The late arrival of goods may be commercially more serious than partial damage to them. Delay may result in the loss of a selling season, shutdown of a production line, storage charges and additional expenses, and the goods themselves may deteriorate because of the prolonged duration of the voyage.
However, merely exceeding an expected arrival date is not sufficient by itself to obtain compensation. A legal claim requires determining the date by which delivery should have occurred, proving the damage and its causal connection with the delay, identifying the applicable legal regime, and then complying with the requirements for notifying the carrier and the period prescribed for bringing proceedings.
In Egypt, the dispute may be governed by Maritime Trade Law No. 8 of 1990 or by the United Nations Convention on the Carriage of Goods by Sea 1978, the “Hamburg Rules,” where the conditions for its application are satisfied. The two regimes share certain similarities, but there are also important differences, particularly concerning defenses to liability and the limits of compensation for delay.
First: When Is the Carrier Considered to Be in Delay?
Article 240 of the Egyptian Maritime Trade Law establishes a clear standard. The carrier is considered to be in delay if it fails to deliver the goods:
- Within the agreed time; or
- If no specific time has been agreed, within the time in which an ordinary carrier would deliver the goods in similar circumstances.
The Hamburg Rules adopt a similar concept, providing that delay occurs where the goods are not delivered at the port of discharge within the time expressly agreed or, in the absence of such agreement, within the time that it would be reasonable to require of a diligent carrier having regard to the circumstances of the case.
Accordingly, not every deviation from the vessel’s operational schedule necessarily constitutes legal delay. The decisive issue is the binding contractual delivery time or the legally reasonable period.
Second: Must the Contract Specify a Fixed Delivery Date?
This is not a condition for carrier liability to arise, but it significantly facilitates proof.
If the contract of carriage or bill of lading specifies a particular date or period for delivery, determining whether delay occurred becomes clearer. If the contract is silent, however, the cargo interest may need to prove the customary and reasonable duration of the voyage in light of:
- The port of loading and port of discharge.
- The type of vessel and shipping line.
- The customary route.
- Port conditions.
- The nature of the goods.
- Exceptional circumstances affecting the voyage.
For time-sensitive shipments, it is therefore preferable not to rely solely on a non-binding estimated arrival date where timing is a material element of the commercial transaction.
Third: Carrier Liability for Delay Under Egyptian Law
Article 240 of the Maritime Trade Law provides for the carrier’s liability for delay unless it proves that the delay resulted from a foreign cause beyond its control.
The claimant must therefore first establish the occurrence of delay and the damage alleged to have resulted from it, after which the carrier may avoid liability by proving the foreign cause and its connection with the delay.
It is insufficient for the carrier to rely on general expressions such as “operational circumstances” or “port congestion.” The specific event must be examined, including the extent to which it was beyond the carrier’s control and whether it could have been anticipated or its effects mitigated.
Fourth: Carrier Liability Under the Hamburg Rules
Article 5 of the Hamburg Rules provides that the carrier is liable for loss resulting from delay where the occurrence causing the loss took place while the goods were in its charge.
The carrier is relieved from liability if it proves that it, its servants, and agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
This standard is not identical to the “foreign cause” wording used in Article 240 of Egyptian law. The two regimes should therefore not be merged into a single rule when preparing a defense or statement of claim.
Fifth: Examples of Causes That May Exclude Carrier Liability
The matter depends on the circumstances of each voyage, but the carrier may, depending on the facts, rely on causes such as:
- Unexpected closure of a port pursuant to a binding order from the authorities.
- Exceptional maritime conditions making it impossible to continue the voyage safely.
- Force majeure events or disturbances preventing arrival or discharge.
- Delay directly attributable to the shipper or consignee.
- Delay in procedures outside the carrier’s control, provided it proves that it took the necessary measures to avoid their effects.
However, technical breakdowns, poor operational planning, or failure to prepare the vessel for the voyage do not automatically constitute a foreign cause. The reason for the delay and the extent to which it could have been anticipated or prevented must always be examined.
Sixth: What Damage May Be Claimed?
Delay alone is not sufficient. It must result in damage that can be proved and causally linked to the delay.
Depending on the nature of the transaction, the damage may include:
- Deterioration of the goods due to the prolonged duration of carriage.
- A demonstrable decrease in their commercial value.
- Additional storage or handling expenses directly caused by the delay.
- Losses associated with interruption of a production process dependent on arrival of the shipment, where the causal relationship and amount of loss can be proved in accordance with legal rules.
- Other direct losses shown to have resulted from the delay.
Potential losses or purely commercial estimates are insufficient without supporting documents or a clear technical and accounting basis.
Seventh: Burden of Proof in a Delay Claim
The person claiming compensation should prepare a file proving at least:
- The contract of carriage and the identity of the carrier.
- The agreed delivery time, or the factors used to determine the reasonable delivery time.
- The actual date of delivery.
- The nature of the damage sustained.
- The amount of the damage.
- The causal relationship between the delay and the loss.
- That notice of delay was sent within the statutory period.
Important documents in this respect include the bill of lading, correspondence concerning the expected arrival date, delivery records, survey reports, invoices and commercial contracts relating to the goods, and accounting records evidencing the loss.
Eighth: Notice to the Carrier of Delay Is a Fundamental Requirement
Article 240 of Egyptian law expressly provides that no compensation is payable for damage resulting from delay unless the claimant notifies the carrier in writing of the delay within sixty days from the date of delivery.
Article 19 of the Hamburg Rules adopts a similar rule, requiring written notice to the carrier within 60 consecutive days after the day on which the goods were delivered.
Notice of delay therefore differs from notice of damage or shortage. In some cases, failure to give notice of damage creates a presumption in favor of the carrier, whereas failure to give notice of delay within the sixty-day period results in compensation for delay not being recoverable.
Accordingly, a protective written notice should not be postponed until negotiations with the carrier or insurer have concluded.
Ninth: Do Not Confuse Notice of Damage with Notice of Delay
If the goods arrive late and are also damaged, it may be necessary to comply with two different notice requirements.
Under the Egyptian Maritime Trade Law:
- Apparent damage: within the two working days following the day of delivery.
- Non-apparent damage: within fifteen days from delivery.
- Delay: within sixty days from the date of delivery.
Under the Hamburg Rules, notice of apparent damage must be given no later than the working day following delivery, non-apparent damage within fifteen consecutive days, and delay within sixty consecutive days.
Accordingly, a general notice sent several weeks later referring to “damages” may preserve a delay claim but may not necessarily preserve the evidentiary position concerning physical damage to the goods.
Tenth: Limit of Compensation for Delay Under Egyptian Law
Egyptian law adopts a rule that differs from the Hamburg Rules.
Article 240/3 provides that compensation for delay may not exceed the maximum amount prescribed by Article 233/1, namely the limits applicable to loss of or damage to the goods:
- EGP 2,000 for each package or shipping unit; or
- EGP 6 for each kilogram of the gross weight of the goods;
whichever produces the higher amount.
These limits were not amended by Law No. 3 of 2025, as that amendment was limited to Article 5 and Item 1 of Article 11 of the Maritime Trade Law.
Eleventh: Limit of Compensation for Delay Under the Hamburg Rules
The Hamburg Rules use an entirely different method.
Under Article 6, the maximum liability of the carrier for delay is:
Two and a half times the freight payable for the goods delayed, provided that the compensation does not exceed the total freight payable under the contract of carriage by sea.
Accordingly, if the freight payable for the delayed goods is USD 20,000 and the total freight under the contract is USD 30,000, then 2.5 × 20,000 = USD 50,000, but the final ceiling cannot exceed the total freight, meaning USD 30,000 in this example.
The amount awarded remains linked to the damage actually proved. The liability limit is not a lump-sum amount automatically payable merely because delay occurred.
Twelfth: Delay Combined with Damage to or Loss of the Goods
Delay may itself cause deterioration of the goods, as in the case of products or materials affected by the prolonged duration of carriage.
The Hamburg Rules provide that where liability for delay is combined with liability for loss of or damage to the goods, the aggregate liability may not exceed the limit that would have applied if the goods giving rise to liability had been totally lost.
This prevents the limits of liability from being multiplied merely because the damage is described in more than one way.
Determining the actual amount of damage also requires examining whether the goods became completely worthless or retained a residual value capable of recovery.
Thirteenth: When Does Delay Become Constructive Loss?
If non-delivery continues for a prolonged period, the dispute no longer remains merely a claim for delay.
Egyptian law deems the goods lost if they are not delivered within the sixty days following expiry of the delivery period.
The Hamburg Rules likewise allow the cargo interest to treat the goods as lost if they have not been delivered within 60 consecutive days after expiry of the prescribed delivery period.
The nature of the claim then changes from damage caused by delay to a claim based on loss of the goods.
Fourteenth: May the Carrier Exempt Itself from Liability for Delay?
Not in a manner that conflicts with the mandatory legal regime governing the contract.
If the Egyptian Maritime Trade Law applies, Article 236 invalidates agreements made before the occurrence of damage that exempt the carrier from liability, reduce its liability below the statutory limits, or alter the burden of proof in its favor, subject to the special cases regulated by law.
If the Hamburg Rules apply, Article 23 renders any clause derogating from the Convention invalid to the extent of the inconsistency.
The parties may, however, agree on higher liability or greater protection for the cargo interest.
Fifteenth: Court of Cassation Judgment on a Delay Exemption Clause
The Court of Cassation confirmed this rule in Appeal No. 18493 of Judicial Year 83 – session of 23 February 2021.
The dispute concerned a shipment carried from the Port of Calcutta in India to the Port of Alexandria, and the shipping company relied on a clause in the bill of lading exempting it from liability for delay.
The Court of Cassation held that the bill of lading was governed by the Hamburg Rules because the port of discharge was located in Egypt, a Contracting State to the Convention, and that the clause excluding liability for delay was invalid because it conflicted with Articles 5 and 23 of the Convention.
The Court also confirmed an important principle: where the Hamburg Rules apply, they govern the matters covered by them and exclude the application, within that scope, of domestic provisions that are inconsistent with or different from the Convention.
Sixteenth: What Did the Court of Cassation Say About Proving Damage in the Same Case?
The Court did not merely establish that delay had occurred, but emphasized the need to examine the elements of damage carefully.
The matters the Court required to be established included:
- The condition of the goods at the time of shipment.
- The date of their arrival and delivery.
- The dates of notices sent to the carrier.
- The extent to which the damage was connected to the delay.
- The value remaining in the goods after the damage occurred.
The Court criticized the judgment awarding the full value of the goods without examining whether they could still be sold or used, even at a reduced value.
The governing principle is that compensation makes good the damage and does not permit the injured party to recover the full value of the goods while simultaneously retaining an economic value remaining in them.
Seventeenth: When Does the Carrier Lose the Right to Limit Liability?
Under Article 241 of the Egyptian Maritime Trade Law, the carrier may not rely on the limits of liability where it is established that the damage resulted from an act or omission by the carrier, its representative, or one of its employees:
- With intent to cause the damage; or
- Recklessly and with knowledge that damage could probably result.
This standard is stricter than ordinary negligence, and merely describing the conduct as “gross negligence” is insufficient without proving the elements required by the provision.
The Article also establishes special presumptions in certain cases, including carriage on deck in breach of an express agreement requiring carriage below deck.
Eighteenth: The Hamburg Rules and Loss of the Right to Limitation
Article 8 of the Hamburg Rules provides that the carrier loses the right to limit liability if the delay resulted from an act or omission of the carrier committed with intent to cause the damage, or recklessly and with knowledge that the damage would probably result.
However, it should be noted that the wording of the Hamburg Rules is not identical to Article 241 of Egyptian law. Under Article 8/1 of the Convention, the carrier loses the limit because of its own conduct, while the conduct of a servant or agent is addressed separately in relation to that servant’s or agent’s own right to rely on the liability limits.
This distinction may have practical importance when determining who committed the conduct that caused the delay.
Nineteenth: Time Limit for Bringing a Compensation Claim
The Egyptian Maritime Trade Law establishes a two-year period for claims arising from contracts for the carriage of goods by sea, commencing in accordance with Article 244 from the date of delivery or the date on which delivery should have taken place.
The Hamburg Rules likewise establish a two-year period for judicial or arbitral proceedings.
However, the rules governing calculation, interruption, or extension of the period are not identical under the two regimes. It should therefore not be assumed that merely sending a claim letter preserves the action in every case.
Twentieth: Practical Steps for the Cargo Interest When Delay Occurs
- Document the date of shipment and the agreed or expected delivery date.
- Retain all communications from the carrier concerning changes to the expected arrival date.
- Upon delivery, record the actual delivery date accurately.
- Inspect the goods immediately if the delay may have affected their condition.
- Notify the carrier in writing of the delay before expiry of the sixty-day period.
- Send a separate notice of damage or shortage within the applicable periods if physical damage exists.
- Collect documents proving the financial loss resulting from the delay.
- Notify the insurer if the insurance policy covers the risk involved.
- Determine whether the contract is governed by the Maritime Trade Law or the Hamburg Rules before assessing the claim.
Twenty-First: Important Precautions for the Maritime Carrier
- Do not undertake unrealistic delivery times.
- Document circumstances resulting in a change of route or delay to the vessel.
- Take reasonable measures to mitigate the effects of delay rather than merely proving that the event occurred.
- Notify cargo interests early when a material delay is anticipated.
- Maintain clear records of the vessel’s arrival, discharge, and the time at which the goods became available for delivery.
- Review bill of lading terms to ensure compliance with the applicable Convention or law.
- Do not rely on broad exemption clauses that may be invalid.
Conclusion
A claim for compensation for delay in maritime transport is not established merely by proving that delivery was late. It is also necessary to prove the damage and its causal relationship with the delay, comply with the written notice requirement within sixty days, and identify the applicable legal regime.
Under Egyptian law, compensation for delay is subject to the maximum limit prescribed by Article 233, whereas the Hamburg Rules establish a separate regime linking the maximum liability to two and a half times the freight payable for the delayed goods, subject to a ceiling equal to the total freight payable.
Delay continuing for more than sixty days after expiry of the delivery period may also become constructive loss of the goods as a matter of law, changing both the basis of the claim and the calculation of liability.
The Office of Dr. Mostafa El Rouby – Attorneys and Legal Consultants reviews bills of lading, contracts of carriage, delivery schedules, correspondence, and survey reports to determine the basis of liability, the extent of damage, and the applicable legal regime before pursuing claims for delay in maritime transport.