...."Carrier shall assume the responsibility of a bailee during any such
period of custody or control"
Quoting Chitty on Contracts 28th Ed. Vol.2 Specific Contracts London Sweet &
Maxwell 1999 Counsel submitted that a private carrier who accepts carriage of
goods for profit has only obligations under the contract which governs the
carriage. Secondly in exercising reasonable care and diligence the carriers
liability is not strict.
Counsel submitted that the unchallenged evidence of TPW1 is that since the
execution of the agreement in 2004 third party had never lost any goods
belonging to the Defendant. He further told court that the Defendant did not
bring to the attention of the Third Party directly or otherwise the nature and
value of the goods in issue. He further stated that the Third Party neither
undertook all reasonable care whilst the goods were in its custody but could
neither have foreseen the risk of a robbery nor warded off the same. In reexamination the same witness told court that the Third Party could have taken
further steps to ensure more safety of the goods according to their nature and
has it been informed i.e. by providing convoys, using trucks with trackers and
police escorts. The defendant did not request for additional security measures
and the Third Party cannot be held liable for any loss of the same.
In the alternative and without prejudice to denial of liability, it is the Third
Party's contention that its liability, if any is restricted to US.D 55,000. This is by
way of estoppels. Under clause 8.1 of the exhibit D1 the Third Party is obliged
to provide evidence of an insurance policy prior to the commencement and to
maintain the same of full insurance coverage to include a minimum cover for
inter alia cargo loss and/or damage. Each cover shall be for an amount per
incident which is acceptable to the Defendant.
TPW1 testified that he was aware of the clause and indeed the Third Party at
all material times ensured that there was a valid insurance policy i.e. EXH TP1
was the valid policy. EXH TP1 a goods in transit renewal endorsement was
issued to Threeways Shipping Services Limited by Lion Assurance Company
Limited. The period of insurance was from 21.05.2009 to 20.05.2010 and it
covered "all risks of physical loss to the whole or part of the property declared
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