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Final Thesis University of Huddersfield Repository Alawneh, Tariq A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? Original Citation Alawneh, Tariq (2015) A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? Doctoral thesis, University of Huddersfield. This version is available at http://eprints.hud.ac.uk/id/eprint/26283/ The University Repository is a digital collection of the research output of the University, available on Open Access. Copyright and Moral Rights for the items on this site are retained by the individual author and/or other copyright owners. Users may access full items free of charge; copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational or not-for-profit purposes without prior permission or charge, provided: • The authors, title and full bibliographic details is credited in any copy; • A hyperlink and/or URL is included for the original metadata page; and • The content is not changed in any way. For more information, including our policy and submission procedure, please contact the Repository Team at: [email protected]. http://eprints.hud.ac.uk/ A critical analysis of the implied obligation against unjustified deviation: Is the rule still relevant to the modern law on carriage of goods by sea? By Tariq Alawneh A Thesis submitted to the University of Huddersfield In partial fulfilment of the requirements for The degree of Doctor of Philosophy Department of Law-Business School University of Huddersfield April 2015 COPYRIGHT STATEMENT i. The author of this thesis (including any appendices and/or schedules to this thesis) owns any copyright in it (the “Copyright”) and s/he has given The University of Huddersfield the right to use such Copyright for any administrative, promotional, educational and/or teaching purposes. ii. Copies of this thesis, either in full or in extracts, may be made only in accordance with the regulations of the University Library. Details of these regulations may be obtained from the Librarian. This page must form part of any such copies made. iii. The ownership of any patents, designs, trademarks and any and all other intellectual property rights except for the Copyright (the “Intellectual Property Rights”) and any reproductions of copyright works, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property Rights and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property Rights and/or Reproductions. ABSTRACT The general area of this research is shipping law, more specifically the law governing the carriage of goods by sea. The research has been narrowed down to the implications of terms into contracts of affreightment, and then further narrowed down to the concept of deviation. The specific research question is whether or not the concept of deviation is still relevant to the law governing the carriage of goods by sea in the modern era. While this question has been posed before in the academic literature, it has never been discussed in sufficient depth. The researcher was therefore able to identify gaps in the literature through the literature review which the research has attempted to fill. The thesis on which the research is based is that the principle of deviation is a long standing and very important rule of law which form an integral part of the law and practice governing the carriage of goods by sea. However, a multi-jurisdictional review of both primary sources (i.e. conventions, statutes and cases) and secondary sources (academic literature) in relation to deviation indicates that there are many conceptual, legal and practical problems associated with the principle. Adding to this problem is the concept of quasi deviation in some jurisdictions such as the United States where there continues to be conflicting approaches to the concept even within the various federal circuits. Therefore the hypothesis of this study is based on the need for legal reform. Chapters 1 and 2 provide the background to the study as well as the conceptual framework for the research, including the literature review. The main research aims, objectives and research questions are addressed in Chapters 3, 4 and 5. Chapter 6 concludes the research by presenting the findings and recommendations together with an outline of the research contribution. 3 ACKNOWLEDGMENTS I will like first of all to thank my parents, my father Shafiq Alawneh and my mother Taghreed for their support and for the sacrifices which they have made in order to make it possible for me to take this important journey. Without their constant support and encouragement it would never have been possible. I will also like to thank my supervisor Dr George Ndi for his guidance, encouragement and the patience which he has shown during difficult periods during the research. Without his inspiration and guidance I may have found myself completely lost during the course of this journey. I also wish to thank Professor Stuart Toddington for his moral support and encouragement right from the time when I first met him, in particular for the informal discussions which I have had with him on the philosophical aspects of my research. These discussions have provided me with very useful guidance in making progress with my research. I will like to express my sincere gratitude to the University of Huddersfield and the Business School and Law School in particular for giving me this opportunity by allowing me privilege to be the first student to enrol on the full-time PhD course in law, and for their continuing support throughout my time on the course. Finally I wish to thank all of my family members and friends for their moral support and encouragement. 4 DECLARATION I, TARIQ ALAWNEH, confirm that the material contained in this thesis has not been used in any other submission for an academic award and that there is full attribution of the work of any other authors. The word count for this dissertation is 87,843 (without references) to the nearest 500 words. TARIQ ALAWNEH SIGNED: ...................................... DATE: .......................................... 5 Table of Contents A CRITICAL ANALYSIS OF THE IMPLIED OBLIGATION AGAINST UNJUSTIFIED DEVIATION: IS THE RULE STILL RELEVANT TO THE MODERN LAW ON CARRIAGE OF GOODS BY SEA? ..................................................................... I COPYRIGHT STATEMENT ................................................................................................... II ABSTRACT ............................................................................................................................... 3 ACKNOWLEDGMENTS ......................................................................................................... 4 DECLARATION ....................................................................................................................... 5 SIGNED: .................................................................................................................................... 5 DATE: ........................................................................................................................................ 5 TABLE OF CONTENTS ........................................................................................................... 6 CHAPTER ONE INTRODUCTION, SCOPE AND HYPOTHESIS OF THE STUDY .................. 9 1.1 Historical and Economic Background of the Shipping Industry. ............................................ 9 1.2. Research Statement and Hypothesis ....................................................................................... 13 1.2.1 Rationale for the rule against unjustified deviation ............................................................. 15 1.3 Conceptual Framework and Research Design ........................................................................ 16 1.4 Aims and Objectives ................................................................................................................. 18 1.5 Research Questions ................................................................................................................... 20 1.6 Methodology .............................................................................................................................. 21 1.7 Legal Philosophy and Principles Governing the Law on the Carriage of Goods by Sea. .... 26 1.7.1 Legal Positivism within the Context of the Law Governing the International Carriage of Goods by Sea ................................................................................................................................ 26 1.7.2 Natural Law Theory ............................................................................................................. 31 1.7.3 Legal Realism ...................................................................................................................... 31 1.7.4 Interpretivism ....................................................................................................................... 36 1.8 Literature Review ..........................................................................................................
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