Carriage of Goods by Sea Contract Under Qatari Maritime

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

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.

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.

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

iii

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

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

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

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

vii

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

viii

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.

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.

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

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”);

 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.

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.

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

In 1935, oil was discovered for the first time in the Al Dukhan field,11 ultimately 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 transformed the economy of Qatar.12 Oil and gas amount to 55% of the country’s economic production.13 The State of Qatar today maintains the third largest natural gas reserves in the world.14 At the global level, Qatar is one of the largest producers of liquefied natural gas.15

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 generations.16 The country is strongly encouraging the significant role and great contribution of the private sector to boost economic diversification. For that reason, the country is developing its financial, legislative, and administrative sectors to facilitate the process of doing business.17 Despite the decline in oil prices, the state’s wise policies and plans have proved efficient during such crises, as the national income from non- hydrocarbon products has increased by 13.5 %.18 The discussion of the current economy 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).

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.

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.

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.

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.

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.

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, and a bulk grain terminal (with a capacity of 1 million tons per year).83 In addition, 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 goods in safe warehouses.84

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).

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 largest vessels in the world and promote the shipping of goods in transit.90 Owners of 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 time and avoid excessive demurrage fees so that vessels are able to continue their

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 economic activities.91 This is so because the Hamad Port is equipped with massive cargo handling services based on the latest global technology methods. The port will encompass 12 ships-to-shore cranes and 38 yard cranes.92 A single crane can carry two containers at the same time, and each container is 40 f2 and weighs 80 tons.93

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

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.

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.

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”.

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

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”.

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.

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.

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

“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.

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.

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

143 Compare the lack of a BOL definition under the QML, with art. 9 of the Jordanian Maritime Authority 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

The Hamburg Rules move a step forward and define the BOL in article 1(7).152 In 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.

152 See the Hamburg Rules art. 1(7) infra Appendix 3, Table of Articles, General definitions 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 charge, is found in article 16 of the Hamburg Rules.153 Crucially, in contrast to the stand of the QML, the Hamburg Rules’ application is not confined to the BOL. It also applies to other transport documents evidencing the contract of carriage as per article 18.154

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 in article 1(14) and 1(18).155 The RR do not limit their application to the BOL, nor 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 subject to the provisions of the RR. According to article 35 of the RR,156 a carrier may

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 electronically. The RR state the functions of the document and the record.157 They serve 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 facie evidence of the document particulars.158

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 by electronic communication.159 For instance, the carrier may create a record using a computer including correspondences between him and the shipper, goods manifest,

157 See the RR art. 41 infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.

158 See the RR art. 40 infra Appendix 3, Table of Articles, Reservation to the contract particulars.

159 See the RR art. 1(18) & 1(17) infra Appendix 3, Table of Articles, General definitions article.

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”.

168 See the Hamburg Rules art. 15(2) infra Appendix 3, Table of Articles, Contract particulars.

169 Id.

170 See the RR art. 1(14) & 1(18) infra Appendix 3, Table of Articles, General definitions article.

61 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

171 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of Contracts.

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

173 See the RR art. 6 infra Appendix 3, Table of Articles, Freedom of contract.

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.

180 See the QML art. 151 infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.

181 See the Hague-Visby Rules art. 3(3) infra Appendix 3, Table of Articles, Contract particulars.

182 See the Hamburg Rules art. 15(1) infra Appendix 3, Table of Articles, Contract particulars.

183 See the QML art. 147, infra, Appendix 3, Table of Articles, Contract particulars.

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

184 See the RR art. 36(1) infra Appendix 3, Table of Articles, Contract particulars.

185 See the RR art. 36(2) infra Appendix 3, Table of Articles, Contract particulars.

186 See the RR art. 36(3) infra Appendix 3, Table of Articles, Contract particulars.

187 See the RR art. 36(4) infra Appendix 3, Table of Articles, Contract particulars.

188 See the RR art. 36(4) infra Appendix 3, Table of Articles, Contract particulars.

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

BOL is clear and expressly written.189 Additionally, the third party must at the 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 have known about such incorporation.190 A judicial decision rendered by the

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

BOL and the charterer are bound by such incorporation and subject to the arbitration clause.191 The court had therefore no jurisdiction to rule on the case.192

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”).

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”.

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.

205 See the RR art. 41(a) infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.

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).

217 See the Hamburg Rules art. 15(3) infra Appendix 3, Table of Articles, The absence of some transport document particulars.

218 See the Hamburg Rules art. 15 infra Appendix 3, Table of Articles, Contract particulars.

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).

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.

232 See the Hamburg Rules art. 16 infra Appendix 3, Table of Articles, Reservation to the contract 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.

236 See the Hague-Visby Rules art. 3(3)(c) infra Appendix 3, Table of Articles, Contract particulars.

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.

240 See the RR art. 41 infra Appendix 3, Table of Articles, Evidentiary effect of the transport document.

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.

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.

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.

254 See the RR art. 40 infra Appendix 3, Table of Articles, Reservation to the contract particulars.

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.

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).

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.

268 See the RR art. 36(4) infra Appendix 3, Table of Articles, Contract particulars.

269 Id.

90 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

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”.

272 ALI ALBAROODI, THE PRINCIPLES OF MARITIME LAW 147 (1983) (translated from Arabic).

92 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.

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.

94 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.

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.

96 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).

97 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.

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?

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.

100

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.

102 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

297 See the Hamburg Rules art. 18 infra Appendix 3, Table of Articles, Documentary scope.

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.

302 See the Hamburg Rules art. 14 infra Appendix 3, Table of Articles, Electronic transport record.

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

307 See the RR art. 35 infra Appendix 3, Table of Articles, Documentary scope.

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

319 This term can be best defined as: a BOL that is written and signed by electronic means. See KELANI, 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.

356 See the Hague-Visby Rules art. 3(2) infra Appendix 3, Table of Articles, The Obligations to load, Stow, 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

mentioned in article 125 of the QML.359 The breach of such obligation triggers the

application of article 157,360 which holds the carrier liable for lack of due diligence to

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

make the vessel seaworthy. Thus, the QML’s standpoint is similar to the Hague-Visby

Rules article 3(1)361 and the RR article 14.362

The Hamburg Rules do not articulate the obligation. A general liability provision

is nevertheless made in article 5,363 which holds the carrier in presumed fault in the

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

359 See the QML art. 125 infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

360 See the QML art. 157 infra Appendix 3, Table of Articles, Liability for lack of due diligence to make the vessel seaworthy.

361 See the Hague-Visby Rules art. 3(1) infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

362 See the RR art. 14 infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

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

the vessel. This is not only concerned with the external condition and the good order of

the vessel’s hull.364 A seaworthy vessel is only considered cargoworthy if its internal

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

different cargo types require different diligence requirements.365 For instance, the

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.

The cargoworthiness obligation is articulated in article 125 of the QML.366 It

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

Rules extend the obligation of cargoworthiness to containers furnished by the carrier in

article 14(c).367 This is indeed a prominent addition in the era of containerization and

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

cargoworthiness obligation as being no less than that to other parts of the vessel.368

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

367 See the RR art. 14(c) infra ppendices no. 3, Table of Articles, The obligation to provide seaworthy 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).

373 See the RR art. 79 infra Appendix 3, Table of Articles, Freedom of contract.

374 See the Hague-Visby Rules art. 3(1) infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

375 See the Hamburg Rules art. 15 infra Appendix 3, Table of Articles, Contract particulars.

376 See the RR art. 14(1) infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

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.).

380 See the Hague-Visby Rules art. 4(1) infra Appendix 3, Table of Articles, Liability exceptions.

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).

384 See the Hamburg Rules art. 5(7) infra Appendix 3, Table of Articles, Liability exceptions.

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

14388 imposed an ongoing obligation of seaworthiness on the carrier, thus expanding

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

386 See the RR art. 17(2) infra Appendix 3, Table of Articles, Liability exceptions.

387 Id. art. 17.

388 See the RR art. 14 infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

133

cover the entire voyage has not been left without criticism. The main criticisms relates

to when the obligation ends.389

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.

396 See the Hague-Visby Rules art. 3(1) infra Appendix 3, Table of Articles, The obligation to provide 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

imposed an absolute obligation of seaworthiness.405

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

419 See the Hague-Visby Rules art. 3(2) infra Appendix 3, Table of Articles, The Obligations to load, Stow, 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

428 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.

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

443 See the QML art. 164 infra Appendix 3, Table of Articles, Period of responsibility.

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

447 See the Hague-Visby Rules art. 3(2) infra Appendix 3, Table of Articles, The Obligations to load, Stow, 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.

449 See the Hague-Visby Rules art. 3(8) infra Appendix 3, Table of Articles, Freedom of contract.

450 See the Hamburg Rules art. 4(2) infra Appendix 3, Table of Articles, Period of responsibility (this article 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).

454 See the RR art. 17(3)(i) infra Appendix 3, Table of Articles, Liability exceptions.

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.).

461 See the Hague-Visby Rules art. 3(8) infra Appendix 3, Table of Articles, Freedom of contract (under 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 order to compute the starting point for the one-year suit bar under article 167 of the

QML.486

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

487See the QML art. 153 infra Appendix 3, Table of Articles, Delivery obligation and problems. The carrier 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.

489 See the Hague-Visby Rules art. 8 infra Appendix 3, Table of Articles, freedom of contract (allowing 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.

491 See the Hamburg Rules art. 4 infra Appendix 3, Table of Articles, Period of responsibility.

492 See the QML art. 155 infra Appendix 3, Table of Articles, Delivery obligation and problems.

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 expressly of the RR provides that the carrier must deliver the goods to their final destination.493 Moreover, article 13(1) listed delivery as one of the fundamental obligations of the carrier. Furthermore, the RR regulated several matters pertaining to delivery in articles 43 to 48.494 Most of these matters are not covered by the QML. The

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 without following the requirements specified in the RR,495 the carrier is entitled to refuse 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.

493 See the RR art. 11 infra Appendix 3, Table of Articles, Delivery obligation and problems.

494 See the RR art. 45-08 infra Appendix 3, Table of Articles, Delivery obligation and problems.

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.

499 See the Hamburg Rules art. 5(2) infra Appendix 3, Table of Articles, Liability for delay.

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”.

508 See the Hamburg Rules art. 4 infra Appendix 3, Table of Articles, Period of responsibility.

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

509 See the RR art. 45-07 infra Appendix 3, Table of Articles, Delivery obligation and problems.

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.

512 If surrender is not required in negotiable transport document, an express clause in the document or 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”.

518 If a negotiable transport document that requires surrender is issued, article 47(a)(b) and (a) is applied. 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.

535 See the QML art. 155 infra Appendix 3, Table of Articles, Delivery obligation and problems.

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

536 See the Hamburg Rules art. 4(2) infra Appendix 3, Table of Articles, Period of responsibility.

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

540 The carrier is entitled to refuse delivery if delivery is inconsistent with the RR art. 45, 46, & 47. For 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.

541 See the RR art. 45(c), 46(b), & 47(2)(a) infra Appendix 3, Table of Articles, Delivery obligation and 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.

542 It should be noted that article 48(3) of the RR impose on the carrier a duty to notify the persons entitled 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.

544 See the RR art. 48(1) infra Appendix 3, Table of Articles, Delivery obligation and problems.

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

545 See the RR art. 45 infra Appendix 3, Table of Articles, Delivery obligation and problems.

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)

557 This is referred to as the obligation to exercise due diligence to make the vessel seaworthy under the 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

558 See the Hague-Visby Rules art. 3(2) infra Appendix 3, Table of Articles, The Obligations to load, Stow, 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

565 See the QML art. 125 infra Appendix 3, Table of Articles, The obligation to provide seaworthy vessel.

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

572 See the RR art. 17(1) infra Appendix 3, Table of Articles, Liability exceptions.

573 See the RR art. 17(3) infra Appendix 3, Table of Articles, Liability exceptions.

574 See generally Bengtsson, supra note 268, at 53 (the drafters of the RR believed that the courts are 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.

575 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.

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.

578 See the RR art. 17(5)(a) infra Appendix 3, Table of Articles, Liability exceptions.

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.

582 See Liability exceptions infra Appendix 3, Table of Articles.

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.

588 See the Hamburg Rules art. 5 infra Appendix 3, Table of Articles, Liability exceptions.

589 See the RR art. 17(1) infra Appendix 3, Table of Articles, Liability exceptions.

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

590 See the Hamburg Rules art. 5(2) infra Appendix 3, Table of Articles, Liability for delay.

591 HATOOM, supra note 216, at 225.

592 See the RR art. 21 infra Appendix 3, Table of Articles, Liability for delay.

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

598 See the Hamburg Rules art. 6(1)(b) infra Appendix 3, Table of Articles, Compensation for delay.

599 See the RR art. 22 infra Appendix 3, Table of Articles, Compensation for delay

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 contract out of liability for cargo loss or damage in the absence of the word “delay”.603 At 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 for delay unless it shows one of the liability exceptions.604

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.

604 ALZAHAWI, supra note 598, at 235 (the Bahraini Maritime Law No. 23 of 1982 also lacks the word in art. 161). But see the Decree Law Issuing the Kuwaiti Maritime Commercial Law No. 28 of “delay” 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

605 See the Hamburg Rules art. 5(2) infra Appendix 3, Table of Articles, Liability for delay.

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 obligations and liabilities that run during their period of responsibility.614 Nevertheless, it 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 obligation under article 153 of the QML,615and the carrier is liable for delay under article

165.616

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.

616 See the QML art. 165 infra Appendix 3, Table of Articles, Liability for delay.

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.

619 See the Hague-Visby Rules art. 4(2) infra Appendix 3, Table of Articles, Liability exceptions.

620 See the Hamburg Rules art. 5(1) infra Appendix 3, Table of Articles, Liability exceptions.

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).

623 See the RR art. 17(2) infra Appendix 3, Table of Articles, Liability exceptions.

624 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.

625See the RR art. 17 infra Appendix 3, Table of Articles, Liability exceptions.

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.

628 See the Hague-Visby Rules, art. & the QML art. 158(3) infra Appendix 3, Table of Articles, Liability 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.

631 See the RR art. 17(3)(f) infra Appendix 3, Table of Articles, Liability exceptions.

632 See the Hamburg Rules art. 5(4)(a)(i) infra Appendix 3, Table of Articles, Liability exceptions. See 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.

639 See the Hamburg Rules art. 5 infra Appendix 3, Table of Articles, Liability exceptions.

640 Bauer, supra note 637, at 61.

641 See the QML art. 158 infra Appendix 3, Table of Articles, Liability exceptions.

215

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,

642 See the RR art. 17(3) infra Appendix 3, Table of Articles, Liability exceptions.

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

648 See the RR art. 17(3)(c) infra Appendix 3, Table of Articles, Liability exceptions.

649 See the Hague-Visby Rules art. 4(2)(e)(k)(f) infra Appendix 3, Table of Articles, Liability exceptions.

650 Bengtsson, supra note 268, at 63.

651 See the RR art. 17(3)(m)(n) infra Appendix 3, Table of Articles, Liability exceptions.

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.

655 See the Hamburg Rules art. 5(4)(i) infra Appendix 3, Table of Articles, Liability exceptions. See also 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”.

675 See the Hague-Visby Rules art. 1(c) infra Appendix 3, Table of Articles, General definition article (deck 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.

679 See the Hamburg Rules art. 9 infra Appendix 3, Table of Articles, Deck carriage.

680 See the RR art. 25 infra Appendix 3, Table of Articles, Deck carriage.

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).

685 See the RR art. 25(1)(b) infra Appendix 3, Table of Articles, Deck carriage.

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.

688 See the RR art. 25(1) infra Appendix 3, Table of Articles, Deck carriage.

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.

697 See Deck carriage infra Appendix 3, Table of Articles.

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.

699 See the QML art. 164 infra Appendix 3, Table of Articles, Freedom of contract.

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

700 See the Hague-Visby Rules art. 1(c) infra Appendix 3, Table of Articles, General definition article.

701 ALATER, supra note 561, at 381.

702 See the Hamburg Rules art. 5(5) infra Appendix 3, Table of Articles, Liability exceptions.

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.

704 See the RR art. 81(1) infra Appendix 3, Table of Articles, Live animals.

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 responsibility” heading following this section.706 Secondly, carriage under charterparties is also excluded.707 Thirdly, there are two other situations that need a closer look. These are mentioned in article 162 of the QML: coastwise voyage and carriage of non-ordinary goods in the course of trade.708 The first situation is a mere domestic issue under national 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 the Hague-Visby Rules709 and article 81(b) of the RR.710 Both conventions regulate carriage of goods of this kind but they differ slightly from article 162 of the QML.711 The 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.

709 See the Hague-Visby Rules art. 7 infra Appendix 3, Table of Articles, freedom of contract.

710 See the RR art. 81(1) infra Appendix 3, Table of Articles, Live animals.

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 from the commencement of loading until the completion of the discharge operation.712

This period is known as “tackle-to-tackle”, just like the period defined in article 1(e) of the Hague-Visby Rules.713 Thus, both the QML and the Hague-Visby Rules are not 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 from the Hague Rules tackle-to-tackle period to the port-to-port period.714 Hence, the 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

714 See the Hamburg Rules art. 4(1) infra Appendix 3, Table of Articles, Period of responsibility.

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 delivery irrespective of whether the goods are received at a port or elsewhere.715 This 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 only after loading and end before discharge.716

When loss of or damage to cargo has occurred during the period of liability, then the carrier is liable.717 If, however, the period during which the loss or damage occurred is unknown, it is assumed that it occurred while the goods were under the custody of the

715 See the RR art. 12(1) infra Appendix 3, Table of Articles, Period of responsibility.

716 See the RR art. 12(3) infra Appendix 3, Table of Articles, Period of responsibility.

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 carrier during its period of responsibility.718 The finding is supported by a judicial 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 defect, or fault of shipper or consignee.719

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 the goods? The carrier can, in such circumstances, exonerate itself as it is permissible for it to absolve itself from liability or lessen it by agreement for the period before loading and after discharge, according to article 164 of the QML.720 Thus, there are two different 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 liability as null and void.721 Secondly, article 164 allows the agreement to exonerate the 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

(beyond the tackle-to-tackle period).722 It is to be borne in mind that if the carrier wishes 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 under the Qatari Commercial Law.723 It has been said that the carrier is liable for loss of 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 period of responsibility.724

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 the carrier’s liability while the goods are in the port area pre-loading and post discharge.725 Thus, a carrier is not permitted to escape liability when the goods have been 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 bailee governed by common law principles, a liability lesser than that of a maritime carrier.726

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.

First, the current shipping industry in Qatar is moving in the direction of multimodal transport.727 It is expected that the integrated transport system in Qatar728 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

to exonerate itself from liability ond the tackle-to-tackle period under article 161.736

The carrier cannot exonerate itself from liability or lessen such liability during the sea leg carriage as per article 160.737 However, beyond the tackle-to-tackle period, the liability of 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

Appendix 1: Statistics on the Amount of Tonnage Delivered to Doha Port between 2010 and November 2015

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

254

Appendix 3: Table of Articles

Topic The QML No. The Hague- The Hamburg The Rotterdam The Proposed 15 of 1980 Visby Rules Rules Rules Articles for the QML General None. Article 1 Article 1 Article 1 Definitions definitions Definitions 1. “Shipper” is the In this Convention the Definitions person with whom the article following words are For the purposes of this carrier entered into the employed with the In this Convention: Convention: contract of carriage and meanings set out below: 1. “Carrier” means any 1. “Contract of carriage” agrees to pay the freight person by whom or in means a contract in which rate to the carrier. (a) "Carrier" includes the whose name a contract of a carrier, against the owner or the charterer who carriage of goods by sea payment of freight, 2. “Carrier, whether a enters into a contract of has been concluded with a undertakes to carry goods charterer or a ship- carriage with a shipper. shipper. from one place to another. owner or any person 2. “Actual carrier” means The contract shall provide acting on its behalf, is any person to whom the for carriage by sea and the person who enters (b) "Contract of carriage" performance of the may provide for carriage into the contract of applies only to contracts of carriage of the goods, or of by other modes of carriage with the carriage covered by a bill part of the carriage, has transport in addition to the shipper to carry goods of lading or any similar been entrusted by the sea carriage. from one place to document of title, in so far carrier, and includes any 2. “Volume contract” another against as such document relates to other person to whom such means a contract of payment. the carriage of goods by performance has been carriage that provides for sea, including any bill of entrusted. the carriage of a specified 3. “Actual carrier” lading or any similar 3.”Shipper” means any quantity of goods in a means any person to document as aforesaid person by whom or in series of shipments during whom the performance issued under or pursuant to whose name or on whose an agreed period of time. of the carriage of the a charter party from the behalf a contract of The specification of the goods, or part of the moment at which such bill carriage of goods by sea quantity may include a carriage, has been of lading or similar has been concluded with a minimum, a maximum or a entrusted by the document of title regulates carrier, or any person by certain range. contracting carrier, and the relations between a whom or in whose name or 3. “Liner transportation” includes any other carrier and a holder of the on whose behalf the goods means a transportation person to whom such same. are actually delivered to service that is offered to performance has been the carrier in relation to the the public through entrusted. (c) "Goods" includes contract of carriage by sea. publication or similar goods, wares, merchandise 4. “Consignee” means the means and includes 4. “Consignee" means and articles of every kind person entitled to take transportation by ships the person entitled to whatsoever except live delivery of the goods. operating on a regular take delivery of the animals and cargo which 5. "Goods” includes live schedule between specified goods. by the contract of carriage animals; where the goods ports in accordance with in stated as being carried are consolidated in a publicly available 5. “Holder” means: on deck and is so carried. container, pallet or similar timetables of sailing dates. (a) A person that is in article of transport or 4. “Non-liner possession of a where they are packed, “ transportation” means any negotiable transport (d) "Ship" means any goods” includes such transportation that is not document; and (i) if the vessel used for the carriage article of transport or liner transportation. document is an order of goods by sea. packaging if supplied by 5. “Carrier” means a document, is identified the shipper. person that enters into a in it as the shipper or (e) "Carriage of goods" 6.“Contract of carriage by contract of carriage with a the consignee, or is the covers the period from the sea” means any contract shipper. person to which the time when the goods are whereby the carrier 6. (a) “Performing party” document is duly loaded on to the time they undertakes against means a person other than endorsed; or (ii) if the payment of freight to carry the carrier that performs document is a blank goods by sea from one port endorsed order

255

are discharged from the to another; however, a or undertakes to perform document or bearer ship. contract which involves any of the carrier’s document, is the bearer carriage by sea and also obligations under a thereof. carriage by some other contract of carriage

means is deemed to be a with respect to the receipt, 6. “Contract of contract of carriage by sea loading, handling, carriage” means a for the purposes of this stowage, carriage, keeping, contract in which a Convention only in so far care, unloading or delivery carrier, against the as it relates to the carriage of the goods, to the extent payment of freight, by sea. that such person acts, undertakes to carry 7. “ Bill of lading” means a either directly or indirectly, goods from one place to document which evidences at the carrier’s request or another. The contract a contract of carriage by under the carrier’s shall provide for sea and the taking over or supervision or control. carriage by sea and may loading of the goods by the (b) “Performing party” provide for carriage by carrier, and by which the does not include any other modes of carrier undertakes to person that is retained, transport in addition to deliver the goods against directly or indirectly, by a the sea carriage. surrender of the document. shipper, by a documentary A provision in the shipper, by the controlling 7. “Transport document that the goods party or by the consignee document” means a are to be delivered to the instead of by the carrier. document issued under order of a named person, 7. “Maritime performing a contract of carriage or to order, or to bearer, party” means a performing by the carrier that: constitutes such an party to the extent that (a) Evidences the undertaking. it performs or undertakes carrier’s or an actual 8. “Writing” includes, inter to perform any of the carrier’s receipt of alia, telegram and telex. carrier’s obligations during goods under a contract the period between the of carriage; and arrival of the goods at the (b) Evidences or port of loading of a ship contains a contract of and their departure from carriage. the port of discharge of a ship. An inland carrier is a 8. “Negotiable transport maritime performing party document” means a only if it performs or transport document that undertakes to perform its indicates, by wording services exclusively within such as “to order” or a port area. “negotiable” or other 8. “Shipper” means a appropriate wording person that enters into a recognized as having contract of carriage with a the same effect by the carrier. law applicable to the 9. “Documentary shipper” document, that the means a person, other than goods have been the shipper, that accepts to consigned to the order be named as “shipper” in of the shipper, to the the transport document or order of the consignee, electronic transport record. or to bearer, and is not 10. “Holder” means: explicitly stated as (a) A person that is in being “nonnegotiable” possession of a negotiable or “not negotiable”. transport document; and (i) if the document is 9. “Electronic an order document, is communication” means identified in it as the information generated, shipper or the consignee, sent, received or is the person to which or stored by electronic, the document is duly optical, digital or endorsed; or (ii) if the similar means with the document is a blank result that the endorsed order document information

256

or bearer document, is the communicated is bearer thereof; or accessible so as to be (b) The person to which a usable for subsequent negotiable electronic reference. transport record has been issued or transferred 10. “Electronic in accordance with the transport record” means procedures referred to in information in one or article 9, paragraph 1. more messages 11. “Consignee” means a issued by electronic person entitled to delivery communication under a of the goods under a contract of carriage by contract of carriage or a a carrier, including transport document or information logically electronic transport record. associated with the 12. “Right of control” of electronic transport the goods means the right record by attachments under the contract of or otherwise linked to carriage to give the carrier the electronic transport instructions in respect of record the goods in accordance contemporaneously with chapter 10. with or subsequent to 13. “Controlling party” its issue by the carrier, means the person that so as to become part of pursuant to article 51 is the electronic transport entitled to exercise the record, that: right of control. (a) Evidences the 14. “Transport document” carrier’s or a actual means a document issued carrier’s receipt of under a contract of goods under a contract carriage by the carrier that: of carriage; and (a) Evidences the carrier’s (b) Evidences or or a performing party’s contains a contract of receipt of goods under a carriage. contract of carriage; and (b) Evidences or contains a 11. The “issuance” of a contract of carriage. negotiable electronic 15. “Negotiable transport transport record means document” means a the issuance of the transport document that record in accordance indicates, by wording such with procedures that as “to order” or ensure that the record is “negotiable” or other subject to exclusive appropriate wording control from its creation recognized as having the until it ceases to have same effect by the law any effect or validity. applicable to the document, that the goods 12. “Negotiable have been consigned to the electronic transport order of the shipper, to the record” means an order of the consignee, or electronic transport to bearer, and is not record: explicitly stated as being (a) That indicates, by “nonnegotiable” wording such as “to or “not negotiable”. order”, or “negotiable”, 16. “Non-negotiable or other appropriate transport document” means wording recognized as a transport document that having the same effect is not a negotiable by the law applicable to transport document. the record, that the 17. “Electronic goods have been communication” means consigned to the order

257

information generated, of the shipper or to the sent, received or stored by order of the consignee, electronic, optical, digital and is not explicitly or similar means with the stated as being result that the information “non-negotiable” or communicated is “not negotiable. accessible so as to be usable for subsequent 13. “Contract reference. particulars” means any 18. “Electronic transport information relating to record” means information the contract of carriage in one or more messages or to the goods issued by electronic (including terms, communication under a notations, signatures contract of carriage by a and endorsements) carrier, including that is in a transport information logically document or an associated with the electronic transport electronic transport record record. by attachments or otherwise linked to the 14. “Goods” means the electronic transport record wares, merchandise, contemporaneously and articles of every with or subsequent to its kind whatsoever issue by the carrier, so as that a carrier undertakes to become part of the to carry under a electronic transport record, contract of carriage and that: (a) Evidences the includes the packing carrier’s or a performing and any equipment and party’s receipt of goods container not supplied under a contract of by or on behalf of the carriage; and (b) Evidences carrier. or contains a contract of carriage. 15. “Container” means 19. “Negotiable electronic any type of container, transport record” means an transportable tank or electronic transport flat, swapbody, or any record: (a) That indicates, similar unit load used to by wording such as “to consolidate goods, and order”, or “negotiable”, or any equipment ancillary other appropriate wording to such unit load. recognized as having the same effect by the law 16. “Vehicle” means a applicable to the record, road or railroad cargo that the goods have been vehicle. 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

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 The QML only applies The Hague-Visby Rules The Hamburg Rules The RR apply to Issuance of the to BOL. apply to BOL and other apply to BOL and other transport documents and transport document scope similar documents of transport documents. electronic transport or the electronic Article 144 title. record transport record

Article 14 The contract of Article 1(b) Article 35 Unless the shipper and maritime transport shall the carrier have agreed be proved by a Issue of bill of lading Issuance of the transport not to use a transport "Contract of carriage" document to be known document or the electronic document or an applies only to contracts of as Bill of Lading (B/L). transport record electronic transport carriage covered by a bill 1. When the carrier or the The Bill of Lading dated record, or it is the of lading or any similar and signed by the carrier actual carrier takes the Unless the shipper and the custom, usage or document of title, in so far or the carrier goods in his charge, the carrier have agreed not to practice of the trade not as such document relates to carrier must, on demand of representative must use a transport document to use one, upon the carriage of goods by indicate: the shipper, issue to the or an electronic transport delivery of the goods sea, including any bill of 1.the carrier's name and shipper a bill of lading. record, or it is the custom, for carriage to the lading or any similar domicile; usage or practice of the carrier or the person document as aforesaid 2.the shipper's name and trade not to use one, upon acting on its behalf, the issued under or pursuant to 2. The bill of lading may domicile; delivery of the goods for shipper or, if the a charter party from the be signed by a person 3.the name or domicile having authority from the carriage to the carrier or shipper consents, or the moment at which such bill of the consignee; performing party, the person acting on its of lading or similar carrier. A bill of lading 4.the nature, quantity shipper or, if the shipper behalf , is entitled to document of title regulates signed by the master of the and quality of the goods ship carrying the goods is consents, the documentary obtain from the carrier, the relations between a to be carried as well as shipper, is entitled to at the shipper’s option: carrier and a holder of the deemed to have been of the number, quantity obtain from the carrier, at (a) A non-negotiable same. signed on behalf of the and weight of packages carrier. the shipper’s option: transport document or, or pieces; (a) A non-negotiable a non-negotiable 5.place and date of transport document or, electronic transport loading of the goods, 3. The signature on the bill subject to article 8, record; or destination place of the of lading may be in subparagraph (a), a non- (b) An appropriate goods, and when the bill handwriting, printed in negotiable electronic negotiable transport of lading is nominative, facsimile, perforated, transport record; or document or, a and their stamps, the stamped, in symbols, or (b) An appropriate negotiable electronic description of the goods made by any other negotiable transport transport record, unless as the case may be mechanical or electronic document or, subject to the shipper and the according to the means, if not inconsistent article 8, subparagraph (a), carrier have agreed not statements presented by with the law of the country a negotiable electronic to use a negotiable the shipper; where the bill of lading is transport record, unless the transport document or issued. shipper and the carrier negotiable electronic 6.the apparent condition have agreed not to use a transport record, or it is of the goods and Article 18 negotiable transport the custom, usage or packages; document or negotiable practice of the trade not Documents other than bills electronic transport record, to use one. 7.the place of issuance of lading” [w]here a carrier or it is the custom, usage of the bill, and the issues a document other or practice of the trade not number of copies issued. than a bill of lading to to use one. evidence the receipt of the The remarks on the goods to be carried, such a goods shall be sufficient document is prima facie for their verification and evidence of the conclusion

260

shall be legible until the of the contract of carriage end of the journey. by sea and the taking over by the carrier of the goods as therein described. Electronic None. None. The Hamburg Rules only Article 35 Use and effect of refer to e-signature in: electronic transport transport There are general Issuance of the transport records record articles regulating e- article 14(3) document or the electronic contracts under the transport record 1. Anything that is to be Qatari Decree Law on "[t]he signature on the bill in or on a transport the Promulgation of of lading may be in Unless the shipper and the document may be the Electronic handwriting, printed in carrier have agreed not to recorded in an Commerce and facsimile, perforated, use a transport document electronic transport Transactions Law No. stamped, in symbols, or or an electronic transport record, provided the 16 of 2010. made by any other record, or it is the custom, issuance and mechanical or electronic usage or practice of the subsequent use of an means, if not inconsistent trade not to use one, upon electronic transport with the law of the country delivery of the goods for record is with the where the bill of lading is carriage to the carrier or consent of the carrier issued”. performing party, the and the shipper; and shipper or, if the shipper consents, the documentary 2. The issuance, shipper, is entitled to exclusive control, or obtain from the carrier, at transfer of an electronic the shipper’s option: transport record has the (a) A non-negotiable same effect as the transport document or, issuance, possession, or subject to article 8, transfer of a transport subparagraph (a), a non- document. negotiable electronic transport record; or Procedures for use of (b) An appropriate negotiable electronic negotiable transport transport records document or, subject to article 8, subparagraph (a), 1. The use of a a negotiable electronic negotiable electronic transport record, unless the transport record shall be shipper and the carrier subject to procedures have agreed not to use a that provide for: negotiable transport (a) The method for the document or negotiable issuance and the electronic transport record, transfer of that record or it is the custom, usage to an intended holder; or practice of the trade not to use one. (b) An assurance that the negotiable Article 8 electronic transport record retains its Use and effect of integrity; electronic transport records (c) The manner in Subject to the requirements which the holder is able set out in this Convention: to demonstrate that it is (a) Anything that is to be the holder; and in or on a transport document under this (d) The manner of Convention may be providing confirmation recorded in an electronic that delivery to the transport record, provided holder has been the issuance and effected, subsequent use of an electronic transport record

261

is with the consent of the 2. The procedures in carrier and the shipper; and paragraph 1 of this (b) The issuance, article shall be referred exclusive control, or to in the contract transfer of an electronic particulars and be transport record has the readily ascertainable. same effect as the issuance, possession, or transfer of a Replacement of transport document. negotiable transport document or Article 9 negotiable electronic transport record Procedures for use of negotiable electronic 1. If a negotiable transport records transport document has 1. The use of a negotiable been issued and the electronic transport record carrier and the holder shall be subject to agree to replace that procedures that provide document by a for: negotiable electronic (a) The method for the transport record: issuance and the transfer of (a) The holder shall that record to an intended surrender the negotiable holder; transport document, or (b) An assurance that the all of them if more than negotiable electronic one has been issued, to transport record retains its the carrier; integrity; (c) The manner in which (b) The carrier shall the holder is able to issue to the holder a demonstrate that it is the negotiable electronic holder; and transport record that (d) The manner of includes a statement providing confirmation that it replaces the that delivery to the holder negotiable transport has been effected, or that, document; and pursuant to articles 10, (c) The negotiable paragraph 2, or 47, transport document subparagraphs 1 (a) (ii) ceases thereafter to and (c), the electronic have any effect or transport record has ceased validity. to have any effect or validity. 2. If a negotiable 2. The procedures in electronic transport paragraph 1 of this article record has been issued shall be referred to in the and the carrier and the contract particulars and be holder agree to replace readily ascertainable. that electronic transport record by a negotiable Article 10 transport document: (a) The carrier shall Replacement of negotiable issue to the holder, in transport document or place of the electronic negotiable electronic transport record, a transport record negotiable transport document that includes 1. If a negotiable transport a statement that it document has been issued replaces the negotiable and the carrier and the electronic transport holder agree to replace that record; and document by a negotiable electronic transport record:

262

(a) The holder shall (b) The electronic surrender the negotiable transport record ceases transport document, or all thereafter to have any of them if more than one effect or validity. 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. Contract Article 144 Article 3(3) Article 15 Article 36 Contract particulars particulars The contract of Contents of bill of lading Contract particulars 1. The contract After receiving the goods maritime transport shall particulars in the into his charge the carrier be proved by a 1. The bill of lading must 1. The contract particulars transport document or or the master or agent of document to be known include, inter alia, the in the transport document electronic transport the carrier shall, on as Bill of Lading (B/L). following particulars: or electronic transport record referred to demand of the shipper, The Bill of Lading dated (a) the general nature of record referred to in article previously shall include issue to the shipper a bill and signed by the carrier the goods, the leading 35 shall include the the following of lading showing among or the carrier marks necessary for following information, as information, as other things: representative must identification of the goods, furnished by the shipper: furnished by the indicate: an express statement, if (a) A description of the shipper: 1.the carrier's name and (a) The leading marks applicable, as to the goods as appropriate for (a) A description of the domicile; necessary for identification dangerous character of the the transport; goods as appropriate for 2.the shipper's name and of the goods as the same goods, the number of (b) The leading marks the transport; domicile; are furnished in writing by packages or pieces, and the necessary for identification (b) The leading marks 3.the name or domicile the shipper before the weight of the goods or of the goods; necessary for of the consignee; loading of such goods their quantity otherwise (c) The number of identification of the 4.the nature, quantity starts, provided such marks expressed, all such packages or pieces, or the goods; and quality of the goods are stamped or otherwise particulars as furnished by quantity of goods; and (c) The number of to be carried as well as shown clearly upon the the shipper; (d) The weight of the packages or pieces, or of the number, quantity goods if uncovered, or on (b) the apparent condition goods, if furnished by the the quantity of goods; and weight of packages the cases or coverings in of the goods; shipper. and or pieces; which such goods are (c) the name and principal 2. The contract particulars (d) The weight of the 5.place and date of contained, in such a place of business of the in the transport document goods. loading of the goods, manner as should carrier; or electronic transport

263

destination place of the ordinarily remain legible (d) the name of the record referred to in article 2. The contract goods, and when the bill until the end of the voyage. shipper; 35 shall also include: particulars in the of lading is nominative, (e) the consignee if named (a) A statement of the transport document or and their stamps, the by the shipper; apparent order and electronic transport (b) Either the number of description of the goods (f) the port of loading condition of the goods at record shall also packages or pieces, or the as the case may be under the contract of the time the carrier or a include: quantity, or weight, as the according to the carriage by sea and the performing party receives (a) A statement of the case may be, as furnished statements presented by date on which the goods them for carriage; apparent order and in writing by the shipper. the shipper; were taken over by the (b) The name and address condition of the goods 6.the apparent condition carrier at the port of of the carrier; at the time the carrier or of the goods and (c) The apparent order and loading; (c) The date on which the a person acting on its packages; condition of the goods. (g) the port of discharge carrier or a performing behalf receives them for 7.the place of issuance under the contract of party received the goods, carriage; of the bill, and the carriage by sea; or on which the goods (b) The name and number of copies issued. Provided that no carrier, (h) the number of originals were loaded on board the address of the carrier; The remarks on the master or agent of the of the bill of lading, if ship, or on which the (c) The date on which carrier shall be bound to goods shall be sufficient more than one; transport document or the carrier or person for their verification and state or show in the bill of (i) the place of issuance of electronic transport record acting on its behalf shall be legible till the lading any marks, number, the bill of lading; was issued; and received the goods, or quantity, or weight which end of the journey. (j) the signature of the (d) If the transport on which the goods he has reasonable ground carrier or a person acting document is negotiable, the were loaded on board for suspecting not on his behalf; number of originals of the the ship, or on which accurately to represent the (k) the freight to the extent negotiable transport the transport document goods actually received, or payable by the consignee document, when more than or electronic transport which he has had no or other indication that one original is issued. record was issued; and reasonable means of freight is payable by him; 3. The contract particulars (d) If the transport checking. (l) the statement referred to in the transport document document is negotiable, in paragraph 3 of article or electronic transport the number of originals 23; record referred to in article of the negotiable 35 shall further include: transport document, (m) the statement, if (a) The name and address when more than one applicable, that the goods of the consignee, if named original is issued. shall or may be carried on by the shipper; 3. The contract deck; (b) The name of a ship, if particulars in the (n) the date or the period of specified in the contract of transport document or delivery of the goods at the carriage; electronic transport port of discharge if (c) The place of receipt record shall further expressly agreed upon and, if known to the include: between the parties; and carrier, the place of (a) The name and (o) any increased limit or delivery; and address of the limits of liability where (d) The port of loading consignee, if named by agreed in accordance with and the port of discharge, the shipper; paragraph 4 of article 6. if specified in the contract (b) The name of a ship, 2. After the goods have of carriage. if specified in the been loaded on board, if 4. For the purposes of this contract of carriage; the shipper so demands, article, the phrase (c) The place of receipt the carrier must issue to the “apparent order and and, if known to the shipper a "shipped" bill of condition of the goods” in carrier, the place of lading which, in addition subparagraph 2 (a) of this delivery; and to the particulars required article refers to the order (d) The port of loading under paragraph 1 of this and condition of the goods and the port of article, must state that the based on: discharge, if specified goods are on board a (a) A reasonable external in the contract of named ship or ships, and inspection of the goods as carriage. the date or dates of packaged at the time the 4. For the purposes of loading. If the carrier has shipper delivers them to this article, the phrase previously issued to the the carrier or a performing “apparent order and shipper a bill of lading or party; and condition of the goods” other document of title (b) Any additional in subparagraph 2 (a) of with respect to any of such inspection that the carrier this article refers to the goods, on request of the or a performing party order and condition of carrier the shipper must actually performs before the goods based on:

264

surrender such document issuing the transport (a) A reasonable in exchange for a document or electronic external inspection of "shipped" bill of lading. transport record. the goods as packaged The carrier may amend any at the time the shipper previously issued delivers them to the document in order to meet carrier or a person the shippers demand for a acting on its behalf; and "shipped" bill of lading if, (b) Any additional as amended, such inspection that the document includes all the carrier or a person information required to be acting on its behalf contained in a "shipped" actually performs bill of lading. before issuing the 3. The absence in the bill transport document or of lading of one or more electronic transport particulars referred to in record. 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. The absence None. None. Article 15(3) Article 39 Deficiency in contract particulars of some The absence in the bill of Deficiencies in the contract transport lading of one or more particulars 1. The absence in the particulars referred to in transport document or document this article does not affect 1. The absence or electronic transport particulars the legal character of the inaccuracy of one or more record of one or more document as a bill of of the contract particulars particulars referred to in lading provided that it referred to in article 36, this law does not affect nevertheless meets the paragraphs 1, 2 or 3, does the legal character of requirements set out in not of itself affect the legal the document as a bill paragraph 7 of article 1. character or validity of the of lading provided that If the carrier or other transport document or of it nevertheless meets person issuing the bill of the electronic transport the requirements set out lading on his behalf fails to record. in article 144. note on the bill of lading 2. If the contract the apparent condition of particulars include the date 2. If the contract the good, he is deemed to but fail to indicate its particulars include the have noted on the bill of significance, the date is date but fail to indicate lading the goods were in deemed to be: its significance, the date apparent good condition. (a) The date on which all is deemed to be: of the goods indicated in (a) The date on which Article 15(4) the transport document or all of the goods electronic transport record indicated in the A bill of lading which does were loaded on board the transport document or not, as provided in ship, if the contract electronic transport paragraph 1, subparagraph particulars indicate that the record were loaded on (k), of article 15, set forth goods have been loaded on board the ship, if the the freight or otherwise board a ship; or contract particulars indicate that freight is (b) The date on which the indicate that the goods payable by the consignee carrier or a performing have been loaded on or does not set forth party received the goods, if board a ship; or demurrage incurred at the the contract particulars do port of loading payable by not indicate that the goods (b) The date on which the consignee, is prima have been loaded on board the carrier or a facie evidence that no a ship. performing party freight or such demurrage 3. If the contract received the goods, if is payable by him. particulars fail to state the the contract particulars However, proof to the apparent order and do not indicate that the

265

contrary by the carrier is condition of the goods at goods have been loaded not admissible when the the time the carrier or a on board a ship. bill of lading has been performing party receives transferred to a third party, them, the contract 3. If the contract including a consignee, who particulars are deemed to particulars fail to state in good faith has acted in have stated that the goods the apparent order and reliance on the absence in were in apparent good condition of the goods the bill of lading of any order and condition at the at the time the carrier or such indication. time the carrier or a a person acting on its performing party received behalf receives them, 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 Article 147 Article 3(c) Article 16 Article 40 Reservations and evidentiary effect to the The shipper shall Reservations and Qualifying the information After receiving the goods submit in writing the evidentiary effect relating to the goods in the 1. If the transport contract into his charge the carrier statements relating to contract particulars document or electronic or the master or agent of particulars the goods before 1. If the bill of lading transport record the carrier shall, on shipping. Such contains particulars 1. The carrier shall qualify contains particulars demand of the shipper, statements shall be concerning the general the information referred to concerning the general issue to the shipper a bill registered in the bill of nature, leading marks, in article 36, paragraph 1, nature, leading marks, of lading showing among

266

lading, and the carrier or other things:… (c) The number of packages of to indicate that the carrier number of packages or his representative shall apparent order and pieces, weight or quantity does not assume pieces, or quantity of abstain from registering condition of the goods. of the goods which the responsibility for the the goods which the the statements relating carrier or other person accuracy of the carrier or other person to the trademarks of the issuing the bill of lading on information furnished by issuing the transport Provided that no carrier, goods, their number, his behalf knows or has the shipper if: document or electronic master or agent of the quantity or weight if not reasonable grounds to (a) The carrier has actual transport record on its carrier shall be bound to certain of its correctness suspect do not accurately knowledge that any behalf knows or has state or show in the bill of or cannot verify the represent the goods material statement in the reasonable grounds to lading any marks, number, information using actually taken over or, transport document or suspect do not quantity, or weight which normal methods for where a "shipped" bill of electronic transport record accurately represent the he has reasonable ground checking. The shipper lading is issued, loaded, or is false or misleading; or goods actually taken for suspecting not shall be held liable if he had no reasonable (b) The carrier has over or, had no accurately to represent the before the carrier for the means of checking such reasonable grounds to reasonable means of goods actually received, or indemnity of damage particulars, the carrier or believe that a material checking such which he has had no caused by the such other person must statement in the transport particulars, the carrier reasonable means of incorrectness of the insert in the bill of lading a document or electronic or such other person checking. information about the reservation specifying transport record is false or must insert in the goods included in the these inaccuracies, grounds misleading. transport document or bill of lading. The of suspicion or the absence 2. Without prejudice to electronic transport carrier shall not rely on of reasonable means of paragraph 1 of this article, record a reservation the incorrect checking. the carrier may qualify the specifying these information in the bill of information referred to in inaccuracies, grounds lading provided by the 2. If the carrier or other article 36, paragraph 1, in of suspicion or the shipper when presenting person issuing the bill of the circumstances and in absence of reasonable it to any other third lading on his behalf fails to the manner set out in means of checking. party other than the note on the bill of lading paragraphs 3 and 4 of this shipper unless he takes the apparent condition of article to indicate that the 2. When the goods are the precaution the goods, he is deemed to carrier does not assume not delivered for concerning of verifying have noted on the bill of responsibility for the carriage to the carrier or first. lading that the goods were accuracy of the a person acting on its in apparent good condition. information furnished by behalf in a closed the shipper. container or vehicle, or 3. When the goods are not when they are delivered delivered for carriage to in a closed container or the carrier or a performing vehicle and the carrier party in a closed container or a person acting on its or vehicle, or when they behalf actually inspects are delivered in a closed them, the carrier may container or vehicle and qualify the information the carrier or a performing related to the party actually inspects description of the them, the carrier may goods, the leading qualify the information marks necessary for referred to in article 36, identification of the paragraph 1, if: goods, and the number (a) The carrier had no of packages or pieces, physically practicable or or the quantity of commercially reasonable goods; means of checking the information furnished by (a) The carrier had no the shipper, in which case physically practicable it may indicate which or commercially information it was unable reasonable means of to check; or (b) The carrier checking the has reasonable grounds to information furnished believe the information by the shipper, in which furnished by the shipper to case it may indicate be inaccurate, in which which information it case it may include a was unable to check; or clause providing what it (b) The carrier has reasonable grounds to

267

reasonably considers believe the information accurate information. furnished by the shipper 4. When the goods are to be inaccurate, in delivered for carriage to which case it may the carrier or a performing include a clause party in a closed container providing what it or vehicle, the carrier may reasonably considers qualify the information accurate information. referred to in: (a) Article 36, 3. When the goods are subparagraphs 1 (a), (b), or delivered for carriage to (c), if: the carrier or a person (i) The goods inside the acting on its behalf, in a container or vehicle have closed container or not actually been inspected vehicle, the carrier may by the carrier or a qualify the information performing party; and referred to in paragraph (ii) Neither the carrier nor 2, if: a performing party (i) The goods inside otherwise has actual the container or vehicle knowledge of its contents have not actually been before issuing the transport inspected by the carrier document or the electronic or a person acting on its transport record; and behalf; (b) Article 36, (ii) Neither the carrier subparagraph 1 (d), if: nor a person acting on (i) Neither the carrier nor its behalf otherwise has a performing party actual knowledge of its weighed the container or contents before issuing vehicle, and the shipper the transport document and the carrier had not or the electronic agreed prior to the transport record. shipment that the container or vehicle would be 4. No reservation to weighed and the weight cargo weight is would be included in the allowed. The shipper contract particulars; or shall provide the carrier (ii) There was no with the verified gross physically practicable or mass statement commercially reasonable indicating the weight of means of checking the cargo. If the shipper weight of the container or fails to do so, or vehicle. 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 None None None None Reference to the transport charterparty terms in document to a bill of lading issued under a charterparty the between the chartered and third parties

268

charterparty 1. Where reference is terms 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 Article 151 Article 3(4) Article 16(3) Article 41 Evidentiary effect of the contract effect of the The bill of lading shall Except for particulars in Evidentiary effect of the particulars Such a bill of lading shall be considered as prima respect of which and to the contract particulars transport be prima facie evidence of facies evidence for extent to which a Except to the extent the receipt by the carrier of document proving the mentioned reservation permitted Except to the extent that that the contract the goods as therein terms and statements under paragraph 1 of this the contract particulars particulars have been described in accordance between the carrier, the article has been entered: have been qualified in the qualified in the with paragraph 3(a), (b) shipper and a third (a) the bill of lading is circumstances and in the circumstances and in and (c). "However, proof party. A bill of lading prima facie evidence of the manner set out in article the manner set out in to the contrary shall not be shall be admissible as taking over or, where a “ 40: the reservation to the admissible when the Bill of proof of the relationship shipped” bill of lading is (a) A transport document contract particulars Lading has been between the carrier and issued, loading, by the or an electronic transport article: transferred to a third party the shipper, where carrier of the goods as record is prima facie (a) A transport acting in good faith". conflict arises. In the described in the bill of evidence of the carrier’s document or an case of a third party, the lading; and receipt of the goods as electronic transport carrier shall not prove (b) proof to the contrary by stated in the contract record is prima facie the contrary of what is the carrier is not particulars; evidence of the carrier’s mentioned in the bill of admissible if the bill of (b) Proof to the contrary receipt of the goods as lading; however a third lading has been transferred by the carrier in respect of stated in the contract party may have the right to a third party, including a any contract particulars; to prove the relationship consignee, who in good (b) Proof to the in accordance with the faith has acted in reliance particulars shall not be contrary by the carrier provision of Article 147 on the description of the admissible, when such in respect of any herein. goods therein. contract particulars are contract particulars included in: shall not be admissible, (i) A negotiable transport when such contract document or a negotiable particulars are included electronic transport record in: that is transferred to a third (i) A negotiable party acting in good faith; transport document or a or negotiable electronic

269

(ii) A non-negotiable transport record that is transport document that transferred to a third indicates that it must be party acting in good surrendered in order to faith; or obtain delivery of the (ii) A non-negotiable goods and is transferred to transport document that the consignee acting in indicates that it must be good faith; surrendered in order to (c) Proof to the contrary obtain delivery of the by the carrier shall not be goods and is transferred admissible against a to the consignee acting consignee that in good in good faith; faith has acted in reliance (c) Proof to the contrary on any of the following by the carrier shall not contract particulars be admissible against a included in a non- consignee that in good negotiable transport faith has acted in document or a non reliance on any of : negotiable electronic - the number, type and transport record: identifying numbers of (i) The contract the containers, but not particulars referred to in the identifying numbers article 36, paragraph 1, of the container seals; when such contract - the description of the particulars are furnished by goods; the carrier; - the leading marks (ii) The number, type and necessary for identifying numbers of the identification of the containers, but not the goods; identifying numbers of the - the number of container seals; and packages or pieces, or (iii) The contract the quantity of goods; particulars referred to in - statement of the article 36, paragraph 2. 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 Article 125 Article 3(1) Nothing mentioned in Article 14 The obligation to particular, thus the provide a seaworthy obligation to Before the general obligation of the Specific obligations vessel The carrier shall be bound commencement of the carrier is derived from applicable to the voyage by provide a before and at the beginning journey, the lessor shall the carrier unitary fault sea The carrier is bound of the voyage to exercise seaworthy be obliged to take the rule in: before, at the beginning due diligence to: vessel necessary effort to make The carrier is bound of, and during the the vessel valid for article (5)(1) before, at the beginning of, voyage by sea to navigation and shall (a) Make the ship and during the voyage by exercise due diligence equip it with the seaworthy. The carrier is liable for loss sea to exercise due to: necessary materials, resulting from loss of or diligence to: (a) Make and keep the supplies and sailors and damage to the goods, as (a) Make and keep the ship seaworthy; to prepare parts of the (b) Properly man, equip well as from delay in ship seaworthy; (b) (b) Properly crew, and supply the ship. vessel designated for delivery, if the occurrence Properly crew, equip and equip and supply the preservation and which caused the loss, supply the ship and keep ship and keep the ship transportation of the (c) Make the holds, damage or delay took place the ship so crewed, so crewed, equipped goods. The lessor shall refrigerating and cool while the goods were in his equipped and supplied and supplied be responsible of any chambers, and all other charge as defined in article throughout the voyage; and throughout the voyage; damage that may result parts of the ship in which 4, unless the carrier proves (c) Make and keep the and (c) Make and keep due to the Vessel being goods are carried, fit and that he, his servants or holds and all other parts of the holds and all other invalid for navigation safe for their reception, agents took all measures the ship in which the goods parts of the ship in except where it is carriage and preservation. that could reasonably be are carried, and any which the goods are proved that the damage required to avoid the containers supplied by the carried, and any was not due to the occurrence and its carrier in or upon which containers supplied by failure by the lessor to consequences. the goods are carried, fit the carrier in or upon perform their and safe for their reception, which the goods are obligations mentioned in carriage and preservation. carried, fit and safe for the previous paragraph their reception, carriage or as a result from a and preservation. latent defect that could not be discovered by normal inspection. Carrier Article 157 Article 4(1) Nothing mentioned in Article 17(5) Liability for lack of particular, thus the due diligence to make liability for The carrier shall not be general obligation of the The carrier is also liable, the vessel seaworthy Neither the carrier nor the liable for the loss or carrier is derived from notwithstanding paragraph lack of ship shall be liable for loss damage of the goods the carrier unitary fault 3 of this article, for all or 1. The carrier is liable, or damage arising or seaworthiness caused by the non- rule in: part of the loss, damage, or for all or part of the resulting from validity of the vessel for delay if: loss, damage, or delay unseaworthiness unless navigation unless such Article (5)(1) (a) The claimant proves if: caused by want of due non-validity is due to that the loss, damage, or (a) The claimant diligence on the part of the the carrier failure to put The carrier is liable for loss delay was or was probably proves that the loss, carrier to make the ship the vessel in a condition resulting from loss of or caused by or contributed to damage, or delay was seaworthy and to secure valid for travel or his damage to the goods, as by (i) the unseaworthiness or was probably caused that the ship is properly failure to supply it with well as from delay in of the ship; (ii) the by or contributed to by manned, equipped and the necessary materials, delivery, if the occurrence improper crewing, (i) the unseaworthiness supplied, and to make the supplies and crew, which caused the loss, equipping, and supplying of the ship; (ii) the holds, refrigerating and preparing suitable holds, damage or delay took place of the ship; or (iii) the fact improper crewing, cool chambers and all cooling rooms and all while the goods were in his that the holds or other parts equipping, and other parts of the ship in the other sections charge as defined in article of the ship in which the supplying of the ship; which goods are carried fit allocated for shipping 4, unless the carrier proves goods are carried, or any or (iii) the fact that the and safe for their reception, the goods in a way that that he, his servants or containers supplied by the holds or other parts of carriage and preservation such places are valid for agents took all measures carrier in or upon which the ship in which the in accordance with the placing the goods, that could reasonably be the goods are carried, were goods are carried, or provisions of paragraph 1 transporting and required to avoid the not fit and safe for any containers supplied of Article 3. preserving them. occurrence and its reception, carriage, and by the carrier in or upon consequences. preservation of the goods; which the goods are Whenever loss or damage and carried, were not fit and has resulted from (b) The carrier is unable to safe for reception, unseaworthiness the prove either that: (i) none carriage, and burden of proving the of the events or preservation of the exercise of due diligence circumstances referred to goods; and

271

shall be on the carrier or in subparagraph 5 (a) of other person claiming this article caused the loss, (b) The carrier is unable exemption under this damage, or delay; or (ii) it to prove either that: Article etc. complied with its (i) the loss, damage, or obligation to exercise due delay was or was diligence pursuant to this probably caused by or

law. 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 None. Only the effect Article 3(2) Nothing mentioned in Article 13 The obligations to of breaching this particular, thus the load, stow, handle, obligations to obligation is mentioned general obligation of the Specific obligations discharge, keep, and Subject to the provisions of in: carrier is derived from care for, the cargo load, stow, Article 4, the carrier shall the carrier unitary fault 1. The carrier shall during properly and carefully handle, Article 158 rule in: the period of its The carrier shall during load, handle, stow, carry, responsibility as defined in discharge, keep, care for, and the period of its The carrier or the Article (5)(1) article 12, and subject to discharge the goods responsibility, properly keep, and Vessel shall not be held article 26, properly and and carefully receive, carried. care for, the liable for the loss The carrier is liable for loss carefully receive, load, load, handle, stow, damage, or delay resulting from loss of or handle, stow, carry, keep, carry, keep, care for, cargo resulting from: damage to the goods, as care for, unload and deliver unload and deliver the 1.action, negligence or well as from delay in the goods. goods. default taking place delivery, if the occurrence 2. Notwithstanding during navigation or in which caused the loss, paragraph 1 of this article, the management of the damage or delay took place and without prejudice to vessel; while the goods were in his the other provisions in 2.the captain, crew or charge as defined in article chapter 4 and to chapters 5 pilots or the persons 4, unless the carrier proves to 7, the carrier and the affiliated to the carrier; that he, his servants or shipper may agree that the 3.fire except where it is agents took all measures loading, handling, stowing caused by the act or that could reasonably be or unloading of the goods mistake of the carrier required to avoid the is to be performed by the etc. occurrence and its shipper, the documentary consequences. shipper or the consignee. Such an agreement shall be referred to in the contract particulars. Delivery None. No delivery obligation. Article 11 Delivery obligation Article 153 Only a solution to the obligation and situation where the Carriage and delivery of The carrier shall and problems The captain shall deliver consignee has not taken the goods deliver the goods to the the goods to the legal over the custody of the consignee. holder of the bill of goods from the carrier The carrier shall, subject to lading. If several this Convention and in individuals who are Article 4(2) accordance with the terms (Delivery Articles)

272

holding a negotiable of the contract of carriage, copy of the bill of lading For the purpose of carry the goods to the place Delivery when no submitted an application paragraph 1 of this article, of destination and deliver negotiable transport for delivery of the the carrier is deemed to be them to the consignee. document or goods, the holder of the in charge of the goods negotiable electronic first copy that was Article 45 transport record is endorsed prior to the (a) from the time he has issued other copies shall be taken over the goods from: Delivery when no preferred. However if (i) the shipper, or a person negotiable transport When neither a the goods are delivered acting on his behalf; or (ii) document or negotiable negotiable transport in good faith to a holder an authority or other third electronic transport record document nor a of one of the copies of party to whom, pursuant to is issued negotiable electronic the negotiable bill of law or regulations transport record has lading, he shall be applicable at the port of When neither a negotiable been issued: preferred over the loading, the goods must be transport document nor a (a) The carrier shall holders of other handed over for shipment; negotiable electronic deliver the goods to the endorsed copies even if (b) until the time he has transport record has been consignee at the time their endorsements were delivered the goods: issued: and location referred to done prior in time. (a) The carrier shall in this law. The carrier (i) by handing over the deliver the goods to the may refuse delivery if Article 155 goods to the consignee; or consignee at the time and the person claiming to location referred to in be the consignee does Where the person (ii) in cases where the article 43. The carrier may not properly identify entitled to receive the consignee does not receive refuse delivery if the itself as the consignee goods did not come or the goods from the carrier, person claiming to be the on the request of the refused to receive the by placing them at the consignee does not carrier; goods, the captain or his disposal of the consignee properly identify itself as (b) If the name and representative may in accordance with the the consignee on the address of the request permission from contract or with the law or request of the carrier; consignee are not the competent court to with the usage of the (b) If the name and referred to in the put the goods in the particular trade, applicable address of the consignee contract particulars, the custody of a loyal at the port of discharge; or are not referred to in the person acting on behalf person who shall be contract particulars, the the consignee (if any) appointed by the court (iii) by handing over the controlling party shall shall prior to or upon on condition that the goods to an authority or prior to or upon the arrival the arrival of the goods receiver shall pay his other third party to whom, of the goods at the place of at the place of fees without prejudice to pursuant to law or destination advise the destination advise the what was agreed upon in regulations applicable at carrier of such name and carrier of such name the bill of lading. the port of discharge, the address; and address; goods must be handed (c) Without prejudice to (c) if the goods are not over. article 48, paragraph 1, if deliverable because (i) the goods are not the consignee, after deliverable because (i) the having received a consignee, after having notice of arrival, does received a notice of arrival, not, at the time or does not, at the time or within the time period within the time period referred to in this law, referred to in article 43, claim delivery of the claim delivery of the goods goods from the carrier from the carrier after their after their arrival at the arrival at the place of place of destination, (ii) destination, (ii) the carrier the carrier refuses refuses delivery because delivery because the the person claiming to be person claiming to be the consignee does not the consignee does not properly identify itself as properly identify itself the consignee, or (iii) the as the consignee, or (iii) carrier is, after reasonable the carrier is, after effort, unable to locate the reasonable effort, consignee in order to unable to locate the request delivery consignee in order to instructions, the carrier request delivery

273

may so advise the instructions, the carrier controlling party and may so advise the request instructions in person acting on behalf respect of the delivery of of the consignee and the goods. If, after request instructions in reasonable effort, the respect of the delivery carrier is unable to locate of the goods. If, after the controlling party, the reasonable effort, the carrier may so advise the carrier is unable to shipper and request locate the person acting instructions in respect of on behalf of the the delivery of the goods. consignee, the carrier If, after reasonable effort, may so advise the the carrier is unable to shipper and request locate the shipper, the instructions in respect carrier may so advise the of the delivery of the documentary shipper and goods. If, after request instructions in reasonable effort, the respect of the delivery of carrier is unable to the goods; locate the shipper, the (d) The carrier that carrier may so advise delivers the goods upon the person acting on instruction of the behalf of the shipper controlling party, the and request instructions shipper or the documentary in respect of the shipper pursuant to delivery of the goods; subparagraph (c) of this (d) The carrier that article is discharged from delivers the goods in its obligations to deliver accordance with the the goods under the previous paragraphs contract of carriage. shall be discharged from the obligation to Article 46 deliver the goods to the consignee. Delivery when a non- negotiable transport Delivery when a non- document that requires negotiable transport surrender is issued document that requires surrender is When a non-negotiable issued transport document has been issued that indicates When a non-negotiable that it shall be surrendered transport document has in order to obtain delivery been issued that of the goods: indicates that it shall be (a) The carrier shall surrendered in order to deliver the goods at the obtain delivery of the time and location referred goods: to in article 43 to the (a) The carrier shall consignee upon the deliver the goods at the consignee properly time and location identifying itself on the referred to in this law to request of the carrier and the consignee upon the surrender of the non- consignee properly negotiable document. The identifying itself on the carrier may refuse delivery request of the carrier if the person claiming to be and surrender of the the consignee fails to non-negotiable properly identify itself on document. The carrier the request of the carrier, may refuse delivery if and shall refuse delivery if the person claiming to the non-negotiable be the consignee fails to

274

document is not properly identify itself surrendered. If more than on the request of the one original of the non- carrier, and shall refuse negotiable document has delivery if the non- been issued, the surrender negotiable document is of one original will suffice not surrendered. If and the other originals more than one original cease to have any effect or of the non-negotiable validity; (b) Without document has been prejudice to article 48, issued, the surrender of paragraph 1, if the goods one original will suffice are not deliverable because and the other originals (i) the consignee, after cease to have any effect having received a notice of or validity; (b) if the arrival, does not, at the goods are not time or within the time deliverable because (i) period referred to in article the consignee, after 43, claim delivery of the having received a goods from the carrier after notice of arrival, does their arrival at the place of not, at the time or destination, (ii) the carrier within the time period refuses delivery because referred to in this law, the person claiming to be claim delivery of the the consignee does not goods from the carrier properly identify itself as after their arrival at the the consignee or does not place of destination, (ii) surrender the document, or the carrier refuses (iii) the carrier is, after delivery because the reasonable effort, unable to person claiming to be locate the consignee in the consignee does not order to request delivery properly identify itself instructions, the carrier as the consignee or may so advise the shipper does not surrender the and request instructions in document, or (iii) the respect of the delivery of carrier is, after the goods. If, after reasonable effort, reasonable effort, the unable to locate the carrier is unable to locate consignee in order to the shipper, the carrier may request delivery so advise the documentary instructions, the carrier shipper and request may so advise the instructions in respect of shipper and request the delivery of the goods; instructions in respect (c) The carrier that delivers of the delivery of the the goods upon instruction goods. If, after of the shipper or the reasonable effort, the documentary shipper carrier is unable to pursuant to subparagraph locate the shipper, the (b) of this article is carrier may so advise discharged from its the person acting on obligation to deliver the behalf of the shipper goods under the contract of and request instructions carriage, irrespective of in respect of the whether the non-negotiable delivery of the goods; transport document has (c) The carrier that been surrendered to it. delivers the goods upon instruction of the Article 47 shipper or the person acting on behalf of the Delivery when a negotiable shipper pursuant to transport document or subparagraph (d) of this article is discharged

275

negotiable electronic from its obligation to transport record is issued deliver the goods under the contract of 1. When a negotiable carriage, irrespective of transport document or a whether the non- negotiable electronic negotiable transport transport record has been document has been issued: surrendered to it. (a) The holder of the negotiable transport Delivery when a document or negotiable negotiable transport electronic transport record document or is entitled to claim delivery negotiable electronic of the goods from the transport record is carrier after they have issued arrived at the place of destination, in which event 1. When a negotiable the carrier shall deliver the transport document or a goods at the time and negotiable electronic location referred to in transport record has article 43 to the holder: been issued: (i) Upon surrender of the (a) The holder of the negotiable transport negotiable transport document and, if the holder document or negotiable is one of the persons electronic transport referred to in article 1, record is entitled to subparagraph 10 (a) (i), claim delivery of the upon the holder properly goods from the carrier identifying itself; or after they have arrived (ii) Upon demonstration at the place of by the holder, in destination, in which accordance with the event the carrier shall procedures referred to in deliver the goods at the article 9, paragraph 1, that time and location it is the holder of the referred to in this law to negotiable electronic the holder: transport record; (i) Upon surrender of (b) The carrier shall refuse the negotiable transport delivery if the document and, if the requirements of holder is identified in subparagraph (a) (i) or (a) the transport document (ii) of this paragraph are as the shipper or the not met; consignee, or is the (c) If more than one person to which the original of the negotiable document is duly transport document has endorsed, upon the been issued, and the holder properly number of originals is identifying itself; or stated in that document, the (ii) Upon surrender of one original demonstration by the will suffice and the other holder, in accordance originals cease to have any with the procedures effect or validity. When a referred to in the article negotiable electronic pertaining to the transport record has been procedures for use of used, such electronic negotiable electronic transport record ceases to transport records, that it have any effect or validity is the holder of the upon delivery to the negotiable electronic holder in accordance with transport record; the procedures required by (b) The carrier shall article 9, paragraph 1. refuse delivery if the

276

2. Without prejudice to requirements of article 48, paragraph 1, if subparagraph (a) (i) or the negotiable transport (a) (ii) of this paragraph document or the negotiable are not met; electronic transport record (c) If more than one expressly states that the original of the goods may be delivered negotiable transport without the surrender of document has been the transport document or issued, and the number the electronic transport of originals is stated in record, the following rules that document, the apply: surrender of one (a) If the goods are not original will suffice and deliverable because (i) the the other originals cease holder, after having to have any effect or received a notice of arrival, validity. When a does not, at the time or negotiable electronic within the time period transport record has referred to in article 43, been used, such claim delivery of the goods electronic transport from the carrier after their record ceases to have arrival at the place of any effect or validity destination, (ii) the carrier upon delivery to the refuses delivery because holder in accordance the person claiming to be a with the procedures holder does not properly referred to in the article identify itself as one of the pertaining to the persons referred to in procedures for use of article 1, subparagraph 10 negotiable electronic (a) (i), or (iii) the carrier is, transport records. after reasonable effort, 2. If the negotiable unable to locate the holder transport document or in order to request delivery the negotiable instructions, the carrier electronic transport may so advise the shipper record expressly states and request instructions in that the goods may be respect of the delivery of delivered without the the goods. If, after surrender of the reasonable effort, the transport document or carrier is unable to locate the electronic transport the shipper, the carrier may record, the following so advise the documentary rules apply: shipper and request (a) If the goods are not instructions in respect of deliverable because (i) the delivery of the goods; the holder, after having (b) The carrier that received a notice of delivers the goods upon arrival, does not, at the instruction of the shipper time or within the time or the documentary shipper period referred to in in accordance with this law, claim delivery subparagraph 2 (a) of this of the goods from the article is discharged from carrier after their arrival its obligation to deliver the at the place of goods under the contract of destination, (ii) the carriage to the holder, carrier refuses delivery irrespective of whether the because the person negotiable transport claiming to be a holder document has been does not properly surrendered to it, or the identify itself as the person claiming delivery shipper or the under a negotiable consignee identified in electronic transport record the transport record, or

277

has demonstrated, in is the person to which accordance with the the document is duly procedures referred to in endorsed (iii) the carrier article 9, paragraph 1, that is, after reasonable it is the holder; effort, unable to locate (c) The person giving the holder in order to instructions under request delivery subparagraph 2 (a) of this instructions, the carrier article shall indemnify the may so advise the carrier against loss arising shipper and request from its being held liable instructions in respect to the holder under of the delivery of the subparagraph 2 (e) of this goods. If, after article. The carrier may reasonable effort, the refuse to follow those carrier is unable to instructions if the person locate the shipper, the fails to provide adequate carrier may so advise security as the carrier may the person acting on reasonably request; behalf of the shipper (d) A person that becomes and request instructions a holder of the negotiable in respect of the transport document or the delivery of the goods; negotiable electronic (b) The carrier that transport record after the delivers the goods upon carrier has delivered the instruction of the goods pursuant to shipper or the person subparagraph 2 (b) of this acting on behalf of the article, but pursuant to shipper in accordance contractual or other with subparagraph 2 (a) arrangements made before of this article is such delivery acquires discharged from its rights against the carrier obligation to deliver the under the contract of goods under the carriage, other than the contract of carriage to right to claim delivery of the holder, irrespective the goods; of whether the (e) Notwithstanding negotiable transport subparagraphs 2 (b) and 2 document has been (d) of this article, a holder surrendered to it, or the that becomes a holder after person claiming such delivery, and that did delivery under a not have and could not negotiable electronic reasonably have had transport record has knowledge of such demonstrated, in delivery at the time it accordance with the became a holder, acquires procedures referred to the rights incorporated in in the article pertaining the negotiable transport to the procedures for document or negotiable use of negotiable electronic transport record. electronic transport When the contract records. particulars state the (c) The person giving expected time of arrival of instructions under the goods, or indicate how subparagraph 2 (a) of to obtain information as to this article shall whether the goods have indemnify the carrier been delivered, it is against loss arising presumed that the holder at from its being held the time that it became a liable to the holder holder had or could under subparagraph 2 reasonably have had (e) of this article. The carrier may refuse to

278

knowledge of the delivery follow those of the goods. instructions if the person fails to provide Article 48 adequate security as the carrier may reasonably Goods remaining request; undelivered (d) A person that becomes a holder of the 1. For the purposes of this negotiable transport article, goods shall be document or the deemed to have remained negotiable electronic undelivered only if, after transport record after their arrival at the place of the carrier has delivered destination: the goods pursuant to (a) The consignee does not subparagraph 2 (b) of accept delivery of the this article, but pursuant goods pursuant to this to contractual or other chapter at the time and arrangements made location referred to in before such delivery article 43; acquires rights against (b) The controlling party, the carrier under the the holder, the shipper or contract of carriage, the documentary shipper other than the right to cannot be found or does claim delivery of the not give the carrier goods; adequate instructions (e) Notwithstanding pursuant to articles 45, 46 subparagraphs 2 (b) and and 47; 2 (d) of this article, a (c) The carrier is entitled holder that becomes a or required to refuse holder after such delivery pursuant to delivery, and that did articles 44, 45, 46 and 47; not have and could not (d) The carrier is not reasonably have had allowed to deliver the knowledge of such goods to the consignee delivery at the time it pursuant to the law or became a holder, regulations of the place at acquires the rights which delivery is incorporated in the requested; or (e) The goods negotiable transport are otherwise document or negotiable undeliverable by the electronic transport carrier. record. When the 2. Without prejudice to any contract particulars other rights that the carrier state the expected time may have against the of arrival of the goods, shipper, controlling party or indicate how to or consignee, if the goods obtain information as to have remained whether the goods have undelivered, the carrier been delivered, it is may, at the risk and presumed that the expense of the person holder at the time that it entitled to the goods, take became a holder had or such action in respect of could reasonably have the goods as circumstances had knowledge of the may reasonably require, delivery of the goods. including: (a) To store the goods at Goods remaining any suitable place; undelivered (b) To unpack the goods if 1. For the purposes of they are packed in this article, goods shall containers or vehicles, or be deemed to have to act otherwise in respect remained undelivered

279

of the goods, including by only if, after their moving them; and arrival at the place of (c) To cause the goods to destination: be sold or destroyed in (a) The consignee does accordance with the not accept delivery of practices or pursuant to the the goods pursuant to law or regulations of the the previous articles place where the goods are (delivery articles) at the located at the time. time and location 3. The carrier may exercise referred to in this law; the rights under paragraph (b) The person acting 2 of this article only after it on behalf of the has given reasonable notice consignee, the shipper of the intended action or a person acting on its under paragraph 2 of this behalf, shipper cannot article to the person stated be found or does not in the contract particulars give the carrier as the person, if any, to be adequate instructions notified of the arrival of pursuant to the previous the goods at the place of articles (delivery destination, and to one of articles); the following persons in (c) The carrier is the order indicated, if entitled or required to known to the carrier: the refuse delivery pursuant consignee, the controlling to the previous articles party or the shipper. (delivery articles); 4. If the goods are sold (d) The carrier is not pursuant to subparagraph 2 allowed to deliver the (c) of this article, the goods to the consignee carrier shall hold the pursuant to the law or proceeds of the sale for the regulations of the place benefit of the person at which delivery is entitled to the goods, requested; or subject to the deduction of (e) The goods are any costs incurred by the otherwise undeliverable carrier and any other by the carrier. amounts that are due to the 2. Without prejudice to carrier in connection with any other rights that the the carriage of those goods. carrier may have 5. The carrier shall not be against the shipper or a liable for loss of or damage person acting on its to goods that occurs during behalf, or consignee or the time that they remain a person acting on its undelivered pursuant to behalf, if the goods this article unless the have remained claimant proves that such undelivered, the carrier loss or damage resulted may, at the risk and from the failure by the expense of the person carrier to take steps that entitled to the goods, would have been take such action in reasonable in the respect of the goods as circumstances to preserve circumstances may the goods and that the reasonably require, carrier knew or ought to including: have known that the loss or (a) To store the goods damage to the goods would at any suitable place; result from its failure to (b) To unpack the take such steps. 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 is only None. Article 5 (1) Article 17 Liability for delay mentioned in the delay liability for delay in The carrier is liable for loss Basis of liability The carrier shall be resulting from loss of or liable for the delay in article 165 damage to the goods, as 1. The carrier is liable for delivering the goods well as from delay in loss of or damage to the unless it is proved that The carrier shall be delivery, if the occurrence goods, as well as for delay the delay was due to liable for the delay in which caused the loss, in delivery, if the claimant one of the reasons delivering the goods damage or delay took place proves that the loss, exculpating the carrier unless it was proved that while the goods were in his damage, or delay, or the from liability under the delay was due to one charge as defined in article event or circumstance that Article 158 of this law. of the reasons 4, unless the carrier proves caused or contributed to it mentioned in Article that he, his servants or took place during the Delay 158 herein. agents took all measures period of the carrier’s that could reasonably be responsibility as defined in 1. Delay in delivery required to avoid the chapter 4. occurs when the goods occurrence and its have not been delivered consequences. Article 21 at the port of discharge provided for in the Delay contract of carriage by Article 5(2) sea within the time Delay in delivery occurs expressly agreed upon Delay in delivery occurs when the goods are not or, in the absence of when the goods have not delivered at the place of such agreement, at the been delivered at the port destination provided for in time and location at of discharge provided for the contract of carriage which the customs, in the contract of carriage within the time agreed. usages or practices of by sea within the time the trade and the expressly agreed upon or, circumstances of the in the absence of such carriage, delivery could agreement, within the time reasonably be expected. which it would be reasonable to require of a Article 43 2. The person entitled diligent carrier, having to make a claim for the regard to the circumstances Obligation to accept loss of goods may treat of the case. delivery the goods as lost if they have not been delivered Article 5(3) When the goods have in accordance with the arrived at their destination, delivery articles within The person entitled to the consignee that demands 60 consecutive days make a claim for the loss delivery of the goods under following the expiry of

282

of goods may treat the the contract of carriage the time for delivery goods as lost if they have shall accept delivery of the according to paragraph not been delivered as goods at the time or within 2 of this article. required by article 4 within the time period and at the 60 consecutive days location agreed in the 3. A prima facie case following the expiry of the contract of carriage or, of delay requires the time for delivery according failing such agreement, at claimant to: (a) prove to paragraph 2 of this the time and location at the time of delivery article. which, having regard to the agreed upon by the terms of the contract, the parties or the time customs, usages or during which delivery practices of the trade and should have been the circumstances of the occurred in accordance carriage, delivery could with paragraph 1 of this reasonably be expected. 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 None. None. Article 61(b) Reference is only made to Compensation for cargo loss or damage delay for delay The liability of the carrier claims for delay in delivery The liability of the according to the provisions Article 22 carrier for delay in of article 5 is limited to an delivery is limited to an amount equivalent to two Calculation of amount equivalent to and a half times the freight compensation two and a half times the payable for the goods freight payable for the delayed, but not exceeding 1. Subject to article 59, the goods delayed, but not the total freight payable compensation payable by exceeding the total under the contract of the carrier for loss of or freight payable under carriage of goods by sea. damage to the goods is the contract of carriage calculated by reference to of goods by sea. 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

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 Article 158 Article 4 Article 5(1) Article 17(2) Liability exceptions exceptions The carrier or the vessel The carrier is relieved of Neither the carrier nor 1. Neither the carrier nor The carrier is liable for loss shall not be held liable all or part of its liability the vessel shall be held the ship shall be liable for resulting from loss of or for the destruction of the pursuant to paragraph 1 of liable for the damage loss or damage arising or damage to the goods, as goods or its this article if it proves that to, loss of, delay in resulting from well as from delay in transportation resulting the cause or one of the delivering cargo unseaworthiness unless delivery, if the occurrence from: causes of the loss, damage, resulting from: caused by want of due which caused the loss, 1.action, negligence or or delay is not attributable diligence on the part of the damage or delay took place default taking place to its fault or to the fault of (1) Fire unless caused carrier to make the ship while the goods were in his during navigation or in any person referred to in by the act or neglect of seaworthy and to secure charge as defined in article the management of the article 18. the carrier or its agents, that the ship is properly 4, unless the carrier proves Vessel; manned, equipped and that he, his servants or 2.the captain, crew or Article 17(3) supplied, and to make the agents took all measures (2) Perils, dangers and pilots or the persons holds, refrigerating and that could reasonably be accidents of the sea or affiliated to the carrier; The carrier is also relieved cool chambers and all required to avoid the other navigable waters; 3.fire except where it is of all or part of its liability other parts of the ship in occurrence and its caused by the act or pursuant to paragraph 1 of which goods are carried fit consequence etc. mistake of the carrier; this article if, alternatively (3) Act of God; and safe for their reception, 4.risks of the sea or to proving the absence of carriage and preservation navigation water and its Article 5(4) fault as provided in in accordance with the (4) Act of war; danger and accidents; paragraph 2 of this article, provisions of paragraph 1 5.force majeure; it proves that one or more of Article 3. Whenever loss 6.accidents of war; (a) The carrier is liable of the following events or or damage has resulted (5) Act of public 7.acts of the common circumstances caused or enemies; from unseaworthiness the enemies; contributed to the loss, burden of proving the (i) for loss of or damage to 8.any arrest or coercion the goods or delay in damage, or delay: exercise of due diligence (6) Arrest or restraint or issued from a state delivery caused by fire, if (a) Act of God; (b) Perils, shall be on the carrier or princes, rulers or authority or by a court the claimant proves that dangers, and accidents of other person claiming people, or seizure under judgment; the fire arose from fault or the sea or other navigable exemption under this legal process; 9.restrains as a result of neglect on the part of the waters; (c) War, hostilities, Article. a quarantine; carrier, his servants or armed conflict, piracy, 10.any act or omission agents; terrorism, riots, and civil (7) Quarantine from the shipper, owner 2. Neither the carrier nor commotions; (d) restrictions; of the goods or his agent the ship shall be (ii) for such loss, damage Quarantine restrictions; or his representative. responsible for loss or or delay in delivery which interference by or 11.workers strikes or damage arising or resulting is proved by the claimant impediments created by (8) Act or omission of closure or any from: (a) Act, neglect, or to have resulted from the governments, public the shipper or owner of hindrances at work that default of the master, fault or neglect of the authorities, rulers, or the goods, his agent or may result in the mariner, pilot, or the carrier, his servants or people including detention, representative; prevention servants of the carrier in agents in taking all arrest, or seizure not measures that could 12.of the total or partial the navigation or in the attributable to the carrier or (9) Strikes or lockouts reasonably be required to continuation of the management of the ship. any person referred to in or stoppage or restraint put out the fire and avoid work; article 18; (e) Strikes, of labor from whatever or mitigate its 13.riots and civil lockouts, stoppages, or cause, whether partial (b) Fire, unless caused by consequences. disturbance; restraints of labour; (f) Fire or general; 14.saving or attempt of the actual fault or privity of on the ship; (g) Latent the carrier. (b) In case of fire on board saving lives or property the ship affecting the defects not discoverable by (10) Riots and civil in the sea; goods, if the claimant or due diligence; commotions; 15. deficiency in size or (c) Perils, dangers and the carrier so desires, a (h) Act or omission of the weight or any other accidents of the sea or survey in accordance with shipper, the documentary destruction or damage other navigable waters. shipping practices must be shipper, the controlling (11) Saving or resulting from a latent held into the cause and party, or any other person attempting to save life default or from the circumstances of the fire, for whose acts the shipper at sea; special nature of the and a copy of the surveyors or the documentary shipper

284

goods or an inner defect (d) Act of God. report shall be made is liable pursuant to article (12) Reasonable therein; available on demand to the 33 or 34; measures to save or 1.insufficiency of carrier and the claimant. (i) Loading, handling, attempt to save property (e) Act of war. packaging; stowing, or unloading of at sea; Article 5(5) 2.insufficiency or the goods performed imperfection of the (f) Act of public enemies. pursuant to an agreement With respect to live (13) Wastage in bulk marks; in accordance with article animals, the carrier is not or weight or any other 3.concealed defects 13, paragraph 2, unless the liable for loss, damage or loss or damage arising which cannot be (g) Arrest or restraint or carrier or a performing delay in delivery resulting from inherent defect, revealed by normal princes, rulers or people, or party performs such seizure under legal from any special risks quality or vice of the inspection; activity on behalf of the inherent in that kind of goods; 4.any other reason not process. shipper, the documentary carriage. If the carrier caused by the act or shipper or the consignee; proves that he has mistake of the carrier or (h) Quarantine restrictions. (j) Wastage in bulk or (14) Insufficiency of complied with any special persons affiliated thereto weight or any other loss or packing; instructions given to him or his representative. damage arising from by the shipper respecting (i) Act or omission of the inherent defect, quality, or the animals and that, in the Whoever relies on this shipper or owner of the vice of the goods; (15) Insufficiency or circumstances of the case, defense must prove that goods, his agent or (k) Insufficiency or inadequacy of marks; the loss, damage or delay there is no relationship representative. defective condition of in delivery could be between acts of such packing or marking not (16) Latent defects not attributed to such risks, it persons or their performed by or on behalf discoverable by due (j) Strikes or lockouts or is presumed that the loss, mistakes and the of the carrier; diligence; stoppage or restraint of damage or delay in occurrence of the (l) Saving or attempting to labour from whatever delivery was so caused, destruction or damage. save life at sea; cause, whether partial or unless there is proof that (m) Reasonable measures (17) Any other cause general. all or a part of the loss, to save or attempt to save arising without the damage or delay in property at sea; actual fault or privity of delivery resulted from fault (k) Riots and civil (n) Reasonable measures the carrier, or without or neglect on the part of commotions. to avoid or attempt to the actual fault or the carrier, his servants or avoid damage to the neglect of the agents or agents. environment; or servants of the carrier, (l) Saving or attempting to (o) Acts of the carrier in but the burden of proof save life or property at sea. Article 5(6) pursuance of the powers shall be on the person

conferred by articles 15 claiming the benefit of The carrier is not liable, (m) Wastage in bulk or and 16. this exception to show weight or any other loss or except in general average, that neither the actual damage arising from where loss, damage or fault or privity of the inherent defect, quality or delay in delivery resulted carrier nor the fault or vice of the goods. from measures to save life neglect of the agents or or from reasonable servants of the carrier measures to save property contributed to the loss (n) Insufficiency of at sea. or damage. packing. Article 5(7)

(o) Insufficiency or inadequacy of marks. Where fault or neglect on the part of the carrier, his servants or agents (p) Latent defects not combines with another discoverable by due cause to produce loss, diligence. damage or delay in delivery, the carrier is (q) Any other cause arising liable only to the extent without the actual fault or that the loss, damage or privity of the carrier, or delay in delivery is without the actual fault or attributable to such fault or neglect of the agents or neglect, provided that the servants of the carrier, but carrier proves the amount the burden of proof shall of the loss, damage or be on the person claiming delay in delivery not the benefit of this attributable thereto.

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 Article 160 Article 3(8) Article 23 Article 79 Contracting out

contract Any condition in the Contractual stipulations General provisions Any clause, covenant, Any clause, covenant, or bill of lading or in any or agreement in a agreement in a contract of similar bill except for 1. Any stipulation in a Unless otherwise provided contract of carriage carriage relieving the the lease agreement that contract of carriage by sea, in this Convention, any relieving the carrier or carrier or the ship from exempts the carrier from in a bill of lading, or in any term in a contract of the ship from liability liability for loss or damage the liability for the other document evidencing carriage is void to the for cargo loss, damage, to, or in connection with, destruction or damage the contract of carriage by extent that it: or delay in delivery to goods arising from of the goods as a result sea is null and void to the (a) Directly or indirectly in connection of cargo, negligence, fault, or failure of the negligence, extent that it derogates, excludes or limits the arising from in the duties and mistake or default in the directly or indirectly, from obligations of the carrier or negligence, fault, or obligations provided in this performance of the the provisions of this a maritime performing failure in the duties and Article or lessening such obligations provided for Convention. The nullity of party under this obligations provided in liability otherwise than as in this chapter or such a stipulation does not Convention; this law or lessening provided in this including the affect the validity of the (b) Directly or indirectly such liability otherwise Convention, shall be null diminishing of the other provisions of the excludes or limits the than as provided in this and void and of no effect. liability from the limit contract or document of liability of the carrier or a law, shall be null and A benefit of insurance in provided for in the which it forms a part. A maritime performing party void and of no effect. A favor of the carrier or previous Article shall be clause assigning benefit of for breach of an obligation benefit of insurance in similar clause shall be deemed void. Every insurance of goods in under this Convention; or favor of the carrier or deemed to be a clause term including the grant favour of the carrier, or (c) Assigns a benefit of similar clause shall be relieving the carrier from of rights to the carrier any similar clause, is null insurance of the goods in deemed to be a clause liability. that arise from the and void. favour of the carrier or a relieving the carrier insurance of the goods person referred to in article from liability. or any other similar 2. Notwithstanding the 18. condition shall be provisions of paragraph 1

286

considered as a Article 6 of this article, a carrier 2. Unless otherwise Increasing the condition of exemption may increase his provided in this carrier’s obligations from liability. responsibilities and Convention, any term in a A carrier shall be at liberty obligations under this contract of carriage is void to surrender in whole or in A carrier shall be at Article 161 Convention. to the extent that it: part all or any of his rights liberty to surrender in (a) Directly or indirectly and immunities or to whole or in part all or The carrier may assign 3. Where a bill of lading or excludes, limits or increase any of his any of his rights and all or part of the rights any other document increases the obligations responsibilities and immunities or to and exemptions granted evidencing the contract of under this Convention of obligations under this increase any of his to him and may increase carriage by sea is issued, it the shipper, consignee, Convention, provided such responsibilities and his obligations as must contain a statement controlling party, holder or surrender or increase shall obligations under this provided for in this that the carriage is subject documentary shipper; or be embodied in the bill of law, provided such chapter, provided that to the provisions of this (b) Directly or indirectly lading issued to the surrender or increase the abandonment or Convention which nullify excludes, limits or shipper. shall be embodied in increase of the any stipulation derogating increases the liability of the transport document obligations is expressly therefrom to the detriment the shipper, consignee, or electronic transport mentioned in the bill of The provisions of this of the shipper or the controlling party, holder or record issued to the lading that is delivered Convention shall not be consignee. documentary shipper for shipper. to the shipper. The applicable to charter breach of any of its carrier may record in the parties, but if bills of 4. Where the claimant in obligations under this bill of lading or any lading are issued in the respect of the goods has Convention. Freedom of contract other similar bill, case of a ship under a incurred loss as a result of conditions, precautions charter party they shall a stipulation which is null Article 6 1. Exclusion of or exemptions relating comply with the terms of and void by virtue of the charterparties to his obligations and this Convention. Nothing present article, or as a Specific exclusions liability for the in these rules shall be held result of the omission of destruction or damage to to prevent the insertion in a the statement referred to in 1. This Convention does The carrier liability the goods or to his bill of lading of any lawful paragraph 3 of this article, not apply to the following regime of this law shall obligation to safeguard provision regarding the carrier must pay contracts in liner not be applicable to and look after the general average. compensation to the extent transportation: charter parties, but if shipment during the required in order to give (a) Charter parties; and (b) transport document or period preceding the the claimant compensation Other contracts for the use electronic transport Article 7 shipping or following in accordance with the of a ship or of any space record are issued in the the unloading of the provisions of this thereon. case of a ship under a goods from the Vessel Notwithstanding the Convention for any loss of 2. This Convention does charter party they shall on. Furthermore, the bill provisions of the preceding or damage to the goods as not apply to contracts of comply with the terms of lading may provide Articles, a carrier, master well as for delay in carriage in non-liner of this law. Nothing in for all conditions or agent of the carrier and delivery. The carrier must, transportation except these rules shall be held relating to the maritime a shipper shall in regard to in addition, pay when: to prevent the insertion losses as far as there is any particular goods be at compensation for costs (a) There is no charter in a transport document no contradiction liberty to enter into any incurred by the claimant party or other contract or electronic transport between such conditions agreement in any terms as for the purpose of between the parties for the record of any lawful and the provisions of the to the responsibility and exercising his right, use of a ship or of any provision regarding general maritime losses. liability of the carrier for provided that costs space thereon; and (b) A general average. such goods, and as to the incurred in the action transport document or an rights and immunities of where the foregoing electronic transport record 2. Special agreement Article 162 the carrier in respect of provision is invoked are to is issued. such goods, or his be determined in It is admissible to obligation as to accordance with the law of Notwithstanding the contract out of the seaworthiness, so far as the State where provisions of the carrier liability this stipulation is not proceedings are instituted. preceding Articles, a provisions in the contrary to public policy, carrier, master or agent following cases: 1. in or the care or diligence of of the carrier and a coastwise carriage and; his servants or agents in shipper shall in regard 2. where the nature of regard to the loading, to any particular goods the goods required to be handling, stowage, be at liberty to enter transported or its carriage, custody, care and into any agreement in condition or the discharge of the goods any terms as to the circumstances of its carried by sea, provided responsibility and shipping or the that in this case no bill of liability of the carrier exceptional lading has been or shall be for such goods, and as circumstances during issued and that the terms to the rights and

287

which it shall be agreed shall be embodied immunities of the transported, a special in a receipt which shall be carrier in respect of agreement needs to be a non-negotiable document such goods, or his entered into by the and shall be marked as obligations, so far as parties. The agreed such. Any agreement so this stipulation is not condition in the special entered into shall have full contrary to public agreement shall be legal effect. policy, or the care or recorded in the receipt diligence of his servants and shall be deemed as or agents in regard to Provided that this Article non-negotiable the loading, handling, shall not apply to ordinary instrument and shall be stowage, carriage, commercial shipments indicated as such. custody, care and made in the ordinary discharge of the goods course of trade, but only to Article 164 carried by sea, provided other shipments where the that in this case the character or condition of The provisions that terms agreed shall be the property to be carried govern liability embodied in a receipt or the circumstances, terms mentioned in this which shall be a non- and conditions under chapter shall be applied negotiable document which the carriage is to be to maritime transport and shall be marked as performed are such as according to the bill of such. Any agreement so reasonably to justify a lading within the period entered into shall have special agreement. of the loading and full legal effect.

unloading the goods onboard the Vessel. Provided that this Article 8 article shall not apply to These provisions shall ordinary commercial also not apply in shipments made in the accordance with the Nothing herein contained ordinary course of lease agreement unless a shall prevent a carrier or a trade, but only to other bill of lading was issued shipper from entering into shipments where the together with the lease any agreement, stipulation, character or condition agreement. The Bill of condition, reservation or exemption as to the of the property to be Lading shall regulate the carried or the relationship between the responsibility and liability circumstances, terms holder and the carrier. of the carrier or the ship for the loss or damage to, and conditions under The above provisions which the carriage is to shall not apply to the or in connection with, the be performed are such transport of livestock or custody and care and handling of goods prior to as reasonably to justify to goods mentioned in a special agreement. the bill of lading as the loading on, and

being was shipped on subsequent to, the discharge from the ship on the deck of the Vessel. which the goods are carried by sea.

Live animals Excluding deck Excluding livestock from Article 5(5) Article 81 Live animals carriage from carrier the application of the liability regime. rules. With respect to live Special rules for live With respect to live animals, the carrier is not animals and certain other animals, the carrier is “…[t]he above Article 1(c) liable for loss, damage or goods not liable for loss, provisions shall not delay in delivery resulting damage or delay in apply to the transport of from any special risks Notwithstanding article 79 delivery resulting from "Goods" includes goods, live stock …”. inherent in that kind of and without prejudice to any special risks wares, merchandise and carriage. If the carrier article 80, the contract of inherent in that kind of articles of every kind Article 164 proves that he has carriage may exclude or carriage. whatsoever except live complied with any special limit the obligations or the If the carrier proves that animals and cargo which The provisions that instructions given to him liability of both the carrier he has complied with by the contract of carriage govern liability by the shipper respecting and a maritime performing any special instructions mentioned in this the animals and that, in the party if: given to him by the chapter shall be applied circumstances of the case, shipper respecting the

288

to maritime transport in stated as being carried the loss, damage or delay (a) The goods are live animals and that, in the according to the bill of on deck and is so carried. in delivery could be animals, but any such circumstances of the lading within the period attributed to such risks, it exclusion or limitation will case, the loss, damage of the loading and is presumed that the loss, not be effective if the or delay in delivery

unloading the goods damage or delay in claimant proves that the could be attributed to onboard the Vessel. delivery was so caused, loss of or damage to the such risks, it is unless there is proof that goods, or delay in delivery, presumed that the loss, These provisions shall all or a part of the loss, resulted from an act or damage or delay in also not apply in damage or delay in omission of the carrier or delivery was so caused, accordance with the delivery resulted from fault of a person referred to in unless there is proof lease agreement unless a or neglect on the part of article 18, done with the that all or a part of the bill of lading was issued the carrier, his servants or intent to cause such loss of loss, damage or delay in together with the lease agents. or damage to the goods or delivery resulted from agreement. The Bill of such loss due to delay or fault or neglect on the Lading shall regulate the done recklessly and with part of the carrier, his relationship between the knowledge that such loss servants or agents. holder and the carrier. or damage or such loss due The above provisions to delay would probably shall not apply to the result; or transport of livestock or (b) The character or to goods mentioned in condition of the goods or the bill of lading as the circumstances and being was shipped on terms and conditions under the deck of the Vessel. 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. Deck carriage Excluding deck Excluding deck carriage Article 9 Article 25 Deck carriage carriage from carrier from the application of liability regime. the rules. Deck cargo Deck cargo on ships 1. Goods may be carried on the deck of a “…[t]he above Article 1(c): 1. The carrier is entitled to 1. Goods may be carried ship only if: provisions shall not carry the goods on deck on the deck of a ship only (a) Such carriage is apply to …. goods only if such carriage is in if: required by law; "Goods" includes goods, mentioned in the bill of accordance with an (a) Such carriage is (b) They are carried in wares, merchandise and lading as being was agreement with the shipper required by law; or on containers or articles of every kind shipped on the deck of or with the usage of the (b) They are carried in or vehicles that are fit for whatsoever except live the Vessel.” particular trade or is on containers or vehicles deck carriage, and the animals and cargo which required by statutory rules that are fit for deck decks are specially by the contract of carriage Article 164 or regulations. carriage, and the decks are fitted to carry such in stated as being carried specially fitted to carry containers or vehicles; on deck and is so carried. The provisions that 2. If the carrier and the such containers or or govern liability shipper have agreed that vehicles; or (c) The carriage on mentioned in this the goods shall or may be (c) The carriage on deck is deck is in accordance chapter shall be applied carried on deck, the carrier in accordance with the with the contract of to maritime transport must insert in the bill of contract of carriage, or the carriage, or the according to the bill of lading or other document customs, usages or customs, usages or lading within the period evidencing the contract of practices of the trade in practices of the trade in of the loading and carriage by sea a statement question. question. unloading the goods to that effect. In the 2. The provisions of this 2. The provisions of onboard the Vessel. absence of such a Convention relating to the this Convention relating

289

statement the carrier has liability of the carrier apply to the liability of the These provisions shall the burden of proving that to the loss of, damage to or carrier apply to the loss also not apply in an agreement for carriage delay in the delivery of of, damage to or delay accordance with the on deck has been entered goods carried on deck in the delivery of goods lease agreement unless a into; however, the carrier is pursuant to paragraph 1 of carried on deck bill of lading was issued not entitled to invoke such this article, but the carrier pursuant to paragraph 1 together with the lease an agreement against a is not liable for loss of or of this article. agreement. The Bill of third party, including a damage to such goods, or 3. If the goods have Lading shall regulate the consignee, who has delay in their delivery, been carried on deck in relationship between the acquired the bill of lading caused by the special risks cases other than those holder and the carrier. in good faith. involved in their carriage permitted pursuant to The above provisions on deck when the goods paragraph 1 of this shall not apply to the 3. Where the goods have are carried in accordance article, the carrier is transport of livestock or been carried on deck with subparagraphs 1 (a) or liable for loss of or to goods mentioned in contrary to the provisions (c) of this article. damage to the goods or the bill of lading as of paragraph 1 of this 3. If the goods have been delay in their delivery being was shipped on article or where the carrier carried on deck in cases that is exclusively the deck of the Vessel. may not under paragraph 2 other than those permitted caused by their carriage of this article invoke an pursuant to paragraph 1 of on deck, and is not agreement for carriage on this article, the carrier is entitled to the defenses deck, the carrier, liable for loss of or damage provided for in article notwithstanding the to the goods or delay in 158. provisions of paragraph 1 their delivery that is 4. The carrier is not of article 5, is liable for exclusively caused by their entitled to invoke loss of or damage to the carriage on deck, and is not subparagraph 1 (c) of goods, as well as for delay entitled to the defenses this article against a in delivery, resulting solely provided for in article 17. third party that has from the carriage on deck, 4. The carrier is not acquired a negotiable and the extent of his entitled to invoke transport document or a liability is to be determined subparagraph 1 (c) of this negotiable electronic in accordance with the article against a third party transport record in good provisions of article 6 or that has acquired a faith, unless the article 8 of this negotiable transport contract particulars Convention, as the case document or a negotiable state that the goods may may be. electronic transport record be carried on deck. in good faith, unless the 5. If the carrier and 4. Carriage of goods on contract particulars state shipper expressly deck contrary to express that the goods may be agreed that the goods agreement for carriage carried on deck. would be carried under under deck is deemed to be 5. If the carrier and shipper deck, the carrier is not an act or omission of the expressly agreed that the entitled to the benefit of carrier within the meaning goods would be carried the limitation of of article 8. under deck, the carrier is liability for any loss of, not entitled to the benefit damage to or delay in of the limitation of liability the delivery of the for any loss of, damage to goods to the extent that or delay in the delivery of such loss, damage, or the goods to the extent that delay resulted from such loss, damage, or delay their carriage on deck. resulted from their carriage on deck. Period of Article 164 Article 1(e) Article 4 Article 12 Period of responsibility responsibility The provisions that Period of responsibility Period of responsibility of "Carriage of goods" covers govern liability the carrier 1. The period of the period from the time mentioned in this 1.The responsibility of the responsibility of the when the goods are loaded chapter shall be applied carrier for the goods under 1. The period of carrier for the goods on to the time they are to maritime transport this Convention covers the responsibility of the carrier under this law begins discharged from the ship. according to the bill of period during which the for the goods under this when the carrier or a lading within the period carrier is in charge of the Convention begins when person acting on its of the loading and goods at the port of the carrier or a performing behalf receives the loading, during the party receives the goods goods for carriage and

290

unloading the goods carriage and at the port of for carriage and ends when ends when the goods onboard the Vessel. discharge. the goods are delivered. are delivered according 2. (a) If the law or to this law (Delivery These provisions shall 2.For the purpose of regulations of the place of Articles). also not apply in paragraph 1 of this article, receipt require the goods to accordance with the the carrier is deemed to be be handed over to an 2. For the purpose of lease agreement unless a in charge of the goods authority or other third determining the bill of lading was issued (a) from the time he has party from which the carrier’s period of together with the lease taken over the goods from: carrier may collect them, responsibility, the agreement. The Bill of (i) the shipper, or a person the period of responsibility parties may agree on Lading shall regulate the acting on his behalf; or (ii) of the carrier begins when the time and location of relationship between the an authority or other third the carrier collects the receipt and delivery of holder and the carrier. party to whom, pursuant to goods from the authority or the goods, but a The above provisions law or regulations other third party. (b) If the provision in a contract shall not apply to the applicable at the port of law or regulations of the of carriage is void to transport of livestock or loading, the goods must be place of delivery require the extent that it to goods mentioned in handed over for shipment; the carrier to hand over the provides that: the bill of lading as (b) until the time he has goods to an authority or (a) The time of receipt being was shipped on delivered the goods: other third party from of the goods is the deck of the Vessel. (i) by handing over the which the consignee may subsequent to the goods to the consignee; or collect them, the period of beginning of their (ii) in cases where the responsibility of the carrier initial loading under the consignee does not receive ends when the carrier contract of carriage; or the goods from the carrier, hands the goods over to the (b) The time of delivery by placing them at the authority or other third of the goods is prior to disposal of the consignee party. the completion of their in accordance with the 3. For the purpose of final unloading under contract or with the law or determining the carrier’s the contract of carriage. with the usage of the period of responsibility, particular trade, applicable the parties may agree on at the port of discharge; or the time and location of (iii) by handing over the receipt and delivery of the goods to an authority or goods, but a provision in a other third party to whom, contract of carriage is void pursuant to law or to the extent that it regulations applicable at provides that: the port of discharge, the (a) The time of receipt of goods must be handed the goods is subsequent to over. 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

BIBLIOGRAPHY

Books

1 FORCE, ROBERT, YIANNOPOULOS, A. N. & DAVIES, MARTIN, ADMIRALTY AND MARITIME LAW (2012).

1 TETLEY, WILLIAM, MARINE CARGO CLAIMS (4th ed. 2004).

JURISDICTION AND FORUM SELECTION IN INTERNATIONAL MARITIME LAW (Martin Davies ed., 2005).

LUDDEKE, CHRISTOF F. & JOHNSON, ANDREW, A GUIDE TO THE HAMBURG RULES (1991).

OCEAN BILLS OF LADING: TRADITIONAL FORMS, SUBSTITUTES, AND EDI SYSTEMS (Athanassios N. Yiannopoulos ed., 1995).

PRICE, RICHARD & HABERBECK, ANDREAS, THE MARITIME LAWS OF THE ARABIAN GULF COOPERATION COUNCIL STATES (1989) (Vol. 1).

QC, JUSTICE EDER ET AL., SCRUTTON ON CHARTERPARTIES AND BILLS OF LADING 431 (22nd ed. 2011).

RICHARDSON, JOHN, A GUIDE TO THE HAGUE AND HAGUE VISBY RULES (3rd ed. 1994). SINGH, LACHMI, THE LAW OF CARRIAGE OF GOODS BY SEA (2011). THE CARRIAGE OF GOODS BY SEA UNDER THE ROTTERDAM RULES (Rhidian Thomas ed., 2010).

303

THE ROTTERDAM RULES 2008 (Alexander Von Ziegler, Johan Schelin & Stefano Zunarelli eds., 2010).

THE UNITED NATIONAS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL CARRIAGE OF GOODS WHOLLY OR PARTLY BY SEA (Meltem Deniz Guner-Ozbek ed., 2011).

TODD, PAUL, PRINCIPLES OF THE CARRIAGE OF GOODS BY SEA (2016).

Arabic Books

ABABNEH, MAHMOUD, THE PROVISIONS OF THE CONTRACT OF CARRIAGE (2015).

AHMAD, WAEL HAMDI, THE ELECTRONIC CONTRACT OF INTERNATIONAL CARRIAGE OF GOODS BY SEA (2013).

AHMED, MOHAMMED SHAREEF ABDULRAHMAN, PROVING CONTRACTS CONCLUDED BY AUDIO AND VISUAL MEANS (2007).

ALATER, ABDULQADER HUSSAIN, EXPLANATION OF THE MARITIME COMMERCIAL LAW (1999).

ALBAROODI, ALI, THE PRINCIPLES OF MARITIME LAW (1983).

ALMEQDADI, ADEL ALI, THE MARITIME LAW (1998).

ALMEQDADI, ADEL ALI, THE OMANI MARITIME LAW (2011).

304

ALSHARQAWI, MAHMOUD SAMEER, THE MARITIME LAW 349-50 (2011).

ALSHARQAWI, SAMEER, THE MARITIME LAW (2001).

ALZAHAWI, FADEL SALEH, THE BAHRAINI MARITIMA LAW (2005).

ATTIYA, WALEED, THE CARRIER’S LIABILITY FOR DANGEROUS CARGO (2015).

AWAD,ALI JAMAL ALDEEN, THE CARRIAGE OF GOODS BY SEA (1992).

DWEDAR, HANI MOHAMMED, A BRIEF ON THE MARITIME LAW (1997).

DWEDAR, HANI, THE MARITIME AND AIR LAW (2008).

GHANNAM, SHAREEF MOHAMMED, THE OBLIGATIONS AND LIABILITY OF THE SHIPPER (2012).

HAMDI, KAMAL, THE INTERNATIONAL CONVENTION ON CARRIAGE OF GOODS BY SEA OF 1978: THE HAMBURG RULES (2008).

HAMDI, KAMAL, THE MARITIME LAW (3rd ed. 2007).

HATOOM, WAJDI, THE SEA CARRIAGE (2011).

KELANI, AMAL MOHAMED, LITIGATION IN COTRACT OF CARRIGE OF GOODS BY SEA (2012).

305

MUSA, MOHAMED IBRAHEEM, ELECTRONIC BILLS OF LADING: THE REALITY AND HOPE (2016). QASSIM, ALI SAYED, A BRIEF ABOUT THE UAE MARITIME LAW (2014).

RODWAN,FAYEZ NAEEM, THE MARITIME LAW (1984).

SARKHOUH,YAQOOB YOUSSIF, THE EXPLANATION OF THE KUWAITI MARITIME LAW (1985).

TAHA, MUSTAFA KAMAL, THE MARITIME LAW (1998).

TAHA, MUSTAFA KAMAL, THE PRINCIPLES OF MARITIME LAW (1974).

Journal Articles

Al-Jazairy, Hashim R., The Period of the Maritime Carrier’s Liability under the Qatari Law, 1 Arab L.Q. 430 (1985-1986).

Atteia, Waleed Khalid, The Legal Aspects of Seaworthiness: Comparative study Between Maritime Laws, Hague Rules, Visby Rules, and Hamburg Rules, 5 AL- Mouhakiq Al-Hilly Journal for Legal and Political Science 259 (2013).

Bauer, R. Glenn, Conflicting Liability Regimes: Hague-Visby v. Hamburg Rules-A Case by Case Analysis, 24 J. Mar. L. & Com. 53 (1993).

Boss, Amelia H., The International Commercial Use of Electronic Data Interchange and Electronic Communications Technologies, 46 Bus. Law. 1787 (1991).

Donovan, James J., The Hamburg Rules: Why a New Convention on Carriage of Goods by Sea, 10. 4 Mar. Law. 1 (1979).

306

Giaschi, Christopher J., Carriage of Goods, Bills of Lading, and Charterparties, U.B.C. Mar. L. 332 (2001).

Hashmi, Sabena, Rotterdam Rules: A Blessing?, 10 Loy. Mar. L.J. 227, 265 (2011-2012).

Katsivela, Marel, Overview of Ocean Carrier Liability Exceptions Under the Rotterdam Rules and the Hague Hague/Visby Rules, 40 Rev. Gen. 413 (2010).

Larkin, Sandra A., 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 (1995-1996).

M., Alba, 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 (2009).

Mandelbaum, Samuel Robert, Creating Uniform Worldwide Liability Standards for Sea Carriage of Goods Under the Hague, COGSA, Visby and Hamburg Conventions, 23 Transp. L.J. 471 (1995-1996).

Nikaki ,Theodora & Soyer, Bariş, 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 (2012).

Nikaki, Theodora, The Carrier's Duties Under the Rotterdam Rules: Better the Devil You Know?, 35 Tul. Mar. L.J. 1 (2010-2011). Pixa, Rand R., The Hamburg Rules Fault Concept and Common Carrier Liability Under U. S. Law, 19 Va. J. Int'l L. 433 (1978-1979).

Selvig, Erling, Through-Carriage and On-Carriage of Goods by Sea, 27 Am. J. Comp. L. 369 (1979).

Sorkin, Saul, Changing Concepts of Liability,17 Forum 710 (1981-1982).

307

Villareal, Dewey R., Carrier’s Responsibility to Cargo and Cargo’s to Carrier’s, 45 Tul. L. Rev. 770 (1970-1971). Ziegler, Alexander von, Delay and the Rotterdam Rule, 14 Unif. L. Rev. 997 (2009).

Zunarelli, Stefano, The Carrier and the Maritime Performing Party in the Rotterdam Rules, 14 Unif. L. Rev. 1011 (2009).

Cases

American President Lines, Ltd. v. Federal Maritime Board, 317 F. 2d 887 at p.888 1963 (D.C. Cir. 1962).

Centerchem Products v. A/S Rederiet Odfiell, 1972 AMC 373, 374-75 (E.D. Va. 1971).

Court of Cassation, Civil & Trade Division, No. 51, session of Aug. 17, 2008 (Qatar).

Court of First Instance, Civil & Trade Division, No. 001078, session of Nov. 30, 2011 (Qatar).

Daewoo International (America) Corp. v. Sea-Land Orient Ltd., 2000 AMC 197 (3rd Cir. 1999).

David Crystal, Inc. v. Cunrad Steam-Ship Co., 339 F.2d 295 (2nd Cir. 1964).

Hawkespere Shipping Co., Ltd. v. Intamex, S.A. 330 F. 3d 225 (4th Cir. 2003).

Leesh River Tea Co. v. British India Steam Navigation Co. [1966] 2 Lloyd’s Rep. 193 (A.C.)(U.K.).

308

Mannesman Demag Corp. v. M/V Concert Express, 225 F.3d 587 at p. 592 (5th Cir 2000). Nissan Fire & Marine Ins. Co. v. M/V Hyundai Explorer, 903 F2.d 675 at p. 686 (9th Cir. 1990).

Plastique Tags, Inc. v. Asia Trans Line, Inc., 83 F.3d 1367 (11th Cir. 1996).

Pyrene Co. v. Scindia Steam Natvigation Co., [1954] 1 Lloyd’s Rep. 321 (U.K.).

Servicios Expoarma, C.A. v. Industrial Maritime Carriers, Inc., 135 F.3d 984 (5th Cir. 1998).

Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 364 (1st Cir. 1976).

Tokio Marine & Fire Insurance Company Ltd v Retla Steamship Company [1970] 2 Lloyd’s Rep. 91 (US 9th Cir. CA).

Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30 (2nd Cir. 1982)

International Materials

First Protocol to the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1968 (Visby Rules).

International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1924 (Hague Rules).

SDR Protocol to the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1979 (SDR amendment).

309

SOLAS Verified Gross Mass Guidelines, 2014.

The International Convention for the Safety of Life at Sea, 1974 (SOLAS) United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2008 (Rotterdam Rules).

United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules).

Legislations

Amiri Decree on Rafting the International Convention on Load Lines of 1966 No. 50 of 2015 (Qatar).

Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300-1315 (2012).

Carriage of Goods by Sea Act, 1971 (U.K.).

Carriage of Goods by Sea Act, 1992 (U.K.).

Decree Law Issuing the Kuwaiti Maritime Commercial Law No. 28 of 1980.

Decree Law on the Promulgation of the Electronic Commerce and Transactions Law No. 16 of 2010 (Qatar).

Decree Law regulating Qatar’s maritime ports No. 29 of 1966.

Harter Act, 46 U.S.C. $ 190-196 (1893).

The Bahraini Maritime Law No. 23 of 1982.

310

The Egyptian Maritime Commercial Law No. 8 of 1991.

The Jordanian Maritime Authority Law No. 47 of 2002.

the Jordanian Maritime Commercial Law No. 12 of 1972 as amended by Law No. 35 of 1983.

The Omani Maritime Law No. 35 of 1981.

The Qatari Civil Law no. 22 of 2004.

The Qatari Commercial Agents Law No. 8 of 2002.

The Qatari Commercial Companies law No. 11 of 2015.

The Qatari Commercial Law no. 27 of 2006.

The Qatari Maritime Law no. 15 of 1980.

United Arab Emirates Maritime Commercial Law No. 26 of 1980.

English Newspaper Articles

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

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

311

Perumal, Santhosh V., 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-suppo

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

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

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

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

The launch of 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

312

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

Arabic Newspaper Articles

1095 Billion Milaha’s Gross Profit, Alraya Newspaper (Feb. 24, 2016) http://www.raya.com/news/pages/b61d503c-2a54-41d0-8e98-b1d419dd513c

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

40 Billion Trade Surplus in the Third Quarter, Alraya Newspaper (Nov. 30, 2015) http://www.raya.com/news/pages/9f64b3e7-d3b5-49bc-96b5-b1c3c8ee660c

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

95% of the Infrastructure Projects is 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

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

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

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 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

English Websites

A Successful Investment: Ras Laffan Port, RasGas, http://www.rasgas.com/Operations/RLICPort.html (last visited Agu. 10, 2016).

Building the New Port, New Port Project, http://www.npp.com.qa/Construction.html (last visited Aug. 10, 2016).

Daly, John C. K., Terrorism and Piracy: The Dual Threat to Maritime Shipping, The Jamestown Foundation, http://www.jamestown.org/single/?tx_ttnews%5Btt_news%5D=5112#.V5VxBeEk pjo (last visited Aug. 12, 2016).

Deck carriage, Freight Transport Association, http://www.fta.co.uk/policy_and_compliance/sea/long_guide/deck_carriage.html (last visited Aug. 12, 2016).

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

Gas Exporting Countries Forum, https://www.gecf.org/countries/qatar (last visited Aug. 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. 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.