BARCLAYS BANK OF ZIMBABWE LTD v AIR ZIMBABWE CORPORATION 1992 (2) ZLR 377 (H)

Flynote

Carriage of goods — by air — extent of liability of carrier for missing goods

Headnote

Two gold bars were stolen at Harare airport by security officials employed by the defendant. These security officials were responsible for unloading and safeguarding the consignment of gold at Harare Airport. The two gold bars were part of a consignment of gold carried on a domestic flight from Bulawayo to Harare by the defendant corporation on behalf of the plaintiff. The contractual terms of the carriage were contained in a waybill which was signed by or on behalf of the plaintiff. This waybill made the carriage contract subject to the limitations on liability laid down by the Warsaw Convention. In terms of Article 29 of that Convention, the right of the person whose goods are being carried to claim delictual damages is extinguished if the action is not brought within two years, when the cargo arrived or should have arrived. Article 22 limits the liability for loss of cargo to 250 francs per kilogram.

One of the stolen gold bars was subsequently recovered but the other was not. The plaintiff claimed from the defendant $61970,23. This was the value of one gold bar, less what it had been able to recover of the proceeds of the sale of some of the stolen gold.

Held, that the Warsaw Convention governed the contract of carriage.

Held, further, that although the security officials had been acting in the course of their employment when they committed the theft, the plaintiff's delictual claim had been extinguished as a result of its failure to bring the claim within two years as required by Article 29 of the Warsaw Convention.

Held, further, that the defendant had done nothing which would estop it from relying on the defence that the delictual claim had been extinguished under Article 29 of the Warsaw Convention.

Held, further, that the plaintiff was only entitled to recover compensation for the lost gold at the gold value rate specified in Article 22 of the Warsaw Convention, namely 250 francs per kilogram. This gold value was to be ascertained in accordance with the standard or weight and fineness specified in Article 22 of the Warsaw Convention. Every gram or fraction of a gram of such ascertained gold value must be treated as representing the price of gold bullion set by the Reserve Bank of Zimbabwe in dollars on the date of Judgment.