Kuwait: Carrier Defence for Fire
Transport & Logistics Focus
Ahmed RezeikSenior Counsel,Head of Shipping - Kuwait
In the Kuwait jurisdiction, Law No. 39 of 1980 concerning the Evidence in Civil And Commercial Matters (“Evidence Law”) provides that the claimant must prove his allegations, and the defendant must dispose of it. This means that the burden of proof for any allegation is on the claimant, and if he fails to prove his claim, the claim shall be denied.
However, the Kuwaiti Maritime Trade Law No. 28 of 1980 (“Maritime Law”) and International Convention for the Unification of Certain Rules of Law relating to Bills of Lading ("Hague Rules"), ratified by Kuwait in 1969, does not reflect this general rule. An exception is made for marine carrier liability, and there is a presumption of liability against the carrier in any claim raised against them.
This is demonstrated by findings in several Kuwait Court of Cassation judgments. One example is a 1998 judgment in which the judge said:
“It is determined in the judgment of this court that the marine carrier is obliged according to the transport contract (Bill of Lading) to transport the goods from the loading port in the original condition in which they were delivered to it to the consignee at the destination port by the scheduled date. The contract does not terminate and the liability of the marine carrier for the shipped goods does not end unless by delivering them in full and intact to the consignee or its representative actually. The liability of the carrier is assumed and its liability is only eliminated if it proves that the non-performance of its obligations is attributed to foreign reason in which it has no control such as an unforeseen accident, force majeure, the shipper fault, or fault of third party or consignee.”
Despite the rebuttable presumption of liability of the marine carrier, there is an exception in cases of “fire on board” a vessel in the Maritime Law and the Hague Rules, which specifies the following:
"The marine carrier is not accountable for the shortage, damage or delay of delivery of the goods if arising from one of the following reasons:
(1) …
(2) Fire, unless it is caused by the act or a fault of the carrier.
(3) …”
Further, the Hague Rules, stipulates that:
"the carrier or vessel is not accountable for the destruction or damage resulting or arising from:
At Kuwaiti law, fire is not a defence if it arises from the act or the fault of the carrier or its servants. Equally, if the fire was not caused by an act of the carrier, or was its fault, then the defence is available, whenever causation can be proven otherwise.
However, where the fire broke out as a result of the carrier's act or fault, the burden of proof falls on the owner of the consignment to discharge that burden. This is an exemption from the rule which assumes the marine carrier's liability if damage occurs during the period between the loading and discharge of the cargo.
This rule is supported in a 2002 Kuwait Court of Cassation judgment, in which the court said:
“It is determined in the judgment of this court that the provision of Article 192/2 of the Maritime Law and Article 2-4 of Hague Rules stipulate “the carrier or vessel is not responsible for the shortage or damage resulting or arising from…B. Fire unless it occurs by the act or fault of the carrier”, indicates that the carrier is discharged from the liability whenever it proves that there is no causal relationship between the damage suffered by the goods and the fire taking place. However, there is no grounds for discharging him of the liability if the fire occurred due to its act or fault. The burden of proof in case of discharge of liability for the fire falls on the shipper who may, if he wishes to charge the carrier with the liability, prove that the fire is attributed to the act and fault of the carrier”.
Moreover, the Supreme Court of Appeal in Kuwait has applied this same principle. It found in a 1983 judgment:
“Whereas the [shipper/consignee] has not submitted evidence that the fire was attributed to the act and fault of the carrier – and that it bears the burden of proof as indicated by the case papers – hence, the liability of the carrier, represented by the appellant company, is non-existent. Whereas the appealed judgment breached this view and ruled for obliging the appellant with compensation, hence it has deviated from the proper law and should be revoked."
We recently appeared before the Kuwait Cassation Court regarding a fire that broke out on a laden vessel in Kuwaiti waters. The above-mentioned Court of Cassation judgments were submitted to the court. The court found in favour of the carrier because, it held, the claimant failed to prove causation between the damage suffered by the goods and the fire taking place or that the fire was attributed to the act or fault of the carrier.
In view of the above, we may conclude that when a cargo owner fails to prove that a fire causing damage to its cargo was caused by an act or the fault of the carrier, the Kuwait court will most likely dismiss the claim.
This was significant decision because it developed the understanding and application by the highest courts in Kuwait of the owner’s fire defence under the Hague Rules. It affirms the rule that, in incidents of losses arising from fire, the burden of proof falls to the claimant to prove that the owner caused the fire leading to loss, or the fire resulted from an act or fault of the owner.
For further information, please contact Ahmed Rezeik.
Published in August 2023
