English abstract
The contract of maritime transport of goods is one of the contracts
of great importance in international trade and the global economy. The
preceding Muslim jurists dealt with the provisions of this contract under
the leasing contract with its various rules. It is therefore incumbent to
study the compensation provisions in the maritime transport contract of
goods in an Islamic jurisprudential study compared to the Omani Law.
The research aims to identify the most important jurisprudential
rulings related to the liability of the shipping carrier for goods in
Islamic jurisprudence and Omani law, and to outline points of
convergence and difference between Islamic law and Omani maritime
law. It also aims to explain the influence of Islamic legal rules on the
formulation of contemporary statutory laws.
The research came to answer the following questions:
What are the most important provisions governing the liability of the
cargo carrier in Islamic jurisprudence and statutory law?
What is the extent of compatibility and difference between Islamic law
and Omani maritime law?
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To what extent do the jurisprudential rulings and legal maxims in
Islamic law affect the drafting of laws and the development of judicial
legislations?
Therefore, the following scientific methods have been followed:
The inductive approach in returning to the jurisprudential references
and sources in the Islamic schools of law and statutory legal
references.
The analytical method by analyzing the legal texts that govern
responsibility.
The comparative approach, comparing between the views of
jurisprudence in the Islamic legal schools, compared to the Omani
maritime law generally and international agreements in some cases.
At the conclusion of the research, the following results were reached:
-The commitment of the maritime carrier to transport the cargo is an
obligation to achieve a result in Islamic jurisprudence. This stipulation
was adopted by the Omani maritime law and the Brussels Convention
in contradiction to the Hamburg Convention, which considers it an
obligation to exert care.
-The Omani maritime law adopted the dictum of some jurists that the
maritime carrier is a guarantor, so that he is responsible for any
damage affecting the goods, and this responsibility is not alleviated
other than by proving the external cause. This has been adopted by
the Brussels Convention, contrary to the Hamburg Convention, which
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allowed the maritime carrier to defy responsibility by proving that care
was taken without the need to prove the cause of the damage.
-Terms and conditions agreed upon at the time of the contract that
exempt the maritime carrier of his responsibility or mitigate it are null
and void for the majority jurists of the Islamic jurisprudence schools.
This view has also been adapted by the Omani maritime law and
international agreements.
-The Omani maritime law has added some cases that exempt the
carrier from liability, in contradiction to Islamic jurisprudence, such as
the exemption from deliberate mentioning of incorrect date on the
cargo and the exemption for errors in the management and navigation
of the ship, which has also been adopted by the Brussels Convention.
-Some jurists in Islamic jurisprudence emphasized compensation in
certain cases, such as forgery and transgression of the maximum value
from the day of receipt to the day of damage. This has also been
adopted by the international agreements that prevented the maritime
carrier from benefitting from determining compensation in the event of
fraud and intentional infliction of damage. Omani maritime law does not
stipulate this.
-The Omani maritime law was influenced by the jurisprudential opinions
of Islamic jurisprudence. Its provisions agree with Islamic jurisprudence
in general. This also applies to international agreements, especially the
Brussels Convention.
