controlling party, shipper or documentary shipper, as
the case may be.541 It is worth noting that when goods are delivered according to the
instructions given by the controlling party, shipper or documentary shipper, or when the
carrier relies on the options stated under article 48, the carrier is relieved from its
responsibility to deliver the goods to the person entitled to delivery.
Referring to article 48, the carrier has several options for dealing with the goods.
These are as follows: storing the goods, unpacking them if stowed in containers or
vehicles and selling or destroying them in accordance with the laws and regulations of the
The carrier is entitled to refuse delivery if delivery is inconsistent with the RR art. 45, 46, & 47. For 540
instance, if the consignee has not properly identified himself, the carrier may refuse delivery. See the RR
art. 45-07 infra Appendix 3, Table of Articles, Delivery obligation and problems.
Appendix 3, Table of Articles, Delivery obligation and infra 45(c), 46(b), & 47(2)(a)the RR art. See 541
problems.
184
port of final destination. Obviously, the options differ considerably from the options
available under the QML, as illustrated in the first paragraph of this section. The risks
and expenses relating to the action taken by the carrier are to be shouldered by the person
entitled to the goods.542 However, it is not clear whether the carrier is discharged from
liability in a case of delivery in accordance with a controlling shipper, shipper or
documentary shipper’s instructions, because the paragraph discharging the carrier from
liability is only available under article 48 when the carrier invokes the options therein.543
Consequently, the cargo interests must bear the risk for the cargo after the end of
the carrier’s period of responsibility. Under the RR, therefore, the carrier is not liable for
the loss of or damage to cargo that occurred beyond its period of liability when the goods
remain undelivered according to the situations mentioned in article 48(1).544 The carrier
is nevertheless not relieved from liability if the person entitled to delivery proves that the
carrier has failed to take steps to preserve the condition of the goods. The QML, in
contrast, does not transfer the risks associated with the loss of or damage to cargo to the
BOL holder. In the RR, undeliverability of goods is attributed to causes from the cargo
interests’ side.
le 48(3) of the RR impose on the carrier a duty to notify the persons entitled It should be noted that artic 542
to delivery, the shipper, the controlling party or the documentary shipper (if known) of the action it intends
to take. This is to allow the person entitled to delivery to take action (for example, if it wishes to pick up
the goods) before the carrier invokes the options it has under art. 48(2). See the RR art. 48(2) & (3) infra
Appendix 3, Table of Articles, Delivery obligation and problems. See also Ziel, supra note 312, at 215.
543 Ziel, supra note 312, at 216.
Appendix 3, Table of Articles, Delivery obligation and problems. infrathe RR art. 48(1) See 544
185
d. When no Document or Record is Issued
The issuance of a BOL is required only as proof, and not as a prerequisite to
conclude the contract of carriage of goods by sea. A BOL may nevertheless be
contemplated by the parties, and the QML would still apply to such a transaction. Since it
is silent in cases where no BOL has been issued at all, there is therefore a gap in the QML
that should be addressed. The RR are a step ahead, and provide a solution for such a
problem. The manner of delivery in case no document or record has been issued is
covered by article 45.545 In light of that article, the carrier must deliver the goods to the
named consignee at the time and location agreed upon between the parties. The consignee
must identify itself upon delivery, otherwise the carrier is entitled to refuse delivery to
prevent misdelivery. If the name is unknown, the carrier may seek the controlling party’s
advice on the name and address of the consignee.
Conclusion and Recommendation
Unlike the Hague-Visby Rules, which are silent on delivery obligation, the QML
regulates a number of issues relating to that obligation. There are, however, some gaps
pertaining to the time of delivery and the solution to some delivery problems. These two
main issues are worthy of being added to the existing law.
As discussed, no reference has been made to the time of delivery in the QML,
whereas both the Hamburg Rules and the RR have provisions for it. It is recommended to
Appendix 3, Table of Articles, Delivery obligation and problems. infrathe RR art. 45 See 545
186
list the time of delivery as a mandated BOL particular under article 144 of the QML.546 In
addition, an article stating how the time of delivery should be calculated in situations
where the parties fail to agree on a time should exist. Something close to the wording of
article 43 of the RR would be very useful. According to that article, in the absence of an
agreed time of delivery, the relevant time is calculated based on the “customs, usage or
practices of trade, or the circumstance of carriage”. The reason for including guidance on
the time of delivery is to compute the one-year suit bar under the QML. Furthermore, the
time of delivery plays a significant role in knowing whether liability for delay in delivery
may be raised against the carrier. It is in the interest of shippers to have an idea of when
the goods are expected to arrive, and when delay occurs, to initiate legal action against
the potentially liable carrier before the lapse of the one-year bar.
It is also recommended that a variety of delivery problems and their solutions are
incorporated into the current QML that the predecessors of the RR fail to govern. The
lack of regulation on maritime practice creates uncertainty and weakens the function that
law can play to add legal certainty to the parties’ relationship.
As a matter of fact, the RR have an edge over the QML when it comes to a
situation where the consignee has not been located by the carrier. The carrier is given the
option to seek delivery instructions from some persons involved in the carriage
transaction in the RR. When the carrier relies on such an option, its delivery obligation
546 Article 144 listed the particulars that must be included in the BOL. See the QML art. 144 infra
Appendix 3, Table of Articles, Contract particulars.
187
comes to an end. There is no such rule found in the QML, unfortunately. The RR
promote communication between the parties to smoothen the carriage transaction. It has
been said that by emphasizing instant communication as standard in the shipping
industry, the RR is the law of the 21st century.547
The parties to the carriage contract may agree on issuing a negotiable document
that does not require surrender to avoid the delay caused by document’s processing
procedures. This is actually another problem faced by carriers, which has been addressed
under the RR. Negotiable documents like the BOL function as a document of title. If they
are not presented upon delivery, the carrier cannot hand over the goods to the person
claiming delivery. Thus, a solution for this problem must be enshrined in the QML to
assure the BOL legitimation function. The RR and the U.K. COGSA of 1992 realized
another problem that may arise after delivery of the goods. Specifically, when the carrier
delivers the goods following the instructions of the shipper or the documentary shipper as
per article 47(2) of the RR,548 but the original person entitled to delivery claims his rights
as vested in the document. It is recommended that a solution similar to the one provided
by articles 47(2)(b) and (d) of the RR be added to the QML to preserve the rights of the
cargo interests.549
547 Ziel, supra note 312, at 211.
548 See the RR art. 47(2) infra Appendix 3, Table of Articles, Delivery obligation and problems.
549 See the proposed articles for the QML infra Appendix 3, Table of Articles, Delivery obligation and
problems.
188
Since the QML is applicable to carriage of goods by sea contracts, it should also
regulate the delivery of goods in case no BOL has been issued. The current law makes no
reference to this situation, unlike article 45 of the RR.550 In addition, the QML offers only
limited coverage for situations where goods remain undelivered. The legislature’s
initiative in this regard was partly effective at best. The delivery problems articulated in
the RR should therefore be addressed in the QML. Those additional problems are as
follows: when the carrier has refused delivery because delivery requirements are not met,
the person from whom the carrier may seek delivery instructions cannot be reached or the
carrier is not allowed to deliver the goods due to some legal or regulatory restrictions of
the unloading port.551
As for the solution regarding delivery obstacles, the QML under article 155 states
that when the person has not claimed delivery of the goods or has refused delivery, the
carrier may request the court to appoint a person to whom the goods are handed over. It is
not, however, always reasonable to resort to the court just to appoint a person to take
custody of the goods. The procedures involved are likely to take time, hence exposing the
goods to potential loss or damage. For this reason, the adoption of the solutions
enumerated in the RR is more realistic. The RR give the carrier the option to seek
delivery instructions from the controlling party, shipper or documentary shipper.
Furthermore, the solution is likely to enable the carrier to take swifter action compared to
having to wait for judicial instructions. Other options the carrier is given under the RR
550 See the RR art. 45 infra Appendix 3, Table of Articles, Delivery obligation and problems.
551 See the RR art. 45-08 infra Appendix 3, Table of Articles, Delivery obligation and problems.
189
are found under article 48(2). According to this article, the carrier may store the goods at
a suitable place, unpack the goods if containers or vehicles have been used for carriage,
destroy or sell the goods in accordance with the laws and regulations of the port of
discharge. In order to protect the interest of the person entitled to delivery, the RR do not
allow those actions to be taken unless a notification is first sent to the person entitled to
delivery or a person acting on its behalf. However, two criticisms have been directed at
articles 48(2)552 and 48(4).553 To recap, the former gives the carrier greater discretion
regarding goods which are undelivered for any other cause not listed therein. Meanwhile,
the latter requires the carrier to notify the person entitled to delivery about the intended
action within a reasonable time. However, the time period during which the carrier must
notify the person entitled to delivery, and how long it must wait before taking the action,
are both vague. The question of what amounts to a reasonable time framework for
notification is ambiguous. The carrier may not be patient, and send the notification in one
day and destroy the goods the following day. For this reason, it is not advisable for the
QML to adopt these two articles (articles 48(2) and 48(4) of the RR), as they may have an
adverse effect on the interest of shippers in Qatar.
Even taking into account its gaps with respect to delivery, the QML is commended
for addressing the issue of when several holders of a negotiable BOL claim delivery from
552 See the RR art. 48(2) infra Appendix 3, Table of Articles, Delivery obligation and problems.
553 Id. art. 48(4).
190
the carrier, unlike the RR, which are silent on the issue. This matter is also addressed in
Middle Eastern countries, thus it should be maintained.
To sum up, the QML has undoubtedly made an important contribution by
addressing the delivery obligation and offering solutions to delivery problems. However,
the endeavors of the QML’s legislature were not fully effective, as gaps still exist.
Although the RR provisions are described as narrow, detailed and very complex,554 they
lay down solutions to practical problems carriers may encounter. The RR provide
guidance on how to deal with current problems in shipping practice. The solutions they
outline are, to a large extent, in conformity with the maritime carriage industry. They thus
serve as an important frame of reference when developing the QML.
554 Sabena Hashmi, Rotterdam Rules: A Blessing?, 10 Loy. Mar. L.J. 227, 265 (2011-2012).
191
PART IV: CARRIERS’ LIABILITY
Historically, carriers’ interests have stood in opposition to the interests of shippers.
The latter were considered the weaker party in the contract of carriage of goods by sea,
owing to their relatively poorer bargaining power. Carriers tended to insert clauses in the
BOL to lessen their liability or exonerate themselves from breaches and faults that
harmed the shippers.555
The result of breaching the obligations which emerged from the contract of
carriage of goods by sea (explained in Part III) is the liability of the carrier for such a
breach. Carrier liability is amongst the most prominent issues in the carriage of goods by
sea contract, as many cases relate to it.556 The Harter Act of the U.S. was the first
legislative attempt to reglate the issue of carrier liability and protect the interests of
shippers. Its principles inspired the Hague Rules of 1920, which were adopted by the
United Nations. The international maritime shipping industry then moved from a liability
convention embodied in the Hague Rules to a carriage of goods wholly or partly by sea
convention embodied in the RR. The liability system underwent some changes following
the years of the adoption of the Hague-Visby Rules.
The carrier when breaching on of its obligations, tries to escape liability, as if the
injured party wins a cargo loss claim, the carrier will have to pay a huge amount of
555 Mandelbaum, supra note 303, at 474-75.
556 See ABDULQADER HUSSAIN ALATER, EXPLANATION OF THE MARITIME COMMERCIAL
LAW 369 (1999) (translated from Arabic).
192
compensation. The world is currently faced with three conflicting cargo liability regimes;
namely, the Hague-Visby Rules, the Hamburg Rules and the RR. Each of them deal with
the allocation of risks between carriers and cargo interests. The aim of this part of the
dissertation is to highlight some areas of controversy relating to liability in the QML, as
well as the abovementioned international conventions. It will examine how approaches
differ under these distinct liability regimes. The discussion is divided into five chapters:
A. The Nature and Bases of the Carrier’s Liability
B. When Does the Liability of the Carrier Arise?
C. Exceptions to Liability
D. Clear Exclusions from the Liability Regime
E. Period of Responsibility
A. The Nature and Basis of the Carrier’s Liability
Under the QML, cargo loss, damage or delay in delivery arise from the failure to
exercise due diligence to make the vessel seaworthy, or upon the failure to properly and
carefully load, discharge, stow, handle, carry and care for the cargo. The allocation of the
burden of proof depends on the nature of the carrier’s obligations, i.e. whether these are
based on due diligence557 or are strict obligations, such as those listed under article 3(2)
This is referred to as the obligation to exercise due diligence to make the vessel seaworthy under the 557
QML art. 125. See the QML art. 125 infra Appendix 3, Table of Articles, The obligation to provide
seaworthy vessel.
193
of the Hague-Visby Rules, particularly in relation to carrying and care of cargo.558
Liabilities for lack of due diligence and for breaching other obligations are
stipulated mainly in articles 157559 and 158560 of the QML respectively. These correspond
to articles 4(1) and 4(2) of the Hague-Visby Rules. It is clear from article 143 of the
QML that the main obligation of the carrier under the contract of carriage is to carry the
goods from the port of departure to its final destination as specified in the transport
document. As such, the obligation is stringent.561 Consequently, according to article 158,
the carrier is not relieved from liability for the loss of, damage to or delay in the delivery
of the cargo unless one of the exceptions listed under the article is shown. Also, article
165 holds the carrier liable for delay in delivery unless it proves an exculpatory cause for
delay as listed under article 158. The liability of the carrier is therefore based on
presumed fault, because the carrier’s obligation until the final destination is stringent.
When the nature of the obligation is stringent, the carrier is liable for goods received in
bad order, in a lower quantity than agreed or where delivery of the cargo is delayed.
In cargo loss, damage and delay claims, the cargo interests need only show that the
cargo was received in bad order (i.e. not in accordance with the specifications in the
BOL), the quantity of the goods is less than what was specified in the BOL particulars or
Appendix 3, Table of Articles, The Obligations to load, Stow, infraVisby Rules art. 3(2) -the Hague See 558
Handle, Discharge, Keep, and Care for, the Cargo. See also Rand R. Pixa, The Hamburg Rules Fault
Concept and Common Carrier Liability Under U. S. Law, 19 Va. J. Int'l L. 433, 444 (1978-1979).
559 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the
vessel seaworthy.
560 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
561 HATOOM, supra note 216, at 153.
194
that the cargo was delayed and received beyond the date agreed upon in the contract. If
any of these is shown to be true (the prima facie case), then the carrier is assumed to be at
fault and in breach of the contractual obligations under the contract of carriage. There is
no need for the cargo interests to prove that the carrier was at fault, or that it or its
servants or agents were negligent. Furthermore, there is no need to show causation
between the damage and the carrier’s fault. Presenting the prima facie case suffices to
find the carrier at fault.562 In other words, if the claimant proves damage, loss or delay,
then the causal relationship between the fault of the carrier (breach of contractual
obligation) and the damage sustained exists.
To reverse this presumption, the carrier must show that one of the exceptions to
liability actually caused the damage, loss or delay. This exception will break the
relationship between the non-fulfillment of the obligation and the damage sustained by
the claimant.
As has been explained, if any of the stringent obligations of the carrier is breached,
no derogation from liability is permitted unless the loss, damage or delay is caused by an
expected peril. It is clear from the Qatari Court of Cassation case No. 51 of 2008563 that
[t]he contract of carriage impose on the carrier an obligation (guarantee) that the
arrival of the goods will be complete and in good order to the consignee, and this
obligation is stringent, hence the liability of carrier is triggered until the goods are
delivered to the consignee.564
562 Id. at 166 (the presumed fault trend is also found in Latin, Egyptian, Syrian, Lebanon, and French
jurisdictions).
563 Court of Cassation, Civil & Trade Division, No. 51, session of Aug. 17, 2008 (Qatar).
564 Id.
195
As a result, the carrier cannot claim that this injury is not attributed to its own fault or that
of its servants or agents.
Interestingly, the nature of the carrier’s obligation to provide a seaworthy vessel
differs from its other obligations. According to article 125, the obligation is of a due
diligence nature, and not an absolute one.565 Hence, if the loss, damage or delay was
caused by want of due diligence, the claimant must prove fault on the part of the carrier
(i.e. lack of due diligence). The carrier is permitted under article 157 to rebut this
allegation by proving that it has exercised due diligence to make the vessel seaworthy.566
The QML carrier liability system finds its roots in the Hague-Visby Rules. The
nature of the obligations in the QML is identical to the one in the Hague-Visby Rules. In
addition, the liability system of the QML is worded in the same way as articles 4(1) and
4(2) of the Hague-Visby Rules.
The position of the QML nevertheless differs from the Hamburg Rules. In the
latter, the carrier is able to rebut the presumption of fault by proving that it has taken all
reasonable measures to avoid cargo loss, damage or delay according to the unitary fault
concept of article 5.567 This applies to all the carrier’s obligations. Thus, the Hamburg
Appendix 3, Table of Articles, The obligation to provide seaworthy vessel. infrathe QML art. 125 See 565
566 See HATOOM, supra note 216, at 167 (if an obligation is stringent, the carrier is liable if it fails to
prove the expected peril or that the cause of the loss, damage or delay is unknown). See also art. 167, supra
note 265.
567 See the Hamburg Rules art. 5 infra Appendix 3, Table of Articles, Liability exceptions. See generally
HATOOM, supra note 216, at 168; TETLEY, supra note 149, at 315; Pixa, supra note 563, at 444.
196
Rules do not draw a distinction between stringent or due diligence obligations. As a
general rule, the burden of proof is on the carrier. The only exception is in the case of a
fire, where the burden of proof rests on the claimant.568 According to article 5(1), the
claimant must prove that the goods, when damaged, lost or delayed, were actually under
the carrier’s custody.569 However, when the cause of injury is fire, the claimant must
prove fault on the part of the carrier or its agents.570 If the claimant proves a prima facie
case, the carrier must show the cause of the loss, damage or delay, and then explain that it
or its servants or agents have “exercised all measures that could be reasonably required to
avoid the occurrence of the cause and its subsequent consequence”.571
Another unique liability regime is laid down in the RR. The drafters of the RR
entirely restructured the prior liability regime found in Hamburg Rules and Hague-Visby
Rules. Although they have not sought to change the substance of the liability regime
established at the global level, some provisions of the RR nevertheless diverted from the
globally accepted liability system of the Hague-Visby Rules. The liability regime is based
on the presumed fault, and the carrier has two options for rebutting any presumption of
568 See the Hamburg Rules art. 5(4) infra Appendix 3, Table of Articles, Liability exceptions.
569 See the Hamburg Rules art. 5 infra Appendix 3, Table of Articles, Liability exceptions.
570 Id. art. 5(4)(b).
571 TETLEY, supra note 149, at 364.
197
fault. The claimant, according to article 17(1) of the RR, must prove that cargo loss,
damage or delay have occurred while the goods were under the custody of the carrier.572
According to article 17(2), the carrier may rebut the prima facie evidence of the claimant
by providing reasons for being exempted from liability under article 17(3).573
Alternatively, the carrier can rely on article 17(2),574 which grants him an option to prove
that the injury is not caused by its fault or that of persons acting under its control. The
options given to the carrier for rebutting the presumption of fault are applied whether the
cause of loss, damage or delay relates to the failure to exercise due diligence to make the
vessel seaworthy, or to the breach of other obligations enumerated under article 13(1) of
the RR.575 For this reason, this article may fall outside the meaning of stringent obligation
as explained in part III of this dissertation. Instead, it is closer to the meaning of the due
diligence obligation.576 It is worth noting that the due diligence obligation under the RR
is no longer an overriding obligation. Thus, if the damage, loss or delay is attributable to
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(1) See 572
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(3) See 573
note 268, at 53 (the drafters of the RR believed that the courts are supraBengtsson, generally See 574
entrusted to interpret this paragraph, and they have discretional power to decide what causes are legally
significant to fit into the RR article 17(2)). See the RR art. 17(2), infra, Appendix 3, Table of Articles,
Liability exceptions.
Appendix 3, Table of Articles, The Obligations to load, Stow, Handle, infrathe RR art. 13(1) See 575
Discharge, Keep, and Care for, the Cargo.
576 See generally Delebecque, supra note 456, at 89.
198
an expected peril as well as a lack of seaworthiness, the carrier may rely on the expected
peril as a defense.577
Another area where the QML differs from the RR relates to the claimant’s proof of
carrier’s failure to exercise due diligence. The claimant, under the QML, has the burden
of proving that the unseaworthiness of the vessel caused the cargo loss, damage or delay.
The onus then shifts to the carrier, who would need to show that it has exercised due
diligence to make the vessel seaworthy. It is noteworthy that the burden of proving
unseaworthiness under article 17(5)(a) of the RR is less onerous.578 The claimant must
only show that the loss, damage or delay was probably caused by unseaworthiness, hence
proving only the probability of the cause, rather than its certainty.579
Another contrasting trend relates to the clarity of the order and burden of proof in
the RR, and on whom it is imposed. It has been said that the RR maintain the position of
the case law and legal doctrines.580 Thus, the RR’s provisions emerged from maritime
practice and the law.
577 Bengtsson, supra note 268, at 61.
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(5)(a) See 578
579 See Bengtsson, supra note 268, at 55-06; Berlingieri, supra note 132, at 9.
580 Bengtsson, supra note 268, at 53.
199
Conclusion and Recommendation
The topic of carrier liability for the loss of, damage to or delay in the delivery of
cargo is central to any carriage of goods legal framework. It should be carefully
structured to preserve the diverse interests of the parties, as there are usually multiple
stake-holders and numerous operators involved in cargo loss claims.
Under the current QML, the shipper bears the onus of proving that the cause of
cargo loss or damage is attributable to the unseaworthiness of the vessel. The RR, in
contrast, require the shipper to only show that the lack of due diligence to furnish a
seaworthy vessel was the “probable” cause for the cargo loss, damage or delay. Thus, the
burden of proof is lighter and favorable to the shipper. However, in the QML, the shipper
must show that unseaworthiness is actually the cause of the damage sustained. It is
difficult to show that unseaworthiness is the actual cause of the loss of, damage to and
delay in the delivery of the goods. This is because the carrier and its agents are the ones
engaged with carriage. They would therefore know more about the relevant facts and
circumstances than the shipper, who lacks significant information to prove
unseaworthiness with certainty, compared to the RR’s probable cause of
unseaworthiness.581
Further, the QML is very poor at showing the order and burden of proof, unlike the
RR. Thus, the QML should follow an approach similar to the RR’s comprehensive and
systematic provisions on carrier liability.582 The RR provide a complete scheme for the
581 See Berlingieri, supra note 132, at 9.
Appendix 3, Table of Articles. infraLiability exceptions See 582
200
order of proof, shifting the onus of proof and outlining who should prove what. All these
elements should be taken into consideration in any attempts of legal reform. If the law on
the existing issue is clear, it will serve as guidance for the courts as well as the parties.
The court would then be in a better position to shift the burden of proof among the
parties. Moreover, the parties to the dispute will have a clearer idea about what to provide
as evidence in order to succeed in the case.
B. When Does the Liability of the Carrier Arise?
Since the carrier is obliged to carry the goods to their destination on time, in
accordance with the conditions described in the BOL or transport document and in the
specified quantity, the carrier will be held liable for cargo loss, damage and delay.
It is clear from articles 158583 and 160584 of the QML that the liability of the carrier
is triggered in the case of cargo loss, damage or delay in delivery. Loss of cargo refers to
both complete loss (e.g. when goods are lost, stolen or have fallen into the sea) or partial
loss (e.g. reduction in the quantity or amount). Damage to cargo occurs when goods have
arrived in their full quantity, but in bad condition (such as scratches on cars or water over
cotton cargo). Delay in delivery occurs when goods have not arrived at the time agreed
upon between the parties. The time during which goods must be delivered is not referred
to in the QML.585
583 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
584 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
585 See supra Part III, ch. C.
201
Loss, damage and delay result from a breach of the contractual obligations which
the carrier undertakes to fulfill under the contract of carriage of goods by sea. The causal
link between the breach of the carrier’s obligations and the injury sustained by the
claimant (i.e. the damage, loss or delay) must be established. Otherwise, the carrier is not
liable. For instance, the carrier is only liable for delay if the delay results in economic
loss to the claimant.586 It is important for the goods to arrive on time as their prices may
fluctuate, and this could affect the interest of the cargo owner. If the delay has not caused
any economic loss, the carrier cannot be held liable.587
All international conventions regulate the liability for loss of or damage to cargo.
However, delay in delivery was first introduced by article 5(1) of the Hamburg Rules.588
This was followed by article 17(1) of the RR.589 On this issue, the QML’s position is
similar to that of the Hamburg Rules and the RR. This also puts it a step ahead of the
Hague-Visby Rules, which do not contain any provisions regarding delay in the delivery
of cargo. It is nevertheless noteworthy that there are more articles on delay set out in the
Hamburg Rules and the RR than provided for in the QML.
Unlike the latter, the Hamburg Rules explain when delay occurs. According to
article 5(2), goods are deemed delayed if they have not been delivered within the time
586 HATOOM, supra note 216, at 170.
587 Id. at 157.
Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5 See 588
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(1) See 589
202
period agreed upon by the parties.590 In the absence of such an agreement, a prudent
carrier is required to deliver within a reasonable time period. A “prudent carrier” means
an ordinary carrier who has a medium level of intelligence and prudence.591 This is a
general objective standard that compares the carrier with another normal carrier facing
the same circumstances. The judge has discretionary power to assess the carrier’s
prudence.
Other aspects of the RR’s provision regarding liability for delay of delivery are
also worth noting. According to article 21, delay occurs when delivery has not taken
place during the time period agreed upon.592 Consequently, liability for delay under the
RR is predicated upon a consensus between the parties about the time frame during which
delivery should occur. The carrier is thus not liable in the absence of an agreement about
delivery time. Under the QML, however, liability for delay in the absence of an
agreement between the parties is based on a customary time frame during which delivery
should occur.593 The shipper can prove this duration by referring to, for instance, the
ordinary departure and arrival times of a carrier in a liner trade.594 Thus, the carrier is
Appendix 3, Table of Articles, Liability for delay. infrathe Hamburg Rules art. 5(2) See 590
591 HATOOM, supra note 216, at 225.
Appendix 3, Table of Articles, Liability for delay. infrathe RR art. 21 See 592
593 See SARKHOUH supra note 438, at 390. See also FADEL SALEH ALZAHAWI, THE BAHRAINI
MARITIMA LAW 230 (2005) (translated from Arabic).
594 SARKHOUH, supra note 438, at 389.
203
liable for delay even when there is no agreement between the parties as to time if the
claimant shows the existence of an ordinary range of time in custom or shipping practice.
A prima facie case requires the claimant to prove: 1) the time of delivery agreed
upon by the parties; 2) the absence of delivery by such time or in the absence of such
agreement, at the time and location at which, the customs, usages or practices of the trade
and the circumstances of the carriage, delivery could reasonably be expected; and 3) the
economic loss suffered as a result of the delay.595 Since the liability regime for delay has
a different compensation basis than that for cargo loss or damage, the claimant must
show the financial extent of the damage. In other words, the economic loss suffered
because the goods have not arrived on time.596 If the claimant is successful in proving the
prima facie case, the carrier may rebut the allegation by showing the absence of an agreed
time for delivery. Nonetheless, the failure to show the lack of agreement in relation to
delivery time makes the carrier liable for financial loss arising from delay. This
construction of the RR (which also holds true for the Hamburg Rules) applies to the
QML, as the Arabic legal jurisprudence came to the same interpretation.597
595 See generally Ziegler, supra note 506, at 999-1001.
596 Id.
597 See HATOOM, supra note 216, at 156-57. Compare the carrier incurring liability for financial loss
based on the analysis of the QML with James J. Donovan, The Hamburg Rules: Why a New Convention on
Carriage of Goods by Sea, 10. 4 Mar. Law. 1, 10 (1979) (the U.S. courts under COGSA only grant
damages for physical damages caused by delay, and not for pure pecuniary damages resulting from delay).
204
In the Hamburg Rules and the RR, the bases for calculating the compensation are
clear from articles 6(1)(b)598 and 22599 respectively. However, the QML has not made any
reference to financial loss caused by delay. It only provides for compensation for the loss
of or damage to the cargo under article 159.600 Article 182 of the Qatari Commercial Law
(applicable to carriage of goods by land) nevertheless considers delay in delivery as
awhole loss to cargo, and the compensation calculated is identical to that in loss of sea
cargo cases under the QML.601 In the absence of a rule to govern sea cargo loss under the
QML, the judge sitting on a sea cargo delay case has to apply article 182 of Qatari
Commercial Law (because sea shipping is a commercial activity subject to the
commercial law in the absence of an article in the QML). Article 182 of the Qatari
Commercial Law is similar to the Hamburg Rules regarding the delay in delivery for
Appendix 3, Table of Articles, Compensation for delay. infrathe Hamburg Rules art. 6(1)(b) See 598
Appendix 3, Table of Articles, Compensation for delay infrathe RR art. 22 See 599
600 Art. 159, “[t]he Vessel owner shall not be liable for any destruction or damage if the amount of such
destruction or damages is more than 1000 Riyals for each package or unit unless the shipper had declared
the nature and value of the goods before shipping and this had been recorded in a statement in the bill of
lading. The statement shall be presumed to be correct with regards to the value of the goods specified by
the shipper and the carrier may dispute it. The shipper and the carrier or his representative may, by an
especial agreement specify a maximum limit for liability of the carrier different from the limit provided for
in the previous paragraph, provided it shall not be lesser of the two. In all cases, the carrier shall not be
liable for the destruction or damage to the goods if the shipper misrepresented the facts regarding the nature
and value of the goods in the bill of lading”.
601 Art. 182, “[t]he carrier shall guarantee the safety of the goods while implementing the contract of
carriage. The carrier shall take the due diligence as required by the nature of the transported goods. The
carrier shall be responsible for total or partial wear, damage of the goods, or any delays in delivering
thereof. Not delivering the goods, not notifying the recipient to come and take delivery of the goods or not
finding the recipient after the expiration of a reasonable period of time following the agreed delivery
deadline or as required by custom for transport and delivery of goods shall be deemed total damage. The
carrier's commitment to the safety of the goods shall commence at the time and location where such goods
are put in the carrier possession for completion of the transportation process. Such commitment ends with
delivery at the agreed time and place”.
205
more than sixty days, as constructive whole loss to cargo and thus the compensation for
cargo loss is applied.602 However, in ordinary delay cases (i.e. where the delivery of
cargo occurred after the agreed time but before the lapse of sixty days from the date of
delivery), article 6(1)(b) is applied. It is interesting to note that the RR make no
provisions for this situation. They merely stipulate a general provision for calculating the
compensation for delay in article 22.
It is noteworthy that under article 160 of the QML, the carrier is not allowed to
tA 603contract out of liability for cargo loss or damage in the absence of the word “delay”.
first glance, this article implies that the carrier may contract out of liability for delay.
However, it may not negate liability, as article 165 of the QML holds the carrier liable
604delay unless it shows one of the liability exceptions.for
602 Art. 19(5), “[n]o compensation shall be payable for loss resulting from delay in delivery unless a notice
has been given in writing to the carrier within 60 consecutive days after the day when the goods were
handed over to the consignee”.
603 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
also lacks the word note 598, at 235 (the Bahraini Maritime Law No. 23 of 1982 supraALZAHAWI, 604
“delay” in art. 161). But see the Decree Law Issuing the Kuwaiti Maritime Commercial Law No. 28 of
1980, art. 195(1) (the Kuwaiti legislature expressly disallows contracting out for liability for delay along
with liability of loss of or damage to cargo). See the Hamburg Rules art. 5 infra Appendix 3, Table of
Articles, Liability exceptions.
206
Conclusion and Recommendation
The Hamburg Rules and the RR regulate the liability for delay in much greater
detail than the QML’s singular article about delay (article 165). One of the provisions
that can be suggested for the QML is the adoption of article 5(2) of the Hamburg Rules,
which states when delay occurs.605 Referring to this article, delay occurs when the goods
have not been delivered during the time period agreed upon in the transport document.
The QML does not define when delay occurs. This has an adverse effect on shippers, as
they cannot know when to file a case against carriers for delay. Although article 167
outlines that for the purposes of the time bar for filing a suit time starts from when the
delivery should have taken place,606 the shipper may be confused as to when to file a case
when delay is not defined. If the time of delivery is defined, for instance as three to four
months, and the goods have not arrived after the lapse of the fourth month, can the
shipper file a suit one week after the lapse of the four months? What if the date of
delivery has not been agreed upon by the parties? How would the shipper know when to
file a case? For these reasons, the QML must clarify when delay occurs, when to file a
case relating to liability for delay and how to determine when goods must be delivered in
the absence of a delivery time in the BOL particulars. It has been said that when the time
for delivery is absent, delivery must occur according to published timetables, common
Articles, Liability for delay. Appendix 3, Table of infrathe Hamburg Rules art. 5(2) See 605
606 See art. 167, supra note 265.
207
expectations, usages and trade practices, the practices of competitors or the averages of
transit times known to the particular trade.607
It is worth noting that liability for delay under the RR is predicated upon a
consensus between the parties about the time frame during which delivery should
occur.608 The carrier is thus not liable in the absence of an agreement about the time. It
may, however, intentionally not include a time for delivery in the contract in order to
escape liability, or argue that there is no agreement on the time for delivery. For this
reason, the RR are more favorable to the carrier’s interests.609 Qatar’s position on liability
for delay is therefore better than the RR position, because liability is not dependent on the
delivery time having been decided by the parties in the BOL.610
Referring to the liability for delay that results from a lack of due diligence, it is
important that such liability be included in article 157.611 This article currently only
mentions the loss of and damage to cargo caused by want of due diligence in making the
vessel seaworthy. As there is no legitimate reason for omitting delay from article 157, it
is imperative that this is included.
607 Ziegler, supra note 506, at 999.
608 See the RR art. 21 infra Appendix 3, Table of Articles, Liability for delay.
609 Ziegler, supra note 506, at 1000.
610 See the QML art. 165 infra Appendix 3, Table of Articles, Liability for delay.
611 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the
vessel seaworthy.
208
The QML, unlike the Hamburg Rules, makes no reference to compensation when
liability for delay in delivery arises. A clear provision about financial loss sustained by
delay, and the method for calculating the compensation, are recommended.612 This is
because the current law is very ambiguous when it comes to economic loss for delay. The
compensation for cargo loss or damage, in contrast, is governed by article 159.613
Last but not least, article 160 disallows carriers from contracting out of their
Nevertheless, it 614obligations and liabilities that run during their period of responsibility.
is surprising that this article does not permit the carrier to discharge himself from liability
for cargo loss or damage only. No reference is made to liability for delay. Yet, this does
not mean that the carrier may escape liability for delay because delivery is a clear
and the carrier is liable for delay under article 615,obligation under article 153 of the QML
616165.
612 See Compensation for Delay infra Appendix 3, Table of Articles.
613 Art. 159: “[t]he Vessel owner shall not be liable for any destruction or damage if the amount of such
destruction or damages is more than 1000 Riyals for each package or unit unless the shipper had declared
the nature and value of the goods before shipping and this had been recorded in a statement in the bill of
lading. The statement shall be presumed to be correct with regards to the value of the goods specified by
the shipper and the carrier may dispute it. The shipper and the carrier or its representative may, by an
especial agreement specify a maximum limit for liability of the carrier different from the limit provided for
in the previous paragraph, provided it shall not be lesser of the two. In all cases, the carrier shall not be
liable for the destruction or damage to the goods if the shipper misrepresented the facts regarding the nature
and value of the goods in the bill of lading”.
614 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
615 See the QML art. 153 infra Appendix 3, Table of Articles, Delivery obligation and problems.
x 3, Table of Articles, Liability for delay. Appendi infrathe QML art. 165 See 616
209
C. Exceptions to Liability
Long before the enactment of the Hague Rules of 1924, carriers tended to insert
exculpatory clauses into BOLs.617 Such clauses significantly harmed the interests of cargo
owners. Thus, the international community disallows derogation from its provisions that
are of a public order nature, and permits exception from liability in certain cases only. The
QML’s list of exceptions can be found in article 158.618 The list of exceptions under the
QML is derived from article 4(2) of the Hague-Visby Rules.619
Unlike the QML, the Hamburg Rules do not enumerate such exceptions. There is
instead a general defense in article 5(1) by which the carrier can reverse the presumption
of fault.620 This is when the carrier proves that it and its servants or agents have taken all
reasonable measures to avoid the occurrence and its consequences. This being said, there
is a specific defense which concerns measures taken to save lives or reasonable measures
to save property at sea.621 In addition, the carrier that transports live animals is relieved
from liability if it proves that first, it has fulfilled the instructions of the shipper, and second,
617 See supra note 146, at 1-2.
618 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
Appendix 3, Table of Articles, Liability exceptions. infraVisby Rules art. 4(2) -the Hague See 619
Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5(1) See 620
621 Id. art. 5(6).
210
the loss of, damage to and delay in the delivery of the cargo is caused by the inherent risk
of carrying such goods.622
The overall exceptions of the QML are to a large extent similar to article 17(2) of
the RR,623 save for the nautical fault exception which has been abolished in the RR. The
Qatari legislature does not provide an exception to liability when the loss of, damage to or
delay in the delivery of the cargo was caused by the shipper while undertaking the loading
and discharging obligations.624 However, such an exception exists in the RR. Further, the
QML does not include an exception for measures taken to evade environmental damage.625
While some of the RR’s exclusions have been kept unaltered, others have been merged,
extended or narrowed. Furthermore, there have also been new defenses added to the list of
exceptions to liability.
It is also important to shed light on some particular exceptions mentioned in a
number of international conventions and the QML. These are the fire exception, error in
622 Id. art. 5(5).
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(2) See 623
624 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17 See625
211
navigation and the new liability defenses set out in the RR. These exceptions are
highlighted as follows:
1. The Fire Exception
2. Error in Navigation
3. New and Modified Exceptions of the RR
1. The Fire Exception
Fire is considered the most dangerous incident the carrier may ever encounter in
the course of seaborne carriage, as it can cause tremendous loss in most cases.626 In
addition, the carrier and its crew possess limited means to fight the fire while sailing at
sea. For this reason, the carrier is granted the fire exception.627
The QML’s fire defense stated in article 158(3) is identical to article 4(2)(b) of the
Hague-Visby Rules.628 In order for the carrier to benefit from the fire defense, the fire
must not be attributed to its actual fault or privity. If the claimant produces a prima facie
case and the carrier relies on the fire defense, the presumption of the absence of fault is
reversed. Thus, the claimant has the burden of showing that the fire was actually caused
626 Bengtsson, supra note 268, at 33.
627 Id.
Appendix 3, Table of Articles, Liability infraVisby Rules, art. & the QML art. 158(3) -the Hague See 628
exceptions.
212
by the fault or privity of the carrier.629 Subsequently, the carrier shoulders liability if it
fails to show that the fire was not attributable to its fault or privity, but to those of its
servants or agents. Hence, it must be noted that if the fire is caused by the fault or privity
of the carrier’s servants or agents, this is considered a valid defense for the carrier.630
Only the actual fault or privity of the carrier deprives him of being exonerated from
liability. Nevertheless, article 17(3)(f) of the RR631 and article 5(4)(a)(i) of the Hamburg
Rules632 deprive the carrier from the defense when the fire is attributed to the fault or
neglect of the carrier or its servants or agents, and additionally, according to article 18 of
the RR, any persons for whom the carrier is responsible for.633 The common feature
between the QML and international conventions with regard to the fire exception is that
the burden of proving fault or privity of the carrier is on the claimant as the one asserting
it.
629 See Bengtsson, supra note 268, at 34 (more on fault and privity) (“[f]ault constitutes reckless acts or
omissions, and privity can be described as knowledge, actual or “blind eye knowledge”. To prove privity, it
needs to be shown that the carrier or other relevant person on purpose failed to inquire of something that
was being, or not being done, to avoid knowing a fact”.).
630 See SARKHOUH supra note 438, at 405.
dix 3, Table of Articles, Liability exceptions.Appen infrathe RR art. 17(3)(f) See 631
See Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5(4)(a)(i) See 632
generally R. Glenn Bauer, Conflicting Liability Regimes: Hague-Visby v. Hamburg Rules-A Case by Case
Analysis, 24 J. Mar. L. & Com. 53, 65 (1993); Bengtsson, supra note 268, at 40-01.
633 Art. 18, “[t]he carrier is liable for the breach of its obligations under this Convention caused by the acts
or omissions of: (a) Any performing party; (b) The master or crew of the ship; (c) Employees of the carrier
or a performing party; or (d) Any other person that performs or undertakes to perform any of the carrier’s
obligations under the contract of carriage, to the extent that the person acts, either directly or indirectly, at
the carrier’s request or under the carrier’s supervision or control.. See generally Bengtsson, supra note 268,
at 62 (fire defense)”.
213
If the carrier is found to be at fault, it is liable under the QML. However, the proof
in the Hamburg Rules and the RR is rebuttable. This is because the carrier still has the
chance to rebut the claimant’s allegation of fault or privity by showing that measures
were taken to avoid the fire and its consequences (in the Hamburg Rules), or that the
damage, loss or delay is not attributable to its fault or that of its servants or agents
(according to article 17(2) of the RR).634 The opportunity for the carrier to succeed in a
cargo claim is thereby greater under the Hamburg Rules and the RR.
The U.S. courts have expressed conflicting views regarding the burden of proof in
the fire exception.635 Thus, the fear of forum shopping is higher given that the burden of
proof is absent from the U.S. COGSA fire exception.636 There are two outcomes in fire
exception cases: the ninth circuit concluded that the carrier must show due diligence in
providing a seaworthy vessel before invoking the fire exception if the cause of the fire
was unseaworthiness of the vessel637. In contrast, the eleventh, fifth and second circuits
634 See Bengtsson, supra note 268, at 62. It must be noted that the fire exception under the RR is a modified
version of the Hague-Visby Rules exception, as the RR delete the phrase “caused by the fault or privity of
the carrier”. Under the RR, the carrier is indeed at fault if the claimant shows that it caused the fire. The
carrier is also liable for the faults of the persons defined under article 18 of the RR if they cause the fire.
635 See Sandra A. Larkin, The Allocation of the Burden of Proof under the Fire Statute and the Fire
Exception clause of the Carriage of Goods by Sea Act, 20 Tul. Mar. L.J. 403, 413-14 (1995-1996); See also
Dewey R. Villareal, Carrier’s Responsibility to Cargo and Cargo’s to Carrier’s, 45 Tul. L. Rev. 770, 776
(1970-1971).
636 Larkin, supra note 640, at 404-05.
637 Id. at 418. In the Ninth Circuit, this is applicable only if the cause of the fire in the unseaworthiness of
the vessel. In such a case, the carrier cannot rely on the fire exception unless it shows the exercise of due
diligence to make the vessel seaworthy by him and persons having managerial positions working on its
behalf. The carrier must also show that the unseaworthiness condition of the vessel which cause the fire
was due to the neglect of others such as the masters and crewmembers. See Nissan Fire & Marine Ins. Co.
v. M/V Hyundai Explorer, 903 F2.d 675 at p. 686 (9 Cir. 1990). See generally TETLEY, supra note 149, at.
1020 (the burden of proof in case of fire caused by unseaworthiness).
214
held that COGSA does not mandate that due diligence be shown before relying on the
fire exception.
2. Error in Navigation
Error in navigation, or nautical fault as it is sometimes referred to, is an old-
fashioned ground for exculpating the carrier from liability. The exemption operates only
if the error is caused by the master, pilot, agent or servants of the carrier. 638 Thus, the
carrier is not relieved from its own fault. Under the QML, like the Hague-Visby Rules,
this exception is still maintained in its list of exceptions from liability.
However, there is no reference to such a defense under the Hamburg Rules and the
RR. According to the Hamburg Rules in their unitary concept of fault,639 a carrier that
wants to rebut the assumption of fault would need to show that it and its servants or
agents have acted reasonably under the circumstances to evade the incident and it
consequences. There is therefore no room to raise the error in navigation immunity,
which in all cases involves some sort of negligence on the part of the carrier or its
agents.640 The QML has not followed the path of the Hamburg Rules and the RR, both of
which eliminate the nautical fault defense.641
638 Bengtsson, supra note 268, at 33.
Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5 See 639
640 Bauer, supra note 637, at 61.
641 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.
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3. New and Modified Exceptions of the RR
The drafters of the RR aimed at keeping as far as possible the exceptions
enumerated in the Hague-Visby Rules. However, some additions and modifications were
made in the effort to modernize them to meet the needs of the current shipping industry.
We will now take a closer look at three of the exceptions outlined in article 17(3).642
These are as follows: terrorism and piracy, reasonable measures to avoid damages to the
environment and reasonable measures to save property at sea.
One of the new exceptions is when the cause of loss, damage or delay is attributable
to piracy643 or terrorism under the RR article 17(3)(c).644 Piracy and terrorism are
significant topics listed in the agenda of the maritime community.645 These exceptions were
interpreted under the exceptions of the old Hague-Visby Rules.646 It has been said that the
RR govern the shipping practice and the case law of the Hague-Visby Rules.647 Thus, these
exceptions are not novel in terms of the obstacles to the global carriage of goods. In fact,
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(3) See 642
643 See generally Piracy, World Shipping Council, http://www.worldshipping.org/industry-
issues/security/piracy (last visited Aug. 10, 2016) (piracy affecting the international carriage of goods by
sea).
644 See generally Obstacles to Global Shipping: Piracy and Terrorism, World Ocean Review,
http://worldoceanreview.com/en/wor-1/transport/piracy-and-terrorism/ (last visited Agu. 10, 2016).
645 Bengtsson, supra note 268, at 61.
646 Id.
647 Id. at 53.
216
the RR’s article 17(3)(c) on exceptions648 merges articles 4(2)(e), (k) and (f) of the Hague-
Visby Rules649 and incorporates “armed conflict, piracy, [and] terrorism”.
Another unique exception that relieves the carrier from liability, and one that has
not been covered by the conventions prior to the RR, is reasonable measures taken to
avoid environmental damage. When defining the word “environment”, an examination of
the IMO conventions relating to the environment is necessary.650
The most significant modifications to the RR’s exceptions were those connected to
the measures taken to save lives or property at sea. Unlike the Hague-Visby Rules and the
Hamburg Rules, the RR treat them as two separate exceptions: “saving or attempting to
save life at sea”;651 and “reasonable measures to save property at sea”. As reasonableness
is added as a requirement for the measures taken to save property, the carrier may invoke
this exception only if the measures taken are reasonable. If the claimant proves that they
were unreasonable, then the carrier would be held liable.
Qatari law expresses this exception slightly differently from the RR. Under article
158(l) of the QML,652 the efforts to save or attempt to save life or property at sea are
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(3)(c) See 648
Appendix 3, Table of Articles, Liability exceptions. infraVisby Rules art. 4(2)(e)(k)(f) -the Hague See 649
650 Bengtsson, supra note 268, at 63.
Appendix 3, Table of Articles, Liability exceptions. infrathe RR art. 17(3)(m)(n) See 651
652 See the QML art. 158(1) infra Appendix 3, Table of Articles, Liability exceptions.
217
combined into one exception. The latter does not make any reference to the
“reasonableness” requirement. This means the carrier may take any measures to save
property even if it described as unreasonable.
It is worth noting that the Hamburg Rules also recognize the effort to save property
at sea as an exception, and just like the RR, the requirement of reasonableness is
added.653 It should be noted that on the matter of saving life at sea, the reasonableness
element is not found either in the international conventions or the QML. This is because
nothing is more valuable than life. Saving life by whatever means and measures are
indeed more important than preserving the cargo carried on board the vessel.
Conclusion and Recommendation
The Fire Exception
The fire exception under the QML does not hold the carrier liable for its agents’ or
servants’ faults or negligence.654 The approach needs to be in line with the international
trend as set out in the Hamburg Rules and the RR,655 which makes the carrier liable even
for the fault or negligence of its servants. The expansion will benefit claimants as it
strongly enhances their chance of succeeding in a cargo loss claim when the fire
happened as result of the fault or privity of the carrier’s agents or servants.
653 See the Hamburg Rules art. 5(6) infra Appendix 3, Table of Articles, Liability exceptions.
654 See the QML art. 158(1) infra Appendix 3, Table of Articles, Liability exceptions.
See also Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5(4)(i) See 655
the RR art. 17(3)(f) infra Appendix 3, Table of Articles, Liability exceptions.
218
More importantly, the burden of proving fault or neglect falls on the shipper in the
QML. A burden of proof of this kind is difficult to meet because the claimant was not on
board the vessel when the fire took place. Thus, it does not have access to the relevant
information and evidence on what measures the carrier has or has not taken, how the
carrier combatted the fire to reduce the loss, or how the fault of the carrier caused the
loss, damage or delay. As a result, it is highly likely that the claimant will lose the case
because of this heavy burden of proof.656
It seems that by imposing the burden of proof on the claimant, fire is regarded as a
reason to exonerate the carrier from liability in all international conventions on carriage
of goods by sea. What would be fair and logical instead, would be to impose the burden
of proof on the party that can control the incident and has access to evidence, which is the
carrier.657 Thus, the claimant must first show its prima facie evidence, then the carrier
must prove that the fire was not a consequence of breaching any of their obligations and
that they have taken all reasonable measures to combat the fire when it has started.658 The
claimant then can rebut the assumption by proving that the fire where caused by the
design and neglect of the carrier or its agents.
656 See Villareal, supra note 640, at 776.
657 See Atteia, supra note 397, at 312.
658 See Larkin, supra note 640, at 404-05.
219
Error in Navigation
This exception was first codified in the era of the Hague-Visby Rules (i.e. during
the early days of sail) because of the poor navigational equipment and tools available
then, and the lack of communication.659 The owner of the vessel lacked control over the
vessel as soon as it started sailing.660 For this reason, exception from liability for nautical
fault was fairly justified.
Nowadays, however, the case is substantially different with the advancement and
development of navigation, technology and means of communication. Thus, the reasons
for which the exception was kept no longer exist.
It is thus unfair to retain the exception, and there is no justification for maintaining
it in the QML, as it contradicts the spirit of the international maritime community as
embodied in the IMO, which holds persons working on board the vessel liable for their
fault.661 In addition, its retention will encourage reckless behavior among crew members,
as they can, in the end, be exempted from liability for errors closely related to their job.
Conversely, its abolition will lead to the hiring of more qualified crew members, and the
on-board navigational policies will also be of a higher quality.662
659 Saul Sorkin, Changing Concepts of Liability, 17 Forum 710, 710 (1981-1982).
660 Id.
661 Bengtsson, supra note 268, at 61.
662 Id. at 65.
220
To cope with modern maritime practice, the exception must be abolished from the
QML to bring it in line with international conventions like the Hamburg Rules and the
RR (which abolish the nautical fault exception).
Terrorism and Piracy
There is no exception from liability in the QML as regards terrorism and piracy. It
is worth adding them because carriers are likely to encounter such threats in the course of
carriage, especially with the emergence of political groups in the Middle East region and
pirates from Somalia, the Addan Gulf and the Arabian Sea.663 It is thus unfair to hold the
carrier liable for incidents that are beyond its power, such as weapons strikes and armed
conflicts.
Measures to Save Property at Sea
With regard to this exception, the QML should add the word “reasonable” before
the word “measure” just as the Hamburg Rules and the RR do. The absence of the notion
of reasonableness potentially makes the carrier consider the salvage remuneration (in
case it is entitled to it) on the part of the cargo interests, and exposes the cargo to greater
risks of damage for monetary incentive, even if it is not worthy.664 It is illogical to save or
attempt to save property of little value while carrying cargo of great value. Ultimately,
the carrier can easily exculpate itself from liability by invoking the exception. The
663 John C. K. Daly, Terrorism and Piracy: The Dual Threat to Maritime Shipping, The Jamestown
Foundation, http://www.jamestown.org/single/?tx_ttnews%5Btt_news%5D=5112#.V5VxBeEkpjo (last
visited Aug. 12, 2016) (piracy and terrorism affecting maritime activities in the Middle East).
664 Bengtsson, supra note 268, at 46-07.
221
requirement of reasonableness would make the carrier study the risks before undertaking
the measures, hence, ensuring more protection to cargo owners.
D. Clear Exclusions from the Liability Regime
The international conventions and the QML do not permit carriers to derogate from
the obligations and liability mandated by their provisions. Those provisions stress the
public order nature of the rules, and thus cannot be contracted out of.665 Carriers can only
contract out when the rules expressly offer this.
The principle of freedom of contract is evident from article 162 of the QML, which
allows contracting out of the QML liability regime for coastwise carriage or in special
agreements for carrying extraordinary goods.666 The freedom of contract principle is also
emphasized in article 164 of the QML, which is concerned with carriage under
charterparties, the period before loading and post discharge, live animals and deck
carriage.667 Despite the QML carrier liability regime being mandatorily applicable during
the tackle-to-tackle period, the carrier can contract out of the provisions on liability in
665 See the QML art. 160, the Hague-Visby Rules art. 3(8), the Hamburg Rules art. 23, & the RR art. 79 infra
Appendix 3, Table of Articles, Freedom of contract.
666 See the QML art. 162 infra Appendix 3, Table of Articles, Freedom of contract.
667 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of contract.
222
pursuit of articles 161, 162, and 164.668 The legislature left room for the parties to
contractually decide on carrier liability issues in some circumstances only.
Therefore, there are some incidents where the QML will cease to operate. Two of
these circumstances are the most controversial ones that have evolved over the years, and
received the attention of the international community. The two exclusions from the
carrier liability regime that require a more profound look are therefore deck carriage and
the carriage of live animals. The rest of the exclusions will be mentioned under the
heading of “other circumstances”. The topics covered in this chapter are:
1. Deck Cargo
2. Live Animals
3. Other Circumstances
1. Deck Cargo
The general rule governing stowing in the contract of carriage is to stow goods
under deck.669 However, a clean bill of loading was historically assumed to imply under-
668 Id. art. 161,162, & 164.
669 HANI MOHAMMED DWEDAR, A BRIEF ON THE MARITIME LAW 203 (1997) (translated from
Arabic).
223
deck stowage,670 and in some cases the parties agree to carry goods on deck. This is
because deck carriage is cheaper than below-deck carriage, since the stevedoring services
fee would be less expensive given that the goods would be easier to unload.671 In
addition, the carrier sometime prefers on-deck carriage as it enables it to utilize the deck
in addition to the under-deck, thus gaining more stowage capacity.672 Also, the nature of
the goods may require on-deck stowage.
Importantly, if the parties agree to carry goods on deck, the risk of such a carriage
is transferred from the carrier to the shipper.673 There is an increasing use of deck
carriage in practice due to reasons that will be mentioned later. Domestic and
international law must govern such a carriage and regulate the relationship between the
parties to the contract. This section will examine the stand of Qatar and international
conventions towards deck carriage.
In the QML, deck cargo is excluded from the application of the liability regime
outlined in article 164.674 In that regard, the QML’s position is slightly similar to that of
670 Deck carriage, Freight Transport Association,
http://www.fta.co.uk/policy_and_compliance/sea/long_guide/deck_carriage.html (last visited Aug. 12,
2016).
671 AWAD, supra note 189, at 492.
672 Id.
673 TETLEY, supra note 149, at. 1570 (“[c]lean bill of loading means below deck”.).
674 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of contract. Compare the QML
trend excluding the application of liability regime on deck carriage, with the art. 273 of the United Arab
Emirates Maritime Commercial Law No. 26 of 1980 (the article allow deck carriage and thus subject it to
the liability regime under three circumstances only; written agreement from the shipper, customs of a
224
article 1(c) of the Hague-Visby Rules. 675 However, the latter does not exclude the
application of the liability provision on goods carried on deck. Instead, it excludes the
application of the rules as a whole on such goods. Thus, the Hague-Visby exclusion of deck
cargo is wider in scope than the limited exclusion of the QML. Under the QML, the carrier
carrying goods on deck is bound by the provisions of the law, except the one that relates to
liability.
Deck cargo is excluded from the application of the liability regime because on-deck
stowage exposes the goods to further risks, such as severe weather, theft, falling in the sea
and instability problems. Carriage under deck is, by contrast, safer, as goods stowed in the
vessel’s holds are not affected by those risks confronting deck carriage.676
When it comes to the carrier’s liability for loss, damage or delay caused by deck
carriage, the parties can resort to freedom of contract. However, the carrier is not entitled
to freedom of contract in all events. Paragraph 3 of article 164 requires the BOL to state
that the goods were to be carried on deck and they were actually carried on deck.677
Hence, in the absence of such a clause in the BOL but where the cargo has in fact been
particular trade, and coastwise voyage). Article 273 reads “With the exception of coastal navigation it shall
not be permissible for the carrier or its representative to load goods on the deck of the vessel unless the
shipper consents thereto in writing or if there is a custom permitting the same in the port of loading”.
Appendix 3, Table of Articles, General definition article (deck infraVisby Rules art. 1(c) -the Hague See 675
cargo is excluded from the application of the Hague-Visby Rules).
676 SARKHOUH supra note 438, at 398. See also ALATER, supra note 561, 379.
677 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of contract.
225
carried on deck, the carrier is bound by the liability provisions of the QML. In addition,
the insertion of a clause about the mode of deck carriage in the BOL warns the consignee
or a third party endorsee about the risk of such a carriage and the carrier liability regime
which is governed by the will of the parties.678
Unlike the QML, both the Hamburg Rules in article 9679 and the RR in article 25680
regulate deck carriage. It has been said that the Hamburg Rules represent the convention
of third world countries.681 Their drafters, after examining the reality in third world
countries, worked out that the percentage of deck cargo export is quite large.682 The
drafters also appreciated the huge number of containers carried on deck. Thus, they
sought to regulate deck carriage to meet the practical needs of these countries. They
likewise took into account modern transportation techniques involving stowage of
containers on deck, and provided appropriate rules for deck cargo.683 In a similar fashion,
the drafters of the RR aimed at modernizing the provisions of contract of carriage of
goods conventions and made the provisions closer to reality and shipping practice as
much as possible. Deck cargo exclusion is no longer appropriate in the modern era of
678 ALATER, supra note 561, at 380.
Appendix 3, Table of Articles, Deck carriage. infrathe Hamburg Rules art. 9 See 679
Appendix 3, Table of Articles, Deck carriage. infrathe RR art. 25 See 680
681 Sorkin, supra note 664, at 715.
682 ALATER, supra note 561, at 348.
683 See Mandelbaum, supra note 303, at 489-90.
226
containerized cargo. The most commonly used vessels are container ships.684 Most of the
world’s manufactured goods and products are shipped in these vessels. The container
ships are technologically advanced and designed in such a way that both on-deck and
under-deck stowage of goods are possible.
In general, the provisions regarding on-deck carriage in both the Hamburg Rules
and the RR are similar to a large extent, except on one point which will be mentioned
shortly. Both conventions state the conditions for applying the provisions of deck
carriage and the consequences for infringing such provisions. They therefore distinguish
between incidents where the carrier can enjoy the rights conferred to it by the
conventions and those where it is deprived of certain rights. In addition, the conventions
clarify the enforceability of deck carriage clauses between the carrier and third parties.
The common situations in which deck carriage is permitted in both conventions are
as follows: when there is an agreement with the shipper to carry goods on deck, when this
is allowed by law or regulations and when the usage of a particular trade requires such a
carriage. Crucially, the RR add a new situation which reflects the current shipping
practice. This is when the goods are stowed in containers or vehicles, such containers or
vehicles are fit for deck carriage and the deck is specially designed for deck carriage.685
Furthermore, the carrier may not invoke an agreement to deck carriage against a third
684 LACHMI SINGH, THE LAW OF CARRIAGE OF GOODS BY SEA 18 (2011).
Appendix 3, Table of Articles, Deck carriage. infrathe RR art. 25(1)(b) See 685
227
party unless a clause to that effect is included in the BOL. This is to protect the interest of
such a party. This applies to both conventions.
In addition, the consequences for breaching the conditions of deck carriage are
specified by both conventions, which obviously deprive the carrier from invoking
liability defenses.686 Unlike the Hamburg Rules, the RR are more comprehensive. They
cope better with the contemporary shipping industry687 as they regulate the liability of
carriers resulting from the permitted situations of on-deck carriage. This is found in
article 25(1).688 In the case of carriage by containers, the carrier’s liability is governed by
the RR’s liability regime. However, the carrier is relieved from liability for the special
risks associated with on-deck carriage made in accordance with prior agreement, or the
customs, usage or practice of a particular trade. The burden is on the carrier to show the
special risk exception in order to be exculpated from liability.689
Conclusion and Recommendation
Containers have been significantly employed in modern maritime carriage due to
their ability to protect the cargo from external factors that affect its condition, and the
686 If the cargo loss or damage is due to deck carriage, the carrier may invoke the defense of art. 5(1) and
prove that it, its servants and agents took all measures to avoid the opportunity to escape liability. However,
if the carrier carried goods on deck in situations other the one listed under art. 9, then it is not entitled to
rely on the art. 5(1) defense. Its liability is limited, however, according to articles 8 and 6.
687 See Berlingieri, supra note 132, at 43.
Appendix 3, Table of Articles, Deck carriage. infrathe RR art. 25(1) See 688
689 Uffe Lind Rasmussen, Additional Provisions Relating to Particular Stages of Carriage, in THE
ROTTERDAM RULES 2008 133, 140 (Alexander Von Ziegler, Johan Schelin & Stefano Zunarelli eds.,
2010).
228
speedy process involved in handling them during loading and unloading operations.690 In
addition, the carriage of vehicles on modern roll-in and roll-off ships has increasingly
been used in the carriage of goods.691 The most commonly used vessels are container
ships. Most of the world’s manufactured goods and products are shipped on these types
of ships that are operated under liner trade services according to fixed operation
schedules. The container ships are technologically advanced. They are designed to allow
on-deck and under-deck stowage of goods. Some types of goods necessitate deck
carriage, such as Lash, roll-on, roll-off and containerized cargo.692
The exclusion of deck carriage from the carrier’s liability regime makes the QML
barely adequate to cope with current and future maritime practices. Qatar’s current
shipping industry depends heavily on carriage by containers.693 Based on the statistics of
the number of containers handled by Doha Port between 2010 and 2015,694 the number of
container vessels which entered Doha Port was 385,599 in 2014, however, this number
reached 443,586 in November 2015. This is due to the expansive imports of vehicles and
equipment to be used for the mega infrastructure projects in Qatar. Unsurprisingly, upon
the completion of the new “Hamad Port”, which has huge containers and vehicle
690 See TETLEY, supra note 149, 1533.
691 Berlingieri, supra note 132, at 43. See generally IMO on Focus, IMO and ro-ro safety (1997),
http://www.imo.org/en/OurWork/Safety/Regulations/Documents/RORO.pdf.
692 Pixa, supra note 563, at 443.
693 See infra appendix no. 2 (Statistic on the number of containers received by Doha port from between
2010 and Nov. 2015).
694 Id.
229
terminals, a greater capacity and the latest container handling equipment, unlike the
current Doha Port,695 the number of containers entering the Port will most likely grow.696
Hence, a carrier liability legal framework for the carriage of such kinds of cargo is a
must.
Under the QML, the carrier can exonerate himself from liability by agreement if
goods are carried on deck. It is also illogical to allow the carrier to escape liability when
there is no justification for such an exception, because the vessel used is designed to carry
goods on deck. It is recommended that a trend similar to article 25 of the RR, which
regulates deck carriage on container vessels, be adopted, as it is more in line with
maritime practice.697 Despite this fact, there are some concerns regarding the approach of
the RR in addressing deck carriage. Under the RR, a carrier can avail himself from
liability for cargo loss, damage or delay caused by deck carriage if deck carriage is made
in accordance with article 25(1)(a) (deck carriage is mandated by law or regulation) and
25(1)(c) (deck carriage is made by agreement). However, the carrier is held liable if a
container vessel is used according to article 25(1)(b). There is no explanation found for
excluding the carrier from liability if deck carriage occurred in accordance with articles
695 See supra part I, Ch. D, section 1, subsection e.
696 See generally supra part I, Ch. D, section 1.
Appendix 3, Table of Articles. infraDeck carriage See 697
230
25(1)(a) and 25(1)(c). This may also encourage carriers to shield themselves from
liability when the deck carriage is agreed between the parties.
The consequences of such scenarios of deck carriage are not clear. 1) What would
happen if goods are carried by the container ship (article 25(1)(b) ) and deck carriage is
actually required by law (article 25(1)(a))? 2) What would happen if the parties agree on
deck carriage (article 25(1)(c)) and the carrier uses a container ship for such carriage
(article 25(1)(b))? Are the carriers in such scenarios relieved from liability since articles
25(1)(a) and (c) would apply? Are the carriers liable because container ships have been
used regardless of the existence of a law mandating such carriage, or has an agreement
been made for deck carriage? No answers have been provided by the RR for such
complicated scenarios.
The QML must keep track of the changes occurring in the shipping industry and
take into consideration the technological and commercial advancements that have taken
place since its promulgation. This would certainly cover on-deck carriage of goods in
container vessels designed to ensure safe carriage.698
2. Live Animals
When it comes to exclusion from liability on the basis of cargo type, the carriage of
live animals is excluded from the QML liability regime as per article 164.699 The Hague-
Visby Rules go even further and do not consider live animals under their definition of
698 See Nikaki & Soyer, supra note 453, at 320.
Appendix 3, Table of Articles, Freedom of contract. infrathe QML art. 164 See 699
231
“goods” in article 1(c)700, thus excluding such cargo from their purview. This is so because
of the risks involved. Live animals may, for instance, fall sick and suffer from motion
sickness as a result of the tides. They must also stay caged and need special care.701
Unlike the QML, both the Hamburg Rules and the RR regulate the carriage of live
animals. Looking firstly at the Hamburg Rules, they exclude the carrier from liability if it
proves that loss or damage was caused by the special risks associated with carriage of
live animals.702 The carrier, in addition, must show that it has complied with the shipper’s
instructions with regard to the animals. The absence of fault presumption will apply after
the carrier has shown such proof. However, the presumption may be broken if the
claimant proves that the neglect or fault of the carrier or that of its servants or agents has
caused or contributed to the damage sustained. Thus, one can conclude that the Hamburg
Rules grant the carrier a defense for live animals if the requirements set by article 5(5)703
are met.
Meanwhile, the RR deal with the issue of live animals considerably differently
from the Hamburg Rules. According to article 81(1), the carrier can resort to freedom of
contract with respect to the obligations and liabilities relating to the carriage of live
Appendix 3, Table of Articles, General definition article. infraVisby Rules art. 1(c) -the Hague See 700
701 ALATER, supra note 561, at 381.
Appendix 3, Table of Articles, Liability exceptions. infrathe Hamburg Rules art. 5(5) See 702
703 Id.
232
animals.704 This can be contrasted with the Hamburg Rules, which only govern the
liability for carrying live animals. Under the RR, therefore, the carrier is relieved from
liability if cargo loss, damage or delay is caused by the inherent risks associated with the
act of carrying live animals. Pursuant to article 81, however, even when the carrier has
successfully proven these risks, the defense is reversed if the claimant shows that the loss,
damage or delay is attributed to the fault or privity of the carrier or persons acting on its
behalf. In other words, the carrier is liable for cargo loss, damage or delay that results
from an act or omission either done with the intent to cause such loss, damage or delay,
or recklessly and with knowledge that such loss, damage or delay would probably
result.705
The Hamburg Rules and the RR also differ in relation to how they allocate the
burden of proof on the carrier. Under the Hamburg Rules, the carrier needs to satisfy two
conditions: first, that the damage sustained by the claimant was caused by the inherent
risks of carrying live animals, and second that it has followed the shipper’s instructions.
By contrast, the carrier meets the burden of proof stipulated in the RR if it merely
demonstrates that the damage was caused by the inherent risks associated with the
transportation of live animals. The onus imposed by the RR for liability in relation to the
carriage of live animals is therefore lighter than that provided under article 5(5) of the
Hamburg Rules.
Appendix 3, Table of Articles, Live animals. infrathe RR art. 81(1) See 704
705 See supra note 439 (privity & actual knowledge).
233
Conclusion and Recommendation
In general, the types of goods that enter the Doha port include general cargo,
vehicles, machines, food, chemicals, livestock, raw materials and flour etc. Among these
types of cargo, the number of livestock cargos have increased over the years, thus the
Qatari legislature should regulate this important type of cargo.
For the above reasons, and in order to bring the QML in line with current
international conventions, live animals should come within the mandatory ambit of the
QML’s carrier liability scheme. It is also unfair to exonerate the carrier from liability for
the mere fact that it carries live animals. This trend significantly affects the shipper’s
interest when exporting large numbers of live animals for human consumption and other
purposes.
A regulation similar to the Hamburg Rules is recommended for the QML. This is
because in the case of cargo loss, damage or delay, the carrier can invoke the live animal
defense if it shows that it has followed the instructions of the shipper and that the damage
sustained was caused by the inherent risks of such type of carriage. The RR approach is
not recommended because under the RR, the carrier may exonerate himself from liability
much more easily, as it is only required to show that the loss of, damage to or delay in
delivery was caused by the risks associated with carrying live animals. Not only this, the
carrier can resort to freedom of contract to limit or exclude its obligations and liabilities
pertaining to the carriage of live animals. Hence, the RR are supportive of the carrier
when making its burden of proof less onerous, and by offering it the right to derogate
from the RR’s provisions affecting the interest of shippers.
234
3. Other circumstances
There are other situations excluded from the QML liability regime. Firstly, the
carrier may contract out of the liability regime for the periods before loading operations
and after the discharge operations. This exclusion will be discussed under the “period of
Secondly, carriage under charterparties 706heading following this section. ”responsibility
are two other situations that need a closer look. These Thirdly, there 707is also excluded.
are mentioned in article 162 of the QML: coastwise voyage and carriage of non-ordinary
The first situation is a mere domestic issue under national 708goods in the course of trade.
law. There are thus no provisions on this in the carriage of goods by sea conventions.
As to the second situation, the QML gives the parties to the contract of carriage
freedom to exclude the liability regime designated in the law when it comes to non-
ordinary goods in the commercial sense if by virtue of their nature, conditions, shipping
condition or exceptional circumstance, they justify the conclusion of a special agreement.
These types of goods require distinctive handling and carriage arrangements, such as the
carrying of expensive goods or historical relics. Thus, the burden is on the carrier to show
that it contradicts the liability regime of the QML, because the goods are not ordinary
706 See infra Part IV, Ch. E.
707 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of contract (the QML only applies if
a BOL has been issued between a charterer and a third party).
708 See the QML art. 162 infra Appendix 3, Table of Articles, Freedom of contract.
235
commercial shipments made in the ordinary course of trade, and that the circumstances
justify entering into a special agreement.
A special agreement to that effect must comply with the requirements set out in
article 162. Hence, for the special agreement to be valid, no BOL must have been issued.
However, it must be evidenced by a non-negotiable document in which the special
condition of the carriage is expressly stated.
It is worth noting that such permission by the QML is similar to article 7 of
Both conventions regulate 710and article 81(b) of the RR. 709Visby Rules-the Hague
The 711kind but they differ slightly from article 162 of the QML. iscarriage of goods of th
latter applies to special agreements, but exclusions are only allowed as far as the
liability of the carrier is concerned. However, the Hague-Visby Rules and the RR allow
for the contracting out from their provisions as a whole. Thus, the carrier enjoys freedom
of contract with respect to its obligations and liabilities. The Hague-Visby Rules add that
such freedom should not contradict public policy and the obligation to care for the cargo.
Appendix 3, Table of Articles, freedom of contract. infraVisby Rules art. 7 -the Hague See 709
Table of Articles, Live animals.Appendix 3, infrathe RR art. 81(1) See 710
711 The wording of the Hague-Visby Rules art.7 is similar to the corresponding art. 81(b) of the RR.
236
E. Period of Responsibility
Under article 164 of the QML, the carrier’s period of responsibility starts
712from the commencement of loading until the completion of the discharge operation.
tackle”, just like the period defined in article 1(e) of -to-tackle“This period is known as
Visby Rules are not -both the QML and the Hague ,Thus 713Visby Rules.-the Hague
applied beyond the period of responsibility (i.e. beyond the sea carriage phase). The
Qatari legislature allows the parties to contract out from the liability regime of the QML
for the periods prior to loading and post discharge. This section will clarify the period of
liability under the QML and compare them to international conventions. Subsequently,
the answer to the question of liability before loading and after discharge is fleshed out.
Thereafter, the body of law applied before loading and after the discharge operation will
be highlighted.
Article 4(1) of the Hamburg Rules, unlike the QML, extends the period of liability
Hence, the 714port period.-to-portthe tackle period to -to-from the Hague Rules tackle
carrier is liable for the goods if loss, damage or delay occurred while the goods were
under its custody from the time it takes over the goods in the port of loading, to the time
it hand the goods over at the port of discharge.
712 See the QML art. 164 infra Appendix 3, Table of Articles, Period of responsibility.
713 Berlingieri, supra note 132, at 4. See the Hague-Visby Rules art. 1(e) infra Appendix 3, Table of
Articles, General definition article
Appendix 3, Table of Articles, Period of responsibility. infrathe Hamburg Rules art. 4(1) See 714
237
The applicable period and the carrier’s liability are even broader under the RR.
Article 12(1) of the RR provides that the carrier is liable for the goods from the time it
receives the goods from the shipper until it hands over the goods to the person entitled to
hisT 715delivery irrespective of whether the goods are received at a port or elsewhere.
means the RR cover door-to-door carriage, as the parties are entitled to agree on the
places for goods reception and delivery. These could be, for example, from the shipper’s
warehouse or factory to the person who is entitled to the delivery’s warehouse. The only
exception would be in cases where the law or regulation of the place of final destination
requires the goods to first be taken and handed over to an authority or third party. In such
cases, the period of responsibility starts from the time the carrier takes the goods into its
charge from the authority or third party. However, to further protect shippers from
clauses that limit or exonerate carriers from their obligations and liabilities for the sea
phase of carriage, the period of responsibility agreed upon by parties should not start
716after loading and end before discharge.only
liability, then occurred during the period of has When loss of or damage to cargo
If, however, the period during which the loss or damage occurred 717the carrier is liable.
is unknown, it is assumed that it occurred while the goods were under the custody of the
Appendix 3, Table of Articles, Period of responsibility. infrathe RR art. 12(1) See 715
Appendix 3, Table of Articles, Period of responsibility. infrathe RR art. 12(3) See 716
717 See HATOOM, supra note 216, at 143 (the Lebanese Court of Cassation held that the carrier is
presumed to be at fault if the goods are received in bad order, however, this is prima facie evidence that can
be reversed by the carrier by proving that the loss or damage occurred post discharge).
238
upported by a judicial The finding is s 718carrier during its period of responsibility.
decision of the Qatari Court of Cassation which reads as follows:
[i]f the damage to or loss of cargo occurred before the delivery, the carrier is held
liable. It is assumed that the damage to or loss of cargo had taken place at sea
unless the carrier provides evidence to the contrary, such as a force majeure, vice 719defect, or fault of shipper or consignee.
However, what would be the case if the loss of goods or damage clearly occurred
after the lapse of the carrier’s period of liability (i.e. post-discharge) while the goods were
under the custody of Milaha, who is in charge of the discharge, storing and delivery of
ircumstances, exonerate itself as it is permissible for The carrier can, in such c the goods?
it to absolve itself from liability or lessen it by agreement for the period before loading
there are two different ,Thus 720according to article 164 of the QML. ,and after discharge
articles which discuss the carrier’s period of responsibility.
Firstly, there is article 160, which renders any stipulation in the BOL to exonerate
or lessen the carrier’s liability for loss or damage that occurred during the period of
the eexonerat tothe agreement s, article 164 allowSecondly 721liability as null and void.
carrier from its responsibility or lessen it beyond the scope covered by article 160
718 KELANI, supra note 175, at 365.
719 Court of Cassation, Civil & Trade Division, No. 51, session of Aug. 17, 2008 (Qatar).
720 See HATOOM, supra note 216, at 143. See the QML art. 164 infra Appendix 3, Table of Articles,
Period of responsibility.
721 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
239
in mind that if the carrier wishes eIt is to be born 722tackle period).-to-(beyond the tackle
to exonerate himself from liability, a clause to that effect must be inserted in the BOL.
Otherwise, in the absence of a clause in the BOL to exonerate the carrier from liability for
the pre-loading and post-discharge periods, the carrier is placed in a position where it
would shoulder liability for the loss or damage based on the general principles of contract
law, as found in the Qatari Civil Law, as there are no provisions regulating the issue
It has been said that the carrier is liable for loss of 723al Law.under the Qatari Commerci
or damage to cargo beyond its period of liability, however, it would be a normal duty of
care of a due diligence nature, which is dissimilar to stringent duty of care during its
724ponsibility.period of res
In contrast to the QML, the U.S. legislature enacted the Harter Act of 1886, which
governs pre-loading and subsequent discharge operations. The Harter Act only governs
loading and post -the goods are in the port area pre the carrier’s liability while
Thus, a carrier is not permitted to escape liability when the goods have been 725discharge.
under the custody of the carrier at port before loading and upon arrival at the arrival port.
The approach of the U.S. is therefore port-to-port (sea voyage is governed by the U.S.
COGSA and the beyond sea carriage period is governed by the Harter Act). The U.K., on
the other hand, does not have a similar legislation, and the carrier is liable for its acts as a
722 Id. art. 164.
723 MUSTAFA KAMAL TAHA, THE MARITIME LAW 288 (1998) (translated from Arabic) (asserting
that the general principles of liability under the civil law are applied beyond the period of responsibility).
724 KELANI, supra note 175, at 363; RODWAN, supra note 519, at 369.
725 TETLEY, supra note 149, at 58.
240
of a maritime that ee governed by common law principles, a liability lesser than bail
726carrier.
Conclusion and Recommendation
The carrier’s period of liability has dramatically evolved through the years since
the adoption of the Hague Rules of 1924, the first international attempt at codifying
carriage of goods by sea under BOLs. The international attempts started with tackle-to-
tackle, then port-to-port coverage, and most recently door-to-door coverage in the RR.
The QML’s approach is tackle-to-tackle, reflecting the trend of the early days of carriage
by water, which can be traced back to the era of the Hague Rules. Should the QML keep
the period of carrier liability unchanged? should it adopt the approach of U.S. or one of
the international conventions? The door-to-door approach of the RR is the best approach
for several reasons.
the direction of inFirst, the current shipping industry in Qatar is moving
728stem in QatarIt is expected that the integrated transport sy 727multimodal transport.
linking the seaport, roads, rail and airport would lead to the issuing of more combined
transport BOLs and engagement in on-carriage transactions (the involvement of
contracting and actual carriers). With the new way of conducting shipping business in
Qatar, the legislature should fill the gap and regulate contracts for carriage of goods by
different modes of transport. The advancement of multimodal carriage requires a body of
726 TETLEY, supra note 149, at 1276.
727 See generally supra part I, ch. C & D.
728See generally part I, ch. C.
241
law that regulates its aspects. The current QML coverage of the sea phase of carriage
only lacks provisions regulating the carrier’s liability for the period before loading and
post discharge, and will not serve the needs of modern shipping practice. It also harms the
interests of shippers who wish to have their cargo carried through an integral networking
door-to-door carriage, as a law regulating the whole course of carriage, including
multimodal carriage, will ensure the public order nature of the minimum rights conferred
to the shipper, and regulate the carrier’s obligations and liabilities.
Who should bear the risk for cargo loss in a case of door-to-door carriage in the
absence of a clear rules governing cargo loss liability? As far as carriage of goods is
concerned, the carrier is the person that should be liable for the whole carriage transaction
even beyond the sea leg, if it offered the carriage service from door-to-door. The carrier
should incur the loss and compensate the shipper, then the contracting carrier can recover
from the carrier in whose phase the damage, loss or delay to cargo has taken place. If the
QML is to govern the case, the shipper is able to get back the value of the goods as
declared in the BOL.
Second, the door-to-door approach preserves the rights of the holder of a BOL
issued under a charterparty. To better highlight this issue some background about bulk
cargo is necessary. The liability of carrier differs depending on the type of contract the
parties conclude. This dissertation mainly covers cargo carried under a BOL or other
transport documents used in the liner trade. Because in the liner trade the bargaining
power of the parties is unequal, since the shipper cannot negotiate the terms of the BOL,
a mandatory legal framework was sought in the QML. When it comes to the shipping of
bulk cargo, however, the liability of the carrier is significantly different. In Qatar, the
242
main bulk cargoes transported to other countries are oil and gas. These kinds of cargo are
transported in tramp trade through charterparties or special agreements having complex
and sophisticated terms729 as to the obligation of the carrier, especially those related to
cargo handling and carriage conditions.730 Charterparties are regulated under the QML in
articles 114 to 142.731 Following the charterparties provisions under the QML, the
liability of the carrier under a BOL is stipulated in articles 157 to 167, however, article
160 clearly excludes the application of the carrier liability provisions on charterparties.732
This is so because in charterparties both the carrier and the shipper can negotiate the
allocation of risk and the obligations due to their equal bargaining power. In addition,
article 162 of the QML gives the parties the right to contract out of the liability regime
for carriage of non-ordinary goods in the commercial course of carriage.733 This is so
because of the nature of this type of cargo, conditions, shipping conditions or other
exceptional circumstances under which the goods are carried, which allows entering into
a special and exceptional agreement. For instance, in Qatar tanker vessels and oil carriers
are owned by oil companies such as Qatar Petroleum.734 This company is the oil
729 Telephone interview with an oil and gas professor, Qatar University (Aug. 7, 2016) (“[t]he nature of the
goods carried requires the conclusion of contracts other than a BOL or similar transport documents”.).
730 Information collected from an e-mail from Milaha (Aug. 8, 2016).
731 ALBAROODI, supra note 272, at 137 (comparison between the carriage under BOL and charterparties).
732 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
733 Id. art. 162.
734 Qatar Petroleum, http://www.qp.com.qa/en/AboutQP/Pages/AboutUs.aspx (last visited Aug. 9, 2016).
243
producer, seller, vessel owner and carrier at the same time. Thus, oil is carried by oil
carriers to the rest of the world in tramp shipping through a charterparty agreement. The
same thing applies to carriage of gas. RasGas is a Qatari company which produces, sells
and ships gas to other countries through the world’s largest LNG fleet from the carrier
terminals. Gas is transported through Ras Laffan Port operated by RasGas Company,
which also undertakes the handling operations. Since the liability of the carrier of bulk
cargo is subject to the contractual agreement, the parties are free to decide on the period
of responsibility. The carrier may or may not extend the period of responsibility beyond
the tackle-to-tackle period. Other types of goods Qatar exports are chemicals,
petrochemicals and hydrocarbon products. Because these types of cargo are dangerous
and may cause explosions in some circumstances,735 they are subject to charterparties or
special agreement as per article 162 of the QML.
Returning to the main point, a BOL may be issued under such charterparties for
bulk carriage in Qatar. Take, for instance, a case where a buyer of petrochemicals
products has chartered a vessel from Milaha then issued a BOL for a seller in
Switzerland. In such a case, the provisions regulating the BOL and the liability of the
carrier will govern the relationship between the charterer and the BOL holder. In bulk
carriage, the cargo is loaded from factories, on-shore oil fields, and off-shore oil fields.
This means that if the charterer is contracted to transport the bulk cargo tackle-to-tackle,
it can relinquish its liability in case damage or loss to cargo has been proven to have
735 WALEED ATTIYA, THE CARRIER’S LIABILITY FOR DANGEROUS CARGO 39-40 (2015) (crude
oil and chemical products are listed under the types of dangerous cargo).
244
occurred prior to the sea segment. The third party BOL holder interests would be
adversely affected if the carrier can easily escape liability just because the law grants him
the right to contract out of the liability scheme. The shipper would not be able to sue the
carrier and should seek to sue in tort the person who caused the loss or damage. This is a
heavy burden and the shipper is highly likely to lose the case because the evidence
usually lies with the charterer. In addition, if the cargo loss or damage actually occurred
in Qatar before the commencement of the sea carriage, it is even more difficult to prove
who is liable for the cargo loss or damage. Is it the terminal operator, the land carrier or
someone else? Therefore, to protect the right of the BOL holder, the QML must
guarantee the BOL holder the right to suit against the contracting carrier for the whole
period of carriage contracted for.
Third, the current limited regulation of the QML for the period of responsibility
requires the carrier to exercise a duty of care to cargo during the sea leg of the carriage.
However, this duty is different and becomes less after the lapse of the seaborne carriage
(e.g. upon arrival of the goods at the arrival port). This is because the law governing the
carriage before loading and after the discharge operations (e.g. the general principles of
liability under the Qatari civil law) differs from the law applicable to merely the sea leg
carriage, which is obviously the QML’s standard of care. As such, the carrier is subject to
a distinct duty of care and liability regime. Thus, the door-to-door coverage is
recommended to have one set of rules for the duty of care and one liability regime for
breaching such duty.
Fourth, the carrier is given the option under the QML to exonerate itself from
liability for beyond the tackle-to-tackle period even when the goods are still under its
245
custody during that period. This approach threatens the shipper’s interest. For instance,
assume that a carrier in Qatar contracted with a shipper in Japan to carry goods from
door-to-door, but the goods were received in bad order. If the carrier inserted a clause to
negate or lessen its liability, what rights does the shipper have under the QML to sue the
carrier? Can the carrier simply invoke the inserted clause which purports to exonerate
himself from liability? The answer would probably be yes, as it cannot be inferred from
the QML that the shipper or third party BOL holder are protected from clauses aimed at
excluding the carrier from liability beyond the sea period.
Fifth, the shipper’s interests are at risk when the QML grants the carrier the right
736.article 161 tackle period under-to-ond the tacklenerate itself from liability exoto
The carrier cannot exonerate itself from liability or lessen such liability during the sea leg
tackle period, the liability of-to-However, beyond the tackle 737carriage as per article 160.
the carrier is subject to a standard of care lesser than the one in the QML.
For the aforementioned drawbacks of the current QML period of responsibility,
adopting an approach identical to the RR would solve the problems discussed and serve
the need of the current industry, and protect shippers from clauses that exonerate and
limit the carrier’s liability.
The door-to-door approach will ensure that the law governing the entire carriage is
one single body of law. This can be contrasted to the tackle-to-tackle approach, which
736 See the QML art. 161 infra Appendix 3, Table of Articles, Freedom of contract.
737 See the QML art. 160 infra Appendix 3, Table of Articles, Freedom of contract.
246
divides the carriage transaction into three phases (i.e. before loading, carriage at sea and
after discharge), thereby imposing two or three different laws on the same carriage of
goods transaction. The U.S. Supreme Court commented on the issue of diving the
carriage transaction as follows:
[c]onfusion and inefficiency will inevitably result if more than one body of law
governs a given contract’s meaning. Thus, the Rotterdam Rules provides that its
legal regime will govern the relationship between the shipper and the carrier (the
two contracting parties) throughout the entire performance of a multimodal
contract that includes appropriate carriage by sea.738
The suggested approach of extending the period of liability to the entire course of
carriage is further supported by the view of Dr. Hashim Al J-azairy, commentating on the
period of maritime carriage under the QML.739 The author criticizes the tackle-to-tackle
approach of the QML and expresses the main problems associated with the issue of when
loading starts and unloading ceases. More importantly, the limited period of
responsibility has resulted in greater uncertainties, especially in container carriage where
carriers usually takes over the goods from the shipper’s premises, as it is unknown when
the goods are at the carrier’s risk. Therefore, the courts tend to extend the application of
the QML to periods before loading and post discharge to settle disputed rights. The
author further explains that the limited period of responsibility contradicts the principle of
unity of the contract of carriage, which starts from taking over the goods to the time of
738 Sturley, supra note 346, at 81.
739 Al-Jazairy, supra note 8.
247
delivery.740 If the tendency is towards extending such a period, then a change in the law
to that effect is highly recommended.741
740 MUSTAFA KAMAL TAHA, THE PRINCIPLES OF MARITIME LAW 287 (1974) (translated from
Arabic).
741 See Period of responsibility infra Appendix 3, Table of Articles.
248
CONCLUSION
The QML was enacted in 1980. Since then, no amendment to the law has been
made in spite of the development of the international carriage of goods by sea. The
adoption of the RR by the international community is a sign that something has to change
in the international contract of carriage of goods by sea. Obviously, the RR reflect the
current shipping industry and regulate new issues arising in it due to the advancement of
technology and the breakthrough of multimodalism and containerization shipping.
Thus, the main purpose for conducting this comparative study is to examine how
the QML compares to, and might be made harmonious with international conventions on
the carriage of goods by sea? Now, this principal research question must be answered.
The examination of the QML in comparison to corresponding articles existing in the
international conventions reveals that the QML has a hybrid system. The QML is
identical to neither international convention. There are some common articles between
the QML and the international conventions, however, a lot more discrepancies have been
underlined.
After investigating the current development of the state of Qatar, and examining
the QML text in comparison to the international conventions, the next question raised is
as follows: should the current QML be kept unchanged or is reform necessary? The
result of the study shows that the Qatari legislature ought to revisit the existing law to
bring the QML in harmony with international conventions. Recommendations to modify,
249
eliminate and add some articles are provided at the end of every single section of this
dissertation.
Why must the law be reformed? The main reasons for taking such action are
attributed to three significant facts. First, a number of the QML provisions on carriage of
goods are outdated and fail to keep pace of the maritime industry, especially those
brought about by the RR. The QML does not take into consideration advancement of
technology in the shipping industry. Second, there are uncertainties in the law, as some
issues are left unanswered. The loopholes defiantly have an adverse effect on the interests
of the parties to the contract of carriage and hamper the shipping industry. Third, The
QML is not in line with the developments in the shipping industry in Qatar. For these
reasons, specific major recommendations are emphasized to address the loopholes of the
law. The trends that Qatar is advised to take and the significance of such trends are also
highlighted.
The QML’s limited documentary scope is no longer the norm in the shipping
industry. The current shipping industry is relying on documents other than BOLs that
need to be governed by law. A broad provision of the types of transport documents
evidencing the contract of carriage is strongly suggested to cover the current and future
transport document. Certain other documents have emerged in the shipping industry due
to the increasing use of technology, such as e-BOLs and e-sea waybills. The features of
such documents allow parties to exchange documents faster, thus facilitating the
250
conclusion of the carriage contract. Since Qatar is encouraging business owners to
include the digital means of doing business in their companies, such kinds of contracts
should be addressed and given a value and evidentiary effect equal to that a traditional
BOL enjoys.
Referring to carrier’s obligation, the most significant change recommended for the
obligation to exercise due diligence to furnish a seaworthy vessel is to extend that
obligation throughout the course of carriage, as in the RR. This is because the carrier
would exercise greater caution in case any event that may affect the seaworthiness of the
vessel occurs during sailing. This in turn will highly likely protect the goods from loss,
damage and delay. This approach is compatible with the other obligations mandated by
the International Maritime Organization.
The legislature was silent about the obligation of loading, discharging, handling,
and stowing. It is not clear on whose party this obligation is imposed. A clear and express
non-delegable obligation must be included and imposed on the carrier to protect the right
of shippers, as some carriers will tend to include an FIO clause in the BOL to escape
from liability.
Among the significant changes the legislature is highly advised to seek is the
elimination of the error in navigation exception. Why is the carrier relieved from liability
when the persons acting on its behalf made mistakes related to their job? It is unfair for
the shipper to bear the risk of loss or damage for the wrongdoing of the carrier’s servants
251
or agents. The justification of the error in navigation exception is no longer valid
nowadays with the advancement of technology and navigational development.
Furthermore, the QML is not in line with the modern shipping industry which
relies heavily on carriage using containers. The carrier can contract out of the liability
scheme for carriage of containers on deck. It is suggested that the QML extend the
liability regime on such carriage, as ships nowadays are designed in a way that means
they can safely carry containers on deck.
The period of responsibility of the carrier is of crucial importance. The current
QML tackle-to-tackle period has been expanded internationally to be door-to-door in the
RR. Since Qatar is working towards having an integrated transport system linking all
modes of transport, the coverage of the QML should be extended beyond the sea voyage
in case the parties agreed on a door-to-door shipping service. It is for the good of the
shipper to have the goods governed by the same law whenever the carrier takes over the
goods and until actual delivery to the holder of the BOL. If the carrier is to have the
option to exclude liability or lessen it, the right of the shipper is dramatically affected
should any cargo loss or damage occur beyond the sea segment of the voyage.
To sum up, it is undoubted that the carriage of goods by sea is the most efficient
mode for transporting goods globally. A large percentage of Qatar’s income depends on
the flow of huge quantities of imports and exports. Hence, to ensure a smooth flow of
goods through sea carriage, amending the QML should be the next step in the legislative
reforms agenda. The future of Qatar is very promising. Reforming the law to address the
252
loopholes, regulating new issues emerging in the maritime industry and striking a balance
between the interest of the carrier and shipper should be the features of a new QML law.
The suggested changes would serve Qatar’s expanded trade and fast growing
economy. It would most likely add legal certainty and reduce litigation. This dissertation
has not covered all commercial aspects of the QML, however. There are a wide range of
topics worth writing about in future, such as tramp trade in Qatar and the carriage of bulk
cargo, charterparties, the carrier identity clause, the Himalaya clause, carriage of
dangerous cargo, volume contracts, the legal framework for carriage by containers, and in
rem v. in personam liability. This dissertation will ultimately serve as a starting point for
scholars interested in conducting research about the QML.
253
APPENDICES
Year Imports Exports Total
2010 3,902,672 222,405 4,125,077
2011 3,723,466 239,368 3,962,834
2012 4,715,380 341,881 5,057,261
2013 7,221,255 421,804 7,643,059
2014 8,389,623 457,029 8,846,652
Nov-15 8,832,424 438,663 9,271,087
Appendix 2: Statistics on the Number of Containers Received by Doha Port between
2010 and November 2015
Year Imported Exported Total
2010 202,115 144,302 346,417
2011 198,217 122,941 321,158
2012 239,099 138,259 377,358
2013 259,359 142,360 401,719
2014 300,592 161,271 461,863
Nov-15 311,390 174,631 486,021
Appendix 1: Statistics on the Amount of Tonnage Delivered to Doha Port between
2010 and November 2015
254
Appendix 3: Table of Articles
Topic The QML No.
15 of 1980
The Hague-
Visby Rules
The Hamburg
Rules
The Rotterdam
Rules
The Proposed
Articles for the
QML
General
definitions
article
None. Article 1
In this Convention the
following words are
employed with the meanings set out below:
(a) "Carrier" includes the owner or the charterer who
enters into a contract of
carriage with a shipper.
(b) "Contract of carriage"
applies only to contracts of carriage covered by a bill
of lading or any similar
document of title, in so far as such document relates to
the carriage of goods by
sea, including any bill of
lading or any similar
document as aforesaid
issued under or pursuant to a charter party from the
moment at which such bill
of lading or similar document of title regulates
the relations between a
carrier and a holder of the same.
(c) "Goods" includes goods, wares, merchandise
and articles of every kind
whatsoever except live animals and cargo which
by the contract of carriage
in stated as being carried on deck and is so carried.
(d) "Ship" means any vessel used for the carriage
of goods by sea.
(e) "Carriage of goods"
covers the period from the
time when the goods are loaded on to the time they
Article 1
Definitions
In this Convention: 1. “Carrier” means any
person by whom or in
whose name a contract of carriage of goods by sea
has been concluded with a
shipper. 2. “Actual carrier” means
any person to whom the
performance of the carriage of the goods, or of
part of the carriage, has
been entrusted by the carrier, and includes any
other person to whom such
performance has been entrusted.
3.”Shipper” means any
person by whom or in whose name or on whose
behalf a contract of
carriage of goods by sea has been concluded with a
carrier, or any person by
whom or in whose name or on whose behalf the goods
are actually delivered to
the carrier in relation to the contract of carriage by sea.
4. “Consignee” means the
person entitled to take delivery of the goods.
5. "Goods” includes live
animals; where the goods are consolidated in a
container, pallet or similar
article of transport or where they are packed, “
goods” includes such
article of transport or packaging if supplied by
the shipper.
6.“Contract of carriage by sea” means any contract
whereby the carrier undertakes against
payment of freight to carry
goods by sea from one port
Article 1
Definitions
For the purposes of this Convention:
1. “Contract of carriage”
means a contract in which a carrier, against the
payment of freight,
undertakes to carry goods from one place to another.
The contract shall provide
for carriage by sea and may provide for carriage
by other modes of
transport in addition to the sea carriage.
2. “Volume contract”
means a contract of carriage that provides for
the carriage of a specified
quantity of goods in a series of shipments during
an agreed period of time.
The specification of the quantity may include a
minimum, a maximum or a
certain range. 3. “Liner transportation”
means a transportation
service that is offered to the public through
publication or similar
means and includes transportation by ships
operating on a regular
schedule between specified ports in accordance with
publicly available
timetables of sailing dates.
4. “Non-liner
transportation” means any
transportation that is not liner transportation.
5. “Carrier” means a
person that enters into a contract of carriage with a
shipper. 6. (a) “Performing party”
means a person other than
the carrier that performs
Definitions
1. “Shipper” is the
person with whom the
carrier entered into the contract of carriage and
agrees to pay the freight
rate to the carrier.
2. “Carrier, whether a
charterer or a ship-owner or any person
acting on its behalf, is
the person who enters into the contract of
carriage with the
shipper to carry goods from one place to
another against
payment.
3. “Actual carrier”
means any person to whom the performance
of the carriage of the
goods, or part of the carriage, has been
entrusted by the
contracting carrier, and includes any other
person to whom such
performance has been entrusted.
4. “Consignee" means the person entitled to
take delivery of the
goods.
5. “Holder” means:
(a) A person that is in
possession of a
negotiable transport
document; and (i) if the document is an order
document, is identified
in it as the shipper or the consignee, or is the
person to which the document is duly
endorsed; or (ii) if the
document is a blank endorsed order
255
are discharged from the
ship.
to another; however, a
contract which involves carriage by sea and also
carriage by some other
means is deemed to be a contract of carriage by sea
for the purposes of this
Convention only in so far as it relates to the carriage
by sea.
7. “ Bill of lading” means a document which evidences
a contract of carriage by
sea and the taking over or loading of the goods by the
carrier, and by which the
carrier undertakes to deliver the goods against
surrender of the document.
A provision in the document that the goods
are to be delivered to the
order of a named person, or to order, or to bearer,
constitutes such an
undertaking. 8. “Writing” includes, inter
alia, telegram and telex.
or undertakes to perform
any of the carrier’s obligations under a
contract of carriage
with respect to the receipt, loading, handling,
stowage, carriage, keeping,
care, unloading or delivery of the goods, to the extent
that such person acts,
either directly or indirectly, at the carrier’s request or
under the carrier’s
supervision or control. (b) “Performing party”
does not include any
person that is retained, directly or indirectly, by a
shipper, by a documentary
shipper, by the controlling party or by the consignee
instead of by the carrier.
7. “Maritime performing party” means a performing
party to the extent that
it performs or undertakes to perform any of the
carrier’s obligations during the period between the
arrival of the goods at the
port of loading of a ship
and their departure from
the port of discharge of a
ship. An inland carrier is a maritime performing party
only if it performs or
undertakes to perform its services exclusively within
a port area.
8. “Shipper” means a person that enters into a
contract of carriage with a
carrier. 9. “Documentary shipper”
means a person, other than
the shipper, that accepts to be named as “shipper” in
the transport document or
electronic transport record. 10. “Holder” means:
(a) A person that is in
possession of a negotiable transport document;
and (i) if the document is
an order document, is identified in it as the
shipper or the consignee,
or is the person to which the document is duly
endorsed; or (ii) if the
document is a blank endorsed order document
document or bearer
document, is the bearer thereof.
6. “Contract of carriage” means a
contract in which a
carrier, against the payment of freight,
undertakes to carry
goods from one place to another. The contract
shall provide for
carriage by sea and may provide for carriage by
other modes of
transport in addition to the sea carriage.
7. “Transport document” means a
document issued under
a contract of carriage by the carrier that:
(a) Evidences the
carrier’s or an actual carrier’s receipt of
goods under a contract of carriage; and
(b) Evidences or
contains a contract of
carriage.
8. “Negotiable transport document” means a
transport document that
indicates, by wording such as “to order” or
“negotiable” or other
appropriate wording recognized as having
the same effect by the
law applicable to the document, that the
goods have been
consigned to the order of the shipper, to the
order of the consignee,
or to bearer, and is not explicitly stated as
being “nonnegotiable”
or “not negotiable”.
9. “Electronic
communication” means information generated,
sent, received
or stored by electronic, optical, digital or
similar means with the
result that the information
256
or bearer document, is the
bearer thereof; or (b) The person to which a
negotiable electronic
transport record has been issued or transferred
in accordance with the
procedures referred to in article 9, paragraph 1.
11. “Consignee” means a
person entitled to delivery of the goods under a
contract of carriage or a
transport document or electronic transport record.
12. “Right of control” of
the goods means the right under the contract of
carriage to give the carrier
instructions in respect of the goods in accordance
with chapter 10.
13. “Controlling party” means the person that
pursuant to article 51 is
entitled to exercise the right of control.
14. “Transport document” means a document issued
under a contract of
carriage by the carrier that:
(a) Evidences the carrier’s
or a performing party’s
receipt of goods under a contract of carriage; and
(b) Evidences or contains a
contract of carriage. 15. “Negotiable transport
document” means a
transport document that indicates, by wording such
as “to order” or
“negotiable” or other appropriate wording
recognized as having the
same effect by the law applicable to the
document, that the goods
have been consigned to the order of the shipper, to the
order of the consignee, or
to bearer, and is not explicitly stated as being
“nonnegotiable”
or “not negotiable”. 16. “Non-negotiable
transport document” means
a transport document that is not a negotiable
transport document.
17. “Electronic communication” means
communicated is
accessible so as to be usable for subsequent
reference.
10. “Electronic
transport record” means
information in one or more messages
issued by electronic
communication under a contract of carriage by
a carrier, including
information logically associated with the
electronic transport
record by attachments or otherwise linked to
the electronic transport
record contemporaneously
with or subsequent to
its issue by the carrier, so as to become part of
the electronic transport
record, that: (a) Evidences the
carrier’s or a actual carrier’s receipt of
goods under a contract
of carriage; and
(b) Evidences or
contains a contract of
carriage.
11. The “issuance” of a
negotiable electronic transport record means
the issuance of the
record in accordance with procedures that
ensure that the record is
subject to exclusive control from its creation
until it ceases to have
any effect or validity.
12. “Negotiable
electronic transport record” means an
electronic transport
record: (a) That indicates, by
wording such as “to
order”, or “negotiable”, or other appropriate
wording recognized as
having the same effect by the law applicable to
the record, that the
goods have been consigned to the order
257
information generated,
sent, received or stored by electronic, optical, digital
or similar means with the
result that the information communicated is
accessible so as to be
usable for subsequent reference.
18. “Electronic transport
record” means information in one or more messages
issued by electronic
communication under a contract of carriage by a
carrier, including
information logically associated with the
electronic transport record
by attachments or otherwise linked to the
electronic transport record
contemporaneously with or subsequent to its
issue by the carrier, so as
to become part of the electronic transport record,
that: (a) Evidences the carrier’s or a performing
party’s receipt of goods
under a contract of
carriage; and (b) Evidences
or contains a contract of
carriage. 19. “Negotiable electronic
transport record” means an
electronic transport record: (a) That indicates,
by wording such as “to
order”, or “negotiable”, or other appropriate wording
recognized as having the
same effect by the law applicable to the record,
that the goods have been
consigned to the order of the shipper or to the order
of the consignee, and is not
explicitly stated as being “non-negotiable” or “not
negotiable”; and (b) The
use of which meets the requirements of article 9,
paragraph 1.
20. “Non-negotiable electronic transport record”
means an electronic
transport record that is not a negotiable electronic
transport record.
21. The “issuance” of a negotiable electronic
of the shipper or to the
order of the consignee, and is not explicitly
stated as being
“non-negotiable” or “not negotiable.
13. “Contract particulars” means any
information relating to
the contract of carriage or to the goods
(including terms,
notations, signatures and endorsements)
that is in a transport
document or an electronic transport
record.
14. “Goods” means the
wares, merchandise,
and articles of every kind whatsoever
that a carrier undertakes
to carry under a contract of carriage and
includes the packing and any equipment and
container not supplied
by or on behalf of the
carrier.
15. “Container” means any type of container,
transportable tank or
flat, swapbody, or any similar unit load used to
consolidate goods, and
any equipment ancillary to such unit load.
16. “Vehicle” means a road or railroad cargo
vehicle.
258
transport record means the
issuance of the record in accordance with
procedures that ensure that
the record is subject to exclusive control from its
creation until it ceases to
have any effect or validity. 22. The “transfer” of a
negotiable electronic
transport record means the transfer of exclusive
control over the record.
23. “Contract particulars” means any information
relating to the contract of
carriage or to the goods (including terms, notations,
signatures and
endorsements) that is in a transport
document or an electronic
transport record. 24. “Goods” means the
wares, merchandise, and
articles of every kind whatsoever that a carrier
undertakes to carry under a contract of carriage and
includes the packing and
any equipment and
container not supplied by
or on behalf of the carrier.
25. “Ship” means any vessel used to carry goods
by sea.
26. “Container” means any type of container,
transportable tank or flat,
swapbody, or any similar unit load used to
consolidate goods, and any
equipment ancillary to such unit load.
27. “Vehicle” means a road
or railroad cargo vehicle. 28. “Freight” means the
remuneration payable to
the carrier for the carriage of goods under a contract
of carriage.
29. “Domicile” means (a) a place where a company or
other legal person or
association of natural or legal persons has its (i)
statutory seat or place of
incorporation or central registered office,
whichever is applicable,
(ii) central administration or (iii) principal place of
259
business, and (b) the
habitual residence of a natural person.
30. “Competent court”
means a court in a Contracting State that,
according to the rules on
the internal allocation of jurisdiction among the
courts of that State, may
exercise jurisdiction over the dispute.
Documentary
scope
The QML only applies
to BOL.
Article 144
The contract of
maritime transport shall
be proved by a document to be known
as Bill of Lading (B/L).
The Bill of Lading dated and signed by the carrier
or the carrier
representative must indicate:
1.the carrier's name and
domicile; 2.the shipper's name and
domicile;
3.the name or domicile of the consignee;
4.the nature, quantity
and quality of the goods to be carried as well as
of the number, quantity
and weight of packages or pieces;
5.place and date of
loading of the goods, destination place of the
goods, and when the bill
of lading is nominative, and their stamps, the
description of the goods
as the case may be according to the
statements presented by
the shipper;
6.the apparent condition of the goods and
packages;
7.the place of issuance
of the bill, and the
number of copies issued.
The remarks on the
goods shall be sufficient for their verification and
The Hague-Visby Rules
apply to BOL and other
similar documents of
title.
Article 1(b)
"Contract of carriage" applies only to contracts of
carriage covered by a bill
of lading or any similar document of title, in so far
as such document relates to
the carriage of goods by sea, including any bill of
lading or any similar
document as aforesaid issued under or pursuant to
a charter party from the
moment at which such bill of lading or similar
document of title regulates
the relations between a carrier and a holder of the
same.
The Hamburg Rules
apply to BOL and other
transport documents.
Article 14
Issue of bill of lading
1. When the carrier or the
actual carrier takes the
goods in his charge, the carrier must, on demand of
the shipper, issue to the
shipper a bill of lading.
2. The bill of lading may
be signed by a person
having authority from the
carrier. A bill of lading
signed by the master of the ship carrying the goods is
deemed to have been
signed on behalf of the carrier.
3. The signature on the bill of lading may be in
handwriting, printed in
facsimile, perforated, stamped, in symbols, or
made by any other
mechanical or electronic means, if not inconsistent
with the law of the country
where the bill of lading is
issued.
Article 18
Documents other than bills
of lading” [w]here a carrier issues a document other
than a bill of lading to
evidence the receipt of the goods to be carried, such a
document is prima facie evidence of the conclusion
The RR apply to
transport documents and
electronic transport
record
Article 35
Issuance of the transport document or the electronic
transport record
Unless the shipper and the
carrier have agreed not to
use a transport document or an electronic transport
record, or it is the custom,
usage or practice of the trade not to use one, upon
delivery of the goods for
carriage to the carrier or performing party, the
shipper or, if the shipper
consents, the documentary shipper, is entitled to
obtain from the carrier, at
the shipper’s option: (a) A non-negotiable
transport document or,
subject to article 8, subparagraph (a), a non-
negotiable electronic
transport record; or (b) An appropriate
negotiable transport
document or, subject to article 8, subparagraph (a),
a negotiable electronic
transport record, unless the
shipper and the carrier
have agreed not to use a negotiable transport
document or negotiable
electronic transport record, or it is the custom, usage
or practice of the trade not
to use one.
Issuance of the
transport document
or the electronic
transport record
Unless the shipper and
the carrier have agreed
not to use a transport document or an
electronic transport
record, or it is the custom, usage or
practice of the trade not
to use one, upon delivery of the goods
for carriage to the
carrier or the person acting on its behalf, the
shipper or, if the
shipper consents, or the person acting on its
behalf , is entitled to
obtain from the carrier, at the shipper’s option:
(a) A non-negotiable
transport document or, a non-negotiable
electronic transport
record; or (b) An appropriate
negotiable transport
document or, a negotiable electronic
transport record, unless
the shipper and the carrier have agreed not
to use a negotiable
transport document or
negotiable electronic
transport record, or it is the custom, usage or
practice of the trade not
to use one.
260
shall be legible until the
end of the journey.
of the contract of carriage
by sea and the taking over by the carrier of the goods
as therein described.
Electronic
transport
record
None.
There are general
articles regulating e-
contracts under the
Qatari Decree Law on
the Promulgation of
the Electronic
Commerce and
Transactions Law No.
16 of 2010.
None. The Hamburg Rules only
refer to e-signature in:
article 14(3)
"[t]he signature on the bill
of lading may be in handwriting, printed in
facsimile, perforated,
stamped, in symbols, or made by any other
mechanical or electronic
means, if not inconsistent with the law of the country
where the bill of lading is
issued”.
Article 35
Issuance of the transport
document or the electronic transport record
Unless the shipper and the carrier have agreed not to
use a transport document
or an electronic transport record, or it is the custom,
usage or practice of the
trade not to use one, upon delivery of the goods for
carriage to the carrier or
performing party, the shipper or, if the shipper
consents, the documentary
shipper, is entitled to obtain from the carrier, at
the shipper’s option:
(a) A non-negotiable transport document or,
subject to article 8,
subparagraph (a), a non-negotiable electronic
transport record; or
(b) An appropriate negotiable transport
document or, subject to
article 8, subparagraph (a), a negotiable electronic
transport record, unless the
shipper and the carrier have agreed not to use a
negotiable transport
document or negotiable electronic transport record,
or it is the custom, usage
or practice of the trade not to use one.
Article 8
Use and effect of
electronic transport records
Subject to the requirements set out in this Convention:
(a) Anything that is to be
in or on a transport document under this
Convention may be
recorded in an electronic transport record, provided
the issuance and
subsequent use of an electronic transport record
Use and effect of
electronic transport
records
1. Anything that is to be
in or on a transport
document may be recorded in an
electronic transport
record, provided the issuance and
subsequent use of an
electronic transport record is with the
consent of the carrier
and the shipper; and
2. The issuance,
exclusive control, or transfer of an electronic
transport record has the
same effect as the issuance, possession, or
transfer of a transport
document.
Procedures for use of
negotiable electronic
transport records
1. The use of a negotiable electronic
transport record shall be
subject to procedures that provide for:
(a) The method for the
issuance and the transfer of that record
to an intended holder;
(b) An assurance that
the negotiable
electronic transport record retains its
integrity;
(c) The manner in
which the holder is able to demonstrate that it is
the holder; and
(d) The manner of
providing confirmation
that delivery to the holder has been
effected,
261
is with the consent of the
carrier and the shipper; and (b) The issuance,
exclusive control, or
transfer of an electronic transport record has the
same effect as the issuance,
possession, or transfer of a transport document.
Article 9
Procedures for use of
negotiable electronic transport records
1. The use of a negotiable
electronic transport record shall be subject to
procedures that provide
for: (a) The method for the
issuance and the transfer of
that record to an intended holder;
(b) An assurance that the
negotiable electronic transport record retains its
integrity; (c) The manner in which
the holder is able to
demonstrate that it is the
holder; and
(d) The manner of
providing confirmation that delivery to the holder
has been effected, or that,
pursuant to articles 10, paragraph 2, or 47,
subparagraphs 1 (a) (ii)
and (c), the electronic transport record has ceased
to have any effect or
validity. 2. The procedures in
paragraph 1 of this article
shall be referred to in the contract particulars and be
readily ascertainable.
Article 10
Replacement of negotiable transport document or
negotiable electronic
transport record
1. If a negotiable transport
document has been issued and the carrier and the
holder agree to replace that
document by a negotiable electronic transport record:
2. The procedures in
paragraph 1 of this article shall be referred
to in the contract
particulars and be readily ascertainable.
Replacement of
negotiable transport
document or
negotiable electronic
transport record
1. If a negotiable transport document has
been issued and the
carrier and the holder agree to replace that
document by a
negotiable electronic transport record:
(a) The holder shall
surrender the negotiable transport document, or
all of them if more than
one has been issued, to the carrier;
(b) The carrier shall
issue to the holder a
negotiable electronic
transport record that
includes a statement
that it replaces the negotiable transport
document; and
(c) The negotiable transport document
ceases thereafter to
have any effect or validity.
2. If a negotiable electronic transport
record has been issued
and the carrier and the holder agree to replace
that electronic transport
record by a negotiable transport document:
(a) The carrier shall
issue to the holder, in place of the electronic
transport record, a
negotiable transport document that includes
a statement that it
replaces the negotiable electronic transport
record; and
262
(a) The holder shall
surrender the negotiable transport document, or all
of them if more than one
has been issued, to the carrier;
(b) The carrier shall issue
to the holder a negotiable electronic transport record
that includes a statement
that it replaces the negotiable transport
document; and
(c) The negotiable transport document ceases
thereafter to have any
effect or validity. 2. If a negotiable electronic
transport record has been
issued and the carrier and the holder agree to replace
that electronic transport
record by a negotiable transport document:
(a) The carrier shall issue
to the holder, in place of the electronic transport
record, a negotiable transport document that
includes a statement that it
replaces the negotiable
electronic transport record;
and
(b) The electronic transport record ceases thereafter to
have any effect or validity.
(b) The electronic
transport record ceases thereafter to have any
effect or validity.
Contract
particulars
Article 144
The contract of
maritime transport shall
be proved by a document to be known
as Bill of Lading (B/L).
The Bill of Lading dated and signed by the carrier
or the carrier
representative must indicate:
1.the carrier's name and
domicile;
2.the shipper's name and
domicile; 3.the name or domicile
of the consignee;
4.the nature, quantity and quality of the goods
to be carried as well as
of the number, quantity and weight of packages
or pieces;
5.place and date of loading of the goods,
Article 3(3)
After receiving the goods
into his charge the carrier
or the master or agent of the carrier shall, on
demand of the shipper,
issue to the shipper a bill of lading showing among
other things:
(a) The leading marks
necessary for identification
of the goods as the same are furnished in writing by
the shipper before the
loading of such goods starts, provided such marks
are stamped or otherwise shown clearly upon the
goods if uncovered, or on
the cases or coverings in which such goods are
contained, in such a
manner as should
Article 15
Contents of bill of lading
1. The bill of lading must include, inter alia, the
following particulars:
(a) the general nature of the goods, the leading
marks necessary for
identification of the goods, an express statement, if
applicable, as to the
dangerous character of the
goods, the number of
packages or pieces, and the weight of the goods or
their quantity otherwise
expressed, all such particulars as furnished by
the shipper;
(b) the apparent condition of the goods;
(c) the name and principal
place of business of the carrier;
Article 36
Contract particulars
1. The contract particulars in the transport document
or electronic transport
record referred to in article 35 shall include the
following information, as
furnished by the shipper: (a) A description of the
goods as appropriate for
the transport;
(b) The leading marks
necessary for identification of the goods;
(c) The number of
packages or pieces, or the quantity of goods; and
(d) The weight of the
goods, if furnished by the shipper.
2. The contract particulars
in the transport document or electronic transport
Contract particulars
1. The contract
particulars in the
transport document or electronic transport
record referred to
previously shall include the following
information, as
furnished by the shipper:
(a) A description of the
goods as appropriate for
the transport;
(b) The leading marks necessary for
identification of the
goods; (c) The number of
packages or pieces, or
the quantity of goods; and
(d) The weight of the
goods.
263
destination place of the
goods, and when the bill of lading is nominative,
and their stamps, the
description of the goods as the case may be
according to the
statements presented by the shipper;
6.the apparent condition
of the goods and packages;
7.the place of issuance
of the bill, and the number of copies issued.
The remarks on the
goods shall be sufficient for their verification and
shall be legible till the
end of the journey.
ordinarily remain legible
until the end of the voyage.
(b) Either the number of
packages or pieces, or the quantity, or weight, as the
case may be, as furnished
in writing by the shipper.
(c) The apparent order and
condition of the goods.
Provided that no carrier,
master or agent of the carrier shall be bound to
state or show in the bill of
lading any marks, number, quantity, or weight which
he has reasonable ground
for suspecting not accurately to represent the
goods actually received, or
which he has had no reasonable means of
checking.
(d) the name of the
shipper; (e) the consignee if named
by the shipper;
(f) the port of loading under the contract of
carriage by sea and the
date on which the goods were taken over by the
carrier at the port of
loading; (g) the port of discharge
under the contract of
carriage by sea; (h) the number of originals
of the bill of lading, if
more than one; (i) the place of issuance of
the bill of lading;
(j) the signature of the carrier or a person acting
on his behalf;
(k) the freight to the extent payable by the consignee
or other indication that
freight is payable by him; (l) the statement referred to
in paragraph 3 of article 23;
(m) the statement, if
applicable, that the goods
shall or may be carried on
deck; (n) the date or the period of
delivery of the goods at the
port of discharge if expressly agreed upon
between the parties; and
(o) any increased limit or limits of liability where
agreed in accordance with
paragraph 4 of article 6. 2. After the goods have
been loaded on board, if
the shipper so demands, the carrier must issue to the
shipper a "shipped" bill of
lading which, in addition to the particulars required
under paragraph 1 of this
article, must state that the goods are on board a
named ship or ships, and
the date or dates of loading. If the carrier has
previously issued to the
shipper a bill of lading or other document of title
with respect to any of such
goods, on request of the carrier the shipper must
record referred to in article
35 shall also include: (a) A statement of the
apparent order and
condition of the goods at the time the carrier or a
performing party receives
them for carriage; (b) The name and address
of the carrier;
(c) The date on which the carrier or a performing
party received the goods,
or on which the goods were loaded on board the
ship, or on which the
transport document or electronic transport record
was issued; and
(d) If the transport document is negotiable, the
number of originals of the
negotiable transport document, when more than
one original is issued.
3. The contract particulars in the transport document
or electronic transport record referred to in article
35 shall further include:
(a) The name and address
of the consignee, if named
by the shipper;
(b) The name of a ship, if specified in the contract of
carriage;
(c) The place of receipt and, if known to the
carrier, the place of
delivery; and (d) The port of loading
and the port of discharge,
if specified in the contract of carriage.
4. For the purposes of this
article, the phrase “apparent order and
condition of the goods” in
subparagraph 2 (a) of this article refers to the order
and condition of the goods
based on: (a) A reasonable external
inspection of the goods as
packaged at the time the shipper delivers them to
the carrier or a performing
party; and (b) Any additional
inspection that the carrier
or a performing party actually performs before
2. The contract
particulars in the transport document or
electronic transport
record shall also include:
(a) A statement of the
apparent order and condition of the goods
at the time the carrier or
a person acting on its behalf receives them for
carriage;
(b) The name and address of the carrier;
(c) The date on which
the carrier or person acting on its behalf
received the goods, or
on which the goods were loaded on board
the ship, or on which
the transport document or electronic transport
record was issued; and
(d) If the transport document is negotiable,
the number of originals of the negotiable
transport document,
when more than one
original is issued.
3. The contract
particulars in the transport document or
electronic transport
record shall further include:
(a) The name and
address of the consignee, if named by
the shipper;
(b) The name of a ship, if specified in the
contract of carriage;
(c) The place of receipt and, if known to the
carrier, the place of
delivery; and (d) The port of loading
and the port of
discharge, if specified in the contract of
carriage.
4. For the purposes of this article, the phrase
“apparent order and
condition of the goods” in subparagraph 2 (a) of
this article refers to the
order and condition of the goods based on:
264
surrender such document
in exchange for a "shipped" bill of lading.
The carrier may amend any
previously issued document in order to meet
the shippers demand for a
"shipped" bill of lading if, as amended, such
document includes all the
information required to be contained in a "shipped"
bill of lading.
3. The absence in the bill of lading of one or more
particulars referred to in
this article does not affect the legal character of the
document as a bill of
lading provided that it nevertheless meets the
requirements set out in
paragraph 7 of article 1.
issuing the transport
document or electronic transport record.
(a) A reasonable
external inspection of the goods as packaged
at the time the shipper
delivers them to the carrier or a person
acting on its behalf; and
(b) Any additional inspection that the
carrier or a person
acting on its behalf actually performs
before issuing the
transport document or electronic transport
record.
The absence
of some
transport
document
particulars
None.
None. Article 15(3)
The absence in the bill of lading of one or more
particulars referred to in
this article does not affect the legal character of the
document as a bill of
lading provided that it nevertheless meets the
requirements set out in
paragraph 7 of article 1. If the carrier or other
person issuing the bill of
lading on his behalf fails to note on the bill of lading
the apparent condition of
the good, he is deemed to have noted on the bill of
lading the goods were in
apparent good condition.
Article 15(4)
A bill of lading which does
not, as provided in
paragraph 1, subparagraph
(k), of article 15, set forth
the freight or otherwise indicate that freight is
payable by the consignee
or does not set forth demurrage incurred at the
port of loading payable by
the consignee, is prima facie evidence that no
freight or such demurrage
is payable by him. However, proof to the
Article 39
Deficiencies in the contract particulars
1. The absence or inaccuracy of one or more
of the contract particulars
referred to in article 36, paragraphs 1, 2 or 3, does
not of itself affect the legal
character or validity of the transport document or of
the electronic transport
record. 2. If the contract
particulars include the date
but fail to indicate its significance, the date is
deemed to be:
(a) The date on which all of the goods indicated in
the transport document or
electronic transport record were loaded on board the
ship, if the contract
particulars indicate that the
goods have been loaded on
board a ship; or (b) The date on which the
carrier or a performing
party received the goods, if the contract particulars do
not indicate that the goods
have been loaded on board a ship.
3. If the contract
particulars fail to state the apparent order and
Deficiency in contract
particulars
1. The absence in the
transport document or
electronic transport record of one or more
particulars referred to in
this law does not affect the legal character of
the document as a bill
of lading provided that it nevertheless meets
the requirements set out
in article 144.
2. If the contract
particulars include the date but fail to indicate
its significance, the date
is deemed to be: (a) The date on which
all of the goods
indicated in the transport document or
electronic transport
record were loaded on
board the ship, if the
contract particulars indicate that the goods
have been loaded on
board a ship; or
(b) The date on which
the carrier or a performing party
received the goods, if
the contract particulars do not indicate that the
265
contrary by the carrier is
not admissible when the bill of lading has been
transferred to a third party,
including a consignee, who in good faith has acted in
reliance on the absence in
the bill of lading of any such indication.
condition of the goods at
the time the carrier or a performing party receives
them, the contract
particulars are deemed to have stated that the goods
were in apparent good
order and condition at the time the carrier or a
performing party received
them.
goods have been loaded
on board a ship.
3. If the contract
particulars fail to state the apparent order and
condition of the goods
at the time the carrier or a person acting on its
behalf receives them,
the contract particulars are deemed to have
stated that the goods
were in apparent good order and condition at
the time the carrier or a
person acting on its behalf received them.
4. A transport document which does
not set forth the freight
or otherwise indicate that freight is payable
by the consignee or
does not set forth demurrage incurred at
the port of loading payable by the
consignee, is prima
facie evidence that no
freight or such
demurrage is payable
by him. However, proof to the contrary by the
carrier is not admissible
when the bill of lading has been transferred to
a third party, including
a consignee, who in good faith has acted in
reliance on the absence
in the bill of lading of any such indication.
5. The absent of any contract particular can
be proved by oath and
witnesses.
Reservation
to the
contract
particulars
Article 147
The shipper shall
submit in writing the
statements relating to the goods before
shipping. Such
statements shall be registered in the bill of
Article 3(c)
After receiving the goods
into his charge the carrier
or the master or agent of the carrier shall, on
demand of the shipper,
issue to the shipper a bill of lading showing among
Article 16
Reservations and
evidentiary effect
1. If the bill of lading
contains particulars
concerning the general nature, leading marks,
Article 40
Qualifying the information
relating to the goods in the
contract particulars
1. The carrier shall qualify
the information referred to in article 36, paragraph 1,
Reservations and
evidentiary effect
1. If the transport
document or electronic transport record
contains particulars
concerning the general nature, leading marks,
266
lading, and the carrier or
his representative shall abstain from registering
the statements relating
to the trademarks of the goods, their number,
quantity or weight if not
certain of its correctness or cannot verify the
information using
normal methods for checking. The shipper
shall be held liable
before the carrier for the indemnity of damage
caused by the
incorrectness of the information about the
goods included in the
bill of lading. The carrier shall not rely on
the incorrect
information in the bill of lading provided by the
shipper when presenting
it to any other third party other than the
shipper unless he takes the precaution
concerning of verifying
first.
other things:… (c) The
apparent order and condition of the goods.
Provided that no carrier, master or agent of the
carrier shall be bound to
state or show in the bill of lading any marks, number,
quantity, or weight which
he has reasonable ground for suspecting not
accurately to represent the
goods actually received, or which he has had no
reasonable means of
checking.
number of packages of
pieces, weight or quantity of the goods which the
carrier or other person
issuing the bill of lading on his behalf knows or has
reasonable grounds to
suspect do not accurately represent the goods
actually taken over or,
where a "shipped" bill of lading is issued, loaded, or
if he had no reasonable
means of checking such particulars, the carrier or
such other person must
insert in the bill of lading a reservation specifying
these inaccuracies, grounds
of suspicion or the absence of reasonable means of
checking.
2. If the carrier or other
person issuing the bill of
lading on his behalf fails to note on the bill of lading
the apparent condition of the goods, he is deemed to
have noted on the bill of
lading that the goods were
in apparent good condition.
to indicate that the carrier
does not assume responsibility for the
accuracy of the
information furnished by the shipper if:
(a) The carrier has actual
knowledge that any material statement in the
transport document or
electronic transport record is false or misleading; or
(b) The carrier has
reasonable grounds to believe that a material
statement in the transport
document or electronic transport record is false or
misleading.
2. Without prejudice to paragraph 1 of this article,
the carrier may qualify the
information referred to in article 36, paragraph 1, in
the circumstances and in
the manner set out in paragraphs 3 and 4 of this
article to indicate that the carrier does not assume
responsibility for the
accuracy of the
information furnished by
the shipper.
3. When the goods are not delivered for carriage to
the carrier or a performing
party in a closed container or vehicle, or when they
are delivered in a closed
container or vehicle and the carrier or a performing
party actually inspects
them, the carrier may qualify the information
referred to in article 36,
paragraph 1, if: (a) The carrier had no
physically practicable or
commercially reasonable means of checking the
information furnished by
the shipper, in which case it may indicate which
information it was unable
to check; or (b) The carrier has reasonable grounds to
believe the information
furnished by the shipper to be inaccurate, in which
case it may include a
clause providing what it
number of packages or
pieces, or quantity of the goods which the
carrier or other person
issuing the transport document or electronic
transport record on its
behalf knows or has reasonable grounds to
suspect do not
accurately represent the goods actually taken
over or, had no
reasonable means of checking such
particulars, the carrier
or such other person must insert in the
transport document or
electronic transport record a reservation
specifying these
inaccuracies, grounds of suspicion or the
absence of reasonable
means of checking.
2. When the goods are not delivered for
carriage to the carrier or
a person acting on its
behalf in a closed
container or vehicle, or
when they are delivered in a closed container or
vehicle and the carrier
or a person acting on its behalf actually inspects
them, the carrier may
qualify the information related to the
description of the
goods, the leading marks necessary for
identification of the
goods, and the number of packages or pieces,
or the quantity of
goods;
(a) The carrier had no
physically practicable or commercially
reasonable means of
checking the information furnished
by the shipper, in which
case it may indicate which information it
was unable to check; or
(b) The carrier has reasonable grounds to
267
reasonably considers
accurate information. 4. When the goods are
delivered for carriage to
the carrier or a performing party in a closed container
or vehicle, the carrier may
qualify the information referred to in:
(a) Article 36,
subparagraphs 1 (a), (b), or (c), if:
(i) The goods inside the
container or vehicle have not actually been inspected
by the carrier or a
performing party; and (ii) Neither the carrier nor
a performing party
otherwise has actual knowledge of its contents
before issuing the transport
document or the electronic transport record; and
(b) Article 36,
subparagraph 1 (d), if: (i) Neither the carrier nor
a performing party weighed the container or
vehicle, and the shipper
and the carrier had not
agreed prior to the
shipment that the container
or vehicle would be weighed and the weight
would be included in the
contract particulars; or (ii) There was no
physically practicable or
commercially reasonable means of checking the
weight of the container or
vehicle.
believe the information
furnished by the shipper to be inaccurate, in
which case it may
include a clause providing what it
reasonably considers
accurate information.
3. When the goods are
delivered for carriage to the carrier or a person
acting on its behalf, in a
closed container or vehicle, the carrier may
qualify the information
referred to in paragraph 2, if:
(i) The goods inside
the container or vehicle have not actually been
inspected by the carrier
or a person acting on its behalf;
(ii) Neither the carrier
nor a person acting on its behalf otherwise has
actual knowledge of its contents before issuing
the transport document
or the electronic
transport record.
4. No reservation to cargo weight is
allowed. The shipper
shall provide the carrier with the verified gross
mass statement
indicating the weight of cargo. If the shipper
fails to do so, or
provided an inaccurate weight in the statement,
the carrier may either
verify the weight of cargo if there is
physically practicable
or commercially reasonable means of
checking the weight at
the expense of the shipper, or otherwise
refuse to load the cargo
into the vessel.
Referral in
the transport
document to
the
None None None None
Reference to
charterparty terms in
a bill of lading issued
under a charterparty
between the chartered
and third parties
268
charterparty
terms 1. Where reference is
made in a transport document or electronic
transport record to a
charterparty terms, such reference shall
determine the specific
term referred to as well as include the name,
date, and other
information necessary
to identify the
charterparty.
2. General references to charterparty terms that
is not made in
accordance with the previous paragraph,
shall have no effect
toward third parties.
3. A copy of the
charterparty terms
referred to must also be attached to the transport
document or electronic
transport record.
Evidentiary
effect of the
transport
document
Article 151
The bill of lading shall be considered as prima
facies evidence for
proving the mentioned terms and statements
between the carrier, the
shipper and a third party. A bill of lading
shall be admissible as
proof of the relationship between the carrier and
the shipper, where
conflict arises. In the case of a third party, the
carrier shall not prove
the contrary of what is mentioned in the bill of
lading; however a third
party may have the right to prove the relationship
in accordance with the
provision of Article 147 herein.
Article 3(4)
Such a bill of lading shall be prima facie evidence of
the receipt by the carrier of
the goods as therein described in accordance
with paragraph 3(a), (b)
and (c). "However, proof to the contrary shall not be
admissible when the Bill of
Lading has been transferred to a third party
acting in good faith".
Article 16(3)
Except for particulars in respect of which and to the
extent to which a
reservation permitted under paragraph 1 of this
article has been entered:
(a) the bill of lading is prima facie evidence of the
taking over or, where a “
shipped” bill of lading is issued, loading, by the
carrier of the goods as
described in the bill of lading; and
(b) proof to the contrary by
the carrier is not admissible if the bill of
lading has been transferred
to a third party, including a consignee, who in good
faith has acted in reliance
on the description of the goods therein.
Article 41
Evidentiary effect of the contract particulars
Except to the extent that the contract particulars
have been qualified in the
circumstances and in the manner set out in article
40:
(a) A transport document or an electronic transport
record is prima facie
evidence of the carrier’s receipt of the goods as
stated in the contract
particulars; (b) Proof to the contrary
by the carrier in respect of
any contract
particulars shall not be
admissible, when such contract particulars are
included in: (i) A negotiable transport
document or a negotiable
electronic transport record that is transferred to a third
party acting in good faith;
or
Evidentiary effect of
the contract
particulars
Except to the extent
that the contract particulars have been
qualified in the
circumstances and in the manner set out in
the reservation to the
contract particulars article:
(a) A transport
document or an electronic transport
record is prima facie
evidence of the carrier’s receipt of the goods as
stated in the contract
particulars; (b) Proof to the
contrary by the carrier
in respect of any contract particulars
shall not be admissible, when such contract
particulars are included
in: (i) A negotiable
transport document or a
negotiable electronic
269
(ii) A non-negotiable
transport document that indicates that it must be
surrendered in order to
obtain delivery of the goods and is transferred to
the consignee acting in
good faith; (c) Proof to the contrary
by the carrier shall not be
admissible against a consignee that in good
faith has acted in reliance
on any of the following contract particulars
included in a non-
negotiable transport document or a non
negotiable electronic
transport record: (i) The contract
particulars referred to in
article 36, paragraph 1, when such contract
particulars are furnished by
the carrier; (ii) The number, type and
identifying numbers of the containers, but not the
identifying numbers of the
container seals; and
(iii) The contract
particulars referred to in
article 36, paragraph 2.
transport record that is
transferred to a third party acting in good
faith; or
(ii) A non-negotiable transport document that
indicates that it must be
surrendered in order to obtain delivery of the
goods and is transferred
to the consignee acting in good faith;
(c) Proof to the contrary
by the carrier shall not be admissible against a
consignee that in good
faith has acted in reliance on any of :
- the number, type and
identifying numbers of the containers, but not
the identifying numbers
of the container seals; - the description of the
goods;
- the leading marks necessary for
identification of the goods;
- the number of
packages or pieces, or
the quantity of goods;
- statement of the
apparent order and condition of the goods
at the time the carrier or
a person acting on its behalf receives them for
carriage;
- the name and address of the carrier;
- the date on which the
carrier or a person acting on its behalf
received the goods, or
on which the goods were loaded on board
the ship, or on which
the transport document or electronic transport
record was issued; and
- if the transport document is negotiable,
the number of originals
of the negotiable transport document,
when more than one
original is issued.
270
The
obligation to
provide a
seaworthy
vessel
Article 125
Before the
commencement of the
journey, the lessor shall be obliged to take the
necessary effort to make
the vessel valid for navigation and shall
equip it with the
necessary materials, supplies and sailors and
to prepare parts of the
vessel designated for preservation and
transportation of the
goods. The lessor shall be responsible of any
damage that may result
due to the Vessel being invalid for navigation
except where it is
proved that the damage was not due to the
failure by the lessor to
perform their obligations mentioned in
the previous paragraph or as a result from a
latent defect that could
not be discovered by
normal inspection.
Article 3(1)
The carrier shall be bound
before and at the beginning
of the voyage to exercise due diligence to:
(a) Make the ship seaworthy.
(b) Properly man, equip
and supply the ship.
(c) Make the holds, refrigerating and cool
chambers, and all other
parts of the ship in which goods are carried, fit and
safe for their reception,
carriage and preservation.
Nothing mentioned in
particular, thus the
general obligation of the
carrier is derived from
the carrier unitary fault
rule in:
article (5)(1)
The carrier is liable for loss
resulting from loss of or damage to the goods, as
well as from delay in
delivery, if the occurrence which caused the loss,
damage or delay took place
while the goods were in his charge as defined in article
4, unless the carrier proves
that he, his servants or agents took all measures
that could reasonably be
required to avoid the occurrence and its
consequences.
Article 14
Specific obligations
applicable to the voyage by
sea
The carrier is bound
before, at the beginning of, and during the voyage by
sea to exercise due
diligence to: (a) Make and keep the
ship seaworthy; (b)
Properly crew, equip and supply the ship and keep
the ship so crewed,
equipped and supplied throughout the voyage; and
(c) Make and keep the
holds and all other parts of the ship in which the goods
are carried, and any
containers supplied by the carrier in or upon which
the goods are carried, fit
and safe for their reception, carriage and preservation.
The obligation to
provide a seaworthy
vessel
The carrier is bound before, at the beginning
of, and during the
voyage by sea to exercise due diligence
to:
(a) Make and keep the ship seaworthy;
(b) Properly crew,
equip and supply the ship and keep the ship
so crewed, equipped
and supplied throughout the voyage;
and (c) Make and keep
the holds and all other parts of the ship in
which the goods are
carried, and any containers supplied by
the carrier in or upon
which the goods are carried, fit and safe for
their reception, carriage and preservation.
Carrier
liability for
lack of
seaworthiness
Article 157
The carrier shall not be liable for the loss or
damage of the goods
caused by the non-validity of the vessel for
navigation unless such
non-validity is due to the carrier failure to put
the vessel in a condition
valid for travel or his failure to supply it with
the necessary materials,
supplies and crew, preparing suitable holds,
cooling rooms and all
the other sections
allocated for shipping
the goods in a way that such places are valid for
placing the goods,
transporting and preserving them.
Article 4(1)
Neither the carrier nor the ship shall be liable for loss
or damage arising or
resulting from unseaworthiness unless
caused by want of due
diligence on the part of the carrier to make the ship
seaworthy and to secure
that the ship is properly manned, equipped and
supplied, and to make the
holds, refrigerating and cool chambers and all
other parts of the ship in
which goods are carried fit and safe for their reception,
carriage and preservation
in accordance with the provisions of paragraph 1
of Article 3.
Whenever loss or damage
has resulted from unseaworthiness the
burden of proving the
exercise of due diligence
Nothing mentioned in
particular, thus the
general obligation of the
carrier is derived from
the carrier unitary fault
rule in:
Article (5)(1)
The carrier is liable for loss
resulting from loss of or
damage to the goods, as well as from delay in
delivery, if the occurrence
which caused the loss, damage or delay took place
while the goods were in his
charge as defined in article
4, unless the carrier proves
that he, his servants or agents took all measures
that could reasonably be
required to avoid the occurrence and its
consequences.
Article 17(5)
The carrier is also liable, notwithstanding paragraph
3 of this article, for all or
part of the loss, damage, or delay if:
(a) The claimant proves
that the loss, damage, or delay was or was probably
caused by or contributed to
by (i) the unseaworthiness of the ship; (ii) the
improper crewing,
equipping, and supplying of the ship; or (iii) the fact
that the holds or other parts
of the ship in which the
goods are carried, or any
containers supplied by the carrier in or upon which
the goods are carried, were
not fit and safe for reception, carriage, and
preservation of the goods;
and (b) The carrier is unable to
prove either that: (i) none
of the events or circumstances referred to
Liability for lack of
due diligence to make
the vessel seaworthy
1. The carrier is liable,
for all or part of the loss, damage, or delay
if:
(a) The claimant proves that the loss,
damage, or delay was
or was probably caused by or contributed to by
(i) the unseaworthiness
of the ship; (ii) the improper crewing,
equipping, and
supplying of the ship;
or (iii) the fact that the
holds or other parts of the ship in which the
goods are carried, or
any containers supplied by the carrier in or upon
which the goods are
carried, were not fit and safe for reception,
carriage, and
preservation of the goods; and
271
shall be on the carrier or
other person claiming exemption under this
Article etc.
in subparagraph 5 (a) of
this article caused the loss, damage, or delay; or (ii) it
complied with its
obligation to exercise due diligence pursuant to this
law.
(b) The carrier is unable to prove either that:
(i) the loss, damage, or
delay was or was probably caused by or
contributed to by the
unseaworthiness of the ship; the improper
crewing, equipping, and
supplying of the ship; or the fact that the holds
or other parts of the
ship in which the goods are carried, or any
containers supplied by
the carrier in or upon which the goods are
carried, were not fit and
safe for reception, carriage, and
preservation of the
goods; (ii) it complied with its obligation to
exercise due diligence
pursuant to this law.
The
obligations to
load, stow,
handle,
discharge,
keep, and
care for, the
cargo
None. Only the effect
of breaching this
obligation is mentioned
in:
Article 158
The carrier or the
Vessel shall not be held liable for the loss
damage, or delay
resulting from: 1.action, negligence or
default taking place
during navigation or in the management of the
vessel;
2.the captain, crew or pilots or the persons
affiliated to the carrier;
3.fire except where it is caused by the act or
mistake of the carrier
etc.
Article 3(2)
Subject to the provisions of Article 4, the carrier shall
properly and carefully
load, handle, stow, carry, keep, care for, and
discharge the goods
carried.
Nothing mentioned in
particular, thus the
general obligation of the
carrier is derived from
the carrier unitary fault
rule in:
Article (5)(1)
The carrier is liable for loss
resulting from loss of or
damage to the goods, as well as from delay in
delivery, if the occurrence
which caused the loss, damage or delay took place
while the goods were in his
charge as defined in article 4, unless the carrier proves
that he, his servants or
agents took all measures that could reasonably be
required to avoid the
occurrence and its
consequences.
Article 13
Specific obligations
1. The carrier shall during
the period of its responsibility as defined in
article 12, and subject to
article 26, properly and carefully receive, load,
handle, stow, carry, keep,
care for, unload and deliver the goods.
2. Notwithstanding
paragraph 1 of this article, and without prejudice to
the other provisions in
chapter 4 and to chapters 5 to 7, the carrier and the
shipper may agree that the
loading, handling, stowing or unloading of the goods
is to be performed by the
shipper, the documentary
shipper or the consignee.
Such an agreement shall be referred to in the contract
particulars.
The obligations to
load, stow, handle,
discharge, keep, and
care for, the cargo
The carrier shall during
the period of its
responsibility, properly and carefully receive,
load, handle, stow,
carry, keep, care for, unload and deliver the
goods.
Delivery
obligation and
problems
Article 153
The captain shall deliver
the goods to the legal holder of the bill of
lading. If several
individuals who are
None. No delivery obligation.
Only a solution to the
situation where the
consignee has not taken
over the custody of the
goods from the carrier
Article 4(2)
Article 11
Carriage and delivery of
the goods
The carrier shall, subject to
this Convention and in
accordance with the terms
Delivery obligation
The carrier shall and
deliver the goods to the
consignee.
(Delivery Articles)
272
holding a negotiable
copy of the bill of lading submitted an application
for delivery of the
goods, the holder of the first copy that was
endorsed prior to the
other copies shall be preferred. However if
the goods are delivered
in good faith to a holder of one of the copies of
the negotiable bill of
lading, he shall be preferred over the
holders of other
endorsed copies even if their endorsements were
done prior in time.
Article 155
Where the person entitled to receive the
goods did not come or
refused to receive the goods, the captain or his
representative may request permission from
the competent court to
put the goods in the
custody of a loyal
person who shall be
appointed by the court on condition that the
receiver shall pay his
fees without prejudice to what was agreed upon in
the bill of lading.
For the purpose of paragraph 1 of this article,
the carrier is deemed to be
in charge of the goods
(a) from the time he has
taken over the goods from: (i) the shipper, or a person
acting on his behalf; or (ii)
an authority or other third party to whom, pursuant to
law or regulations
applicable at the port of loading, the goods must be
handed over for shipment;
(b) until the time he has delivered the goods:
(i) by handing over the goods to the consignee; or
(ii) in cases where the consignee does not receive
the goods from the carrier,
by placing them at the disposal of the consignee
in accordance with the contract or with the law or
with the usage of the
particular trade, applicable
at the port of discharge; or
(iii) by handing over the goods to an authority or
other third party to whom,
pursuant to law or regulations applicable at
the port of discharge, the
goods must be handed over.
of the contract of carriage,
carry the goods to the place of destination and deliver
them to the consignee.
Article 45
Delivery when no negotiable transport
document or negotiable
electronic transport record is issued
When neither a negotiable transport document nor a
negotiable electronic
transport record has been issued:
(a) The carrier shall
deliver the goods to the consignee at the time and
location referred to in
article 43. The carrier may refuse delivery if the
person claiming to be the
consignee does not properly identify itself as
the consignee on the request of the carrier;
(b) If the name and
address of the consignee
are not referred to in the
contract particulars, the
controlling party shall prior to or upon the arrival
of the goods at the place of
destination advise the carrier of such name and
address;
(c) Without prejudice to article 48, paragraph 1, if
the goods are not
deliverable because (i) the consignee, after having
received a notice of arrival,
does not, at the time or within the time period
referred to in article 43,
claim delivery of the goods from the carrier after their
arrival at the place of
destination, (ii) the carrier refuses delivery because
the person claiming to be
the consignee does not properly identify itself as
the consignee, or (iii) the
carrier is, after reasonable effort, unable to locate the
consignee in order to
request delivery instructions, the carrier
Delivery when no
negotiable transport
document or
negotiable electronic
transport record is
issued
When neither a
negotiable transport
document nor a negotiable electronic
transport record has
been issued: (a) The carrier shall
deliver the goods to the
consignee at the time and location referred to
in this law. The carrier
may refuse delivery if the person claiming to
be the consignee does
not properly identify itself as the consignee
on the request of the
carrier; (b) If the name and
address of the consignee are not
referred to in the
contract particulars, the
person acting on behalf
the consignee (if any)
shall prior to or upon the arrival of the goods
at the place of
destination advise the carrier of such name
and address;
(c) if the goods are not deliverable because (i)
the consignee, after
having received a notice of arrival, does
not, at the time or
within the time period referred to in this law,
claim delivery of the
goods from the carrier after their arrival at the
place of destination, (ii)
the carrier refuses delivery because the
person claiming to be
the consignee does not properly identify itself
as the consignee, or (iii)
the carrier is, after reasonable effort,
unable to locate the
consignee in order to request delivery
273
may so advise the
controlling party and request instructions in
respect of the delivery of
the goods. If, after reasonable effort, the
carrier is unable to locate
the controlling party, the carrier may so advise the
shipper and request
instructions in respect of the delivery of the goods.
If, after reasonable effort,
the carrier is unable to locate the shipper, the
carrier may so advise the
documentary shipper and request instructions in
respect of the delivery of
the goods; (d) The carrier that
delivers the goods upon
instruction of the controlling party, the
shipper or the documentary
shipper pursuant to subparagraph (c) of this
article is discharged from its obligations to deliver
the goods under the
contract of carriage.
Article 46
Delivery when a non-
negotiable transport
document that requires surrender is issued
When a non-negotiable transport document has
been issued that indicates
that it shall be surrendered in order to obtain delivery
of the goods:
(a) The carrier shall deliver the goods at the
time and location referred
to in article 43 to the consignee upon the
consignee properly
identifying itself on the request of the carrier and
surrender of the non-
negotiable document. The carrier may refuse delivery
if the person claiming to be
the consignee fails to properly identify itself on
the request of the carrier,
and shall refuse delivery if the non-negotiable
instructions, the carrier
may so advise the person acting on behalf
of the consignee and
request instructions in respect of the delivery
of the goods. If, after
reasonable effort, the carrier is unable to
locate the person acting
on behalf of the consignee, the carrier
may so advise the
shipper and request instructions in respect
of the delivery of the
goods. If, after reasonable effort, the
carrier is unable to
locate the shipper, the carrier may so advise
the person acting on
behalf of the shipper and request instructions
in respect of the
delivery of the goods; (d) The carrier that
delivers the goods in accordance with the
previous paragraphs
shall be discharged
from the obligation to
deliver the goods to the
consignee.
Delivery when a non-
negotiable transport
document that
requires surrender is
issued
When a non-negotiable
transport document has been issued that
indicates that it shall be
surrendered in order to obtain delivery of the
goods:
(a) The carrier shall deliver the goods at the
time and location
referred to in this law to the consignee upon the
consignee properly
identifying itself on the request of the carrier
and surrender of the
non-negotiable document. The carrier
may refuse delivery if
the person claiming to be the consignee fails to
274
document is not
surrendered. If more than one original of the non-
negotiable document has
been issued, the surrender of one original will suffice
and the other originals
cease to have any effect or validity; (b) Without
prejudice to article 48,
paragraph 1, if the goods are not deliverable because
(i) the consignee, after
having received a notice of arrival, does not, at the
time or within the time
period referred to in article 43, claim delivery of the
goods from the carrier after
their arrival at the place of destination, (ii) the carrier
refuses delivery because
the person claiming to be the consignee does not
properly identify itself as
the consignee or does not surrender the document, or
(iii) the carrier is, after reasonable effort, unable to
locate the consignee in
order to request delivery
instructions, the carrier
may so advise the shipper
and request instructions in respect of the delivery of
the goods. If, after
reasonable effort, the carrier is unable to locate
the shipper, the carrier may
so advise the documentary shipper and request
instructions in respect of
the delivery of the goods; (c) The carrier that delivers
the goods upon instruction
of the shipper or the documentary shipper
pursuant to subparagraph
(b) of this article is discharged from its
obligation to deliver the
goods under the contract of carriage, irrespective of
whether the non-negotiable
transport document has been surrendered to it.
Article 47
Delivery when a negotiable
transport document or
properly identify itself
on the request of the carrier, and shall refuse
delivery if the non-
negotiable document is not surrendered. If
more than one original
of the non-negotiable document has been
issued, the surrender of
one original will suffice and the other originals
cease to have any effect
or validity; (b) if the goods are not
deliverable because (i)
the consignee, after having received a
notice of arrival, does
not, at the time or within the time period
referred to in this law,
claim delivery of the goods from the carrier
after their arrival at the
place of destination, (ii) the carrier refuses
delivery because the person claiming to be
the consignee does not
properly identify itself
as the consignee or
does not surrender the
document, or (iii) the carrier is, after
reasonable effort,
unable to locate the consignee in order to
request delivery
instructions, the carrier may so advise the
shipper and request
instructions in respect of the delivery of the
goods. If, after
reasonable effort, the carrier is unable to
locate the shipper, the
carrier may so advise the person acting on
behalf of the shipper
and request instructions in respect of the
delivery of the goods;
(c) The carrier that delivers the goods upon
instruction of the
shipper or the person acting on behalf of the
shipper pursuant to
subparagraph (d) of this article is discharged
275
negotiable electronic
transport record is issued
1. When a negotiable
transport document or a negotiable electronic
transport record has been
issued: (a) The holder of the
negotiable transport
document or negotiable electronic transport record
is entitled to claim delivery
of the goods from the carrier after they have
arrived at the place of
destination, in which event the carrier shall deliver the
goods at the time and
location referred to in article 43 to the holder:
(i) Upon surrender of the
negotiable transport document and, if the holder
is one of the persons
referred to in article 1, subparagraph 10 (a) (i),
upon the holder properly identifying itself; or
(ii) Upon demonstration
by the holder, in
accordance with the
procedures referred to in
article 9, paragraph 1, that it is the holder of the
negotiable electronic
transport record; (b) The carrier shall refuse
delivery if the
requirements of subparagraph (a) (i) or (a)
(ii) of this paragraph are
not met; (c) If more than one
original of the negotiable
transport document has been issued, and the
number of originals is
stated in that document, the surrender of one original
will suffice and the other
originals cease to have any effect or validity. When a
negotiable electronic
transport record has been used, such electronic
transport record ceases to
have any effect or validity upon delivery to the
holder in accordance with
the procedures required by article 9, paragraph 1.
from its obligation to
deliver the goods under the contract of
carriage, irrespective of
whether the non-negotiable transport
document has been
surrendered to it.
Delivery when a
negotiable transport
document or
negotiable electronic
transport record is
issued
1. When a negotiable transport document or a
negotiable electronic
transport record has been issued:
(a) The holder of the
negotiable transport document or negotiable
electronic transport
record is entitled to claim delivery of the
goods from the carrier after they have arrived
at the place of
destination, in which
event the carrier shall
deliver the goods at the
time and location referred to in this law to
the holder:
(i) Upon surrender of the negotiable transport
document and, if the
holder is identified in the transport document
as the shipper or the
consignee, or is the person to which the
document is duly
endorsed, upon the holder properly
identifying itself; or
(ii) Upon demonstration by the
holder, in accordance
with the procedures referred to in the article
pertaining to the
procedures for use of negotiable electronic
transport records, that it
is the holder of the negotiable electronic
transport record;
(b) The carrier shall refuse delivery if the
276
2. Without prejudice to
article 48, paragraph 1, if the negotiable transport
document or the negotiable
electronic transport record expressly states that the
goods may be delivered
without the surrender of the transport document or
the electronic transport
record, the following rules apply:
(a) If the goods are not
deliverable because (i) the holder, after having
received a notice of arrival,
does not, at the time or within the time period
referred to in article 43,
claim delivery of the goods from the carrier after their
arrival at the place of
destination, (ii) the carrier refuses delivery because
the person claiming to be a
holder does not properly identify itself as one of the
persons referred to in article 1, subparagraph 10
(a) (i), or (iii) the carrier is,
after reasonable effort,
unable to locate the holder
in order to request delivery
instructions, the carrier may so advise the shipper
and request instructions in
respect of the delivery of the goods. If, after
reasonable effort, the
carrier is unable to locate the shipper, the carrier may
so advise the documentary
shipper and request instructions in respect of
the delivery of the goods;
(b) The carrier that delivers the goods upon
instruction of the shipper
or the documentary shipper in accordance with
subparagraph 2 (a) of this
article is discharged from its obligation to deliver the
goods under the contract of
carriage to the holder, irrespective of whether the
negotiable transport
document has been surrendered to it, or the
person claiming delivery
under a negotiable electronic transport record
requirements of
subparagraph (a) (i) or (a) (ii) of this paragraph
are not met;
(c) If more than one original of the
negotiable transport
document has been issued, and the number
of originals is stated in
that document, the surrender of one
original will suffice and
the other originals cease to have any effect or
validity. When a
negotiable electronic transport record has
been used, such
electronic transport record ceases to have
any effect or validity
upon delivery to the holder in accordance
with the procedures
referred to in the article pertaining to the
procedures for use of negotiable electronic
transport records.
2. If the negotiable
transport document or
the negotiable
electronic transport record expressly states
that the goods may be
delivered without the surrender of the
transport document or
the electronic transport record, the following
rules apply:
(a) If the goods are not deliverable because (i)
the holder, after having
received a notice of arrival, does not, at the
time or within the time
period referred to in this law, claim delivery
of the goods from the
carrier after their arrival at the place of
destination, (ii) the
carrier refuses delivery because the person
claiming to be a holder
does not properly identify itself as the
shipper or the
consignee identified in the transport record, or
277
has demonstrated, in
accordance with the procedures referred to in
article 9, paragraph 1, that
it is the holder; (c) The person giving
instructions under
subparagraph 2 (a) of this article shall indemnify the
carrier against loss arising
from its being held liable to the holder under
subparagraph 2 (e) of this
article. The carrier may refuse to follow those
instructions if the person
fails to provide adequate security as the carrier may
reasonably request;
(d) A person that becomes a holder of the negotiable
transport document or the
negotiable electronic transport record after the
carrier has delivered the
goods pursuant to subparagraph 2 (b) of this
article, but pursuant to contractual or other
arrangements made before
such delivery acquires
rights against the carrier
under the contract of
carriage, other than the right to claim delivery of
the goods;
(e) Notwithstanding subparagraphs 2 (b) and 2
(d) of this article, a holder
that becomes a holder after such delivery, and that did
not have and could not
reasonably have had knowledge of such
delivery at the time it
became a holder, acquires the rights incorporated in
the negotiable transport
document or negotiable electronic transport record.
When the contract
particulars state the expected time of arrival of
the goods, or indicate how
to obtain information as to whether the goods have
been delivered, it is
presumed that the holder at the time that it became a
holder had or could
reasonably have had
is the person to which
the document is duly endorsed (iii) the carrier
is, after reasonable
effort, unable to locate the holder in order to
request delivery
instructions, the carrier may so advise the
shipper and request
instructions in respect of the delivery of the
goods. If, after
reasonable effort, the carrier is unable to
locate the shipper, the
carrier may so advise the person acting on
behalf of the shipper
and request instructions in respect of the
delivery of the goods;
(b) The carrier that delivers the goods upon
instruction of the
shipper or the person acting on behalf of the
shipper in accordance with subparagraph 2 (a)
of this article is
discharged from its
obligation to deliver the
goods under the
contract of carriage to the holder, irrespective
of whether the
negotiable transport document has been
surrendered to it, or the
person claiming delivery under a
negotiable electronic
transport record has demonstrated, in
accordance with the
procedures referred to in the article pertaining
to the procedures for
use of negotiable electronic transport
records.
(c) The person giving instructions under
subparagraph 2 (a) of
this article shall indemnify the carrier
against loss arising
from its being held liable to the holder
under subparagraph 2
(e) of this article. The carrier may refuse to
278
knowledge of the delivery
of the goods.
Article 48
Goods remaining
undelivered
1. For the purposes of this
article, goods shall be
deemed to have remained undelivered only if, after
their arrival at the place of
destination: (a) The consignee does not
accept delivery of the
goods pursuant to this chapter at the time and
location referred to in
article 43; (b) The controlling party,
the holder, the shipper or
the documentary shipper cannot be found or does
not give the carrier
adequate instructions pursuant to articles 45, 46
and 47; (c) The carrier is entitled
or required to refuse
delivery pursuant to
articles 44, 45, 46 and 47;
(d) The carrier is not
allowed to deliver the goods to the consignee
pursuant to the law or
regulations of the place at which delivery is
requested; or (e) The goods
are otherwise undeliverable by the
carrier.
2. Without prejudice to any other rights that the carrier
may have against the
shipper, controlling party or consignee, if the goods
have remained
undelivered, the carrier may, at the risk and
expense of the person
entitled to the goods, take such action in respect of
the goods as circumstances
may reasonably require, including:
(a) To store the goods at
any suitable place; (b) To unpack the goods if
they are packed in
containers or vehicles, or to act otherwise in respect
follow those
instructions if the person fails to provide
adequate security as the
carrier may reasonably request;
(d) A person that
becomes a holder of the negotiable transport
document or the
negotiable electronic transport record after
the carrier has delivered
the goods pursuant to subparagraph 2 (b) of
this article, but pursuant
to contractual or other arrangements made
before such delivery
acquires rights against the carrier under the
contract of carriage,
other than the right to claim delivery of the
goods;
(e) Notwithstanding subparagraphs 2 (b) and
2 (d) of this article, a holder that becomes a
holder after such
delivery, and that did
not have and could not
reasonably have had
knowledge of such delivery at the time it
became a holder,
acquires the rights incorporated in the
negotiable transport
document or negotiable electronic transport
record. When the
contract particulars state the expected time
of arrival of the goods,
or indicate how to obtain information as to
whether the goods have
been delivered, it is presumed that the
holder at the time that it
became a holder had or could reasonably have
had knowledge of the
delivery of the goods.
Goods remaining
undelivered
1. For the purposes of
this article, goods shall
be deemed to have remained undelivered
279
of the goods, including by
moving them; and (c) To cause the goods to
be sold or destroyed in
accordance with the practices or pursuant to the
law or regulations of the
place where the goods are located at the time.
3. The carrier may exercise
the rights under paragraph 2 of this article only after it
has given reasonable notice
of the intended action under paragraph 2 of this
article to the person stated
in the contract particulars as the person, if any, to be
notified of the arrival of
the goods at the place of destination, and to one of
the following persons in
the order indicated, if known to the carrier: the
consignee, the controlling
party or the shipper. 4. If the goods are sold
pursuant to subparagraph 2 (c) of this article, the
carrier shall hold the
proceeds of the sale for the
benefit of the person
entitled to the goods,
subject to the deduction of any costs incurred by the
carrier and any other
amounts that are due to the carrier in connection with
the carriage of those goods.
5. The carrier shall not be liable for loss of or damage
to goods that occurs during
the time that they remain undelivered pursuant to
this article unless the
claimant proves that such loss or damage resulted
from the failure by the
carrier to take steps that would have been
reasonable in the
circumstances to preserve the goods and that the
carrier knew or ought to
have known that the loss or damage to the goods would
result from its failure to
take such steps.
only if, after their
arrival at the place of destination:
(a) The consignee does
not accept delivery of the goods pursuant to
the previous articles
(delivery articles) at the time and location
referred to in this law;
(b) The person acting on behalf of the
consignee, the shipper
or a person acting on its behalf, shipper cannot
be found or does not
give the carrier adequate instructions
pursuant to the previous
articles (delivery articles);
(c) The carrier is
entitled or required to refuse delivery pursuant
to the previous articles
(delivery articles); (d) The carrier is not
allowed to deliver the goods to the consignee
pursuant to the law or
regulations of the place
at which delivery is
requested; or
(e) The goods are otherwise undeliverable
by the carrier.
2. Without prejudice to any other rights that the
carrier may have
against the shipper or a person acting on its
behalf, or consignee or
a person acting on its behalf, if the goods
have remained
undelivered, the carrier may, at the risk and
expense of the person
entitled to the goods, take such action in
respect of the goods as
circumstances may reasonably require,
including:
(a) To store the goods at any suitable place;
(b) To unpack the
goods if they are packed in containers or
vehicles, or to act
otherwise in respect of
280
the goods, including by
moving them; and (c) To cause the goods
to be sold or destroyed
in accordance with the practices or pursuant to
the law or regulations
of the place where the goods are located at the
time.
3. The carrier may exercise the rights
under paragraph 2 of
this article only after it has given notice of the
intended action under
paragraph 2 of this article to the person
stated in the contract
particulars as the person, if any, to be
notified of the arrival of
the goods at the place of destination, and to
one of the following
persons in the order indicated, if known to
the carrier: the consignee or a person
acting on its behalf, or
the shipper or a person
acting on its behalf. The
notice must be given
one week before taking the intended action,
only if the goods are
not of perishable nature, otherwise, the
notice shall be given
two days before taking the intended action.
4. If the goods are sold
pursuant to subparagraph 2 (c) of
this article, the carrier
shall hold the proceeds of the sale for the
benefit of the person
entitled to the goods, subject to the deduction
of any costs incurred by
the carrier and any other amounts that are
due to the carrier in
connection with the carriage of those goods.
5. The carrier shall not
be liable for loss of or damage to goods that
occurs during the time
that they remain undelivered pursuant to
281
this article unless the
claimant proves that such loss or damage
resulted from the failure
by the carrier to take steps that would have
been reasonable in the
circumstances to preserve the goods and
that the carrier knew or
ought to have known that the loss or damage
to the goods would
result from its failure to take such steps.
Liability for
delay
Delay is only
mentioned in the
liability for delay in
article 165
The carrier shall be
liable for the delay in delivering the goods
unless it was proved that
the delay was due to one of the reasons
mentioned in Article
158 herein.
None. Article 5 (1)
The carrier is liable for loss
resulting from loss of or
damage to the goods, as well as from delay in
delivery, if the occurrence
which caused the loss, damage or delay took place
while the goods were in his
charge as defined in article 4, unless the carrier proves
that he, his servants or
agents took all measures that could reasonably be
required to avoid the
occurrence and its consequences.
Article 5(2)
Delay in delivery occurs when the goods have not
been delivered at the port
of discharge provided for in the contract of carriage
by sea within the time
expressly agreed upon or,
in the absence of such
agreement, within the time which it would be
reasonable to require of a
diligent carrier, having regard to the circumstances
of the case.
Article 5(3)
The person entitled to make a claim for the loss
Article 17
Basis of liability
1. The carrier is liable for loss of or damage to the
goods, as well as for delay
in delivery, if the claimant proves that the loss,
damage, or delay, or the
event or circumstance that caused or contributed to it
took place during the
period of the carrier’s responsibility as defined in
chapter 4.
Article 21
Delay
Delay in delivery occurs
when the goods are not delivered at the place of
destination provided for in
the contract of carriage within the time agreed.
Article 43
Obligation to accept
delivery
When the goods have
arrived at their destination,
the consignee that demands delivery of the goods under
Liability for delay
The carrier shall be
liable for the delay in
delivering the goods unless it is proved that
the delay was due to
one of the reasons exculpating the carrier
from liability under
Article 158 of this law.
Delay
1. Delay in delivery
occurs when the goods
have not been delivered at the port of discharge
provided for in the
contract of carriage by sea within the time
expressly agreed upon
or, in the absence of such agreement, at the
time and location at
which the customs, usages or practices of
the trade and the
circumstances of the
carriage, delivery could
reasonably be expected.
2. The person entitled
to make a claim for the loss of goods may treat
the goods as lost if they
have not been delivered in accordance with the
delivery articles within
60 consecutive days following the expiry of
282
of goods may treat the
goods as lost if they have not been delivered as
required by article 4 within
60 consecutive days following the expiry of the
time for delivery according
to paragraph 2 of this article.
the contract of carriage
shall accept delivery of the goods at the time or within
the time period and at the
location agreed in the contract of carriage or,
failing such agreement, at
the time and location at which, having regard to the
terms of the contract, the
customs, usages or practices of the trade and
the circumstances of the
carriage, delivery could reasonably be expected.
the time for delivery
according to paragraph 2 of this article.
3. A prima facie case of delay requires the
claimant to: (a) prove
the time of delivery agreed upon by the
parties or the time
during which delivery should have been
occurred in accordance
with paragraph 1 of this article, the absence of
delivery by such time;
and (b) the economic loss suffered as a result
of the delay. If the
delay has not caused any economic loss
suffered by the cargo
interest, the carrier cannot be held liable.
Compensation
for delay
None. None. Article 61(b)
The liability of the carrier for delay in delivery
according to the provisions
of article 5 is limited to an amount equivalent to two
and a half times the freight
payable for the goods delayed, but not exceeding
the total freight payable
under the contract of carriage of goods by sea.
Reference is only made to
cargo loss or damage
claims
Article 22
Calculation of
compensation
1. Subject to article 59, the
compensation payable by
the carrier for loss of or damage to the goods is
calculated by reference to
the value of such goods at the place and time of
delivery established in
accordance with article 43. 2. The value of the goods
is fixed according to the
commodity exchange price or, if there is no such price,
according to their market
price or, if there is no
commodity exchange price
or market price, by reference to the normal
value of the goods of the
same kind and quality at the place of delivery.
3. In case of loss of or
damage to the goods, the carrier is not liable for
payment of any
compensation beyond what is provided for in
Compensation for
delay
The liability of the
carrier for delay in
delivery is limited to an amount equivalent to
two and a half times the
freight payable for the goods delayed, but not
exceeding the total
freight payable under the contract of carriage
of goods by sea.
283
paragraphs 1 and 2 of this
article except when the carrier and the shipper
have agreed to calculate
compensation in a different manner within the limits of
chapter 16.
Liability
exceptions
Article 158
The carrier or the vessel
shall not be held liable for the destruction of the
goods or its
transportation resulting from:
1.action, negligence or
default taking place during navigation or in
the management of the
Vessel; 2.the captain, crew or
pilots or the persons
affiliated to the carrier; 3.fire except where it is
caused by the act or
mistake of the carrier; 4.risks of the sea or
navigation water and its
danger and accidents; 5.force majeure;
6.accidents of war;
7.acts of the common enemies;
8.any arrest or coercion
issued from a state authority or by a court
judgment;
9.restrains as a result of a quarantine;
10.any act or omission
from the shipper, owner of the goods or his agent
or his representative.
11.workers strikes or closure or any
hindrances at work that
may result in the prevention
12.of the total or partial
continuation of the
work;
13.riots and civil disturbance;
14.saving or attempt of
saving lives or property in the sea;
15. deficiency in size or
weight or any other destruction or damage
resulting from a latent
default or from the special nature of the
Article 4
1. Neither the carrier nor
the ship shall be liable for loss or damage arising or
resulting from
unseaworthiness unless caused by want of due
diligence on the part of the
carrier to make the ship seaworthy and to secure
that the ship is properly
manned, equipped and supplied, and to make the
holds, refrigerating and
cool chambers and all other parts of the ship in
which goods are carried fit
and safe for their reception, carriage and preservation
in accordance with the
provisions of paragraph 1 of Article 3. Whenever loss
or damage has resulted
from unseaworthiness the burden of proving the
exercise of due diligence
shall be on the carrier or other person claiming
exemption under this
Article.
2. Neither the carrier nor
the ship shall be responsible for loss or
damage arising or resulting
from: (a) Act, neglect, or default of the master,
mariner, pilot, or the
servants of the carrier in the navigation or in the
management of the ship.
(b) Fire, unless caused by
the actual fault or privity of
the carrier.
(c) Perils, dangers and
accidents of the sea or other navigable waters.
Article 5(1)
The carrier is liable for loss
resulting from loss of or damage to the goods, as
well as from delay in
delivery, if the occurrence which caused the loss,
damage or delay took place
while the goods were in his charge as defined in article
4, unless the carrier proves
that he, his servants or agents took all measures
that could reasonably be
required to avoid the occurrence and its
consequence etc.
Article 5(4)
(a) The carrier is liable
(i) for loss of or damage to
the goods or delay in delivery caused by fire, if
the claimant proves that
the fire arose from fault or neglect on the part of the
carrier, his servants or
agents;
(ii) for such loss, damage
or delay in delivery which is proved by the claimant
to have resulted from the
fault or neglect of the carrier, his servants or
agents in taking all
measures that could reasonably be required to
put out the fire and avoid
or mitigate its consequences.
(b) In case of fire on board the ship affecting the
goods, if the claimant or
the carrier so desires, a survey in accordance with
shipping practices must be held into the cause and
circumstances of the fire,
and a copy of the surveyors
Article 17(2)
The carrier is relieved of
all or part of its liability pursuant to paragraph 1 of
this article if it proves that
the cause or one of the causes of the loss, damage,
or delay is not attributable
to its fault or to the fault of any person referred to in
article 18.
Article 17(3)
The carrier is also relieved of all or part of its liability
pursuant to paragraph 1 of
this article if, alternatively to proving the absence of
fault as provided in
paragraph 2 of this article, it proves that one or more
of the following events or
circumstances caused or contributed to the loss,
damage, or delay:
(a) Act of God; (b) Perils, dangers, and accidents of
the sea or other navigable
waters; (c) War, hostilities, armed conflict, piracy,
terrorism, riots, and civil
commotions; (d) Quarantine restrictions;
interference by or
impediments created by governments, public
authorities, rulers, or
people including detention, arrest, or seizure not
attributable to the carrier or
any person referred to in
article 18; (e) Strikes,
lockouts, stoppages, or restraints of labour; (f) Fire
on the ship; (g) Latent
defects not discoverable by due diligence;
(h) Act or omission of the
shipper, the documentary shipper, the controlling
party, or any other person
for whose acts the shipper or the documentary shipper
Liability exceptions
Neither the carrier nor
the vessel shall be held liable for the damage
to, loss of, delay in
delivering cargo resulting from:
(1) Fire unless caused by the act or neglect of
the carrier or its agents,
(2) Perils, dangers and accidents of the sea or
other navigable waters;
(3) Act of God;
(4) Act of war;
(5) Act of public
enemies;
(6) Arrest or restraint or princes, rulers or
people, or seizure under
legal process;
(7) Quarantine
restrictions;
(8) Act or omission of
the shipper or owner of the goods, his agent or
representative;
(9) Strikes or lockouts
or stoppage or restraint
of labor from whatever cause, whether partial
or general;
(10) Riots and civil
commotions;
(11) Saving or
attempting to save life
at sea;
284
goods or an inner defect
therein; 1.insufficiency of
packaging;
2.insufficiency or imperfection of the
marks;
3.concealed defects which cannot be
revealed by normal
inspection; 4.any other reason not
caused by the act or
mistake of the carrier or persons affiliated thereto
or his representative.
Whoever relies on this
defense must prove that
there is no relationship between acts of such
persons or their
mistakes and the occurrence of the
destruction or damage.
(d) Act of God.
(e) Act of war.
(f) Act of public enemies.
(g) Arrest or restraint or
princes, rulers or people, or seizure under legal
process.
(h) Quarantine restrictions.
(i) Act or omission of the shipper or owner of the
goods, his agent or
representative.
(j) Strikes or lockouts or
stoppage or restraint of labour from whatever
cause, whether partial or
general.
(k) Riots and civil
commotions.
(l) Saving or attempting to
save life or property at sea.
(m) Wastage in bulk or
weight or any other loss or damage arising from
inherent defect, quality or
vice of the goods.
(n) Insufficiency of packing.
(o) Insufficiency or inadequacy of marks.
(p) Latent defects not discoverable by due
diligence.
(q) Any other cause arising
without the actual fault or
privity of the carrier, or without the actual fault or
neglect of the agents or
servants of the carrier, but the burden of proof shall
be on the person claiming
the benefit of this
report shall be made
available on demand to the carrier and the claimant.
Article 5(5)
With respect to live
animals, the carrier is not liable for loss, damage or
delay in delivery resulting
from any special risks inherent in that kind of
carriage. If the carrier
proves that he has complied with any special
instructions given to him
by the shipper respecting the animals and that, in the
circumstances of the case,
the loss, damage or delay in delivery could be
attributed to such risks, it
is presumed that the loss, damage or delay in
delivery was so caused,
unless there is proof that all or a part of the loss,
damage or delay in delivery resulted from fault
or neglect on the part of
the carrier, his servants or agents.
Article 5(6)
The carrier is not liable,
except in general average, where loss, damage or
delay in delivery resulted
from measures to save life or from reasonable
measures to save property
at sea.
Article 5(7)
Where fault or neglect on
the part of the carrier, his
servants or agents combines with another
cause to produce loss,
damage or delay in delivery, the carrier is
liable only to the extent
that the loss, damage or delay in delivery is
attributable to such fault or
neglect, provided that the carrier proves the amount
of the loss, damage or
delay in delivery not attributable thereto.
is liable pursuant to article
33 or 34; (i) Loading, handling,
stowing, or unloading of
the goods performed pursuant to an agreement
in accordance with article
13, paragraph 2, unless the carrier or a performing
party performs such
activity on behalf of the shipper, the documentary
shipper or the consignee;
(j) Wastage in bulk or weight or any other loss or
damage arising from
inherent defect, quality, or vice of the goods;
(k) Insufficiency or
defective condition of packing or marking not
performed by or on behalf
of the carrier; (l) Saving or attempting to
save life at sea;
(m) Reasonable measures to save or attempt to save
property at sea; (n) Reasonable measures
to avoid or attempt to
avoid damage to the
environment; or
(o) Acts of the carrier in
pursuance of the powers conferred by articles 15
and 16.
(12) Reasonable
measures to save or attempt to save property
at sea;
(13) Wastage in bulk or weight or any other
loss or damage arising from inherent defect,
quality or vice of the
goods;
(14) Insufficiency of
packing;
(15) Insufficiency or
inadequacy of marks;
(16) Latent defects not
discoverable by due diligence;
(17) Any other cause arising without the
actual fault or privity of
the carrier, or without the actual fault or
neglect of the agents or
servants of the carrier, but the burden of proof
shall be on the person claiming the benefit of
this exception to show
that neither the actual fault or privity of the
carrier nor the fault or
neglect of the agents or servants of the carrier
contributed to the loss
or damage.
285
exception to show that
neither the actual fault or privity of the carrier nor
the fault or neglect of the
agents or servants of the carrier contributed to the
loss or damage.
3. The shipper shall not be
responsible for loss or
damage sustained by the carrier or the ship arising
or resulting from any cause
without the act, fault or neglect of the shipper, his
agents or his servants.
4. Any deviation in saving
or attempting to save life
or property at sea or any reasonable deviation shall
not be deemed to be an
infringement or breach of this Convention or of the
contract of carriage, and
the carrier shall not be liable for any loss or
damage resulting therefrom etc.
Freedom of
contract
Article 160
Any condition in the
bill of lading or in any
similar bill except for the lease agreement that
exempts the carrier from
the liability for the destruction or damage
of the goods as a result
of the negligence, mistake or default in the
performance of the
obligations provided for in this chapter or
including the
diminishing of the liability from the limit
provided for in the
previous Article shall be deemed void. Every
term including the grant
of rights to the carrier that arise from the
insurance of the goods or any other similar
condition shall be
Article 3(8)
Any clause, covenant, or
agreement in a contract of
carriage relieving the carrier or the ship from
liability for loss or damage
to, or in connection with, goods arising from
negligence, fault, or failure
in the duties and obligations provided in this
Article or lessening such
liability otherwise than as
provided in this
Convention, shall be null
and void and of no effect. A benefit of insurance in
favor of the carrier or
similar clause shall be deemed to be a clause
relieving the carrier from
liability.
Article 23
Contractual stipulations
1. Any stipulation in a contract of carriage by sea,
in a bill of lading, or in any
other document evidencing the contract of carriage by
sea is null and void to the
extent that it derogates, directly or indirectly, from
the provisions of this
Convention. The nullity of such a stipulation does not
affect the validity of the
other provisions of the contract or document of
which it forms a part. A
clause assigning benefit of insurance of goods in
favour of the carrier, or
any similar clause, is null and void.
2. Notwithstanding the
provisions of paragraph 1
Article 79
General provisions
Unless otherwise provided in this Convention, any
term in a contract of
carriage is void to the extent that it:
(a) Directly or indirectly
excludes or limits the obligations of the carrier or
a maritime performing
party under this Convention;
(b) Directly or indirectly
excludes or limits the liability of the carrier or a
maritime performing party
for breach of an obligation under this Convention; or
(c) Assigns a benefit of
insurance of the goods in favour of the carrier or a
person referred to in article 18.
Contracting out
Any clause, covenant,
or agreement in a
contract of carriage relieving the carrier or
the ship from liability
for cargo loss, damage, or delay in delivery to
in connection of cargo,
arising from negligence, fault, or
failure in the duties and
obligations provided in this law or lessening
such liability otherwise
than as provided in this law, shall be null and
void and of no effect. A
benefit of insurance in favor of the carrier or
similar clause shall be
deemed to be a clause relieving the carrier
from liability.
286
considered as a
condition of exemption from liability.
Article 161
The carrier may assign
all or part of the rights and exemptions granted
to him and may increase
his obligations as provided for in this
chapter, provided that
the abandonment or increase of the
obligations is expressly
mentioned in the bill of lading that is delivered
to the shipper. The
carrier may record in the bill of lading or any
other similar bill,
conditions, precautions or exemptions relating
to his obligations and
liability for the destruction or damage to
the goods or to his obligation to safeguard
and look after the
shipment during the
period preceding the
shipping or following
the unloading of the goods from the Vessel
on. Furthermore, the bill
of lading may provide for all conditions
relating to the maritime
losses as far as there is no contradiction
between such conditions
and the provisions of the general maritime losses.
Article 162
It is admissible to contract out of the
carrier liability
provisions in the following cases: 1. in
coastwise carriage and;
2. where the nature of the goods required to be
transported or its
condition or the circumstances of its
shipping or the
exceptional circumstances during
Article 6
A carrier shall be at liberty
to surrender in whole or in
part all or any of his rights and immunities or to
increase any of his
responsibilities and obligations under this
Convention, provided such
surrender or increase shall be embodied in the bill of
lading issued to the
shipper.
The provisions of this
Convention shall not be applicable to charter
parties, but if bills of
lading are issued in the case of a ship under a
charter party they shall
comply with the terms of this Convention. Nothing
in these rules shall be held
to prevent the insertion in a bill of lading of any lawful
provision regarding general average.
Article 7
Notwithstanding the
provisions of the preceding Articles, a carrier, master
or agent of the carrier and
a shipper shall in regard to any particular goods be at
liberty to enter into any
agreement in any terms as to the responsibility and
liability of the carrier for
such goods, and as to the rights and immunities of
the carrier in respect of
such goods, or his obligation as to
seaworthiness, so far as
this stipulation is not contrary to public policy,
or the care or diligence of
his servants or agents in regard to the loading,
handling, stowage,
carriage, custody, care and discharge of the goods
carried by sea, provided
that in this case no bill of lading has been or shall be
issued and that the terms
of this article, a carrier
may increase his responsibilities and
obligations under this
Convention.
3. Where a bill of lading or
any other document evidencing the contract of
carriage by sea is issued, it
must contain a statement that the carriage is subject
to the provisions of this
Convention which nullify any stipulation derogating
therefrom to the detriment
of the shipper or the consignee.
4. Where the claimant in respect of the goods has
incurred loss as a result of
a stipulation which is null and void by virtue of the
present article, or as a
result of the omission of the statement referred to in
paragraph 3 of this article, the carrier must pay
compensation to the extent
required in order to give
the claimant compensation
in accordance with the
provisions of this Convention for any loss of
or damage to the goods as
well as for delay in delivery. The carrier must,
in addition, pay
compensation for costs incurred by the claimant
for the purpose of
exercising his right, provided that costs
incurred in the action
where the foregoing provision is invoked are to
be determined in
accordance with the law of the State where
proceedings are instituted.
2. Unless otherwise
provided in this Convention, any term in a
contract of carriage is void
to the extent that it: (a) Directly or indirectly
excludes, limits or
increases the obligations under this Convention of
the shipper, consignee,
controlling party, holder or documentary shipper; or
(b) Directly or indirectly
excludes, limits or increases the liability of
the shipper, consignee,
controlling party, holder or documentary shipper for
breach of any of its
obligations under this Convention.
Article 6
Specific exclusions
1. This Convention does
not apply to the following contracts in liner
transportation:
(a) Charter parties; and (b)
Other contracts for the use
of a ship or of any space
thereon. 2. This Convention does
not apply to contracts of
carriage in non-liner transportation except
when:
(a) There is no charter party or other contract
between the parties for the
use of a ship or of any space thereon; and (b) A
transport document or an
electronic transport record is issued.
Increasing the
carrier’s obligations
A carrier shall be at
liberty to surrender in whole or in part all or
any of his rights and
immunities or to increase any of his
responsibilities and
obligations under this law, provided such
surrender or increase
shall be embodied in the transport document
or electronic transport
record issued to the shipper.
Freedom of contract
1. Exclusion of
charterparties
The carrier liability
regime of this law shall not be applicable to
charter parties, but if
transport document or
electronic transport
record are issued in the case of a ship under a
charter party they shall
comply with the terms of this law. Nothing in
these rules shall be held
to prevent the insertion in a transport document
or electronic transport
record of any lawful provision regarding
general average.
2. Special agreement
Notwithstanding the provisions of the
preceding Articles, a
carrier, master or agent of the carrier and a
shipper shall in regard
to any particular goods be at liberty to enter
into any agreement in
any terms as to the responsibility and
liability of the carrier
for such goods, and as to the rights and
287
which it shall be
transported, a special agreement needs to be
entered into by the
parties. The agreed condition in the special
agreement shall be
recorded in the receipt and shall be deemed as
non-negotiable
instrument and shall be indicated as such.
Article 164
The provisions that
govern liability mentioned in this
chapter shall be applied
to maritime transport according to the bill of
lading within the period
of the loading and unloading the goods
onboard the Vessel.
These provisions shall
also not apply in accordance with the
lease agreement unless a
bill of lading was issued
together with the lease
agreement. The Bill of
Lading shall regulate the relationship between the
holder and the carrier.
The above provisions shall not apply to the
transport of livestock or
to goods mentioned in the bill of lading as
being was shipped on
the deck of the Vessel.
agreed shall be embodied
in a receipt which shall be a non-negotiable document
and shall be marked as
such. Any agreement so entered into shall have full
legal effect.
Provided that this Article
shall not apply to ordinary
commercial shipments made in the ordinary
course of trade, but only to
other shipments where the character or condition of
the property to be carried
or the circumstances, terms and conditions under
which the carriage is to be
performed are such as reasonably to justify a
special agreement.
Article 8
Nothing herein contained
shall prevent a carrier or a
shipper from entering into any agreement, stipulation,
condition, reservation or exemption as to the
responsibility and liability
of the carrier or the ship for the loss or damage to,
or in connection with, the
custody and care and handling of goods prior to
the loading on, and
subsequent to, the discharge from the ship on
which the goods are
carried by sea.
immunities of the
carrier in respect of such goods, or his
obligations, so far as
this stipulation is not contrary to public
policy, or the care or
diligence of his servants or agents in regard to
the loading, handling,
stowage, carriage, custody, care and
discharge of the goods
carried by sea, provided that in this case the
terms agreed shall be
embodied in a receipt which shall be a non-
negotiable document
and shall be marked as such. Any agreement so
entered into shall have
full legal effect.
Provided that this
article shall not apply to ordinary commercial
shipments made in the ordinary course of
trade, but only to other
shipments where the
character or condition
of the property to be
carried or the circumstances, terms
and conditions under
which the carriage is to be performed are such
as reasonably to justify
a special agreement.
Live animals Excluding deck
carriage from carrier
liability regime.
“…[t]he above provisions shall not
apply to the transport of
live stock …”.
Article 164
The provisions that
govern liability mentioned in this
chapter shall be applied
Excluding livestock from
the application of the
rules.
Article 1(c)
"Goods" includes goods,
wares, merchandise and articles of every kind
whatsoever except live
animals and cargo which by the contract of carriage
Article 5(5)
With respect to live
animals, the carrier is not
liable for loss, damage or delay in delivery resulting
from any special risks
inherent in that kind of carriage. If the carrier
proves that he has
complied with any special instructions given to him
by the shipper respecting the animals and that, in the
circumstances of the case,
Article 81
Special rules for live
animals and certain other
goods
Notwithstanding article 79
and without prejudice to article 80, the contract of
carriage may exclude or
limit the obligations or the liability of both the carrier
and a maritime performing party if:
Live animals
With respect to live
animals, the carrier is
not liable for loss, damage or delay in
delivery resulting from
any special risks inherent in that kind of
carriage.
If the carrier proves that he has complied with
any special instructions given to him by the
shipper respecting the
288
to maritime transport
according to the bill of lading within the period
of the loading and
unloading the goods onboard the Vessel.
These provisions shall also not apply in
accordance with the
lease agreement unless a bill of lading was issued
together with the lease
agreement. The Bill of Lading shall regulate the
relationship between the
holder and the carrier. The above provisions
shall not apply to the
transport of livestock or to goods mentioned in
the bill of lading as
being was shipped on the deck of the Vessel.
in stated as being carried
on deck and is so carried.
the loss, damage or delay
in delivery could be attributed to such risks, it
is presumed that the loss,
damage or delay in delivery was so caused,
unless there is proof that
all or a part of the loss, damage or delay in
delivery resulted from fault
or neglect on the part of the carrier, his servants or
agents.
(a) The goods are live
animals, but any such exclusion or limitation will
not be effective if the
claimant proves that the loss of or damage to the
goods, or delay in delivery,
resulted from an act or omission of the carrier or
of a person referred to in
article 18, done with the intent to cause such loss of
or damage to the goods or
such loss due to delay or done recklessly and with
knowledge that such loss
or damage or such loss due to delay would probably
result; or
(b) The character or condition of the goods or
the circumstances and
terms and conditions under which the carriage is to be
performed are such as
reasonably to justify a special agreement,
provided that such contract of carriage is not related to
ordinary commercial
shipments made in the
ordinary course of trade
and that no negotiable
transport document or negotiable electronic
transport record is issued
for the carriage of the goods.
animals and that, in the
circumstances of the case, the loss, damage
or delay in delivery
could be attributed to such risks, it is
presumed that the loss,
damage or delay in delivery was so caused,
unless there is proof
that all or a part of the loss, damage or delay in
delivery resulted from
fault or neglect on the part of the carrier, his
servants or agents.
Deck carriage Excluding deck
carriage from carrier
liability regime.
“…[t]he above
provisions shall not apply to …. goods
mentioned in the bill of
lading as being was shipped on the deck of
the Vessel.”
Article 164
The provisions that
govern liability
mentioned in this chapter shall be applied
to maritime transport
according to the bill of lading within the period
of the loading and
unloading the goods onboard the Vessel.
Excluding deck carriage
from the application of
the rules.
Article 1(c):
"Goods" includes goods, wares, merchandise and
articles of every kind whatsoever except live
animals and cargo which
by the contract of carriage in stated as being carried
on deck and is so carried.
Article 9
Deck cargo
1. The carrier is entitled to
carry the goods on deck only if such carriage is in
accordance with an
agreement with the shipper or with the usage of the
particular trade or is
required by statutory rules
or regulations.
2. If the carrier and the
shipper have agreed that
the goods shall or may be carried on deck, the carrier
must insert in the bill of
lading or other document evidencing the contract of
carriage by sea a statement
to that effect. In the absence of such a
Article 25
Deck cargo on ships
1. Goods may be carried
on the deck of a ship only if:
(a) Such carriage is
required by law; (b) They are carried in or
on containers or vehicles
that are fit for deck
carriage, and the decks are
specially fitted to carry such containers or
vehicles; or
(c) The carriage on deck is in accordance with the
contract of carriage, or the
customs, usages or practices of the trade in
question.
2. The provisions of this Convention relating to the
Deck carriage
1. Goods may be carried on the deck of a
ship only if:
(a) Such carriage is required by law;
(b) They are carried in
or on containers or vehicles that are fit for
deck carriage, and the
decks are specially
fitted to carry such
containers or vehicles; or
(c) The carriage on
deck is in accordance with the contract of
carriage, or the
customs, usages or practices of the trade in
question.
2. The provisions of this Convention relating
289
These provisions shall also not apply in
accordance with the
lease agreement unless a bill of lading was issued
together with the lease
agreement. The Bill of Lading shall regulate the
relationship between the
holder and the carrier. The above provisions
shall not apply to the
transport of livestock or to goods mentioned in
the bill of lading as
being was shipped on the deck of the Vessel.
statement the carrier has
the burden of proving that an agreement for carriage
on deck has been entered
into; however, the carrier is not entitled to invoke such
an agreement against a
third party, including a consignee, who has
acquired the bill of lading
in good faith.
3. Where the goods have
been carried on deck contrary to the provisions
of paragraph 1 of this
article or where the carrier may not under paragraph 2
of this article invoke an
agreement for carriage on deck, the carrier,
notwithstanding the
provisions of paragraph 1 of article 5, is liable for
loss of or damage to the
goods, as well as for delay in delivery, resulting solely
from the carriage on deck, and the extent of his
liability is to be determined
in accordance with the
provisions of article 6 or
article 8 of this
Convention, as the case may be.
4. Carriage of goods on deck contrary to express
agreement for carriage
under deck is deemed to be an act or omission of the
carrier within the meaning
of article 8.
liability of the carrier apply
to the loss of, damage to or delay in the delivery of
goods carried on deck
pursuant to paragraph 1 of this article, but the carrier
is not liable for loss of or
damage to such goods, or delay in their delivery,
caused by the special risks
involved in their carriage on deck when the goods
are carried in accordance
with subparagraphs 1 (a) or (c) of this article.
3. If the goods have been
carried on deck in cases other than those permitted
pursuant to paragraph 1 of
this article, the carrier is liable for loss of or damage
to the goods or delay in
their delivery that is exclusively caused by their
carriage on deck, and is not
entitled to the defenses provided for in article 17.
4. The carrier is not entitled to invoke
subparagraph 1 (c) of this
article against a third party
that has acquired a
negotiable transport
document or a negotiable electronic transport record
in good faith, unless the
contract particulars state that the goods may be
carried on deck.
5. If the carrier and shipper expressly agreed that the
goods would be carried
under deck, the carrier is not entitled to the benefit
of the limitation of liability
for any loss of, damage to or delay in the delivery of
the goods to the extent that
such loss, damage, or delay resulted from their carriage
on deck.
to the liability of the
carrier apply to the loss of, damage to or delay
in the delivery of goods
carried on deck pursuant to paragraph 1
of this article.
3. If the goods have been carried on deck in
cases other than those
permitted pursuant to paragraph 1 of this
article, the carrier is
liable for loss of or damage to the goods or
delay in their delivery
that is exclusively caused by their carriage
on deck, and is not
entitled to the defenses provided for in article
158.
4. The carrier is not entitled to invoke
subparagraph 1 (c) of
this article against a third party that has
acquired a negotiable transport document or a
negotiable electronic
transport record in good
faith, unless the
contract particulars
state that the goods may be carried on deck.
5. If the carrier and
shipper expressly agreed that the goods
would be carried under
deck, the carrier is not entitled to the benefit of
the limitation of
liability for any loss of, damage to or delay in
the delivery of the
goods to the extent that such loss, damage, or
delay resulted from
their carriage on deck.
Period of
responsibility
Article 164
The provisions that
govern liability mentioned in this
chapter shall be applied
to maritime transport according to the bill of
lading within the period
of the loading and
Article 1(e)
"Carriage of goods" covers
the period from the time when the goods are loaded
on to the time they are
discharged from the ship.
Article 4
Period of responsibility
1.The responsibility of the
carrier for the goods under
this Convention covers the period during which the
carrier is in charge of the
goods at the port of loading, during the
Article 12
Period of responsibility of
the carrier
1. The period of
responsibility of the carrier for the goods under this
Convention begins when
the carrier or a performing party receives the goods
Period of
responsibility
1. The period of responsibility of the
carrier for the goods
under this law begins when the carrier or a
person acting on its
behalf receives the goods for carriage and
290
unloading the goods
onboard the Vessel.
These provisions shall
also not apply in accordance with the
lease agreement unless a
bill of lading was issued together with the lease
agreement. The Bill of
Lading shall regulate the relationship between the
holder and the carrier.
The above provisions shall not apply to the
transport of livestock or
to goods mentioned in the bill of lading as
being was shipped on
the deck of the Vessel.
carriage and at the port of
discharge.
2.For the purpose of
paragraph 1 of this article, the carrier is deemed to be
in charge of the goods
(a) from the time he has taken over the goods from:
(i) the shipper, or a person
acting on his behalf; or (ii) an authority or other third
party to whom, pursuant to
law or regulations applicable at the port of
loading, the goods must be
handed over for shipment; (b) until the time he has
delivered the goods:
(i) by handing over the goods to the consignee; or
(ii) in cases where the
consignee does not receive the goods from the carrier,
by placing them at the
disposal of the consignee in accordance with the
contract or with the law or with the usage of the
particular trade, applicable
at the port of discharge; or
(iii) by handing over the
goods to an authority or
other third party to whom, pursuant to law or
regulations applicable at
the port of discharge, the goods must be handed
over.
for carriage and ends when
the goods are delivered. 2. (a) If the law or
regulations of the place of
receipt require the goods to be handed over to an
authority or other third
party from which the carrier may collect them,
the period of responsibility
of the carrier begins when the carrier collects the
goods from the authority or
other third party. (b) If the law or regulations of the
place of delivery require
the carrier to hand over the goods to an authority or
other third party from
which the consignee may collect them, the period of
responsibility of the carrier
ends when the carrier hands the goods over to the
authority or other third
party. 3. For the purpose of
determining the carrier’s period of responsibility,
the parties may agree on
the time and location of
receipt and delivery of the
goods, but a provision in a
contract of carriage is void to the extent that it
provides that:
(a) The time of receipt of the goods is subsequent to
the beginning of their
initial loading under the contract of carriage;
or (b) The time of delivery
of the goods is prior to the
completion of their final unloading under the
contract of carriage.
ends when the goods
are delivered according to this law (Delivery
Articles).
2. For the purpose of
determining the
carrier’s period of responsibility, the
parties may agree on
the time and location of receipt and delivery of
the goods, but a
provision in a contract of carriage is void to
the extent that it
provides that: (a) The time of receipt
of the goods is
subsequent to the beginning of their
initial loading under the
contract of carriage; or (b) The time of delivery
of the goods is prior to
the completion of their final unloading under
the contract of carriage.
291
Appendix 4: Decree Law on the Promulgation of the Electronic Commerce and
Transactions Law No. 16 of 2010
Issuance Articles
Article 1
The provisions of the electronic transactions and commerce Law enclosed herewith shall
apply.
Article 2
Where no specific provision is provided for in the attached Law, electronic transactions
and commerce shall be governed by the relevant legislation regulating each of them.
Article 3
The Supreme Council of Information and Communication Technology shall issue the by-
laws and decisions to implement the provisions of the enclosed Law.
Article 4 All concerned authorities, each within its jurisdiction, shall implement this
Law, which shall be published in the Official Gazette.
Definitions
Article 1
In the application of this Law, the following terms and expressions shall have the
meanings assigned to each of them unless the context requires otherwise:
“Person”: means a natural or juristic person;
“Supreme Council”: means the Supreme Council of Information and Communication
Technology (SCICT);
“Electronic”: means technology based on using electrical, electromagnetic or optical
means or any other form of similar technological means;
“Electronic communication”: means any communication of information by means of
telecommunications;
“Automated message” means a computer system or any other electronic or automated
means used to initiate or respond to electronic communications or related actions, in
whole or in part, without review or intervention by a natural person;
“Information system”: means programs and devices for generating, sending, receiving,
displaying, processing, or storing information;
292
“Data message”: means information generated, sent, received, processed, stored or
displayed by one or more information systems or by means of electronic communication;
“Accessible”: means the capability to view, gain access to, retrieve, use or obtain
information;
“Originator” of a data message: a person by whom, or on whose behalf, the data message
has been sent, generated or stored, but it does not include a party acting as an
intermediary with respect to that data message;
“Addressee”: means a person who is intended by the originator of the data message to
receive the data message, but does not include a person acting as an intermediary with
respect to that message;
“Information”: means information in the form of text, laws, images, speech or sound;
“Personal information”: means information about an individual whose identity is
apparent or can reasonably be ascertained either from that information or from a
combination of that information and other information;
“Electronic signature”: means the inscription affixed to a data message in the form of
letters, numbers, symbols or tokens with a unique feature used to identify the signatory
and distinguish him from others for the purpose of indicating the signatory's approval of
the data message;
“Signature-creation data”: means information, laws or special encryption keys used by
the signatory in the creation of the electronic signature;
“Signatory”: means the person legally entitled to access signature creation data and to act
personally or on behalf of a person in using such information for the creation of the
electronic signature;
“Certification service provider”: means a person licensed to maintain an infrastructure of
public keys, to issue certification certificates and to provide services related to electronic
signatures;
“Certification certificate”: means a document issued by a certification service provider
that affirms the validity of the link between a signatory and the signature creation data;
“Electronic transaction”: means any deal, contract or agreement concluded or performed,
in whole or in part, through electronic communications;
“Relying party”: means a person that acts on the basis of a certification certificate or an
electronic signature;
“e-Commerce service”: means a service normally provided for consideration, or a service
of a non-commercial nature, provided by means of any combination of an information
293
system and any telecommunications network or telecommunications service, including
electronic government services;
“Service provider”: means a person providing an electronic commerce service;
“Place of business”: means a non-transitory facility or installation used to carry on a
business, including the provision of any service, exclusively used for that purpose;
“Customer”: means a person engaging in a transaction as part of an electronic commerce
service;
“Consumer”: means a person who is acting for purposes other than those related to his
trade, business or profession;
“Telecommunications”: any transmission, emission or reception of signs, signals,
writing, images, sounds, pictures, data or information of any kind by wire, radio, optical,
other electromagnetic means of communications or any other similar communication
means;
“Telecommunications network”: means any wire, radio, optical or other electromagnetic
system for routing, switching or transmitting telecommunications services between
network termination points including fixed and mobile terrestrial networks, satellite
networks, electricity or other utility transmission systems to the extent used for
telecommunications, circuit or packet switched networks including those used for
Internet Protocol services, and networks used for the delivery of broadcasting services
including cable television networks;
“Telecommunications service”: means any form of transmission of signs, text, images or
other by means of a telecommunications network, but does not include broadcasting
services;
“Internet Protocol”: any of the set of communications protocols defining standards for
Internet network interoperability, transmissions and related applications, including the
“Transmission Control Protocol” “TCP” and the “TCP/IP” protocol suite;
“Hosting services”: means electronic services that provide users with capabilities for
storing information on the information systems of the service provider and making stored
information accessible to other users of electronic commerce services;
“Caching”: means the temporary storage of information in one or more information
systems, whereby information is stored to enable access to it on a frequent basis;
294
Application of the law
Article 2
The provisions of this Law shall apply to transactions between parties who agree to conduct
transactions using electronic communications.
The consent of the person may be inferred from that person's conduct.
The governmental entities shall give explicit consent in relation to electronic transactions
of which they are a party.
The competent governmental entities may, if so decided to carry out any of their duties
by means of electronic communications, specify additional requirements or
specifications.
Article 3
The provisions of this Law shall not apply to the following documents and transactions:
1.instruments and documents relating to family matters and personal status;
2.instruments and documents related to real-estate incorporeal dispositions;
3.instruments and documents that are required by law to be authenticated;
4.negotiable commercial instruments in accordance with the provisions of the Trade
Regulation Law.
Based on the resolution of the Council of Ministers, the recommendation of the Supreme
Council and for the public interest, it may be deleted or added to any of the exempt
matters stipulated in the above-mentioned paragraph.
Requirements of Electronic Transactions
Article 4
When concluding contracts or conducting transactions, an offer or acceptance thereof,
may be expressed in whole or in part, by means of data message transmitted through
electronic communications.
The use of one or more data messages in concluding contracts or conducting transactions
shall not prejudice the validity or enforceability thereof.
Article 5
The data message shall be deemed to have been sent by the originator if it was sent by the
originator itself. A data message shall also be deemed to be sent by the originator in the
following cases:
295
1.Where the data message was sent by a person who had the authority to act on behalf of
the originator in respect of the data message whenever sent by an information system or
automated message system programmed to operate by, or on behalf of, the originator.
2.Where the addressee properly applied a procedure previously agreed to by the
originator for that purpose in order to ascertain whether the data message was that of the
originator.
3.Where the data message as received by the addressee resulted from the actions of a
person whose relationship with the originator or with any agent of the originator enabled
that person to lawfully gain access to a method used by the originator to identify the data
message as its own.
Article 6
A data message shall not be deemed originated from the originator in the following two
cases:
1.where the addressee receives a notice from the originator that the data message is not
from the originator and that there is reasonable time to act accordingly.
2.Where the addressee knows or should have known, had it exercised the reasonable
diligence or any agreed procedure that the data message was not from the originator.
Article 7
In the framework of the relation with the originator, an addressee may rely on the data
message issued by the originator and to act accordingly. The addressee may not rely on
the aforesaid data message when the addressee knows or should have known, had the
addressee exercised reasonable diligence or used any agreed procedure, that data message
as received was a result of an error from the process of telecommunication.
Article 8
The addressee is entitled to treat each data message received as a separate data message,
and to act accordingly, except to the extent that it duplicates another data message and the
addressee knows or should have known, had it exercised reasonable diligence or used any
agreed procedure, that the data message was a duplicate.
Article 9
Where the originator has requested or agreed with the addressee, on or before sending the
data message that the receipt of the data message be acknowledged, the data message
shall be deemed as received by the addressee once the aforementioned acknowledgement
is received by the originator. This does not imply that the content of the data message as
sent corresponds to the content as received
296
Article 10
Where the originator has not identified or agreed with the addressee that the
acknowledgement be given in a particular form or by a particular method, an
acknowledgement may be given by any communication by the addressee, automated or
otherwise, or any conduct of the addressee, sufficient to indicate to the originator that the
data message has been received.
Article 11
Where the originator has stated that the data message is conditional on receipt of the
acknowledgement, the data message shall be treated as though it was not sent, until the
acknowledgement is received.
Where the originator has not stated that the data message is conditional on receipt of an
acknowledgement, and where an acknowledgement has not been received by the
originator, the originator may give notice to the addressee stating that the earlier data
message requires acknowledgement and specifying a reasonable time by which the
acknowledgement must be received, and if the acknowledgement is not received within
the time specified, the originator may, upon notice to the addressee, treat the data
message as though it was not sent, or exercise any other rights it may have.
Article 12
Where the received acknowledgement states that the data message met technical
requirements, either agreed upon or set forth in applicable standards, those requirements
shall be deemed to have been met.
Article 13
The provisions of Articles 9, 10, 11 and 12 of this Law shall not exceed sending or
receipt of the data message to the legal consequences of sending the data message or the
acknowledgement thereof.
Article 14
Unless otherwise agreed between the originator and the addressee of the data message,
the time of dispatching the data message shall be determined as follows:
1.Where the data message enters an information system outside the control of the
originator;
2.Where the data message enters successively to two or more information systems
outside the control of the originator, then, the dispatch time of the data message occurs
when it enters the first of those information systems.
297
Article 15
Unless otherwise agreed between the originator and the addressee of the data message,
the time of receipt of a data message shall be determined as follows:
1.Where the addressee has designated an electronic address for receiving the data
messages, then, the time of receipt is when the data message is accessed by the addressee
at that electronic address.
2.Where the data message has been sent to an address not designated by the addressee,
then, the time of receipt is the time when the data message is accessed by the addressee or
when retrieved by the addressee, whichever is earlier.
Article 16
Unless otherwise agreed between the originator and the addressee:
1.the data message shall be deemed to have been dispatched from the place where the
originator has its place of business. The data message shall be deemed to have been
received at the place where the addressee has its place of business;
2.where the originator or addressee has more than one place of business, the place of
business that has a closer relationship to the specific transaction shall be the applicable
place of dispatch or receipt;
3.where the originator or addressee has more than one place of business which don't
comply with the provisions of the preceding paragraphs, the originator's or addressee's
main office shall be the applicable place of dispatch or receipt;
4.where the originator or addressee does not have a place of business, the applicable
place of dispatch or receipt shall be the place where the originator or addressee ordinarily
resides.
Article 17
A location shall not be a place of business merely because that is where equipment or any
other part of an information system used by a party in connection with a transaction is
located or where an information system used by a party in connection with a transaction
may be accessed by other parties.
Article 18
The sole fact that a party makes use of a domain name or electronic mail address
connected to a specific country shall not create a presumption that its place of business is
located in that country.
Article 19
298
Where a natural person makes an unintentional entry or any error in entering information
in a data message exchanged with the automated message system of another party and the
automated message system does not provide the person with an opportunity to correct the
error, that person, or the party on whose behalf that person was acting, shall have the
right to withdraw the portion of the data message in which the input error was made
provided that the person or the party on whose behalf that person was acting:
1.notifies the other party of the error as soon as possible after having learned of the error;
2.where the input error relates to goods or services, not uses the goods or services or any
benefit or material value thereof
Effects and Authenticity of Electronic Transactions
Article 20
Information in the data message shall not lose its legal effect, validity or enforceability
solely on the grounds that it is in the form of a data message.
Information in the data message shall also not lose its legal effect, validity or
enforceability solely on the grounds that it is merely referred to in that data message
without details, where the data message clearly identifies how to access the details of this
information, and the information is accessible so as to be used for subsequent reference
by every person that has a right to access and use the information and the method for
accessing the information is clearly identified in the data message and does not place an
unreasonable burden on any person that has a right to access the information.
Article 21
Where the law stipulates that an instrument, document or transaction be drawn up in
writing or otherwise identifies certain consequences for non abidance, the instrument,
document or transaction shall be deemed to have fulfils this condition, where the
instrument, document or transaction are in the form of accessible data message.
Article 22
Where the law stipulates that an instrument, document or transaction must carry signature
or otherwise identifies legal consequences for non abidance, a dully electronic signature
pursuant to Article 28 of this Law shall fulfil this condition.
Article 23
Where the law stipulates that information be presented or retained in its original form or
otherwise identifies legal consequences for non abidance, that requirement shall be
deemed satisfied by presenting or retaining such information or document in the form of
a data message provided that the following conditions are met:
299
1.The integrity and reliability of the information, from the time when it was first
produced in its final form as a data message until the time that the information is
subsequently accessed and presented, can be reasonably demonstrated.
2.The standard for assessing integrity of the data message in accordance with the
preceding article shall be whether the information has remained complete and unaltered,
apart from any change which arises from the mere communication, storage or display of
the data message and which does not alter the content thereof. The reliability of the
information shall be assessed in the light of the purpose for which the data message was
produced and in the light of all other relevant circumstances.
3.The data message can be accessible so as to be used for subsequent reference by every
person that has a right to access and use the information therein.
Article 24
Where the law stipulates that an information, instrument or document be retained or
otherwise, identifies legal consequences for non abidance, such requirement shall deemed
to have been met if the information, instrument or document are retained in the form of a
data message, provided that the following conditions are met:
1.The information contained in the data message is accessible for subsequent reference
by every person that has a right to access and use the information therein.
2.The data message is retained in the format in which it was originally produced, sent or
received, or in a format that can be demonstrated to accurately represent the information
contained therein as it was originally produced, sent or received.
3.Such information, if any exists, is retained as enables the identification of the origin and
destination of the data message and the date and time when it was originally sent or
received.
Article 25
Nothing shall prevent the acceptance of an instrument, document or transaction as
evidence on the grounds that it is in the form of data message, albeit not in its original
form if it is the only evidence that the person asserts.
Article 26
When assessing the evidential weight of information, instrument or a document in the
form of a data message, regard shall be given to the following:
1.the processes and circumstances under which the data message was generated, stored or
communicated;
300
2.the processes and circumstances under which the integrity of the instrument, document
or information contained in the data message was maintained;
3.the processes and circumstances under which the originator of the data message was
identified; and
4.any other relevant process or circumstances.
Article 27
A contract formed by the interaction of an automated message system and a natural
person, or by the interaction of automated message systems, shall not be denied validity
or enforceability on the sole ground that no natural person reviewed or intervened in each
of the individual actions carried out by the automated message systems or the resulting
contract.
Electronic Signature
Article 28
An electronic signature shall have evidential weight if the following conditions are met:
1.the signature creation information are identified with the signatory and no other person;
2.the signature creation information were, at the time of signing, under the control of the
signatory and of no other person;
3.any alteration to the electronic signature, made after the time of signing, is detectable;
4.where a purpose of the legal requirement for a signature is to provide assurance as to
the integrity of the information to which it relates, any alteration made to such
information after the time of signing is detectable.
The Supreme Council shall issue decisions to determine which electronic signature
processes and technologies satisfy the provisions of the preceding provisions.
Article 29
Where initiating an electronic signature, the signatory shall comply with the following:
1.exercise reasonable diligence to avoid unauthorised use of its signature creation
information.
2.without undue delay, utilise means made available by the certification service provider
pursuant to Articles 36 and 37 of this Law to notify any person that may reasonably be
expected by the signatory to rely on the electronic signature or to take the necessary
measures in support of the electronic signature if the signature creation information has
301
been compromised, or circumstances give rise to a substantial risk that the signature
creation information may have been compromised.
3.where a certification certificate is used to support the electronic signature, exercise
reasonable diligence to ensure the accuracy and completeness of all material
representations made by the signatory that are relevant to the certification certificate
throughout its life cycle or that are to be included in the certification certificate.
Article 30
A signatory shall bear the legal consequences of its failure to satisfy the aforementioned
requirements as stipulated in the preceding Article.
Article 31
A relying party shall bear the legal consequences of its failure to take reasonable steps to
ensure that the requirements of the electronic signature stated in Article 28 herein have
been met, or where an electronic signature is supported by a certification certificate,
verify the validity, origin, suspension or revocation of the certificate, or any limitation
thereon.
Article 32
An electronic signature shall be deemed legally effective, regardless of the geographic
location where the electronic signature is created or used, or the geographic location of
the place of business of the signatory.
Article 33
An electronic signature created or used outside the State of Qatar shall have the same
legal effect in Qatar if the electronic signature offers an equal level of reliability that is
not less than the level of reliability required under Article 28 of this Law.
Article 34
Without prejudice to Article 28 of the Law, parties may agree to the use identified types
of electronic signatures provided that the agreement is valid under the law.
302
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310
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2016) http://www.thepeninsulaqatar.com/news/qatar/374857/doha-port-saw-about-
15-rise-in-container-volumes-in-2015
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311
Perumal, Santhosh V., Qatar Lifts Minimum Capital Norm for LLCs and to Support
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port-development-project
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40ed-ae4e-e47157071732
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2015, Alsharq Newspaper (Dec. 23, 2015) http://www.al-sharq.com/news/details/393589
The launch of Umm Alhoul Economic Channel at a Cost of 1.3 Billion Riyals, Alraya
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442c-96e5-cbe3c295b355
312
The Limited Capacity of the Port Hinders the Shipping Sector, Alraya Newspaper (Oct.
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122741d17432/ef5a0cd6-7163-4678-9369-957adee10ef5
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4d9755ea544e
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1095 Billion Milaha’s Gross Profit, Alraya Newspaper (Feb. 24, 2016)
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468c-aad2-fd376bd7aba4
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79 Billion Dollars is the Cost of Transport Infrastructure Project, Alraya Newspaper
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6c884c93bc2c
95% of the Infrastructure Projects is Allocated for Road Transport Investment, Alraya
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4ca1-9c10-122741d17432/18e8191f-ecfd-4c8e-984b-73bcf85a87d4
An Amiri Decree Amending the Formation of the Council of Ministers, Alraya
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b027-ce6c7c3cc2b9
313
Hamad Port Converts Qatar to a Global Trade Center, Alraya Newspaper (Feb. 9, 2015)
http://www.raya.com/news/pages/e7cd97c2-acce-4bf3-9e60-9e80c555ea7c
Integrated Transport System Strengthens Efforts to Diversify the Qatari Economy,
Alsharq Newspaper (Jan. 16, 2016) http://www.al-sharq.com/news/details/397615
3.5 Million Customs Transactions Processed Through Alnadeeb System, Alraya
Newspaper (Feb. 25, 2016) http://www.raya.com/news/pages/c06b55ec-5228-468c-
aad2-fd376bd7aba4
Minister of Economy: Qatar achieved stable growth rates, Alraya Newspaper (Aug. 3,
2016) http://www.raya.com/news/pages/1f1d1a93-f245-4e4e-b029-bd8db337fb82
Qatar a Global Trade Center, Alraya Newspaper (Nov. 22, 2015)
http://www.raya.com/news/pages/3dea96dc-6077-4978-82ab-4f2323c873e8
Qatar Entering a New Era of Economic Diversification, Alraya Newspaper (June. 6,
2014) http://www.raya.com/home/print/f6451603-4dff-4ca1-9c10-
122741d17432/0824de6e-3165-4590-bcdd-aa6d8c4eb187
Starting Trans 4 with Local and Gulf Wide Participation, Alwatan Newspaper (Nov. 27,
2013) http://archive.al-watan.com/viewnews.aspx?n=C556ED96-D436-49E6-
9ED4-98D3040518B7&d=20131127
The formation of five committees to follow up on transport projects in the GCC, Alraya
Newspaper (Oct. 16,2015) http://www.raya.com/news/pages/d42be606-b363-
40ed-ae4e-e47157071732
The Growth of the Non-petroleum Sector in Qatar Exceeds 10% for the First Time in
2015, Alsharq Newspaper (Dec. 23, 2015) http://www.al-sharq.com/news/details/393589
314
The launch of Umm Alhourl Economic Channel at a Cost of 1.3 Billion Riyals, Alraya
Newspaper (Mar. 15, 2016) http://www.raya.com/news/pages/4c5b6d61-f254-
442c-96e5-cbe3c295b355
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122741d17432/ef5a0cd6-7163-4678-9369-957adee10ef5
The Transport Sector is the Top Amongst Infrastructure Projects, Alraya Newspaper
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4d9755ea544e
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E-Commerce Forum Drew More Than 700 Attendees and Renowned Experts from
Companies such as Google, PayPal, and Uber, http://www.ictqatar.qa/en/news-
events/news/e-commerce-forum-drew-more-700-attendees-and-renowned-experts-
companies-such-google (last visited Aug. 9, 2016).
315
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9, 2016).
Global Competitiveness Index, World Economic Index,
http://reports.weforum.org/global-competitiveness-report-2015-
2016/economies/#economy=QAT (last visited Sep. 19, 2016).
Global Shipping: a Dynamic Market, World Ocean Review,
http://worldoceanreview.com/en/wor-1/transport/global-shipping/ (last visited
Nov. 8, 2016).
Government Entities Are Embracing Social Media to Improve Service Delivery and
Engage with Stakeholders, a New Report Reveals, http://www.ictqatar.qa/en/news-
events/news/government-entities-are-embracing-social-media-improve-service-
delivery-and-engage (last visited Aug. 9, 2016).
GCC Rail Network to Link all 6 Gulf States by 2018, Gulf News,
http://gulfnews.com/news/uae/transport/gcc-rail-network-to-link-all-6-gulf-states-
by-2018-1.1248632 (last visited Nov. 2, 2016).
H.E. Minister of Transport & Communications Inaugurates 5th Annual Arab Future
Cities Summit 2016 Monday, http://www.ictqatar.qa/en/news-events/news/he-
minister-transport-communications-inaugurates-5th-annual-arab-future-cities (last
visited Aug. 9, 2016).
H.E. Minister of Transport & Communications Inaugurates 5th Annual Arab Future
Cities Summit 2016 Monday, http://www.ictqatar.qa/en/news-events/news/he-
minister-transport-communications-inaugurates-5th-annual-arab-future-cities (last
visited Aug. 9, 2016).
H.E. the Prime Minister inaugurates Services Complex Building and expansion, Qatar
Ports Management Company,
http://www.mwani.com.qa/En/Media/News/Pages/NewsDetails.aspx?NewsID=20
(last visited Agu. 10, 2016).
316
Halul Island, Qatar Petroleum,
http://www.qp.com.qa/en/QPActivities/QPOperations/Pages/IndustrialCitiesDetail
s.aspx?IID=5 (last visited Agu. 10, 2016).
Hamad Port Revived a Group of 40 Master’s Level Students From the “Thchnical
University Munich” German, Qatar Ports Management Company,
http://www.mwani.com.qa/en/Media/News/Pages/NewsDetails.aspx?NewsID=29
(last visited Agu. 10, 2016).
His Highness Sheikh Abdullah Bin Hamad, Vice Emir Christens and Immerses the New
Port, Qatar Ports Management Company,
http://www.mwani.com.qa/en/Media/News/Pages/NewsDetails.aspx?NewsID=27
(last visited Agu. 10, 2016).
Integrated Transport System Strengthens Efforts to Diversify the Qatari Economy,
Alsharq Newspaper (Jan. 16, 2016) http://www.al-sharq.com/news/details/397615
Mesaieed CT7, Milaha, http://www.milahaml.com/pages/view/29/mesaieed-ct7 (last
visited Agu. 10, 2016).
Ministry of Transport and Communications launches Policy and Strategy Development
Project, http://mot.gov.qa/en/MediaCenter/Pages/Ministry-of-Transport-and-
Communications-launches-Policy-and-Strategy-Development-Project.aspx (last
visited Aug. 9, 2016).
Ministry of Transport and Communications, Microsoft Sign Agreement to Broaden E-
services Implementation, http://www.ictqatar.qa/en/news-events/news/ministry-
transport-and-communications-microsoft-sign-agreement-broaden-e-services (last
visited Aug. 9, 2016).
MOTC Organizes Seminar on Digital Transformation, http://www.ictqatar.qa/en/news-
events/news/motc-organizes-seminar-digital-transformation (last visited Aug. 9,
2016).
317
New Port Project, http://www.npp.com.qa/ (last visited Aug. 10, 2016).
New Report Reveals How ICT Is Helping to Transform Businesses in Qatar,
http://www.ictqatar.qa/en/news-events/news/new-report-reveals-how-ict-helping-
transform-businesses-qatar (last visited Aug. 9, 2016).
Obstacles to Global Shipping: Piracy and Terrorism, World Ocean Review,
http://worldoceanreview.com/en/wor-1/transport/piracy-and-terrorism/ (last visited
Agu. 10, 2016).
Organization of the Petroleum Exporting
Countrieshttp://www.opec.org/opec_web/en/about_us/168.htm (last visited Aug. 9,
2016).
Piracy, World Shipping Council, http://www.worldshipping.org/industry-
issues/security/piracy. (last visited Aug. 10, 2016).
Qatar Gas Transport Company Naqilat, http://www.nakilat.com.qa/Home?lang=en-US
(last visited Aug. 10, 2016).
Qatar Makes Giant Leaps in Roads, Ports and Airport Infrastructure Quality,
http://mot.gov.qa/en/MediaCenter/Pages/Qatar-Makes-Giant-Leaps-in-Roads,-
Ports-and-Airport-Infrastructure-Quality.aspx (last visited Aug. 9, 2016).
Qatar Petroleum, http://www.qp.com.qa/en/AboutQP/Pages/AboutUs.aspx (last visited
Aug. 9, 2016).
Rail Network Project to Link GCC States Begins, Middle East Eye,
http://www.middleeasteye.net/news/rail-network-project-link-gcc-states-begins-
1070205078 (last visited Agu. 10, 2016).
318
The World-class Erhama Bin Jaber Al Jalahma Shipyard was Named Best Regional
Shipyard at TMS Awards 201, Naqilat,
http://www.nakilat.com.qa/News/News_1260 (last visited Aug. 10, 2016).
Turnbull, Elizabeth & Perucca, Marcia, Small Change, Big Impact: SOLAS Container
Weight Verification: the Implications for Carriers, Clydeco,
http://www.clydeco.com/insight/article/small-change-big-impact-solas-container-
weight-verification-the-implication (last visited Nov. 1, 2016).
Turnbull, Elizabeth & Perucca, Marcia, Small Change, Big Impact: SOLAS Container
Weight Verification: the Impact on Port Terminals, Clydeco,
http://www.clydeco.com/insight/article/small-change-big-impact-solas-container-
weight-verification-the-impact-on-p (last visited Nov. 1, 2016).
Arabic Websites
Facts and Statistics on the Sources of Wealth in Qatar, BBC
http://www.bbc.com/arabic/business/2013/06/130626_qatar_gaz_oil (last visited
Nov. 9, 2016).
Joint Workshop between the Ministry of Economic and Trade and Business
Entrepreneurship Center, http://www.qu.edu.qa/ar/newsroom/view.php?id=3220
(last visited Aug. 9,2016).
Pearl civilization in the Arabian Gulf, Akhbar AlKhaleej, http://www.akhbar-
alkhaleej.com/12789/article/15848.html (last visited Sep. 20, 2016).
The Basic Structure of the State: On the Path of Development, Qatar Construction Guide,
http://www.qatarconstructionguide.com/index/index.php?id=3&art=620&lang=ar.
(last visited Aug. 10,2016).
319
Online English Reports
Report Qatar 2015: Qatar's Government Works Towards Economic Diversification,
Oxford Business Group (2015)
http://www.oxfordbusinessgroup.com/overview/broader-base-government-
making-efforts-diversify-economy
Report Qatar 2015: Transport, Oxford Business Group (2015)
http://www.oxfordbusinessgroup.com/qatar-2015/transport
Report Qatar 2015: Upgrades to Qatar's Transport Infrastructure Kick Off, Oxford
Business Group (2015) http://www.oxfordbusinessgroup.com/overview/upgrades-
qatars-transport-infrastructure-kick
Report Qatar 2016: Infrastructure Projects and Population Growth Spell a Busy Time
Ahead for Qatar, Oxford Business Group (2016)
http://www.oxfordbusinessgroup.com/overview/moving-forward-huge-
infrastructure-projects-and-rapidly-growing-population-guarantee-busy-time-ahead
Report Qatar 2016: Jassim Bin Saif Ahmed Al Sulaiti, Minister of Transport and
Communications: Interview, Oxford Business Group (2016)
.http://www.oxfordbusinessgroup.com/interview/shipping-forecast-obg-talks-
jassim-bin-saif-ahmed-al-sulaiti-minister-transport-and-communications
Arabic Reports
Studies and Research Center: Asharqiya Chamber, Sea Carriage in the Framework of the
World Trade Organization Report (2009)
https://www.chamber.org.sa/sites/Arabic/InformationsCenter/WTO/Publication_do
cuments/SeaTrans.pdf
320
Statistics
Statistics on the Amount of Tonnage Delivered to Doha Port between 2010 and November
2015.
Statistics on the Number of Containers Received by Doha Port between 2010 and
November 2015.
Online PDF Documents
Guidelines Regarding the Verified Gross Mass of a Container Carrying Cargo of 2014,
http://www.imo.org/en/OurWork/Safety/Cargoes/Containers/Documents/MSC.1
%20Circ.1475.pdf (last visited Nov. 1, 2016).
Qatar National Vision 2030,
http://www.qu.edu.qa/pharmacy/components/upcoming_events_material/Qatar_Na
tional_Vision_2030.pdf (last visited Aug. 9, 2016).
Qatar’s Import Classified by Commodity,
http://www.mdps.gov.qa/en/statistics/Statistical%20Releases/Economic/ForeignTr
ade/2016/Q2/Importd_by_Commodity(HS)Q2-2016.pdf (last visited Nov. 1,
2016).
Research for the Future,
http://www.qu.edu.qa/offices/research/rff/Research_for_the_future_ENGLISH.pdf
(last visited Aug. 9, 2016).
321
Interviews
Discussion with Professor Michael M. Butterworth, Adjunct Associate Professor of Law,
Tulane University School of Law (Aug. 23, 2016).
Interview with Captin Essam, Qatar Ports Managements Company [QPMC] (Jun. 10,
2014).
Interview with Dr. Youssif Al-Abdulla, Associate Professor of History, Qatar University.
Interview with Shipping Agency Department, Qatar Navigation Company [Milaha] (Apr.
19, 2016).
Interview with the Port Services Department manager, Qatar Navigation Company
[Milaha] (Apr. 19, 2016).
Telephone interview with an oil and gas professor, Qatar University (Aug. 7, 2016).
Telephone interview with Mohammed Samer Ashour, Former Legal Expert at Qatar Ports
Managements Company [QPMC] (Aug. 3, 2016).
Telephone interview with Mohammed Samer Ashour, Former Legal Expert at Qatar Ports
Managements Company [QPMC] (Jun. 12, 2016).
Paper Delivered at General Assembly
Berlingieri, Francesco, A Comparative Analysis of the Hague-Visby Rules, the Hamburg
Rules and the Rotterdam Rules, Paper delivered at the General Assembly of the
AMD, Marrakesh (2009).
322
Thesis & Dissertations
Bengtsson, Sofia, The Carriage of Goods by Sea Conventions – A comparative study of
Seaworthiness and the list of exclusions (2010) (unpublished Master thesis, Lund
University).
Kassem, Ahmad Hussam, The Legal Aspects of Seaworthiness: Current Law and
Development (2006) (unpublished P.hD, Swansea University).
323
Biography
Muna Al-Marzouqi, a lecturer at Qatar University College of Law. She earned her
LL.B from Qatar University, and LL.M from University of California Berkeley. Her
Specialization is admiralty and maritime Law. She teaches commercial law and maritime
and.