Wakilii

Dian GF International Ltd v Damco Logistics Ltd & Trantrack (Civil Suit No. 161 of 2010)

High Court · [2012] UGCOMMC 10 · 2012 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract of carriage; third party proceedings for indemnity
Decision
Judgment entered for the plaintiff with damages and costs; third party held liable to indemnify the defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the defendant common carrier was liable for the loss of goods in transit, rejecting the defence that an exemption clause excluded liability. The exclusion clause was not properly incorporated into the contract at the time of formation, and the defendant failed to prove exercise of due diligence. The plaintiff was awarded USD 303,330 in special damages and USD 45,500 in general damages for loss of profits. The third party was held liable to indemnify the defendant for the full replacement value under their indemnity clause.

Outcome

Judgment entered for the plaintiff with damages and costs; third party held liable to indemnify the defendant

Facts

The plaintiff contracted the defendant, a common carrier, to transport 306 bags of Nile Perch Fish Maws worth USD 303,330 from Kampala to Vietnam. On 31 March 2010, the defendant took delivery of the goods in container number MSKU4332077, acknowledged receipt, and subcontracted the carriage to the third party, Trantrac Ltd. On 6 April 2010, the defendant informed the plaintiff that the container was found empty en route to Nairobi. The defendant did not deliver the goods. The defendant claimed exemption from liability under standard trading conditions stating goods were transported at owner's risk, alleging the goods were robbed at gunpoint. The defendant sought indemnity from the third party under their 2004 contract. The third party claimed the loss was caused by robbery beyond its control and that any liability was limited to USD 55,000 under its insurance policy.

Issues

  1. Whether the defendant is liable for the loss of the goods.
  2. What is the amount of the loss suffered by the plaintiff.
  3. Whether the third party is liable to indemnify the defendant.
  4. What remedies are available to the parties.

Orders

  • Judgment for the plaintiff against the defendant for USD 303,330 as special damages.
  • General damages of USD 45,500 awarded to the plaintiff.
  • Interest on special damages at 8% per annum from May 2010 to date of judgment.
  • Interest on decreed sums at 6% per annum from date of judgment until payment in full.
  • Costs of the suit awarded to the plaintiff to be borne equally (50:50) by the defendant and third party.
  • Third party liable to indemnify the defendant for the full replacement value of lost goods under the indemnity clause.

Rules and key headnotes

Exclusion Clauses — Incorporation into Contract
For an exclusion clause to be effective, it must be incorporated into the contract at or before the time of contract formation, not afterwards. The party relying on an exclusion clause must show it was brought to the notice of the other party at the time the contract was made.
Electronic Evidence — Authentication Requirements under Electronic Transactions Act 2011
Email evidence must be authenticated under section 7 of the Electronic Transactions Act 2011. The burden is on the party adducing the data message to prove its authenticity by showing that the integrity of the information has been maintained from the time it was first generated, it is complete and unaltered, and that it is capable of being displayed. An email lacking header information showing sender, recipient, date and time of transmission has not been adequately authenticated.
Proof of Delivery of Electronic Communications
Proof of sending an email is not proof of receipt. The sender must demonstrate proof of receipt with independent verification of the original message content, uniform time of transmission and receipt, and underlying transmission metadata. The burden of proof lies with the party who wishes to employ an email record as evidence of an electronic transaction.
Carriage of Goods — Liability of Common Carrier
A common carrier has an implied duty to carry goods safely and is liable for loss and damage without proof of negligence. Where a plaintiff proves it handed over possession of goods to a carrier and that goods did not reach their destination, the onus shifts to the carrier to prove why the goods did not reach their destination and to show that whatever occurred happened notwithstanding all reasonable care having been exercised throughout the journey.
Exclusion Clauses — Construction Contra Proferentem
General words of exclusion will not usually be construed so as to cover serious or fundamental breaches going to the root of the contract. An exclusion clause is to be construed strictly against the party who introduces it and seeks to rely on it. Any ambiguity is to be construed in favour of the party against whom it is to operate.
Damages — Measure of Damages for Non-delivery of Goods
The normal measure of damages for non-delivery of goods by a carrier is the market value of the goods at the time and place at which they should have been delivered less the amount it would have cost to get them into the place of delivery. The market value is to be taken at the contract place of delivery by the carrier, not the place where the goods were delivered to the carrier. Cost of carriage must be deducted where freight charges have not been paid.
Third Party Indemnity — Interpretation of Indemnity Clauses
Where a carrier agrees to indemnify another party for loss, damage or delay caused by loss, theft or damage to goods while in its custody or control, and to reimburse the full replacement value of lost goods, the carrier's liability extends to loss caused by robbery. The phrase "any loss" in an indemnity clause covers all losses not expressly excluded by the contract. Insurance limits do not cap the carrier's contractual liability to pay full replacement value.

Legislation cited (8)

Cases cited (33)

  • Belfast Ropework Company v Bushell (1918) 1 KB 210
  • Securicor Courier (K) Ltd v Benson David Onyango and Margaret R. Onyango Civil Appeal No. 323 of 2002 Court of Appeal, Nairobi
  • Thornton v Shoe Lane Parking Ltd [1971] 2 Q.B. 163
  • Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 Q.B. 433
  • Lorraine v Markel American Insurance Co., 2007 WL 1300739
  • Hough land v Low (Luxury Coaches) Ltd (1962) 2 ALL ER 159
  • SDV Transami (U) Ltd v Nsibambi Enterprises Civil Appeal No. 59 of 2006 (CA)
  • Express Transport Co. Ltd v BAT Tanzania Limited (1968) EA 443
  • Stella Twinebirungi v Akamba Public Service Ltd. Civil Suit No.24 of 2004
  • Parker v South Eastern Rly [1877] 2 C.P.D 416
  • Laceys Footwear v Bowler Insurance [1997] 2 LLOYDS
  • Spurling Ltd v Bradshaw [1956] 2 ALL ER 121
  • Bernuth Lines Ltd v High Seas Shipping Ltd [2006] 1 All ER (Comm) 359
  • Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
  • Canada SS Lines v The King [1952] AC 192
  • Uganda Telecom v Tanzanite Corporation [2005] EA 351
  • Kyambadde v Mpigi District Administration [1983] HCB 44
  • Dodd v Nandha [1971] EA 58
  • Premchandra Shenoi & Another v Maximov Oleg Petrovich S.C.C.A No.9 of 2003
  • Dharamshi v Karsan [1974] 1 EA 41
  • Kampala City Council v Nakaye [1972] EA 446
  • Connie Kabanday v Kananura Melvin Construction Co. Ltd- Civil Appeal No 32 of 1992
  • Yafesi Walusimbi v Attorney General [1959] EA 223
  • Sango Bay Estates v Dresdner Bank AG [1970] EA 307
  • Eastern Shipping Company Limited v Quah Beng Kee [1924] AC 177
  • Birmingham And District Land Company v London And North Railway Company Vol.34 CHD 261
  • Speller & Co v The Bristol Steam Navigation Company Vol. 13 QBD 96
  • Olley v Marlborough Court Ltd [1949] 1 All ER 127
  • Atlantic Shipping and Trading Company Limited v Louis Dreyfus and Company [1922] AC 250
  • White v John Warwick Ltd (1953) 2 ALL ER 1021
  • Morris v C.W. Martin and Sons [1965] 2 ALL ER 725
  • Bradburn v. G.W. RY. (1874) L.R. 10 Ex. 1
  • Parry v Cleaver [1969] 1 All ER 555

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Dian GF International Ltd v Damco Logistics Ltd & Trantrack (Civil Suit No. 161 of 2010) [2012] UGCommC 10 (26 February 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.