did not establish that these standard trading conditions were ever availed to the plaintiff in whatever form or that the plaintiff’s officials had accessed them at the material time of the contract formation. There is also no evidence that the plaintiff had been availed the terms during previous dealings. Was it displayed or handed over? Since there is no evidence to that effect D3 cannot be considered as having been effectively communicated to the plaintiff. In conclusion there is no proven exclusion clause that exempts the defendant specifically from liability for loss of the goods through robbery. I will premise my findings on the words “Owner’s Risk”. As we have noted above the general rules of construction are that an exclusion clause requires clear words to exclude liability which would otherwise arise. (Halsbury’s Laws of England vol 9 page 246 paragraph 370.) Any ambiguity is to be construed against the party putting forth the clause for his protection. General words of exclusion will not usually be construed so as to cover serious or “fundamental” breaches going to the root of the contract. However the term fundamental breaches going to the root of the contract cannot be construed to mean loss occasioned by an act beyond the control of the defendant. Arguments advanced by both counsels have revolved around the question of whether the loss was occasioned by the negligence of the defendant. The defendants counsel submitted that no negligence was pleaded or proved. It is an agreed fact that there is a police report showing that the cargo of the plaintiff was robbed en route to Mombasa. Secondly, the defendant’s case is that the loss occurred due to factors beyond its control. The plaintiff’s case in the plaint is that the defendant is a common carrier of goods for hire. And the defendant breached the duty to convey the cargo to Vietnam, in that the defendant did not safely and securely carry the said goods or deliver the same to Vietnam within a reasonable time or at all, but wrongfully failed to deliver the goods and has wholly lost the same. The plaintiff’s counsel attacked the defendant’s submission that the goods were robbed on the grounds of the evidence being hearsay evidence and inadmissible. DW1 testified that the goods were in the hands of the third party by the time they were stolen. He also testified that the third party had not compensated the defendant for the loss of the goods. On re-examinations DW1 testified that the third party was in a better position to investigate the 29