Summary of Doctoral Dissertation By Dr. Mona Al Marzouqi (Oral Defense & Approval at Tulane University – USA)
PhD Dissertation Title
Contract of Carriage of Goods By Sea According to the Qatari Maritime Law: A Comparative Study of the Documentary Scope of the Contract & the Carrier’s Obligations & Responsibilities
The State of Qatar has witnessed a major development in the maritime sector, particularly the carriage of goods by sea following the establishment of Hamad Port. Therefore, it has been important to examine the law related to the carriage of goods by sea. This summary will tackle four topics on the PhD dissertation prepared by the researcher in this regard, namely the research objectives and problem, the research method, the theoretical framework and the conclusions and recommendations.
|Research Objectives & Problem|
The Qatari Legislator regulates the contract of carriage of goods by sea in Maritime Law No. 15 of Year 1980. Since then, the Maritime law has not been amended despite the national and international development in the maritime transport sector. Therefore, the main aim of the research is to conduct a comparative study of the terms of the contract of carriage of goods by sea in order to determine whether the amendment and development of the law is in fact required, as well as identifying the legal loopholes which need to be closed by laws, then to make recommendations to the Qatari legislator. As for the research problem, it pertains to how the Qatari Maritime Law can be in compliance with the international conventions on the carriage of goods by sea.
The method used to conduct this research is the inductive qualitative method. In order to examine the Qatari Maritime Law, the descriptive method was used and a comparison was made between the terms related to the contract of carriage of goods by sea and the relevant international conventions to identify their similarities and differences. In that light, the most appropriate proposal was selected based on the needs of the State and the development of international maritime transport. Furthermore, the research includes a comparison of the Qatari laws regulating the contract of carriage by sea and other laws enacted in other Arab states, in addition to interviews with the workers in the maritime transport sector. This research also drew on statistics.
There are several comparative studies that focus on the contract of carriage of goods by sea in some countries and compare them to the international conventions of maritime transport. Despite these studies, there is not a single study on the subject of this research. That’s why this research is considered the first research to tackle the contract of carriage by sea in light of the Qatari Maritime Law and to examine and compare it with the international conventions of maritime transport, as well as comparing them to the laws of other states, particularly the USA and the UK. It is noteworthy that available sources related to the subject of this research were drawn upon in order to explain, discuss and analyze it, especially those which contain legal provisions similar to the provisions set out in the contract of carriage of goods by sea under the Qatari Maritime Law.
|Conclusions & Recommendations|
The researcher’s conclusions are divided into four sections. The first conclusion is related the State of Qatar’s development in the economy, transport and maritime sectors while the second conclusion involves the documentary scope of the provisions of the contract of carriage by sea under the Qatari Maritime Law. The third conclusion focuses on the maritime carrier’s obligations under the contract of carriage of goods by sea and the fourth conclusion is associated with the responsibilities of the maritime carrier.
First, after highlighting the continuous development which Qatar is witnessing in several fields, most notably the economy, trade and transport sectors in general and the maritime transport sector in particular, we realized the importance of reexamining the provisions of the Qatari Maritime Law concerning the contract of carriage of goods by sea in order to ensure that they facilitate international trade between the traders by sea and that they closes all legal loopholes. In general, Qatar’s economic progress, Qatar National Vision 2030 for economic diversification, the infrastructure of maritime, road and rail transport sector and multimodal transport of goods and Qatar’s achievements in the maritime sector are all facts that underline the importance of this study due to the relevance of the legal provisions of the contract of carriage by sea and the international trade. The development and interest in international trade lead to continuous economic and business progress in Qatar.
Secondly, this research analyzes the documentary scope of application of the legal provisions of the contract of carriage of goods by sea. In other words, it has become evident after examining this subject that the scope of application of the Qatari Maritime Law is very narrow given the fact that the application of this law is only limited to the cases in which the contract of carriage by sea is proven by a document known as “bill of lading”. This direction taken in light of the Qatari Maritime Law is inconsistent with the most recent international conventions related to the carriage of goods by sea which closed that loophole and provided for legal provisions that regulate all transport documents, not just one type of these documents. For example, the legal provisions of the international conventions are applied to other transport documents such as electronic documents and the documents that may arise in the future because the language used in the conventions allows for so. Given that the scope of application of the maritime law is limited to the bill of lading, it is preferable to amend the law to regulate all transport documents regardless of their nature or names, including the electronic documents as long as they prove the existence of a contract of carriage by sea for a numerous reasons that require so which we will mention respectively. First, it is necessary to allow for the application of the law as a single unit to the documents that provide for carriage of goods by another mode of transport besides the carriage by sea. Secondly, the State of Qatar is currently expanding the business partnerships with foreign countries and companies whose use of the bills of lading is not limited to transport operations, but they resort to using other transport documents. Thirdly, Qatar encourages engaging in electronic commerce and uses electronic transport documents in the maritime transport sector, but they are not regulated in the law. We need to close this legislative vacuum in a manner appropriate to their nature and methods of circulation thereof.
Thirdly, the research also highlights the maritime carrier’s obligations that arise from the contract of carriage of goods by sea in accordance with the Qatari Maritime Law. Having compared the provisions of the maritime law in this regard and the international conventions, we realized that no provision was made for some of the maritime carrier’s fundamental obligations, for example the obligation of shipping, stacking and transporting the goods to the holder of the bill of lading. This shortcoming in the maritime law leads to increasing the number of maritime disputes between the carrier and the shipper – the parties to the contract of carriage by sea – due to the fact that no party is aware of its duties and obligations and who will bear the consequences of the loss of goods. When the rights and obligations of the parties of the contract are illustrated beyond a reasonable doubt, both parties could determine what is expected from them under this contract and the liability which they could assume in the event of the loss of goods. In addition to the abovementioned obligation, the maritime carrier should fulfill another obligation mentioned by the legislator, which is to provide a seaworthy ship to transport the goods. This obligation is associated only with providing a seaworthy ship before and during sailing; it is not an ongoing obligation on the carrier during the sea voyage that extends from the launch of the goods-bearing ship from the port of departure until it arrives at its final destination at the port of arrival. This means that in the event of the loss of goods or a delay in the arrival of the goods for a reason other than the ship is not seaworthy after the launch of the voyage, the shipper will not be entitled to claim the carrier for compensation for damages incurred. Therefore, the law must be amended to provide for an obligation on the carrier to provide a seaworthy ship before and during the sailing until the ships arrives at its final destination in order to protect the shipper that is the weak party to the contract of carriage by sea, especially since the State of Qatar is a shipper and not a carrier, meaning that its imports outstrip its exports; the number of shippers in Qatar exceed the number of carriers.
Fourthly, if the maritime carrier violates its obligations imposed in accordance with the maritime law, this means that it may be liable. The Qatari legislator allows for the maritime carrier in certain cases to request to be exempted from liability – i.e. not to pay compensation for the shipper – in the event of any loss or damages to the goods, the delays in the arrival of the goods or the non-arrival thereof. These cases of exemption of liability are also outlined in the relevant international conventions, but there are some exemptions in the Qatari Maritime Law which do not correspond to international conventions and are contrary to the modern practices in the maritime transport sector. The existing exemptions provided for in the law need to be reconsidered given that they adversely affect the rights of the shippers, especially if the carrier could absolve itself of responsibility in the event of the loss, damage or delay in the arrival of the goods as a result of an error or negligence by its subordinates who work for it. Moreover, there is another issue to be tackled, namely the burden of proof on the shipper in case it wished to prove the opposite of what the carrier has proved – i.e. if the carrier proves a case of exemption of responsibility and the shipper wishes to refute so. The burden of proof on the shipper is unfair to it because it would be difficult for it to prove the opposite of what the carrier has proved for not being able to obtain evidence that supports its position, especially since the incident that led to damages to the goods has occurred when the carrier is in charge of the goods.
The analysis and conclusions of the research that were reached after using the research method answered the main research question, i.e. how can the Qatari Maritime Law be consistent with the international conventions concerning the carriage of goods by sea? The main conclusion of the research which answers the research question is to conclude that the Qatari Maritime Law is inconsistent with modern international conventions related to maritime transport. Furthermore, it does not keep pace with the modern international transport practices or the technological advances in the carriage of goods by sea. For these reasons, it is necessary to reconsider and amend the maritime law, clarify the provisions thereof and the rights and obligations of both parties and close any loopholes therein to cope with the maritime transport developments in order to ensure a balanced relationship that takes into account the common interests of the carrier and the shipper in connection with the contract of carriage by sea, as well as reducing the maritime disputes among them. These grounds for development and amendment are required to ensure economic progress and the stability of economic and trade relations in Qatar. It is noteworthy that other countries whose conditions are similar to Qatar learn from the conclusions of the research and the grounds for developing and amending the law.
Since this research is the first of its kind to explain, analyze and compare the provisions of the contract of carriage of goods by sea with the international conventions, it lays the foundation for conducting future research by who are interested in research writing and wish to reconsider the Qatari Maritime Law. This research is the starting point for other subjects that are closely associated with the contract of carriage by sea but were not addressed in the research, such determining the liability of the carrier and the ship and designating the carrier in the contract of carriage by sea and the container transport. This doctoral dissertation is being translated into Arabic language and will be submitted to the Ministry of Transport and Communications for examination and to take necessary actions so as to develop Qatar’s maritime transport industry in light of the unjust blockade imposed on Qatar; that’s why Qatar depends heavily on its maritime port to carry out the maritime transport operations and supply the State with its needs.
 The Qatari Legislator has amended and enacted many trade-related laws in order to make it easier for the traders to engage in this field. The Maritime Law also provides for reconsideration by the legislator due to its close association with the international trade and Qatar’s economy.
 Particularly the Hague –Visby Rules of 1924, the Hamburg Rules of 1978 and the Rotterdam Rules of 2008.
 Hamburg Rules of 1978 and the Rotterdam Rules of 2008.