CARRIAGE BY LAND — International carriage of goods by road — Limitation of liability — Packages exceeding contractual limit on value carried from England to Netherlands — Goods failing to arrive — Whether valid contract for carriage — Whether limitation on liability applying — Carriage of Goods by Road Act 1965, Sch 1
Datec Electronics Holdings Ltd v United Parcels Services Ltd [2007] UKHL 23
HL(E): Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury: 16 May 2007
When a carrier who operated a parcels delivery service accepted packages for transportation by road to another country, and the undertaking to transport was performed to any extent, then there was a contract of carriage even if the carrier had unknowingly accepted packages which did not conform to its terms and conditions of carriage, and therefore the Convention on the Contract for the International Carriage of Goods by Road, scheduled to the Carriage of Goods by Road Act 1965, applied.
The House of Lords so held, dismissing an appeal by the defendants, United Parcels Services Ltd, (“UPS”) from a decision of the Court of Appeal (Brooke, Sedley and Richards LJJ) [2006] 1 Lloyd’s Rep 279 allowing an appeal by the claimants, Datec Electronics Ltd and Incoparts BV, and dismissing the defendants’ cross-appeal from a decision of Andrew Smith J [2005] 1 Lloyd’s Rep 470 giving judgment for the claimants in their action for damages for the loss of a consignment of computer processors which should have been carried by the defendants by road from the United Kingdom, via Germany to Amsterdam, but limiting the damages recoverable pursuant to art 23 of the Convention.
LORD MANCE said that Datec handed over to UPS, a parcel delivery service, three packages for delivery to the second claimant’s agents’ address in Amsterdam. UPS took the packages by air to Cologne, and from there by road to UPS’s premises in Amsterdam, but were they never delivered to the addressees. The leg between Cologne and Amsterdam was international carriage within the potential scope of the Convention. Datec claimed that the Convention applied to that leg, that UPS were liable for the loss of the packages during that leg under art 17(2) and that the probable cause of loss was wilful misconduct by UPS or its agents or servants within art 29, thus displacing the limitation of liability otherwise available to the carrier under art 23(3). UPS relied in response on their standard terms and conditions which were incorporated in an agreement with Datec to regulate their frequent dealings. Under those conditions UPS sought to ensure that it did not carry any individual package worth more than US$50,000. The three packages each had a value well in excess of that limit. UPS’s case was that there never was any contract for carriage relating to the three packages. His Lordship said he had come to the conclusion that the courts below were correct and would adopt the reasons given by the judge, namely that the UPS terms expressly explained the consequences of the shipper presenting packages that did not meet UPS’s restrictions and conditions, that it did not state that there would be no contract of carriage if such a package was presented and accepted; on the contrary, it provided that the effect of the shipper presenting a package that did not meet the restrictions was that UPS had the right to refuse to carry it, or, if carriage was in progress, to suspend carriage. The implication was that unless and until UPS exercised their right, there was a contract that UPS would carry the package. Therefore the Convention applied to the carriage of the three packages. On the factual issue of wilful misconduct by the defendant or its servants or agents, his Lordship found the Court of Appeal’s reasons for reversing the judge compelling, and shared the view that theft involving a UPS employee was shown on a strong balance of probability to have been the cause of the loss.
LORD HOFFMANN and LORD NEUBERGER agreed.
LORD HOPE and LORD WALKER delivered speeches agreeing with LORD MANCE. |
