As far as the contractual liabilities and rights of the parties are concerned
exhibits TP4 which gave rise to the contract of carriage of the goods in
question between the defendant and the third-party shows that there was
supposed to be a separate trucking agreement signed between the companies.
No evidence was led to the effect that such a trucking agreement was ever
signed between the defendant and the third-party and no trucking agreement
was adduced in evidence. As to how such an agreement would have affected
the rights and obligations of the parties remains unknown.
As far as the submission limiting liability of the third-party to a sum of United
States dollars 55,000 is concerned, this submission is inconsistent with clause
6.5 of exhibit D1.) 6.5 expressly provide that the carrier is liable to reimburse
Maersk logistics or any customer the "full replacement value of any goods
and/or container which are lost or damaged whilst in its custody or control."
This is not only complementary but also in addition to clause 8.1 which
provides that the carrier shall maintain full insurance coverage with a
reputable insurer for all services it provides under the agreement. It is not
necessary to go into lengthy written submissions of the parties on the question
of insurance because I was not addressed adequately neither was evidence
adduced on who is the insured. It is not indicated whether the insurance is of a
customer of third-party or insurance of the third-party itself. Reading clause
8.1 carefully, the insurance was to cover the services provided by the carrier
who is the third-party in this action. Two points may be made. The first point is
that breach of the agreement by the third-party entitles the defendant under
clause 8.4 to treat the breach as a material breach of the agreement which
would entitle it to terminate the agreement immediately and without liability.
The second point is that insurance inures for the benefit of the insured and is
considered commercial prudence.
According to McGregor on Damages 15th edition (Sweet and Maxwell)
Paragraph 1482 page 928, as early as 1874 it was decided in the case of
Bradburn v. G.W. RY. (1874) L.R. 10 Ex. 1 that, where the plaintiff had taken out
accident insurance, the moneys received by him under the insurance policy were
not to be taken into account in assessing the damages for the injury in respect of
which he had been paid the insurance moneys. This decision was endorsed in the
case of Parry v Cleaver [1969] 1 All ER 555. The argument in favour of non
52
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات