MODZONE ENTERPRISES (PVT) LTD & ANOR v TRANSTECH FREIGHT ZIMBABWE (PVT) LTD 2007 (2) ZLR 139 (H)

Flynote

Carrier — common carrier — who is — not necessary that party's main business be carriage of goods — liability of common carrier — not possible for carrier to contract out of liability for wilful misconduct or gross negligence — liability of carrier for acts of agents to whom actual carriage entrusted

Headnote

The first plaintiff engaged the defendant to carry a load of fabric from Harare to Namibia. It was a term of the agreement that the goods were to be transported as one load in a container and to reach their destination safely and in good and merchantable condition. The first plaintiff loaded all the fabric into a container. In Johannesburg, the defendant removed the fabric from the container and split the load into two different consignments. The second consignment was mixed with highly flammable goods and was loaded into a vehicle equipped with defective tyres. A tyre burst and caught fire, with the result that the vehicle caught fire. The first plaintiff's consignment was destroyed. As a result, the plaintiff suffered damages, being the invoice value of the fabric that was burnt in transit.

The defendant's defence was that the agreement between the parties was qualified by an express term that the fabric was being transported by the defendant at the first plaintiff's risk. The defendant also challenged its citation as a public carrier. It relied on a clause in its association's standard condition which said that it was not a common or public carrier and that carriage of goods by it was merely incidental to its clearing and forwarding operations. The defendant contracted two different hauliers for the two stages of the journey. It accepted that it was responsible for the entire haulage from Harare to Namibia and that as the principal it would ordinarily be liable for any negligence or breach of contract committed by the subcontracted hauliers. It said it was necessary, for practical reasons, to split the original consignment into two in Johannesburg. Furthermore, while it is accepted that the second consignment was destroyed in transit, the fire which caused the loss was not caused in any way by the defendant's conduct or omission.

Held, that for a party to be a public carrier, it is not necessary for that party to have as its main business the carriage of goods. When a party carries on the trade or profession of carriage of goods as part of its business, that is enough to make that party a public carrier. The defendant was thus a public carrier and its liability had to be determined by the common law rules governing the rights and obligations of a public carrier, as read with the contractual terms agreed by the parties.

Held, further, that a public carrier is absolutely liable to restore property received by him unless he can prove that the loss or damage was caused by damnum fatale or vis major. The carrier's liability starts from the moment he takes delivery of the goods and continues until he has discharged his contractual obligation, viz. to deliver the goods to the consignee at the agreed destination. Where the goods are lost or destroyed, the measure of damages payable by the carrier will normally be the market value of the goods at their destination. A carrier who accepts the goods from the consignor and agrees to deliver them at a particular destination is responsible for the goods throughout the whole journey. If the goods are lost or damaged, it is immaterial to the consignor whether the fault lies with the original carrier or with another carrier to whom he has handed them over.

Held, further, that while it is standard practice for carriers to introduce special terms limiting their liability into their contracts, either specifically or by way of standard conditions, such terms will be narrowly construed so as to give only that degree of exemption from liability that is expressly stated. Thus, a contract to carry "at owner's risk" does not absolve the carrier from all liability, but only from liability for slight negligence, leaving him liable for definite or gross negligence. It is not possible for the parties to agree to contract out of liability for gross negligence. The reference in the contract to "wilful act" must be similarly construed to include liability for any wilful default or gross negligence on the part of the defendant.

Held, further, that the identity of the actual hauliers in this case was not disclosed to the plaintiffs when the contract was concluded or during the course of carriage of the goods in question. That being so, the defendant remained contractually responsible for any act or omission of those hauliers, who were deemed to be the defendant's servants for the purposes of any liability towards the first plaintiff. Even if the hauliers had been disclosed to the plaintiffs, this would not enable the defendant to escape liability for the wilful conduct or gross negligence of its agents. The defendant was thus liable not only for its own wilful acts or gross negligence but also for the wilful misconduct or gross negligence of the hauliers contracted by it to ferry the first plaintiff's cargo.

Held, further, that the burden of establishing a valid defence under a contract of carriage rests upon the carrier himself. There is no onus on the consignor to prove how the goods were damaged, lost or destroyed. It would place an intolerable burden on him to require of him proof of what he cannot possibly know. All he can do is to establish that he handed over the goods in an undamaged condition and that they were damaged when he received them back.

Held, further, that the division of the consignment into two smaller ones did not constitute a fundamental breach of contract or in itself cause the destruction of the goods in question. There was simply no causal nexus between the reloading of the goods and their eventual destruction by fire.

Held, further, that the loss in casu was occasioned by an unexpected and unavoidable accident, ie. damnum fatale, and not by reason of wilful misconduct or gross negligence. While there were indicators of possible negligence on the part of the second haulier and/or its servants, these were all matters of conjecture and, whether taken in isolation or together, did not evince any wilful misconduct or gross negligence on the part of the defendant or its agents such as to render the defendant liable for the loss incurred by the first plaintiff.