diligence as expected of it. Counsel submitted that this is habitually done in the same or similar circumstances to establish the test of reasonable care and the court should not excuse obvious failure to make some inquiry or take some precaution. DW1 testified that since that incident there has been no problem as they have put in place special arrangements including special escorts and moving in convoys. In this respect TPW1 testimony agreed that he was aware of measures put in place to ensure safety of cargo which included the convey system; using of escort vehicles by company staff and or police. That “it is possible to secure the goods on transit if you are asked to do so.” Counsel also referred to the further testimony of TPW1 that before they employ any of the measures to secure the cargo they first have to know the cargo and its value. Counsel for the plaintiff therefore concluded on this point that the evidence adduced showed that the loss could have been averted by exercise of due diligence and care. TPW1 had testified that it was their business to carry for hire goods for whoever wished to have his goods forwarded. Counsel concluded that the defendant was at all material times a common carrier and liable as such for loss and damage without proof of negligence. A common carrier in essence is an insurer of the safety of the goods against everything extraneous which may cause loss or injury. A common carriers liability extends to circumstances where loss or injury is caused wholly by negligence of other persons over whom he has no control. In the alternative and without prejudice counsel submitted that the that, even if the court found that the terms and conditions were applicable in the circumstances, the exclusion clause is not available to the Defendant by reason of fundamental breach of the contract. He contended that by the Defendant entering into the contract with the Plaintiff, it undertook to exercise due care in the transportation of the Plaintiff's cargo. The contract was to transport the cargo to Vietnam and failure to do so amounted to a fundamental breach of the terms of the contract. Counsel referred to SDV TRANSAMI (U) LTD versus NSIBAMBI ENTERPRISES CIVIL APPEAL NO. 59 OF 2006 (CA), the judgment of the court of appeal at page 10 that to the effect that for an exemption clause must be enforced by court, if they are clear unambiguous and accepted by the parties. If the act complained of does not amount to a fundamental breach of the contract or where there is negligence. The court found that failure to deliver the cargo coupled with failure to adduce evidence showing that the failure was due to reasons beyond control or negligence of the consignee was 9