principals advising that the container number MSK 243 3207 – 7 was found
empty en route to Nairobi. Consequently it is an agreed fact that the
defendant did not deliver the container as contracted by the plaintiff. It is also
an agreed fact that the defendant and the third party executed a contract
dated 29th of October 2004 and perusal of the contract inter alia shows that it
has an indemnity clause indemnifying the defendant against certain third party
claims stated therein.
It is not in issue that the plaintiff contracted the defendant to transport fish
maws to Mombasa in Kenya en route to Vietnam from the plaintiff’s
warehouse on Sir Apollo Kaggwa road in Kampala. The goods were loaded on
container number MSKU 433207 – 7 on the 31st of March 2010. It is not a
contested fact that the goods were lost en route in Kenya. The defendant's
main defence is that the goods were transported at the owners risk pursuant
to an exemption clause found under its standard trading terms and conditions
for the provision of the services of transportation of the goods in issue.
Consequently one issue is whether the exemption clause relied on by the
defendant exempted the defendant from any liability for loss of the plaintiff’s
goods. The sub issue to this is whether the exemption clause in the
defendant’s standard conditions were ever brought to the attention of or
communicated to the plaintiff at the time the contract for the transportation
of the goods in question was executed. Another sub issue in the question of
whether there was communication of the exemption clause relates to the
admissibility of e-mail allegedly used in communicating to the plaintiff, the
terms and conditions of the defendant for the transportation of the goods in
question. It is also not in dispute that the defendant had a separate agreement
with the third-party in which there is a clause making the third-party liable to
indemnify the defendant from third-party claims in certain circumstances
which forms the basis of the submissions between the defendant and the third
party in this matter. However before the court can determine whether the
third-party is liable, the primary issue that has to first be determined is
whether the defendant is liable for the loss of the goods of the plaintiff.
This issue primarily and firstly rests on whether there was any communication
of the exemption clause asserted in defence of the claim by the defendant. In
considering this issue there is no need to determine on merits whether the
asserted exemption clause covered the situation at hand. However before
16