Chipeta, J.: This is a ruling on a preliminary point. The plaintiffs, M/s Star Service Station Co. Ltd, have filed a suit against the defendants, the Tanzania Railways G Corporation in which they claim damages for loss of goods consigned to the defendants by the plaintiffs for transportation from Dar es Salaam to Shinyanga.
The defendant's preliminary point raised was that based on an exclusion or limiting clause as to the defendant's liability. The defendants asserted that they can in no way be H liable by virtue of the "conditions of carriage" contained in their "Tariff Book" which state that "dangerous goods" as petroleum products (the goods in question in this case) are carried at "owner's risk" as the defendants are not "common carriers" of such goods.
To my mind, there are cases in which such preliminary points may be upheld. But I before such a submission can be upheld, certain
principles of law must be carefully examined. The existence of a valid contract A presupposes that the contracting parties were ad idem as to the terms of the contract and that each of them willingly accepted those terms of the contract. In cases in which one party to a contract inserts a term excluding or limiting liability which would otherwise be his, the question whether or not the other party was made aware of such B exclusion terms of liability and accepted them is often a question of fact to be ascertained from the evidence adduced. Such cases may also raise the question as to whether or not such exclusion terms or clauses render the given contract void for unreasonableness of the given exclusion clauses. C
In deciding such cases therefore, it is necessary to enquire whether the other party was given reasonable notice of the exempting or exclusion clauses. As Lord Denning, M.R. pointed out int he case of Thornton v Shoe Lane Parking Ltd. [l971] I All E.R. 686 at page 105: D
It is no use telling the customer that the ticket is issued subject to some "conditions" or other without more, for he may reasonably regard "conditions" in general as merely E regulatory, and not as taking away his right unless the exempting condition is drawn specifically to his attention (Emphasis added).
Lord Denning, M.R., went on:
I do not pause to inquire whether the exempting condition is void for unreasonableness. F All I say is that it is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing G to it, or something equally startling.
In the present case, in the absence of evidence, the court would not be in a position to know whether the exempting clauses were drawn to the attention of the plaintiffs in the H most explicit way or whether or not the defendants are not common carriers of petroleum products, and so on. All these are questions of fact which can only be determined from evidence to be adduced by the parties.
For these reasons, the preliminary point fails. The case will proceed to trial and be I determined on the merits.
Order accordingly.
A
________________