Lawkeys
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- Nov 16, 2009
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EXEMPTION CLAUSE
- XXXX imported a cargo worthy USD 75,000. XXXX engaged YYYY to handle the cargo. The contract to that effect was concluded. The contract, however, contains an exemption clause which reads as follows:-
"YYYY at all time remains exempted from any liability relating to loss of the cargo, except when the loss is prompted by YYYY employee(s). And in the event any loss is suffered as a result of the negligence of YYYY' employee, the liability of YYYY shall not exceed USD 500."
- Now, the Cargo has got lost, and there is no evidence of negligence on the side of YYYY and or its employees. Will YYYY be held liable for the loss?
Answer:
COOPER MOTORS CORPORATION (T) LTD v ARUSHA INTERNATIONAL CONFERENCE CENTRE [1991] TLR 165 (CA)
Court Court of Appeal of Tanzania - Arusha
Judge Kisanga JJA, Omar JJA, and Mnzavas JJA
"As to the argument that the appellant was protected by the exemption clause which said inter alia that "the appellant was expressly relieved of all liability for loss of or damage to customers' goods and property however E caused" we are satisfied in our own minds that the theft of the engine and the gearbox was a breach on the part of the appellant which went to the root of the contract; and as such could not absolve the appellant from liability. We would be setting a very dangerous precedent if we are to hold that an exemption clause like the one relied upon by F the appellant could protect a garage owner in whose garage vital parts of a motor vehicle sent there for repairs are stolen. On the totality of the evidence we agree with the learned trial judge that the appellant was liable for the loss of respondent's engine and gearbox. The appeal is accordingly dismissed with costs in this Court and the High Court." p. 171