Establishment of the Maritime Carrier's Liability Under the Iraqi Law1

Abstract

It is obvious that the basis of liability under the Iraqi law is affirmative in nature, and based on fault or negligence.2 This test means that if goods are short delivered or are delivered damaged ffien you first look to see whether the loss or damage was caused by an occurrence which took place while the goods were in the carrier's custody. If it did, you then ask whether the "occurrence" was due to the fault of the shipowner or his servants or agents. If there is fault, there is liability and if there is no fault there is no liability.3 Thus, the Iraqi Carriage Law does not adopt the "strict" or "absolute" system of the carrier's liability under which the carrier is liable for all loss or damage which happens to the cargo whilst in his custody.4 It is clear that the system of the carrier's liability under Article 132 of the Iraqi Carriage Law, which is identical to Article 5(1) of the Hamburg Rules, is generally the same as under the Hague Rules. The fundamental difference between this Ariicle and Article III(1) of the Hague Rules lies in the varying ways in which the "fault" principle is applied in each.S Accordingly, the basic duties of the carrier set forth in Articles III(1) and (2) of the Hague Rules, would remain in effect under Arecle 132 of the Iraqi Carriage Law, as part of the carrier's overall responsibility to perform all of his obligations under the contract of carnage with due care. But the Iraqi Law states a general rule based on the presurnption of fault in the event of loss or damage.6 For example, the first of the carrier's major obligations under the Hague Rules is the exercise of due diligence to make the ship seaworthy. According to this obligaeon, the caxTier is liable not only for negligence conunitted by himself or by his servants or employees, but is also responsible for the negligence of independent contractors, such