The exclusions and limitations of the liability of the carrier by sea : a comparative study of English and U.A.E. Laws

Abstract

The legal system of the liability of the carrier, in respect of the carriage of goods by sea, is a most controversial issue which raises many difficulties in solving the problems, whether in National Laws or in the international Convention. Under English and U.A.E. General Laws the carrier is subjected to a strict liability. He is liable for all loss or damage to goods occurring while they are in his charge even if he is not negligent unless such loss or damage is directly caused by what are known as the `exceptions ex lege'. The Laws, however, also recognise the principle of freedom of contract. Using their superior power, carriers forced more and more exculpatory or `lq exception clause into bills of lading even for loss or damage caused by their negligence. English courts upheld these provisions while the U.A.E. courts struck down `negligence clauses' as against public policy and refuse to recognise any other exception lacks of the three elements of force majeure, viz. the event must be inevitable, unforeseen and irresistible. Owing to the international nature of maritime commerce the problem was international in character. In 1924 a Convention commonly known as the Hague Rules was concluded in order to unify the rules relating to bills of lading. The carrier is subjected to certain defined responsibilities out of which he cannot contract himself by the use of exceptions clauses. At the same time, the Convention gives him the benefit of specific rights and remedies. Due to the changes in technology, shipping practices and economic influences the Hague Rules were amended by Visby Protocol of 1968. The Convention was introduced in the U.K. by the Carriage of Goods by Sea Act, 1924 which was later repealed by Carriage of Goods by Sea Act, 1979. U.A.E. has not yet ratified the Convention, but the Rules are incorporated as part of the U.A.E. Maritime Code, 1981. This work studies the principles of exceptions and limitations of the carrier by sea's liability in English and U.A.E. laws, trying to discover the difficulties which surround their application, by examining important authorities on the matter and selecting relevant cases which have taken place together with important decisions.

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