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Fish Maws from Kampala to Vietnam on March 31, 2010. The Defendant took delivery of the said consignment at the Plaintiff's ware house on Sir Apollo Kaggwa road and the same was loaded in container no. MSKU433207-7 and receipt thereof acknowledged by the Defendant. On April I6, 2010 the Defendants employee and/or agent wrote to the Plaintiffs principals advising that the cargo was found empty en route to Nairobi and as such the Defendant did not deliver the container as agreed. The Defendant admits the Plaintiffs averments save for the value of the goods and its liability as it contends that it is exempted from such liability by virtue of the exclusion clause that the goods are transported at "OWNER's RISK" in accordance with the terms and conditions of service duly notified to the Plaintiff by an email communication. Counsel submitted that the Defendant is a common carrier with an implied duty to carry the goods safely after the goods were entrusted. A common carrier is that person who is ready to carry for hire as a business and not as a casual occupation accordance with the case of Belfast Ropework Company versus Bushell (1918) 1 KB 210. Counsel contended that the evidence of PW1 the plaintiffs MD was that they never executed a written contract with the Defendant and were not notified of any terms and conditions of service. As far as Exhibit D2 is concerned PW1 and Jabez got to know about it in the beginning of April 2010 upon being given a copy at the Defendant's office but it did not have the email address of PW1 or Mr. Jabez another official of the plaintiff at the material time. DW 1 testified that in 2010 he interacted with the Plaintiff who was dealing in mainly fish maws exports and that he mainly dealt with PW1 Lin and also Jabez. He testified that Mr. Jabez would come to him with a view to obtaining the most favourable shipping rates. And that most of the time Mr. Jabez would walk into his office and after agreeing on the rates he would prepare a quote in Microsoft word and print a copy. He testified that the rates would show the charges and also show the terms and conditions under which we are carrying the goods and period of validity of the quotation and that this kind of interaction with Jabez took place every two or three months. He testified that Exh. D2 (ii) at page 24 of the trial bundle shows two emails which he had sent to Mr. Jabez on January 12th 2010 and April 16th 2010 and that Google desk top is a search engine installed on their system which helps to show archived email especially one more than a year back. He testified that the email is addressed to Dian GF on 12th January 2010 writing to Jabez offering him services through one of the shipping lines and that goods 5

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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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