Cape Town - Transportation, freight and logistics business UPS Supply Chain Solutions (UPS SCS) has been ordered by
the Western Cape High Court to pay Skydive Mossel Bay just over R300 000 after they failed to deliver an aircraft engine to the business.
UPS SCS - a transportation and freight services business - was contracted by Skydive Mossel Bay in 2013 to transport an aircraft engine from Oklahoma in America to South Africa after the aircraft engine was overhauled overseas allowing it to be used for the skydiving business again.
UPS SCS will now have to cough up R386140.30, with interest after they failed to deliver the aircraft engine.
In June 2013, Skydive Mossel Bay owner Hendrik van Wyk said the “aircraft engine was delivered on or about June 1, 2013 at Oklahoma, to (UPS SCS) whose agent accepted the delivery”.
UPS SCS later notified Van Wyk “that it had been damaged while in transit in America and was a total loss”.
The engine, while in transit, was destroyed in a fire while en route to New Jersey when a truck and trailer carrying the engine caught fire as a result of equipment malfunction, and the cargo appeared to be a total loss.
The logistics company had also denied that the aircraft engine was ever in its possession.
According to court documents, UPS SCS further argued that it “shall not, in any circumstances, be liable for any loss or damage of the goods, or for non-delivery or miss delivery, whether on the grounds of breach of contract or negligence, in respect of any type of loss and damage, however arising, unless it is proved that the loss, damage, non-delivery or miss delivery occurred while the goods was in the actual custody of (UPS SCS) and under its actual control.
“The engine was not in (UPS SCS)’s actual custody or possession, or under its actual control, when it was damaged.”
Van Wyk said he was unaware of provisions purporting to limit the risk of liability of both UPS SCS and himself, as at no relevant time was he made aware in a manner and/or form satisfying the requirements set out by section 49 (3) to 49 (5) of the Customer Protection Act (CPA).
Handing down judgment, Judge Robert Henney said: “The clauses on which UPS SCS relies clearly seek to limit exposure to, or indemnify (themselves) against, any liability based on the agreement concluded with (Van Wyk), for the damages he sustained due to the loss of his aircraft engine.
“(Van Wyk) was furthermore presented with two full pages, which was not very conspicuous or clearly delineated, and in relation to which no effort was made to draw (Van Wyk’s) attention to any of the provisions.
“It was furthermore written in extremely small font, which even this court on the original document found extremely difficult to read, and which contains the very clauses mentioned in section 49(1), against which the act seeks to protect the consumer,” said Henney.