Author : Prof. Dr. yousif Auda Ghanim, Assis.
Basra studies journal,
Volume 28, Issue 1994, Pages 57-82
It is understood that the shipper is an essential party to the contract of carriage of goods by sea as the shipper has many obligations to fulfill, otherwise his contractual liability will arise alongside with the possibility of raising his tort liability as a shipper when damages occur to other persons who are not parties to the contract of carriage.
Whatever the nature of the shipper's liability, being familiar with such liability needs to determine its legal basis as each sort of liability has a different basis built upon, whether this basis represented by the mistake to be proved by the plaintiff, the presumed mistake, the presumed liability or the objective liability. Moreover, the nature of the obligation and whether it is an obligation of result or an obligation of means has an impact on determining the basis of liability and the party who bears the burden of proof.
The majority of the comparative laws - as a general rule - established the shipper's liability towards the carrier on the basis of the mistake to be proved, and founded certain obligations which are imposed on the shipper on the basis of the objective liability, a liability based solely on the occurrence of the damage and the existence of a causal link between it and the breach of the obligation on the basis of which the objective liability arise, There is no doubt that objective liability is so strict with regard to the shipper. Therefore, the cases based on which this liability will arise must enumerated clearly in the law as is the case under the comparative laws.