Unit 3- Carriage of Goods

Question 1

What are the legal principles of carriage divided into?

Answer 1

1. Manner of carriage
2. Nature of the carriage
3. Whether humans are transported
4. Nature of the carrier (whether it is a professional entity or carrier is a casual act)

Question 2

What are the two types of carriers?

Answer 2

1. Public carriers- these undertake carriage as a profession
2. Private carriers- who undertake carriage as a casual act, either for remuneration or gratuitiously

Question 3

What are the medium or manner of carriage?

Answer 3

BY:
Road
Rails
Sea
Air (including space travel)

Question 4

What is the definition of a contract of carriage?

Answer 4

A contract of carriage is a contract in terms of which one person (the carrier) undertakes to transport, carry or convey, for reward or gratuitously, another person and/or the goods of another person from one place to another

Question 5

What are the essentialia of such a contract?
hint: WHWH

Answer 5

The ordinary requirements of a valid contract should be met, this includes legality, contractual capacity and the act should be possible to perform.

1. that goods/persons or both are carried or transported
2. the medium/manner of carriage
3. two points between carriage (point of departure and destination)
4. the remuneration (freight or fare) if there is any

Question 6

Discuss the impact of the CPA on terms and conditions on tickets or consignment notes?

Answer 6

“Service” is defined in the CPA Sec 1 as “the transportation of persons or any goods”
a) According to the CPA, any person with a threshold of over 2 Million is not a consumer for purposes of this Act, therefore suppliers who offer services to these type of people do not have to comply with the Act.
b) As juristic persons cannot be transported, the Act will only be relevant to the carriage of their goods.
c) Where the Act does not apply, the common law principles can be used to determine whether Ts &Cs apply to the relationship between two parties:
i) Did the receiver of the ticket know that certain words appear on the ticket?
ii) Was the receiver aware that these words refer to certain contractual stipulations?
iii) If both answers to the questions are affirmative, conditions will form part of the contract of carriage between the two parties and receiver of the ticket will be bound thereto.
if any of the questions are answered in the negative:
iv) Did the party issuing the ticket do everything in their power to draw the attention of the receiver to the fact that the words refer to certain contractual stipulations? IF YES= receiver is bound to the conditions. IF NO= conditions will be set aside.

Question 7

What are the formalities to conclude a contract of carriage?

Answer 7

The general rule is that there are no formalities required, however, a written document for bookings may be required, this includes an email/SMS/via website.
This is for purposes of confirming the booking and limiting the carriers liability for the damages that may be incurred by the person using these services.

Question 8

Discuss the duties of the carrier

Answer 8

To convey the passengers and the goods safely from point of departure to the destination within the agreed period of time. Where no time was agreed upon, they should be delivered within a reasonable period of time.

Question 9

Discuss the duties of the Consumer in terms of the CPA

Answer 9

1. Consumer has the right to demand quality service that persons are generally entitled to expect, including timely performance and timely notice of delay.
2. Carrier may not discriminate against any persons, however reasonable grounds for differential treatment do exist and are provided for in the Act.
3. Consumer has the right to choose her supplier/service provider and may not be deprived from freedom of contract.
4. Consumer has the right to cancel any advance reservations, bookings/orders, the carrier may charge a cancellation fee (reasonable and may not exceed fair amount determined in the Act)
5. Consumer has a right to information in plain and understandable language. For clarity and transparency, this Act requires that any offers/notices/documents that fall within the scope of this Act be in plain and understandable language and in the prescribed form and prices be disclosed in appropriate manner.
6. The Act states that service must be marketed strictly in accordance with the format and general standard described/prescribed in this Act. The supplier is prohibited from making offers/marketing on prices that are unfair, unreasonable and unjust.
7. A consumer has the right to fair and honest dealing, which means that any unconscionable conduct by the service provider and false and deceptive representations are prohibited.
8. Supplier must furthermore not require a consumer to waive any rights or assume any obligations or waive any liability of the supplier or terms that are unjust/unfair/unreasonable.
9. Attention of the consumer must be drawn to any provision, condition or notice that limits the risk/liability from supplier; imposes a duty upon the consumer to indemnify supplier or another person. Including acknowledgments of any fact by the consumer, or that is of an unusual character or nature where there is no reasonable expectation for it’s presence that could result in serious injury or death of the consumer. (must be written in plain and understandable language that is likely to attract the attention the consumer in the circumstances before he enters into the contract.
10. Carrier may not include any provisions to defect the policy or purposes of the Act, to mislead or deceive consumer or any provision that allows for forfeiture of the money where consumer exercises her rights.

Question 10

What are the rights of the consumer in instances of overselling and over-booking in terms of the CPA?

Answer 10

Where this happens, the carrier has to reimburse the consumer by giving him a refund of what he paid, plus interest at the prescribed rate and compensation for costs that are incidental to the failure to deliver the service.

Question 11

What defence can the carrier use in instances of overselling or overbooking?

Answer 11

Carrier can offer the consumer a comparable service of the relevant kind to satisfy the consumer’s request, and the consumer accepted the offer or unreasonably refused to accept. The carrier is excused from liability where shortage was caused by circumstances beyond his control and he took steps to inform the consumer as soon as it was practically possible for him to do so, unless he failed.

Question 12

What are the duties of the Consignor or Consignee

Answer 12

1. The goods to be conveyed must be delivered
2. The consignor must make them available to the carrier for consignment
3. The passenger must arrive at the place of departure as agreed upon.
4. Consignor must pay the agreed remuneration to the carrier
5. According to the CPA= carrier has a right to claim a reasonable deposit in advance, before service.

Question 13

Liability of Carrier

Answer 13

1. If the passenger dies or injured/baggage is damaged=carrier’s liability is based on common law claim or a statutory claim.
2. Liability starts once carrier accepts the passenger and goods for carriage. Termination=once passengers and goods are delivered.
3. Burden of proof for a claim against a carrier:
   a) domestic road rail carriage by land= plaintiff has to prove on a balance of probabilities that the provider was at fault (intent/negligence)
   b) Sea & air= plaintiff must prove carrier was at fault
   c) International air carriage public international aviation laws determine that an absolute or strict liability (no fault required) and burden rets with the carrier to prove they were not negligent by proving that his default was caused by force majeure.
   IF SUCCESSFUL IN DISCHARGING THE ONUS OF PROOF= he won’t be held liable.
   UNSUCCESSFUL= Passenger and his dependents (if breadwinners) could institute a delictual claim for loss of income/support.

Question 14

Explain Carriage by Road

Answer 14

Apart from certain exceptions, no carriage by road is allowed without the required permit or operating license. The National Road Traffic Act= controls and manages vehicles, drivers, operators and officers in general.

Question 15

Explain Carriage by Rail

Answer 15

Transnet SOC Ltd = owned by the State and holds all equity shares of the company and manages it according to the best strategic and economic interest of the State.
Consists of 5 divisions: Spoornet, Port Authority and Port Operations, Autonet, Petronet and South African Airways.

The South African Transport Service Act Insurance Fund remains in existence and serves as the insurer of Transnet.

Question 16

Explain Carriage by Sea

Answer 16

Carriage of Goods by Sea Act governs carriage by sea.
An international sea of rules (Hauge-Visby Rules) are incorporated into this Act and they apply to all contracts of marine carriage of goods:
1. by ships leaving from any South African port or harbour
2. on voyages between contracting states
3. where the parties to the contract agrees that these rules shall apply.

Question 17

Explain The Hauge-Visby Rules

Answer 17

These rules apply to all contracts of marine carriage of goods by ships leaving SA port or harbour: a) on voyages between contracting states; or
b) where parties to the contract agree that they shall apply.

The rules state that liability of the public carrier by the sea is based solely on fault.
This liability may not be excluded or limited by agreement. Marmite claims fall within the jurisdiction of the High Court.

Question 18

what is the significance of Billing of Ladding

Answer 18

It is a sea transport document that forms prima facie evidence of shipment and serves as a document of title indicating lawful possession of the goods.

Question 19

Explain the principle of general average

Answer 19

All persons with interests involved in the voyage, carry the loss proportionally to the value of their property in accordance with the York-Antwerp Rules 1974. This applies where a loss occurs due to an intentional reasonable act to prevent loss.

Question 20

Explain carriage by air when a person travels with several successive carriers.

Answer 20

This is governed by Warsaw Convention and Montreal Convention.
Where a person travels with several successive carriers, it is deemed to be one undivided carriage that does not lose international character because parts of it are domestic. This ensures uniformity on liability and legal framework. The laws governing this type of carriage apply internationally, irrespective of the nationality of the passenger or where the contract was concluded. The plaintiff has two years to institute claims from either the date of arrival at destination, the dat eon which the aircraft ought to have arrived or from the date on which carriage stopped.

Question 21

What are Incoterms and their importance.

Answer 21

Incoterms are rules that are accepted worldwide by governments and legal authorities, exporters and importers as a way of interpreting the most common terms used in international markets. They are identified as soft law, which means that they are not binding unless negotiated and agreed upon.

Incoterms are created to minimize/eliminate uncertainties from interpretations in different countries or jurisdictions.

Question 22

Give examples of Incoterms

Answer 22

FCA= Free Carrier= seller completes it’s obligations and terminates it’s liability when delivering goods, cleared for exports, to the carrier or another person indicated by the buyer. It is flexible for purposes of delivery location.

CPT= Carriage Paid To= Pays costs that are necessary to have package delivered to destination as per agreement.

CIP= Carriage & Insurance Paid To= in addition to its obligations and risks in terms of FCA, the seller contracts and pays freight, costs and insurance related to transportation of goods to combined destination.

FOB=Free on Board= Seller terminates obligation and responsibilities when goods, cleared for export, are delivered, packed on board the ships at the port.