When is a carrier or boatman liable for damage regardless of the owner's presence?
General Chapter
Al-Mughni
Book of Leasing
Primary text
Liability is incumbent upon the boatman or carrier for damage resulting from their own direct actionable injury (jinayah), such as scraping or improper securing of the load, whether the owner is present or absent. This is because the obligation to guarantee stems from their direct action, similar to wrongful seizure (adwan). Furthermore, if the owner is riding with the goods, the carrier's negligence affects both the owner and the goods, thus the guarantee remains, analogous to injuring a shielded person where the damage extends to both the shield and the person.
Supporting text
This principle extends to a physician or circumciser whose hands cause injury; they are liable even when the patient is present. If a carrier carrying a load on his head stumbles, causing the load to fall and be destroyed, the carrier is liable due to his act (stumbling). If the goods are stolen while the owner is present, the carrier is not liable because theft is not an action of his own, and the owner did not intervene to prevent the theft.