The Kingdom places great importance on maritime transport as the most significant means of transporting goods, whether for export or import, and to promote foreign trade in order to achieve surpluses in the Kingdom’s trade balance in light of its Vision 2030. Maritime transport may be national or international. It is national if all elements of the contract under which the carriage is carried out are national. It may be international if a foreign element is present (1), and the governing criterion of internationality depends on the legal system or international convention in force.
The liability of the maritime carrier generally arises from the concentration of conflict between the opposing interests within the contract of carriage by sea; the interest of the carriers lies in exemption from liability or mitigation of its effects as much as possible, while the interest of shippers lies in obtaining reasonable compensation under the easiest conditions in the event of loss, damage, or delay in the arrival of their goods. This importance becomes evident where provisions were introduced in this Convention, compared to the Brussels Convention of 1924, to achieve a balance between developing countries that do not possess commercial fleets for importing and exporting their products, and developed countries that own ships transporting such goods (2).
Meaning of Maritime Carrier and its Obligations
Meaning of “Carrier”: “Every person who enters into a contract or on whose behalf a contract is entered into with a shipper for the carriage of goods by sea.”
Meaning of “Actual Carrier”: “Every person to whom the carrier has entrusted the performance of the carriage of the goods or the performance of part of such carriage, and this also includes any other person to whom such performance has been entrusted.”
Obligations of the Maritime Carrier
The Hamburg Convention 1978 did not expressly list the obligations of the maritime carrier, but rather formulated its provisions on the assumption of the existence of such obligations (3). These obligations may be enumerated as follows:
- To exercise due diligence before the voyage and at its commencement to equip the ship and make it seaworthy, and to provide it with the necessary crew, provisions, and equipment.
- To load, stow, arrange, carry, preserve, care for, and discharge the goods.
- To issue a bill of lading if requested by the shipper after the goods have been delivered to him (4).
Cases of Liability of the Maritime Carrier
1- The Hamburg Convention 1978 is distinguished from the Brussels Convention 1924 in that the former addresses all three cases of liability: loss, damage, and delay, whereas the Brussels Convention did not address the liability of the carrier in the case of delay in delivering the goods.
2- The maritime carrier is liable for loss resulting from destruction of the goods or damage to them, as well as for loss resulting from delay in delivery, if the act that caused the loss, damage, or delay occurred while the goods were in his custody as set out in Article 4 of the Hamburg Convention of 1978, unless the maritime carrier proves that he, his employees, or agents took all measures that could reasonably be required to avoid the act or incident and its consequences (5).
3- The most serious case of liability is loss (Loss), which may be total loss: non-arrival of the entirety of the goods, or partial loss: burning, sinking, theft, or disappearance of the goods.
4- Damage: when the goods arrive in full but in damaged condition, such as rotting of fruit or wilting of flowers.
5- Delay: occurs if the goods are not delivered at the designated port within the time stipulated in the contract (6).
Legal Basis of the Liability of the Maritime Carrier (7)
1- Paragraph one of Article Five of the Hamburg Convention 1978 sets out the basis of the liability of the maritime carrier and makes the carrier liable for any incident resulting in the loss of the goods, their damage, or delay in their arrival, unless the carrier proves that he, his agents, and servants took all reasonable measures to prevent the incident and avoid its consequences. Liability in both the Brussels Convention 1924 and the Hamburg Convention 1978 rests on the concept of presumed fault (8).
2- The claimant is charged with proving the damage and the incident that caused it; a presumption is then established that the carrier is liable for the incident. If the carrier wishes to rebut the presumption in order to be released from liability, he must prove that he, his agents, and servants took every reasonable precaution to prevent the incident and avoid its consequences.
3- The criterion of “reasonable measures” is material, meaning what an ordinary prudent carrier in the same circumstances would do. The carrier is obligated to take reasonable measures not only to prevent the incident but also to avoid or limit its consequences if it must occur, as in the case of force majeure.
4- If a fault or negligence on the part of the carrier, his employees, or agents coincides with another cause in producing the loss or damage of the goods or in delaying their delivery, the maritime carrier is liable only to the extent that the loss, damage, or delay is attributable to such fault or negligence, provided that the maritime carrier proves the extent of the loss, damage, or delay attributable to that fault or negligence.
How does the governing criterion for international maritime transport differ from national transport?
The classification of maritime transport as national or international depends on the presence of specific elements within the contract of carriage:
- National Transport: This occurs when all elements of the contract under which the carriage is carried out are national.
- International Transport: This is identified by the presence of a foreign element.
The governing criterion for determining internationality is not a singular fixed definition; rather, it depends on the legal system or international convention currently in force
Although the Hamburg Convention does not explicitly list all obligations, what duties regarding the ship must a carrier fulfill before and at the start of a voyage?
While the Hamburg Convention 1978 does not explicitly list every obligation of the maritime carrier, it operates on the assumption that certain fundamental duties exist.
Regarding the ship itself, the carrier is required to fulfill the following duties before the voyage and at its commencement:
- Exercise due diligence: The carrier must take all necessary and reasonable care to prepare the vessel for the journey.
- Ensure seaworthiness: The carrier is responsible for making the ship seaworthy, meaning it must be fit to encounter the ordinary perils of the sea and safely carry the specific cargo.
- Equip and supply the vessel: The carrier must properly equip the ship and provide it with a necessary crew, provisions, and equipment required for the intended voyage.
It is important to note that because the Hamburg Convention remains silent on explicitly detailing these specific ship-related obligations, legal scholars often refer back to the corresponding provisions in the Brussels Convention of 1924 to define these requirements.
Overview of the Liability of the Maritime Carrier in Light of the United Nations Convention
This text examines the legal framework of maritime carrier liability under the Hamburg Convention of 1978, particularly in the context of Saudi Arabia’s Vision 2030. It explores the fundamental tension between carriers seeking to limit liability and shippers seeking fair compensation for lost, damaged, or delayed cargo. The source details specific carrier obligations, such as maintaining seaworthy vessels and issuing bills of lading, while highlighting how the Hamburg rules expanded protections to include delays in delivery. Furthermore, the document defines the presumption of fault, placing the burden on the carrier to prove that reasonable measures were taken to prevent loss. Ultimately, these regulations aim to create a balanced economic environment between nations that own shipping fleets and those that rely on them for international trade.
Sources:
- Prof. Dr. Mohsen Shafik, “The New International Rules on the Carriage of Goods by Sea” (Hamburg Convention 31/3/1978), undated, Dar Al-Nahda Al-Arabia, Cairo, p. ع.
- See Articles (8, 6, 5) of the United Nations Convention on the Carriage of Goods by Sea 1978; for further detail see Prof. Dr. Hamza Haddad, “The Hamburg Convention 1978 on Maritime Carriage – Contracts Subject to the Convention in Comparison with the Brussels Convention 1924,” Dirasat Journal, Vol. 8, Issue 2, December 1981, University of Jordan, p. 130 and following.
- Prof. Dr. Mohsen Shafif, previous reference, pp. 64–65.
- The first three paragraphs of Article Three of the Brussels Convention 1924, referring to its corresponding provisions due to the silence of the Hamburg Convention on expressly providing for this obligation.
- Paragraph one of Article Five of the Hamburg Convention 1978; for further detail see Prof. Dr. Mahmoud Samir Al-Sharqawi, Maritime Law, 1993 edition, Dar Al-Nahda Al-Arabia – Cairo, pp. 372, 373, 405.
- Prof. Dr. Mohsen Shafik, “previous reference,” p. 68.
- Prof. Dr. Mohsen Shafik, “previous reference,” p. 91.
- Article (5/7) of the Hamburg Convention 1978.
