By : John Passmore
In International Lifting & Shipping v Contact Transport Ltd (unreported), it was decided what constitutes a written claim for the purposes of clause 14 of the RHA Conditions of Carriage (1991 edition).
Clause 14 provides:
The Carrier shall not be liable for:
... damage to a Consignment ... unless he is advised thereof in writing otherwise than upon a consignment note or delivery document within three days, and the claim is made in writing within seven days, after termination of transit; ...
Provided that if the Customer proves that,
- it was not reasonably possible for the Customer to advise the Carrier or make a claim in writing within the time limit applicable and
- such advice or claim was given or made within a reasonable time,
the Carrier shall not have the benefit of the exclusion of liability afforded by this Condition.
The owners of some catering machinery had made a contract with International Lifting and Shipping (ILS) on RHA Conditions. ILS subcontracted to Contact Transport Ltd (Contact), also on RHA Conditions.
The cargo became damaged during transit. Transit terminated on 16th June 1999. On the same day, ILS sent a fax to Contact which said:
Please be advised that in the event we receive a claim from our customer, then we would have no alternative but to hold you fully liable.
On 28th June 1999, cargo interests made a written claim against ILS.
Contact argued that ILS had failed to make a written claim as required by clause 14: the 16th June fax was not a claim, because it was in terms that a claim would be made only if cargo interests made a claim against ILS. It was decided in the Birmingham Mercantile Court that the 16th June fax was a written claim which satisfied clause 14.
The decision makes a trap for carriers. A lack (or the lateness) of a written claim against a sub-contractor cannot be excused by the carrier not having received a claim from his customer. Furthermore, the lack of a claim from the customer will not in itself allow the carrier to rely upon the proviso to clause 14. Even in the absence of an incoming written claim, it will often be reasonably possible for the carrier to claim against his sub-contractor within the applicable time limit.