There have been some important legal developments in recent months that the industry needs to take note of, says Taryn Hunkin of Shepstone & Wylie Attorneys.The first is the judgement in the Fujitsu Schenker case last year that highlighted the court would uphold the contracting parties’ agreement as to where the risk in and to goods will lie as well as the limitation of liability.The judgement ordered Schenker to pay Fujitsu Services Core an amount of $516 877 as damages for theft of goods from the South African Airways (SA A) cargo warehouse at the OR Tambo International Airport (Ortia), in Johannesburg. Schenker was responsible for the import of a consignment of laptops and other computers into South Africa from Germany on behalf of Fujitsu. At the time of the incident, Schenker and Fujitsu's commercial relationship was governed by a National Distribution Agreement. In terms of that agreement, one of the clauses provided that Schenker would not be held liable for any claim of whatsoever nature (whether in contract or in delict) and whether for damages or otherwise, however arising, including any negligent act or omission or statement by the company or its servants. This became the subject of contention when a Schenker employee arrived with the necessary documentation authorising him to collect the cargo on behalf of Fujitsu in an unmarked truck, loaded the cargo and drove off never to be seen again. While it was common cause that the employee was not acting in the course and scope of his employment, the court found that Schenker was still vicariously liable. On appeal, the Supreme Court, however, dismissed the initial finding that, on the facts, the theft had been committed outside of the scope of the contract between the parties.“While this is very good for clearing and forwarding agents, the decision rings very loud alarms for importers, exporters and the like since the trading conditions allowed a party whose employees acted deliberately dishonestly to nevertheless rely on the limitation of liability. As a cargo interest that is an untenable proposition,” explains Hunkin.Another significant change to take note of is to section 44(5)(e) of the Customs & Excise Act which now allows the liability of a carrier to cease when goods are delivered into the care of a licensed remover of goods in bond where the authorities have directed that goods be moved to a designated place for inspection to ensure compliance with the Customs Act. “While not a trend per se, it is that time of the year where we are seeing the South African Revenue Service (Sars) collections starting to take steps to secure debts ahead of the Sars year-end in March,” says Hunkin. “Sars has increasingly turned to clearing agents to look for the presentation of acquittal documents in respect of goods exported, whether bonded goods or free store goods.”According to Hunkin, it is imperative that shippers keep up with legal developments. “The Customs & Excise Act 91 of 1964 is self-regulatory and the law is ever evolving. It is difficult for most entities to keep up with all the changes. Unfortunately, this results in many businesses allowing untrained staff to occupy responsible positions without the staff and/or management fully understanding the risks associated with their position.”She says clearing and forwarding agents increasingly find themselves in precarious positions. “They have to balance the wants and needs of their clients, with the wants and needs of Sars. Clearing and forwarding agents are essentially tasked with collecting revenue on behalf of Sars. This is a huge responsibility. Sars is increasingly holding agents liable, for example, when goods are diverted (whether or not the agent was involved in the transportation of the goods). The burden an agent bears is a heavy one, and each clearing agent needs to ensure that they are fully conversant with the provisions of the Customs & Excise Act 91 of 1964 and that each of their staff is aware of the penalties the business faces should, for example, a tariff code be misdeclared.”
