a fundamental breach. They noted that there was no evidence showing that the loss was due to an act of God or beyond the control of its agents. The appellant was in fundamental breach of contract and not protected by the exemption clause. Counsel further contended that by having a general clause that "goods are transported at “OWNERS RISK" would erode the fundamentals of the agreement to transport between the parties. By this clause the Defendant would owe the plaintiff no duty and this fundamentally alters the relationship between the parties. Possession and risk would pass to the Defendant at the time of handover and acceptance of the goods. Risk cannot remain with the Plaintiff after the goods have been handed over to the Defendant. Counsel relied on the cases of EXPRESS TRANSPORT CO. LTD VERSUS BAT TANZANIA LIMITED (1968) EA 443 where it was held that an exemption clause excluding liability would be construed as relating only to that liability which would arise without negligence unless liability for negligence is expressly excluded. In conclusion counsel submitted that the defendant was at all material times a common carrier and no contract was required to establish its liability with an implied duty to exercise due care and also to insure and ensure the safety of the goods against any damage. The defendant was liable for the loss and that there was no notice of the exemption clause to the plaintiff and therefore the Defendant cannot rely on it. In reply the written submissions of the defendant on issue No. 1 are: While it is true that PW1 testified that they had been no written Contract between the Defendant and the Plaintiff, this has to be seen in the context of what as a lay person he was meaning in the context of a document signed by both parties. However, it is not true to assert there was no written correspondence between one Jabez an officer of the Plaintiff and DW1. From the outset, it is clear that Jabez was never called as a witness to deny whether or not he ever received the email correspondence. PW1 could not competently testify on whether or not Jabez ever received the said email. It was never the contention of the Defence that PW1 ever received this email and as PW1 correctly stated in examination in chief, his email address is not there. The evidence of PW1 in relation to whether or not the email was received is very instructive in that he admitted that Jabez received the email. In crossexamination, it was clear from PW1 that he knew Jabez who was his Export Manager and co-ordinated the export business between the Plaintiff and the 10