DEFINITION OF A COMMON CARIER: DAR ES SALAAM MOTOR TRANSPORT CO. LTD. V. MEHTA AND OTHERS (1970) hcd 190

Civ. App. 27-D-69; 22/5/70; Georges C.J.

The appellant a transport company, failed to deliver to the respondents parcels of cloth consigned to them. The trial magistrate found for the respondents. On appeal appellants argued that: (a) they were not common carriers – i.e. accepting parcels for carriage without reservation since under the “conditions of carriage” they had discretion to refuse to carry goods of an offensive dangerous inflammable or explosive nature or for any reason whatsoever; and (b) they had effectively limited their liability by making special contracts with respondents.

            Held: 

(1) “I cannot say that the Magistrate misdirected himself in holding that the appellants were common carriers. The test has been laid down by Bailhache J. in Belfast Ropework Company v. Bushell (1918) I K.B 210 as follows:- “Did the defendant while inviting all and sundry to employ him, reserve to himself the right of accepting or rejecting their offers of goods for carriage whether his lorries were full or empty being guided in his decision by the attractiveness or otherwise of the particular offer and not by his ability or inability to carry having regard to other engagements.’ The clause in the notice does no more than state that the appellant reserved to himself the right to refuse troublesome cargo. They could give no instance of their having in fact refused a parcel – some indication of the manner in which the clause in fact worked. A transporter who behaves like a common carrier cannot remove himself from that category by stating that in fact he is not a common carrier. The conduct of his business must be consistant with description of himself.” (2) “On a reading of the whole judgment it can fairly be said, however, that the trial magistrate was of the opinion that the conditions had not been adequately brought to the attention of the plaintiffs or his agents. The receipt does specify that parcel were accepted and carried subject to the conditions of carriage. It did not specify where the conditions were to be seen. In Watkin v. Rymill (18883) 10 Q. B. D. 178 the notice stated that the contract was subject to conditions as exhibited on the premises. There were printed notices prominently displayed on the premises. Here there was evidence of notices on the premises. Accepting that they were prominently displayed there was no evidence that the respondent saw them and the receipt did not specifically draw attention to them as in the case of Watkin v. Rymaill. I would accept as a correct formulation of the law here a passage in Anson on Contract 22nd Edition at page 146:- ‘It is not sufficient simply to put up a printed notice containing exempting clauses; the party relying on the notice must go further and show affirmatively that it was a contractual document and accepted as such by the party affected.’ The company here should have specifically stated in the receipt that the conditions were exhibited in the premises or the clerk attending to customers should tell them that the conditions referred to were those set out in the notices.” (3) Appeal dismissed.