A liability regime for loss or damage of cargo in Roman-Dutch law : suggestions and recommendations for Lesotho

• Date: 01 January 2017
• DOI: 10.10520/EJC-bf588c13c
• Record Number: lesotho_v25_n1_a2
• Published date: 01 January 2017
• Pages: 35-57
• Author: L.L. Ramokanate

A LIABILITY REGIME FOR LOSS OR DAMAGE OF CARGO IN

ROMAN-DUTCH LAW: SUGGESTIONS AND

RECOMMENDATIONS FOR LESOTHO

Ramokanate L.L.*

Abstract

At Roman-Dutch law, particularly amongst jurisdictions

belonging to the Southern African Development Community,

there are two different liability regimes applicable to the issue

of the loss or damage of cargo in land and air carriage. South

African courts have held that a land carrier is only liable to

the consignor/cargo interest if the loss or damage was caused

by his culpa or dolus. On the other hand, courts of law in

Zimbabwe and Botswana apply the Praetor’s Edict, on the

basis of which land and air carriers bear absolute liability for

loss or damage of cargo. Application of the Praetor’s Edict in

these jurisdictions is justified mainly on the basis of them

being landlocked countries. The issue at hand would be

whether, being a landlocked country, Lesotho too should apply

the Praetor’s Edict, or whether it should base liability on

negligence or fault of the carrier? After a critical analysis of

the reasons advanced for both approaches, this paper

recommends for Lesotho a liability regime which bases the

carrier’s liability on culpa or dolus. Apart from the fact that

the idea of liability without fault runs counter to fundamental

legal precept in Roman-Dutch law, this recommendation is

based on the finding that the rationale of the Praetor’s Edict

has no relevance to modern public carriers by land and air.

INTRODUCTION

It is common cause that if goods are lost en route, or if they reach the

consignee in a damaged state, the carrier bears liability for such loss

or damage.

1

What is not immediately clear however, more so in

Roman-Dutch law, is the nature of the carrier‟s liability, i.e. whether

the carrier bears absolute liability, or whether it is liability based on

fault and negligence. If it is absolute liability, the inevitable

conclusion is that the carrier shall be held accountable for loss or

damage of cargo even if the loss or damage is not attributable to

any fault or negligence on his part. On the other hand, if it is

liability based on fault and negligence, the carrier will bear no

liability unless it is demonstrated that the loss or damage was due

to his fault or negligence. At the centre of the uncertainty

mentioned above is an old rule of Roman law known as the

Praetor's Edict. In sum, the effect of the Praetor‟s Edict is that sea

carriers shall bear absolute liability for loss or damage of cargo

entrusted to them for transportation. What appears to be a bone of

contention in Roman-Dutch law jurisdictions is whether the

Praetor‟s Edict is part of Roman-Dutch law? If so, the next relevant

* LLB (NUL), LLM Import and Export Law (NWU), LLD Candidate in

Trade and Business Law at North-West University (Potchefstroom

campus)―ramokanatel@gmail.com, Lecturer Department of Private

Law, NUL.

1

At common law, a carrier of goods has a duty to deliver the goods

which he has agreed to transport safely to their designated

destination. If he does not deliver the goods, or delive rs them in a

damaged condition, he i s liable for their loss or damage to the

consigner, see J. F. Coaker and D. T. Zeffert (eds), Wille and Millin’s

Mercantile Law of South Africa, Hortors Stationary,1984, 18th ed., p. 603.

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LLJ Vol. 25 NO.1