John Habergham, Myton Law, Hull U.K.
After a lapse of a little over a decade, the RHA have refreshed their carriage conditions.
The latest version will be very familiar to most parties. The overall scheme of liability has been retained but there are a few significant changes operating in the hauliers’ favour – so, welcome for the carriers (and their insurers) but unlikely to be shared by goods owners (and their insurers).
There is clarity with regard to the obligation for cargo operations. In my opinion, previous editions fell between two stools whereas this version makes it quite clear that the responsibility for cargo operations rests on the cargo owner. There is the facility to vary the responsibility for cargo operations but it requires express agreement.
In my experience over the last couple of decades, the most fertile source of litigation arose out of damage caused through loading and unloading. Hopefully, this will bring that to an end.
The period of transit
As with cargo operations, there is welcome clarity, for any haulier, as the new version defines the period of transit as commencing after the consignment has left the premises at which they were collected and ends on arrival at the place of delivery. Anything outside this period is customer risk.
There is an expanded definition of exceptions from carrier liability (under a heading of “force majeure”). Not surprisingly, in today’s climate, the opportunity has been taken to exclude carrier liability for any pandemics or epidemics; but there is now also an exclusion for any liability for delay caused by road congestion and road accidents.
An opportunity has also been taken to exclude certain types of loss as falling outside carrier liability such as liability in the nature of consequential and financial losses.
The headline limit of liability for damage to the goods of £1,300 per tonne, which has been around for some years now, remains.
The wording of the lien clause has been tightened up both in respect of the scope and against whom it can be exercised. As the authors note in their explanatory note, a lien is one of the most important tools available to any carrier – so the opportunity has been taken to tighten up the wording as far as possible. This is not unreasonable where a general lien (applicable to a general deficiency or book of account) is a creature of contract. Its width and application depends upon its wording. It is also made explicit, in a further and separate clause, that the costs of exercising a lien are also recoverable as charges. The typical position is that a lienor exercises a lien at its own expense and peril. This revision reverses that position as least as far as costs are concerned.
Firstly, although not ideally drafted, there is now the facility on the haulier to charge for “demurrage” (any cost to the carrier arising out of delay in the carrier effecting delivery).
The conditions define the concept but they do not follow through and say when and how it is chargeable
The carrier is also now allowed to charge a cancellation charge.
In addition to the responsibility for cargo operations, as mentioned above, the RHA have gone green but passed the liability for any environmental damage back to the customer. It is part of a wider clause which amounts to a warranty of legality by the customer to the carrier that it is safe to carry the goods.
There is a further warranty by the customer that it will provide information and materials to allow the haulier to fulfil the contract – the consequence if breached being that a) the haulier can suspend performance b) the carrier is relieved of any adverse financial consequences incurred by the customer as a result of non-performance and c) the customer will reimburse the haulier for any of its costs and losses it may sustain as a consequence.
There has been provision permitting the carrier to pull out of the contract if it was not informed of the dangerous nature of the goods.
Indemnity to the carrier
The opportunity has been taken to widen the scope of the indemnity and how it may arise, extending the categories of parties whose wrongdoing may trigger the indemnity.
Having been involved in the revision of the 2009 edition, my advice then, and remains the same now, was that the conditions should be amended to ensure that a container is caught by the scheme of limitation. There are instances where the container is worth as much, if not more, than the goods themselves and the haulier may not own the container. It seemed only logical to me that if you are going to limit liability for the value of the goods inside the container, why not limit liability in respect of the container itself. This revision does not remedy this. An opportunity missed.