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In the circumstances of the present case the primary object of the clause, one would think, is to relieve the owners from liability for breach of contract or for breach of warranty. Unless, then, there be clear words which would also exempt from liability for negligence, the clause ought not to be construed as giving absolution to the owners if negligence is proved against them. The result is that clause 11 ought not, I think, to be read as absolving the owners from liability for negligence if it is proved that the injury which the plaintiff sustained was due to lack of that care which one in the owners’ position ought to take when supplying a tricycle for the use of a hirer. If that is proved, then the owners do not escape liability by reason of clause 11. Can it be said that robbery in this case fell within a strict form of exclusion from liability under the clause? The expressions excluding liability have to be considered. The first is that goods are transported at “Owner’s Risk” and this was expressed in email exhibit D2 (ii). The second exclusion clauses are found under exhibit D3 which is the Defendant’s Standard Trading conditions and is quite comprehensive but not proved. It provides as follows: “45 (a) Except in so far as otherwise provided by these conditions, the company shall not be liable for any loss or damage whatsoever arising from: (i) the act or omission of the customer or any person (other than the company) acting on their behalf; (ii) compliance with any instructions given to the Company; (iii) insufficiency of the parking or labelling of the goods except where such service has been provided by the company; (iv) handling, loading, stowage or uploading of the goods by the customer or any person (other than the company) acting on their behalf; (v) inherent vice of the goods; (vi) riots, civil commotion, strikes, block out, stoppage or restraint of labour from whatsoever cause; (vii) acts of war or terrorism; (viii) fire, flood or storm; 27

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

Case Law

Country

Uganda

Country Location

Latitude: 1.5257584863641895

Longitude: 32.381670917978084

Country Location (linked Case Law): Uganda

Decision Date: Feb 26, 2012

Case Status: Closed

Case Outcome (Procedural)

Motion Granted

Case Outcome (Disposition)

Injunction, Order, or Motion Granted

Keywords

Admissibility
Electronic Communications

Court Name: IN THE HIGH COURT OF UGANDA AT KAMPALA COMMERCIAL DIVISION

Case Number: Civil Suit 161 of 2010

Case Summary: Facts Dian GF International Ltd (Plaintiff) is a limited liability company incorporated under the laws of Uganda. The Plaintiff brought a lawsuit against Damco Logistics Uganda Ltd (Defendant), claiming a sum of USD 303,330, interest, damages, and costs. The Plaintiff had an oral agreement with the Defendant on 31 March 2010 for the Defendant to safely and securely ship 306 bags of Nile Perch Fish Maws from Kampala to Vietnam. The Defendant received the goods but failed to deliver them, as the container was found empty en route to Kenya. The Defendant denied liability, claiming the goods were transported at the owner's risk and were stolen at gunpoint. The Defendant filed third-party proceedings against Transtrac Ltd (Third Party), seeking indemnity.

Issue Whether the Defendant is liable for the loss of the goods. Whether the Third Party is liable to indemnify the Defendant for the loss. What is the amount of the loss suffered by the Plaintiff? What remedies are available to the parties? Rule Article 47(2), 51, 54, 68, 72(2)(c), 73(1) of the Constitution of the Republic of Zambia. Sections 81, 89, 97(1), 98(c), 99, 100(2)(a) of the Electoral Process Act No 35 of 2016. Code of Conduct Rules 12, 15(a), (h), (k). Analysis The court examined the evidence and found that the Defendant had indeed received the goods for transport. The Plaintiff contended that the Defendant, as a common carrier, had a duty to deliver the goods safely. The Defendant relied on an exclusion clause stating that goods were transported at the owner's risk and argued that the theft was beyond their control. However, the court found that the Defendant had not effectively communicated the exclusion clause to the Plaintiff at the time of contract formation. Furthermore, the Defendant did not prove that it had taken all necessary precautions to ensure the safety of the goods, such as arranging for an escort. The evidence provided by the Defendant and Third Party regarding the theft was deemed insufficient and hearsay.

Conclusion The court held the Defendant liable for the loss of the Plaintiff's goods, as the exclusion clause was not adequately communicated and the Defendant failed to demonstrate due diligence in the transportation of the goods. The court found that the Defendant did not exercise reasonable care and did not effectively prove the theft occurred as described.

Case Significance: This case highlights the importance of clear communication of exclusion clauses at the time of contract formation. It underscores the carrier's responsibility to take reasonable care of goods entrusted to them, even in the presence of exclusion clauses. The decision emphasizes that general exclusion clauses must be specific and clearly communicated to be enforceable. The court's reliance on both statutory and common law principles to assess the validity and applicability of electronic evidence demonstrates the evolving nature of legal standards in the digital age.

Related Law

The Electronic Transactions Act [Act NO.8 of 2011].

Source URL: Ulii.org

Notes: The case discusses the admissibility and authentication of electronic evidence, particularly email evidence, under the new Ugandan Electronic Transactions Act 2011, Act 8 of 2011. Below are the key points regarding electronic evidence:

Authentication of Emails Definition and Composition: Emails are composed of a header and a body. The header contains the sender's and recipient’s addresses, the transmission date and time, and the subject matter. The body contains the text composed by the sender. Establishing Authenticity: Emails produced by a party from their files that appear to be sent by that party can be considered authentic if they have identifying markers such as the sender’s address and the company name. Authentication should be made through a knowledgeable witness who can identify the document’s appearance, contents, substance, internal patterns, or other distinctive characteristics. New Rules for New Technology: The court acknowledges that new technology requires new rules of authentication, leading to uncertainties of authenticity for email evidence on a case-by-case basis.

Admissibility of Email Evidence Best Evidence Rule: This rule requires that the best available evidence be presented. For electronic evidence, this means that any printout readable by sight that accurately reflects the stored data is deemed original. Origin and Integrity: The proponent must show the origin and integrity of emails, demonstrating who or what originated the email and that the content is complete and free from error or fabrication.

Requirements under the Electronic Transactions Act: The Act stipulates that information should not be denied legal effect solely because it is in the form of a data message (email). It also provides guidelines for the authenticity and admissibility of electronic records.

Specific Requirements for Admissibility Section 7 of the Electronic Transactions Act: This section provides the requirements for presenting or retaining information in its original form. The integrity of the information must be maintained from the time it was first generated, and the information must be capable of being displayed or produced to the person to whom it is to be presented.

Section 8 of the Electronic Transactions Act: This section discusses the evidential weight of data messages, considering the reliability of the manner in which the data message was generated, stored, or communicated, the authenticity of the data message, and any other relevant factor.

Burden of Proof Proving Authenticity: The burden is on the person adducing the data message to prove its authenticity by providing relevant evidence. If the electronic records system’s authenticity is proven, the record is presumed authentic in the absence of contrary evidence.

Receipt of Emails: The sender needs to demonstrate proof of receipt when the email was sent and other matters of authentication. The case discusses the challenges of proving delivery of emails and the need for reliable evidence to show that the email was received by the intended recipient.

The case emphasizes the evolving standards for electronic evidence, the need for clear and convincing proof of authenticity, and the application of both statutory and common law principles to assess the validity and applicability of electronic evidence.

Collection

CIPIT

Date Updated: Jul 15, 2024

Primary Documents

Dian GF International Ltd v Damco Logistics Ltd Trantrack (Civil Suit No 161 of 2010) 2012 UGCommC 10 (26 February 2012) (1).pdf
English
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CYRILLA: Global Digital Rights Law

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

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