According to the Collins English Dictionary, a carrier is a person, thing or organisation employed to carry goods, passengers etc. The term, carrier, has also been defined as the undertaking for reward or otherwise to convey another person or his goods, or both, from one place to another. The contract of carriage for monetary reward constitutes a type of locatio conductio operis, which is a contract for the letting and hiring of services, whereas an agreement of gratuitous carriage will classify the contract as one of deposit. Carriage of goods or persons may be affected by way of road, rail, water or by air, however, for purposes of this assignment, the focal point will be carriage by road and rail (i.e. carriage of goods over land).
In terms of the Common Law, carriers were divided into one of two categories, namely public carriers or private carriers. A public carrier was one whose business or profession concerned conveying goods, whereas a private carrier did not ordinarily convey goods for ordinary business purposes, but rather did so on remote occasions. In terms of the Common Law classification, carriage of goods by both private and public carriers could be done either for reward or for no reward (i.e. gratuitously).
The carrier bears a duty to carry goods or passengers from the place of delivery to their correct destination, without undue delay and in safety. A carrier will therefore not be liable for injury or damage caused by the negligence or default of a consignor or a passenger (this is despite the carrier’s general liability for undue delay and safe carriage). In English law, a public carrier is bound to accept goods for carriage, however in South Africa, the common law does not bind a public carrier to accept goods for carriage. Nonetheless, the Road Transportation Act makes it an offence for a public permit holder to refuse to convey any person or goods, without sufficient reason, if he is authorised to do so.
In terms of Roman law, public carriers by sea bore strict liability and were therefore liable for the damage or loss of any goods entrusted to them, except where the loss or damage occurred as the result of unforeseen events which were beyond human control and foresight. The strict liability attaching to carriers by sea originated in the Praetor’s Edict (the Edict) “De nautis, cauponibus et stabulariis” which has been incorporated into South African law. In terms of this Edict carriers by sea, innkeepers and stable keepers were strictly liable for goods in their custody, with the exception of damage or loss caused by damnum fatale or vis maior.
Nevertheless liability of public carriers by land has been the subject of much debate in South African case law to date and will thus be discussed in detail later in the paper. To address the issue in brief; the point of contention in case law has been whether or not the Praetor’s Edict has been extended and therefore applies to carriers of goods by land in the same way that it applies to carriers by sea. Although earlier South African cases did extend the strict liability of the Praetors Edict to contracts of carriage by land, the Appellate Division only pronounced conclusively on the matter in the Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd case. This case therefore provides firm authority at present for the position that the Praetors Edict does not apply to carriers of goods over land. Joubert JA decided in this case that the Praetors Edict had not been extended to public carriers by land and therefore concluded that the general principles of law basing liability on dolus and culpa levis should be applied to both private and public carriers by land. This case therefore serves as authority for the present position in South Africa, however the following discussion will canvas previous case law dealing with the issue of extension of the Edict.
South African Case Law
South Africa has an interesting history of case law dealing with strict liability in terms of the Praetor’s Edict and the spectrum of its application. Although the Anderson Shipping case is now the authority in respect of strict liability for carriers of goods over land, a number of cases preceded this decision dealt comprehensively with questions in regard to the extension of the Praetor’s Edict to other types of bailees, over and above the original classes mentioned. These cases are not necessarily restricted to carriers of goods, yet they indicate reasons for extending the Edict in certain circumstances, and are therefore of relevance for that reason. There have been a number of commentators on the subject of whether or not the high degree of responsibility ascribed to bailees named in the Edict should, in fact, be extended to bailees not specifically mentioned in the Edict or not. Opinions differ especially on the question of whether or not it is legitimate to extend the edict to carriers over land (as opposed to restricting it to carriers by sea). Dr T. E Donges in his work Carriage of Goods in the Roman-Dutch Law mentions and discusses various authorities who have argued their positions in this regard. The present discussion, however, will be limited the approach of the courts in South Africa in respect of the application of the Edict to various categories of custodians.
The case of Tregidga v Sivewright N.O.is perhaps an appropriate starting point since chronologically it is one of the earliest cases dealing with strict liability for carriers of goods by land. In this case, the Railway Department contracted as carrier to transport various consignments of cattle from Queenstown to Cape Town. This journey was extremely tedious, taking four days, wherein the oxen were neither fed nor watered throughout the entirety of the trip. As a result of a combination of factors some of the animals were seriously injured and did not complete the journey, whilst another arrived in Cape Town grievously injured and much devalued in price. The Railway Department as common carriers had undertaken to deliver the three consignments of cattle in good order and without undue delay in terms of the contract. Both these contractual terms were not adhered to and the plaintiffs therefore instituted a claim for the value of three missing oxen due to them, as well as a further claim for damages for the injured beast that was delivered. The Department, as carriers, alleged that they had exercised due care and diligence in conveying the cattle, but even so, a few oxen had been unable to avoid collapsing in the railway trucks and as a result, incurred serious injury, thereby deeming it necessary to remove them, as they were unable to continue the journey. The defendants brought evidence showing that it was not uncommon for oxen to fall in transit and be unable to stand up again, thereby being subjected to trampling. In this case, plaintiffs alleged that the Department were in the position of common carriers and were thus insurers of the property entrusted to them. The defendants, however, denied negligence on their part, despite acknowledging their position as common carriers. The learned de Villiers J in this case cast the burden of proof on the defendants thereby making it unnecessary for the plaintiffs to allege or prove negligence.
In Law of South Africa it is stated that in a contract of carriage, the plaintiff in an action against a public carrier for damage done to the plaintiff’s goods while in the carriers custody, is not obliged to allege negligence on the part of the carrier because the carrier is in the position of a depository or bailee for reward, and is liable even if no negligence on his or her part is proved. The reason is that a carrier is contractually bound to exercise reasonable care in respect of the goods entrusted to him and to return them to the owner in the condition in which they were when he received them. This contractual relationship between the parties therefore determines the carrier’s liability. Thus it will not be useful to a carrier’s case to prove that damage to goods was not due to his negligence. Furthermore where no contractual relationship exists between parties a plaintiff would have no claim against transporters of goods founded upon the Praetor’s Edict or upon the principles applicable to a depository or bailee for reward (as was decided in United Building Society v DI Stone (Pty) Ltd). The position in respect of public carriers by land is nonetheless now governed by the Anderson Shippingcase.
In the Tregidga judgement, de Villiers J assumed that South African law in respect of liability of a carrier was the same as English law, thereby recognising liability of a carrier in terms of Civil Law. The learned Judge nonetheless acknowledged that the Praetor’s Edict applied to carriers by water, but then stated that the same liability attached to carriers by land. Carriers by land were thus held strictly liable unless damage resulted from vis major or damnum fatale. The court made mention of the following cases in respect of strict liability attaching to carriers over land; Naylor v Munnik, Jones v Union Steamship Co and Stretton v Union Steamship Co. Despite the defendants argument that the Stretton case illustrated considerable differences between the English and Cape laws as to the liability of carriers as well as their argument that Jones v Union Steamship Co decided liability of a carrier to be that of a depository, the court found in favour of the plaintiffs. This finding was in spite of a lack of negligence having been established on the part of the Department. Plaintiffs were therefore successful in claiming the value realised from the sale of their injured animals. The reasons of de Villiers C.J. in this case were therefore based on an acceptance of the view that the principles of the Edict should be extended to carriers by land. Therefore this case established a strong authority for proponents of extension of the Edict to carriers by land, as opposed to restricting the liability to carriers by sea.
The case of Essa v Divaris, concerned liability of a garage owner for the loss of a motor vehicle left in his care in the garage. Therefore although not being specifically relevant for carriers, this case discussed the possible extension of the Edict in detail and is thus relevant to consider for these purposes. The court mentioned that bailees responsible for custody of goods (in terms of the Edict), receive remuneration, not for taking care of goods, but rather, in the case of seamen, for conveying passengers to their destination, in that of an innkeeper, for letting travellers stay in the Inn, and in the case of a stable keeper, for allowing horses to be put in his stables. Counsel for the plaintiff in Essa v Divaris submitted that a garage keeper is the modern equivalent of the stabularius mentioned in the Praetors Edict or alternatively that the Edict should be extensively interpreted so as to include a person carrying on the business of garaging motor vehicles. Plaintiff therefore attempted to persuade the court to extend the interpretation of the Edict to bring such persons within the scope of strict liability. This would result in the defendant being exempted in respect of an “owner’s risk” clause, only for loss due to accident, but not in respect of loss due to negligence.
In deciding on the question of extension, the court considered the decision in Mariott’s Garage v Kilburn where an extension of the terms of the Edict was refused. Broom J made an obiter analogy in respect of a close parallel between a stable keeper mentioned in the Edict and a modern parking-garage owner. Nonetheless extension was refused. Furthermore in the case of Central Motors (Glasgow) Ltd. V Cessnoch Garage & Motor Co. although Lord Cullen found it unnecessary to deal with the responsibilities of a motor garage keeper on the same footing as a those of a stabularius, he nonetheless noted the possible parallel and remarked that such a contention would be difficult to support.
In Essa v Divaris, the court translated the Praetor’s Edict as quoted by Ulpian to refer to seamen, innkeepers or stable keepers who after having received the property of another on terms of safe custody, are strictly liable, unless they restore it in the same condition.
The court nonetheless decided in Essa v Divaris that to extend the principle applicable to a stable keeper to the keeper of a parking-garage would be going much further than extending the principle applicable to a carrier by sea to a carrier by land. Tindall J.A. said that the difference between stabling a horse and garaging a motor vehicle propelled by an internal combustion engine seemed so great that there was no justification for putting these two classes of bailees in the same footing. The court also mentioned that to make the keeper of a parking-garage liable for loss caused by fire, in the absence of negligence on his part, or on the part of his servants would be inequitable in the extreme. This was decided due to the fact that motor vehicles contain highly flammable liquid and are fitted with electrical equipment, liable to develop faults (as shown by the evidence) which may ignite the petrol without intervention by or negligence on the part of any human being. Thus the analogy between a stabularius and a garage-keeper was held to be too strained and Tindall J.A. decided that considerations of fairness and convenience did not demand the extension of the Edict in this case.
Tindall’s J.A made an interesting comparison of the facts in the case before him to the law in respect of liability in England. He mentioned that the high degree of responsibility, with which a parking-garage owner would be encumbered if the Edict were extended to him, did not apply in English law and continued to say that the extension of liability, in respect of parking-garage owners, did not exist in England. This is due to the fact that parties, who voluntarily leave their vehicles in parking-garages, do so subject to “owners risk” clauses and are thereby able to indemnify themselves against this risk with insurance.
In the case of Davis v Lockstone the court held that the basis of our common law in regard to the liability of bailees is named in the Edict. For purposes of liability, the court accepted the statement of de Villiers C.J in Tregidga v Sivewright N.O.that the types of bailees named in the Edict are liable in every case of damage occasioned by theft, injury or otherwise, although happening without default on their part, unless it happened by superior force (damnum fatale) as would be the case in the instance of a shipwreck or an attack by pirates.
The Davis v Lockstonecase involved liability of a hotel keeper in respect of goods stolen from a hotel room while the plaintiff was staying in the hotel. The goods however were not directly remanded into the care of the hotel keeper and were stolen from the room of the plaintiff, which could not be locked due to the absence of a key. A notice posted in the main hotel mentioned that the proprietor would not be liable or hold himself responsible for any valuables, unless they were placed in his charge for safe-keeping. However the court found for the plaintiff, holding that in order to render an innkeeper liable to restore articles received by him for safe keeping, it was not necessary to prove that the goods had been specially entrusted to him for that purpose. Furthermore the failure of forced entry in this instance precluded the innkeeper form relying on the exception of vis major to avoid liability. Most importantly the defendant was not allowed to limit his liability under the common law merely by virtue of having posted a notice to that effect in his hotel, without proof that the plaintiff agreed thereto. Therefore although this case does not have specific bearing in the position of carriers, it can be assumed that the precedent in terms of innkeeper custodians, limiting their liability by virtue of notice, would apply equally to carriers. Thus Davis v Lockstone created a precedent in terms of which a custodian may only limit his common law liability to the extent that the other party to the agreement consents to such limitation. Nonetheless, the question regarding the extension of the Edict to include carriers of goods by land, did not arise in this case.
In the case of Hall-Thermotank Africa Ltd v Prinsloo the plaintiff had entered into an oral agreement with the defendant in terms of which defendant had agreed to remove a chiller unit from the Moketsi Railway Station and to carry it to the destination of the Nkhensani Hospital for reward. The plaintiff relied on an implied term in the contract that the defendant would deliver the unit to the hospital site in the same good order and condition in which it had been received into the custody of the defendant at the railway station. The defendant, however, argued that an express exclusion of liability for any loss or damage arising from negligence formed part of the contract. Defendant claimed that during transportation, an animal had unexpectedly jumped in front of the transportation vehicle, necessitating the defendant to suddenly brake, in order to avoid a collision. This action resulted in the goods being transported incurring damage due to having fallen over in the process of braking. The court held that onus of establishing, on a balance of probabilities, the terms of the contract rested on the plaintiff, even if this necessitated proof of a negative, in that the exclusion of liability, relied on by the defendant, was not agreed upon.
The court discussed the essentialia of a contract of carriage, namely agreement on the goods to be carried, the place of departure and destination and the price to be charged therefore, or a method of calculating the price. What is important for present purposes is that the court then discussed the source of liability incurred in a contract of carriage. The court held that the branch of law where goods are carried for reward is a type of letting and hiring in terms of which absolute liability is imposed on the carrier if goods are damaged, except where it can be proved that such damage is the result of inherent vice, negligence on the part of the consigner, or the result of damnum fatale or vis major. The court also importantly discussed the distinction between a common carrier and a public carrier. The term “common carrier” was held to have been adopted from English law, however, it is apparent that Roman-Dutch law did not recognise this term. Roman-Dutch law instead recognised a term “public carrier”. The court held that liability of a public carrier is different from that of a common carrier.
The defendant in the instant case alleged that he was not a common carrier, but rather an ordinary carrier. However, the court decided that no distinction between these types of bailees exists in South African jurisprudence. The court continued to mention the basis of absolute liability of a carrier in terms of its roots in the Praetor’s Edict and mentioned that absolute liability had been followed consistently in several preceding cases. The court made a distinction between carriage for reward and gratuitous carriage, mentioning this distinction to be the decisive factor in ascribing strict liability to a carrier. Once contract of carriage was for reward, absolute liability was held to attach to the carrier, imposing a duty upon him to ensure that goods received by him are delivered undamaged. Goods delivered in a damaged state impose a duty on the carrier to compensate the consigner, unless the carrier can prove that damage occurred through damnum fatale or vis major. Therefore the only way to avoid the strict liability imposed on a carrier of goods is to prove that a superior force, over which the carrier had no control, caused the loss. Therefore as with previous cases, it is apparent that the exclusion of liability is superfluous in contracts which fall into the categories mentioned in the Praetors Edict, as well as those to whom the consequences of the Edict have been extended such as the present case. This is due to the fact that absolute liability may only be excluded in the very specific, named instances of inherent vice or superior force. On the facts, the defendant was unsuccessful in establishing an exception to the strict liability imposed upon him. The court held that there was no compelling force which resulted in the accident, nor was any inevitable. The court found that the defendant had not taken sufficient measures to avoid damage of the goods in his possession during transit. Negligence was therefore in the opinion of the court apparent on the part of the defendant in this case, even though it was not necessary for the plaintiff to have established such negligence, as strict liability was imposed liability upon the carrier, regardless. Therefore, judgement in this case was found in favour of the plaintiff, and once more the extension of the Praetor’s Edict to carriers of goods over land in South Africa was confirmed.
In the case of International Combustion Africa Ltd v Billy’s Transport plaintiff instituted an action for damages pursuant upon damaged equipment which was transported by the defendant, who carried on business as cartage and transport contractor. The defendant had agreed to load, transport and deliver the equipment for reward, however, the equipment had been damaged whilst in the possession of the defendant. Despite the claim for damages, the plaintiff did not allege negligence on the part of the defendant. The court considered the questions of whether the Praetors Edict was incorporated into South African law in respect of carriers of goods over land and secondly, if it was part of South African law, whether the facts pleaded by the defendant were capable of constituting damum fatale. In his finding the learned Cilliers A.J found himself unable to conclude that the decision in Hall-Thermotank Africa Ltd v Prinsloo had been wrongly decided and was thereby bound by that decision. Therefore the finding was that the Praetor’s Edict did in fact extend strict liability to carriers of goods over land. Furthermore the defendant’s plea was unable to establish that the damage causing event was unforeseeable and inevitable. Therefore the defendant failed to prove the existence of damnum fatale, casus fortuitus, vis major or inevitable accident. Strict liability therefore once again attached to a carrier of goods over land in this case.
The most important case to date in South Africa regarding the question of strict liability for carriers of goods over land is the Anderson Shipping case discussed briefly earlier. This case concerned an oral agreement between the appellant company (Anderson) and the respondent company (Polysius) in terms of which the appellants, who conducted a business of public carrier had undertaken to convey for reward, on behalf of the respondent company, two cases of machinery parts from Durban Harbour to Leeudoorn Mine. The cases were removed from the harbour but not delivered to the agreed location or they were delivered in a damaged state. The respondent therefore sued Anderson for damages. Anderson however alleged that the respondent’s claim was based on absolute liability regulated by the Praetor’s Edict, which referred to public carriers by water and not to public carriers by land. Anderson therefore alleged that they were not liable to pay any amount to Polysius. The court upheld the Polysius’ exception to the Andersons special plea in the court a quo, namely that the Edict did form part of modern South African law, and it had therefore been extended to public carriers by land. Anderson then appealed and the issue before the court was whether or not the Edict was applicable to carriers by land in South Africa.
The court made a detailed enquiry into Roman Law, Roman-Dutch law and South African law regarding the above question. It is important to analyse the reasons for the court having come to its conclusion, especially in light of the fact that South African jurisprudence had an established precedent in terms of carriers’ liability, when this case was decided. In respect of Roman law, the court held that a sea carrier who took charge of freight or property belonging to a customer undertook liability for the custodia thereof as if he had concluded an express contract to that effect. If the freight became lost or damaged while in the custodia of the carriers, he would be liable for full damages, unless he could prove that the loss or damage was caused by damnum fatale or vis maior. The court in respect of the enquiry into Roman law, ultimately reached the conclusion that the Romans never extended the principles of the Edict to carriers by land.
The court then proceeded onto an enquiry into Roman-Dutch law in which it was unable to find support for the proposition that provisions of the Edict should be extended to carriers by land. The court in this respect felt compelled to agree with the conclusions of Dr Dönges who stated that the Dutch jurists are silent on the question of the extension of the Edict to carriers by land. Furthermore the court was unable to find in the Observationes Tumultuariae Novae be Pauw any single instance in which the Hooge Raad had extended the Edict to carriers by land. The court therefore eventually reached the conclusion that liability of carriers by sea was closer to the Roman actio locati based on legislation considered from the Province of Holland and West Friesland. Thus, is was held, that the tendency in Roman-Dutch law, was to restrict the Edict, rather than to extend it. The court therefore reached the conclusion that the Edict was not applied to carriers by land in Roman Dutch law.
The court then proceeded in the enquiry to consider South African law on the matter. The case of Davis v Lockstone was addressed and the court found that the obiter dictum of the court in Davis v Lockstone was too widely stated and should be qualified to avoid the creation of a mistaken impression. The court held in this respect that while it was indisputable that liability of public carriers was considered in previous decisions of the courts, such decisions were not based upon a proper investigation of such liability according to the principles of liability in the provinces of Holland and West Friesland. Therefore the Anderson Shipping case was able to justify diversion from the precedent set by case law in respect of carriers in South Africa on the basis that prior jurisprudential decisions were made without taking proper account of the principles of Roman-Dutch law, from whence the basis of South African common law originates.
Anderson Shipping also referred to the decision of Essa v Divaris, discussed above, in which it was decided that the Edict was held not to apply to the owners of a parking-garage in the circumstances of the case. Therefore the court in Anderson Shipping used the Essa v Divaris decision to strengthen their position against the extension of the Edict. The court also held that the obiter dictum in Essa v Divaris was not binding since the Edict had never, according to Roman-Dutch law, been extended to carriers by land.
Therefore the court in the instant case considered itself not bound by any of its previous decisions to decide whether or not the Edict was applicable to public carriers by land in South Africa. This is primarily because earlier decisions of the courts on the extension of the Edict to carriers by land did not rest upon thorough investigation of the Roman Dutch law. The court also held that this applied to the judgement in favour if the extension if the Edict by King J in the Hall-Thermotank Africa Ltd v Prinsloocase, which Cilliers A.J. considered to be binding upon him when deciding the International Combustion Africa Ltd v Billy’s Transport case.
It was also interesting that the court in Anderson Shipping made mention to the decision of the Zimbabwean Supreme Court Cotton Marketing Board of Zimbabwe v Zimbabwe National Railways in which it was found that the principles of the Edict had to be extended to include public carriers by land, in light of the fact that Zimbabwe is a landlocked country. However Anderson Shipping justified a deviation from this decision by stating that the ratio decedendi of the Cotton Marketing Board case did not apply to South Africa because our country has a long coast line and several harbours.
Therefore the court ultimately concluded that the Edict was not applicable to carriers by land based on the principles of Roman-Dutch law as applied in the Province of Holland and West Friesland, where it was found that the Edict was not applicable to public carriers by land. The learned Joubert J.A. held in this case that to impose the absolute liability of the Edict to public carriers by land would be an anomaly, while the liability of private carriers by land would be based on dolus or culpa levis. He therefore held that the general principles of South African law favouring liability based on dolus and culpa levis should be applied to both kinds of carriers by land.
The Zimbabwean Approach
It is interesting to consider the position of Zimbabwe in terms of common law liability, bearing in mind the application and extensions of the Edict in South African case law to date. A comparison of this nature is especially attractive in light of the fact that the Praetors Edict was incorporated into Zimbabwean law in the same way as South African incorporation, by virtue of the countries both being colonies of the British Empire and thereby both being originally subject to the same common law. In the case of Cotton Marketing Board of Zimbabwe v Zimbabwe National Railways, discussed briefly above, the Appellant brought a claim for damages arising from the destruction of 95 cotton bales by fire, whilst being conveyed by the respondent under a contract of carriage entered into between the parties. An “owner’s risk” clause formed part of the contract, therefore the respondent argued that as a result of such a clause, they were absolved from liability as a common carrier and could therefore only be held liable for gross negligence, but not for negligence. As the Praetors Edict had been incorporated into Zimbabwean law in the same way as it had been in South African law, it therefore formed the basis of liability for carriage of goods by sea. However as Zimbabwe is a landlocked country, it is evident that carriage of goods would predominantly occur over land. The court eventually found in this case that the Edict was extended to carriers over land because of the country’s unique position as a landlocked country and furthermore, the respondents were not exempted from liability for negligence under the Edict despite the “owner’s risk” clause. Therefore the appellants were eventually successful in the Appeal court and the Praetors Edict was held to be applicable to carriers of goods over land in Zimbabwe. A common carrier in Zimbabwe is therefore strictly liable in respect of goods having been consigned for carriage over land.
The English Approach
According to the article of Graham McBain Time to Abolish the Common Carrier in civil law systems there is no distinction made between common or public carriers and private carriers. However this distinction has existed un
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