Equipment damaged in storage raises issues of warehouse liability

When in doubt – insure!
That is the advice from
lawyers and industry experts
when it comes to storage and transport
of cargo.
According to Shane Dwyer, partner in
maritime law firm Shepstone & Wiley,
the security for consumers when storing
goods in warehouses or moving their
cargo lies in insuring their goods well.
“It is very important to ensure you
have the best possible coverage – even
if it means paying more,” says Dwyer.
“Do not take risks and do not be too
cautious but rather see to it that you
have the best possible insurance to cover
any eventuality.”
This follows a recent incident
involving a former Cape Town resident
who found his cargo badly damaged on
arrival at his new home in Windhoek
after months in storage.
“The goods went into storage in
February as we were going to emigrate
to Australia. We then decided to move
to Windhoek instead and contracted
a haulier to collect our goods at the
warehouse and deliver to us. Upon
delivery I found my metal and woodworking
machinery had got wet and
had severe rust, while it appeared as
if the wood saw and planer had been
extensively used,” Dean van Tonder
told FTW.
The warehouse owner can verify that
when the goods left his premises for
transportation to Windhoek, inventories
showed there was no damage to the
goods while the haulier has also denied
any damage occurred, leaving Van
Tonder to rely
on his insurance
company.
Says Dwyer:
“The reality in
South Africa is
that there is little
protection for the
consumer but that
is set to change
as new legislation
comes into effect.
Warehouse owners
have been saying
‘store at your
own risk’ while
transporters say
‘transport at
your own risk’,
effectively contracting themselves out
of any liability thanks to their terms and
conditions.”
Dwyer says it is all about sharing the
risk. “New legislation is going to force
the warehouse owner, storage company
and transporter to share the risk with
the consumer and take responsibility for
their involvement in the process.”
Comparing it to the shipping industry,
where shipowners originally also had
no responsibility, insuring is the only
safe option.
“In the shipping industry there was
much the same problem but legislation
was put in place to ensure that a
shipowner cannot just contract himself
out of any liability and they now have
an obligation to provide safe carriage.
Obviously in that he has several
defences such as insufficient packaging
or bad weather that can be used if the
cargo is damaged, but essentially it is a sharing of the risk.
Liability now lies
with all the parties
involved. Using these
new conventions,
a shipowner is
obligated to move
cargo safely and
takes responsibility
for that.”
According to Van Tonder, this has
been one of his major problems as
he claims no-one wants to take
responsibility for his damaged machinery.
“There is a clear paper trail of all
the movements of this equipment, so
somebody must be accountable for this
and accept responsibility,” he says.
One warehouse owner, who
preferred to remain anonymous, said
cargo naturally deteriorated in storage.
“Storing at the coast will inevitably
mean there is oxidation and levels of
rust will be found.
Our terms and
conditions take all
of this into account
and we can’t and
won’t carry the risk
of damage while
in storage.”
Most warehouse
owners agree there
is always a degree of risk in longterm
shortage and definitely an inherent
risk in moving cargo – a risk that
should be carried by the customer and
his insurance.
“There is no morality involved here –
the reality is the customer or consumer
according to the law carries the risk
and the standard trading conditions do
contract out a large chunk of liability for
the company involved. For that reason
insuring for catastrophe is crucial,”
says Dwyer.