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General Overview
Herewith follows a brief explanation of the rights and obligations of road transporters insofar as liability towards the people for whom they transport goods. Please remember this is only a general analysis and you should always refer to your lawyer for specific situations.
A carrier / road transporter as referred to herein is a person or company who transports goods from one agreed place to another, in exchange for payment. Our analysis looks at the legal relationship from the perspective of the transporter as it applies within South Africa.
Liability
The law distinguished between two types of liability: criminal liability and civil liability.
Criminal liability arises from a wrongful act, which is recognised by the State as being so injurious that, it demands punishment by the State against that person.
Civil liability arises from a wrongful act, which causes harm to another, but is not offensive enough to justify intervention by the State.
Example: A driver involved in an accident can be charged with reckless driving by the State, as well as be liable to compensate the owners of the goods he damaged in the accident. If the driver was acting in the course of his employment, his employer will be liable for the damage to the property, but not for the criminal act of the driver.
Civil liability
We shall only talk about the issue of civil liability. Courts will adhere to a lesser degree of certainty in deciding civil cases (balance of probability), than in criminal matters where beyond reasonable doubt, will apply. Section 300 of the Criminal Procedures Act, recognises this and allows for an order by the Court to demand that the damages suffered by a party are made good, by payment of money to them by the party which caused such damages.
Liability in terms of civil law can arise either under the law of delict or under the law of contract.
Delictual liability - Where a person who has negligently or intentionally directly caused damage to the property of another, by an act or failure to act, must compensate that person for his loss.
Contractual liability - Where a person does not perform what he has agreed to do for another, must compensate that person for direct loss suffered as a result of that failure to perform.
Delictual liability - (where there is no prior agreement about who will be responsible for loss / damage or where there are no Standard Trading Conditions being used).
South Africa is governed by the Roman Dutch code of law, which incorporates the doctrine of Praetors edict, which enforces strict liability against carriers. This originated many hundreds of years ago, when the Roman Praetor published an edict, which said (translated):
" I will grant an action against carriers, inkeepers and stable keepers if they fail to restore to any person any property of which they have undertaken the safekeeping."
The Praetor wanted to discourage dishonesty amongst these classes of people, and the reason for the edict was that they had, in the course of their business, the opportunity to conspire with thieves against their customers.
This situation of strict liability existed in South African law until 1995, when this stance was softened in Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA42 (A).
The current position is that a carrier will be held liable for loss / damage to goods in their care, unless they can show that such loss / damage was not caused by their own negligence. The owner of the goods does not need to prove negligence, it is up to the carrier to demonstrate that the loss / damage was not as result of their wrongdoing.
Contractual liability (where there is an agreement or where Standard Trading Conditions are in force).
A specific agreement defining the responsibilities and obligations between the transporter and the customer will override the abovementioned interpretation. In this way liability can be extended / limited or excluded altogether, depending on the terms of such an agreement / contract.
Most transporters make use of standard trading conditions to either confirm acceptance of liability up to agreed amounts, or to avoid liability totally. However, the transporter will have a difficult time in securing business if he intends to hold himself blameless for loads which are lost / damaged in his care.
As discussed, most liability can be contracted out of other than fraud or willful theft, even negligence or gross negligence (Government of South Africa v Fiber Spinners & Weavers (Pty) Ltd 1978 (2) 794 (AD). However, whilst is may be attractive to incorporate very harsh exemptions into standard trading conditions, this is not good marketing, as from time to time, customers actually take the trouble to read the standard trading conditions. Customers are not impressed by reading that the carrier with whom they are about to deal is not even liable for gross negligence.
Suggested methods of dealing with liability.
It is our view that the transporter should have a set of standard trading conditions by which to operate. The transporter should then decide with which of their important customers they wish to accept liability and up to what extent. For any other less important business, strict conditions should be applied.
Any reference to liability for loss / damage should draw the readers attention to an insurance clause, which should state that the transporter will arrange insurance on behalf of the owner for the loads, and that the liability of the transporter will be limited to the extent of such cover arranged, a copy of which must be available upon request.
Alternatively, agree to a maximum amount of liability and define only under what circumstances such liability will attach. In such an instance, it is vital that the transporters transit policy has cover up to such limits for example, and offers the same extent of cover, i.e. if the transporter has opted for cheaper limited cover insurance such as fire, collision, overturning, theft following and hijack, make sure that you are not agreeing to wider liability.
Disclaimer: As previously mentioned, Senate does not hold itself out as being an expert in legal matters. The above is for reference purposes only. It is advised that you consult your lawyer to offer individual / specific guidance. No liability will attach to Senate for any loss suffered as result the abovementioned information or advise, howsoever caused.
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