نوع مقاله : مقاله پژوهشی
نویسنده
استادیارگروه حقوق خصوصی و اسلامی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Introduction
In maritime cargo transportation, numerous claims are frequently lodged against carriers, with the most prevalent issue in petroleum product shipments being claims for short delivery at the destination port. Such claims, governed by established legal frameworks including the 1924 Hague Rules concerning bills of lading and Iran's Maritime Law enacted in 1964, invariably result in carrier liability. Carriers are legally obligated to deliver the exact quantity of cargo specified in the bill of lading to the consignee at the destination port, with this document serving as the primary evidentiary standard for verifying cargo quantities originally received at the loading port.
However, minor cargo discrepancies may occur at discharge despite the carrier's faultless performance throughout loading, transportation, and unloading operations (including absence of tank leakage or other operational failures). These inevitable losses, commonly termed "in transit loss" (freint de route) or "customary allowance," are referred to in this study as "natural damage" due to their inherent occurrence in maritime transport. This
phenomenon manifests when, for instance, petroleum products evaporate or adhere to tank walls, making complete delivery impossible, though no actual removal of cargo from vessels occurs. The principal causes of such losses stem from petroleum's unique physical properties (including hardening tendencies, tank wall adhesion, and volumetric shrinkage), specific cargo handling conditions during loading/unloading operations (including tank cleaning procedures and water/sediment content), and measurement inaccuracies during vessel loading. Consequently, standard dispute resolution procedures in oil transportation claims typically exempt carriers from liability for shortages up to approximately 0.5% of total cargo volume.
Methods
This research employs an analytical methodology incorporating comparative legal analysis of French, English, and American maritime law frameworks. Data collection was conducted through comprehensive review of library resources and legal databases, focusing on primary legal texts and secondary scholarly commentary.
Results and Discussion
The investigation identified evaporation, tank wall adhesion, water/sediment content, and loading/discharge measurement inaccuracies as primary contributors to natural damage. Beyond demonstrating vessel seaworthiness, carriers must additionally establish that such losses resulted from ordinary transportation circumstances. Liability exemption thresholds for such damages, absent contrary port customs, generally approximate 0.5% of cargo volume.
Conclusions
Contracting parties in maritime transport, particularly charterparty agreements, often expressly stipulate terms governing in-transit loss allowances. Absent such contractual provisions, the conditions for carrier exemption require careful legal examination. Scholarly perspectives diverge significantly: some authorities maintain that the inherent normality of such damage obviates the need for carrier proof; others contend that exemption merely requires demonstrating local port customs' acceptance of such losses; while a third approach, particularly prevalent in French jurisprudence, mandates case-specific proof of ordinary loss based on cargo nature and transport conditions.
American jurisprudence presents a complex counterpoint, where courts acknowledge industry practice while simultaneously deeming it incompatible with COGSA (derived from the 1924 Hague Rules), thereby imposing stricter evidentiary burdens on carriers. This tension has prompted U.S. courts and arbitral bodies to adopt a nuanced "totality of circumstances" assessment framework, requiring meticulous examination of all contextual factors in dispute resolution.
کلیدواژهها [English]
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