Jurisdiction Update: Iraq
Iraq
Ali Talib Fezea Associate, Litigation
Transportation contracts are one of the most important and widely traded contracts, whether between individuals or companies, Such contracts constitute an important pillar in the nature of daily and commercial life, internationally and locally. Because life depends on transportation and related services, transport links production areas to consumption areas and secures the transportation of individuals, raw materials and goods from and to the investment areas. Amongst other things, transportation contracts serve as an auxiliary element in certain production fields. In addition, it helps the distribution of industrial products to the area, helps in the transition from the global to the commercial stage, and stimulates tourism.
Because of the importance of transportation in life, its economic effects and effective role in economic development, many countries have begun to organize this sector of economic life by enacting laws, issuing regulations and instructions, as well as joining international and bilateral agreements that deal with this aspect. Among these countries is Iraq. Iraq organized this sector in the repealed Trade Law of 1970, particularly in its sixth chapter where it designates transport contracts as a commercial business. The Trade Law is replaced by Transport Law No. 80 of 1983, which applies to land, sea and air transportations taking place in the Republic of Iraq. In this article, we will highlight an important part in this type of commercial activity that is related to the guarantee of the transportation contracts and the responsibility of the carrier and its limits. We aim to explain the legal provisions of this law, including but not limited to the obligations and responsibilities of carriers.
Definition of Carrier: Iraqi law does not provide a definition of what constitutues a carrier. However, we can define it as the one who is obligated to transport people or goods according to the transportation contract.
Scope of the Iraqi Transport Law: According to the text of Article (3) of the law, the provisions for transport include all types of transport, whatever the carrier’s capacity, taking into consideration the provisions contained in the international agreements that Iraq agreed to, and every land, sea or air transport has special provisions and the law specified special provisions for the people transportation and goods.
Generally carriers may be held legally responsible for the loss, damage and delay in the delivery of goods. It goes without saying that the transport contract may be in its simple form, i.e. between a Sender and Carrier and the Consignee, or it may be in a complex form between Sender, Insurer, Shipper and Carrier or Carrier’s agents and the consignee. The consignee may be more than one party as it’s in the global maritime trade sector. For these reasons it is important to know the limits and framework of the Carrier’s responsibility under Iraqi law in an effort to determine the damages and who is responsible in order to prevent disputes between all parties. In this regard the following aspects should be noted:
The responsibility of the Carrier begins from the date of receipt of goods until the date of the delivery to the Consignee, including the period of storage of the goods in the Carrier’s warehouses, as it is considered among the complementary works of the contract of transport.
The carrier will be responsible of the loss of goods, whether the loss was partial, total or judgmental, and the latter included according to the text of the law, taking into consideration the element of justice. In case the Carrier fails to deliver the goods to the Consignee he/she should notify the Consignee to attend within (45) days from the expiry date of the delivery date. (Article 36/Second of the Transport Law).
The Carrier is responsible for the deterioration of the goods. Deterioration means that the goods are not fit for use. The goods should reach the consignee completely in terms of weight and size and must not be broken or defective to the extent that is made unfit for the intended use. There is no doubt that the defect here does not reach the point of destruction; in this case the transport document has a great importance which determines the condition of the goods at the time of delivery by the Carrier, its condition at the time of delivery to the Consignee, and whether the Carrier records his reservations on the goods, and thus the transport document sets the Carrier's responsibility for deterioration.
The Carrier is responsible for delay in delivering the goods, it is considered as a delay if the shipment did not reach on the set date, and when no date is set, then will be considered from the elapsed time for the transportation process carried out by the prudent/usual Carrier in the same circumstances; meaning that the responsibility here is accrued in the event of abnormal delay Contrary to current custom, the process is usually agreed on a period of open access especially in the maritime transport.
The Carrier is often excluded from liability in transportation contracts. However, the law specifies the cases in which the Carrier is exempted from responsibility, such as in cases of Force Majeure, the Sender or the Consignee carrying out the guarding process during transport or the existence of a defect in the goods without the carrier's knowledge.
In summary, the responsibility of the Carrier is based on foreseeable mistakes and the fact that the goods are in the Carrier’s custody throughout the transportation period. Therefore the responsibility is fulfilled as soon as the loss, damage or delay occurs, these provisions are in accordance with the Hamburg Treaty of 1978.
For further information, please contact Ali Talib Fezea.
Published in June 2022
