SECTION 4

THE LAW OF CARRIAGE

Carriage is a contract whereby the carrier1 agrees with the consignor2 to carry
or convey goods or passengers for the consignor from one place to another
in return freight.3 The essential elements of a carriage agreement include a)
agreement on the goods to be carried, b) the remuneration to be paid and c)
an intention on the part of both parties to transport goods from one place to
another.

The main objective of the law of carriage is to maintain standards of safety

and reliability. To that end, the law requires that carriers be licensed. Any
agreement entered into with an unlicensed carrier is deemed illegal. The law
also reserves certain classes of trade to state controlled corporations like
National Railways of Zimbabwe and Air Zimbabwe.4

In the absence of special terms of the contract, the Roman praetor’s edict
applies under common law.5 The edict makes public carriers strictly liable to
restore or compensate for the loss or damage to property received by them
for transportation either as a depositum6 or as a gratuitous mandate.7 Given
that in Zimbabwe, carriage agreements with an unlicensed carrier are
deemed illegal, it follows that only carriage agreements with licensed public
careers are governed by the Praetor edict. The carriage of goods does not
necessarily need to be the whole business of the carrier for the Praetor edict
to apply. The edict will apply even where carriage is merely part of the
carrier’s business.8

In Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe,9

the courts extended the application of the Praetor edict from only carriers by

                                                                                                               
1
This refers to the public transporter. The goods to be carried are known as the consignment.
2
Refers to the person who sends goods to be transported. Conversely, the person to whom goods are
to be delivered is called the consignee.
3
Freight means the charge, fee or remuneration due to the carrier for carrying goods. See South
African Railways and Harbours v Conradie 1922 AD 137.
4
See Reid Rowland ‘Carriage for hire or reward: another look’ 1975 RLR 27.
5
This edict initially applied to sailors, inn-keepers and stable keepers and has now been extended to
cover carriers by land and water.
6
See Stretton v Union Ship Co. Ltd (1881) 1 EDC 315 335 & Prinsloo v Venter 1964 (3) SA 626 (O)
629C.
7
See Sciama & Co v table Bay Harbour Board (1900) 17 SC 121 126-7 & Lituli v Omar 1909 TS 192. In
Roman Dutch law a gratuitous contract of carriage, seriously and deliberately made, will be enforced as
any other contract. Hall-Thermotank Africa Limited v Prinsloo 1979 (4) SA 91 (T) 93H held that the
Praetor edict imposes strict liability on every carrier.
8
Independence Mining (Pvt) Ltd v Fawcette Security Operations (Pvt) Ltd 1994 (2) ZLR 222.
9
1988 (1) ZLR 304 (SC).

© Innocent Maja 1  
water to carriers by land. Carriers by air are regarded as gratuitous carriers
who are liable for loss or damage to goods unless they can discount the
possibility of even the slightest negligence.10

The public carrier can be absolved from liability if he can successfully raise
the following defences:
a. Damnum fatale (unexpected and unavoidable accident like shipwreck);
b. Vis major (examples include piracy and robbery but not theft);11
c. The negligence of the consignor (for example bad packaging or
delivering damaged goods to the carrier)12 and
d. Inherent fault in the goods themselves.13

A number of legal principles are worth noting. First, the carrier’s liability
begins the moment he receives the goods.14 A receipt from the carrier is
normally sufficient proof of receipt of goods. a carrier who issues a receipt is
either estopped from denying that he received the goods or has the onus to
prove that he did not receive the goods.15 This liability continues until actual
physical delivery is effected. This liability can however, be suspended if the
consignor or consignee instructs the carrier to postpone delivery and store
goods.16

Second, the owner of goods who alleges that the carrier has not delivered
goods can validly vindicate his goods. In this case, the onus lies on the carrier
to prove delivery.17 Third, the carrier is liable for damages if he transports the
goods to the wrong destination18 delivers them to an unauthorised person19
or delivers damaged goods20 or delays delivery of good.21 The calculation of
damages may include ascertaining the market value of the goods at their
destination22 or an order absolving the consignee from paying the freight
charges.23

                                                                                                               
10
See Stretton v union Steam Ship Co Ltd (1881) 1 EDC 315 335, Prinsloo v Venter 1964 (3) SA 626 and
Essa v Devaris 1947 (1) SA 753 (A) 765.
11
See Independence Mining (Pvt) Ltd v Fawcette Security Operations (Pvt) Ltd 1994 (2) ZLR 222.  
12
Pohoomull Bros v Rhodesian Rlys 1921 SR 88 94.
13
For example when cattle injure themselves when properly trucked as in the case of Tregidga & Co v
Sivewright (1897) 14 SC 76.
14
See Hall-Thermotank Africa Limited v Prinsloo 1979 (4) SA 91 (T) 94B.
15
Scandia Industrial Products (Pvt) Ltd v Thornton’s Transportation (Rhodesia) (Pvt) Ltd 1962 R & N 364.
16
Wireless Telegraph Co of SA Ltd v Dougall & Munro Ltd 1927 CPD 380 392-4.
17
Musanhi v Mount Darwin Rushing Co-Operative Union S-5-97.
18
Pilkington v Tomlinson (1898) 13 EDC 1.
19
Borrodaile v Mocke (1839) 3 M 466.
20
Taylor v Millington 1911 SR 58.
21
Lippert & Co v Desbats 1869 Buch 189.
22
Louw v Stewart 1878 Buch 87.
23
De la Rey’s Transport (Edms) Bpk v lewis 1978 (1) SA 797 (A).

© Innocent Maja 2  
Fourth, if the carriage contract provides for delivery of the goods against
payment of the freight charge or if the carriage contract is silent so that
delivery against payment of is implied, the carrier can legally retain the
goods until he is paid.24 This essentially applies the principle of reciprocity
common to all contracts.

Fifth, a carrier who wishes to exempt himself from liability can legitimately do
so through exemption clauses or special terms normally contained in a
standard form contract. 25 Cotton Marketing Board Zimbabwe v National
Railways of Zimbabwe26 held that
while carriers may contract out of the strict liability imposed on them by the
common law or by contract limit their liability, the clause exempting the
carrier from liability must do so in clear terms, with an express reference to
negligence. In the absence of such clear terms, the clause is to be construed
as relating to a different kind of liability and not to liability based on
negligence.

Such exemption clauses do not exempt the carrier from liability in consumer
contracts.27

Finally, principles of caveat subsciptor and the law relating to ticket cases
apply if the Carrier can prove that the other party read them or that
reasonable steps were taken to bring them to his attention and that the
customer consented to the terms.28 To escape liability, the carrier should also
prove that the loss was due to a cause for which he is not liable.29

Types of carriers

A. Carriers by rail
The National Railways of Zimbabwe has a monopoly in the provision of rail
transportation. It is regulated by the Railways Act (Chapter 13:09). Section 3
of the

                                                                                                               
24
‘Hillcrag’, Master and Owners v Beckett (1902) 23 NLR 450.  
25
This can be in the form of a consignment note, waybill, tariff book, etc.
26
1988 (1) ZLR 304 (SC).
27
See the second scheduled provision in the Consumer Contracts Act (Chapter 8:03). It essentially
empowers the Court to interfere in a consumer contract ‘… whereby the seller or supplier of goods or
services excludes or limits the liability which he would otherwise incur under any law for loss or damage
caused by his negligence.’
28
Naylor v Munnik (1859) 3 S 187 191; Lewis v Rhodesia Rlys Ltd 1921 SR 50 and Zeeta Manufacturers
(Pvt) Ltd v Zimbabwe United Freight Co Ltd 1990 (1) ZLR 337.
29
Clan Transport Co (Pvt) Ltd v Mhishi 1991 (2) ZLR 333 (S).

© Innocent Maja 3  
B. Carriers by road
This is regulated by the Road Motor Transportation Act (Chapter 13:10).
Section 5 of the Act makes it an offence to operate a public service vehicle
without a permit. 30 Other useful statutes include the Road Traffic Act
(Chapter 13:11), Toll Roads Act (Chapter 13:13), Traffic Safety Council Act
(Chapter 13:17), Roads Act (Chapter 13:18) and Municipal Traffic Laws
Enforcement Act (Chapter 29:01)

C. Carriers by water
Carriage by inland water is regulated by the Inland Water Shipping Act
(Chapter 13:06).

D. Carriers by air
Carriage by air is regulated by the Air Services Act (Chapter 13:01),31 the
Aviation Act (Chapter 13:03)32 and the Carriage by Air Act (Chapter 13:04).33

                                                                                                               
30
S v Harris 1971 (2) RLR 95 or 1971 (2) SA 116.  
31
It regulates the carriage of goods by air to, from or within Zimbabwe.
32
It is concerned with air safety.
33
It regulates international carriage. See Barclays Bank of Zimbabwe Ltd v Air Zimbabwe Corporation
1992 (2) ZLR 377.

© Innocent Maja 4