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Friday, November 13, 2015

Courier on horse-back - the perspective of an Insurer and on Courier liability

“I take you all on time machine (in a boat) to a period aeons ago … started a great novel written in 1950” … the wonder Ponniyin Selvan of Kalki – much happens here  – the story  starts with the description of the famous vast ocean-like lake of Veera Narayanapuram ‘bounded by Chozha kingdom and Thondai naadu, nearer Thillai Chirrambalam  ……….-and on that 18th day of Aadi – a young horse rider ‘Vanthiya Thevan’ was …… ’

தொண்டை நாட்டுக்கும் சோழ நாட்டுக்கும் இடையில் உள்ள திருமுனைப்பாடி நாட்டின் தென்பகுதியில், தில்லைச் சிற்றம்பலத்துக்கு மேற்கே இரண்டு காததூரத்தில், அலை கடல் போன்ற ஓர் ஏரி விரிந்து பரந்து கிடக்கிறது. அதற்கு வீரநாராயண ஏரி என்று பெயர். 

All goods that are moved from one place to another –  and exposed to maritime perils can be subject matter of insurance and can be insured. Sec 5 of the Marine Insurance Act 1963 categorically adds “ subject to the provisions of the Act, every lawful marine adventure may be the subject of a contract of marine insurance ”

In Marine, besides the contracting parties, there is another – the mode and the Carrier to whom goods are entrusted for safe carriage and delivery at intended destination.  Primarily the entrustment of goods for a specific purpose is a “bailment” which is defined under Sec.148 of the Indian Contract Act, 1872.   In transportation – it could be Road / Rail Carrier; Airways; Ship and Registered post parcel [which perhaps is non-existent at least from the perspective of Insurers].  In the recent decades – Multi modal Operator and Courier got added.   A courier is a person who delivers messages, packages, and mail.  Some Courier companies call themselves premier service – some are ordinary.  Courier services operate on all scales, from within specific towns or cities, to regional, national and global services. Some large courier companies operate aircrafts too.

The trouble for Insurers is often the Courier Companies restrict their liability to measly amounts ~ and cargo owners do not mind, because of low rates ! – a couple of decades back, an imported machinery through air worth 30 lakhs  – was carried from Chennai to Tuticorin in a passenger bus – was lost enroute – Couriers offered a pittance.  The fair expectation of Insurers was that Courier should have liability pertinent to that mode of transportation which they perform for that designed cargo i.e., if they carry by a truck [liability under Carriers Act] and if by air [that of an air carrier].  There was also a condition that Couriers should have a legal liability policy for a specified amount. 

The receipt of Courier most often is in fine prints and consignors also do sign the same – meaning – entering into a special contract with limited liability !

In an interesting case - Xps Courier vs M/S. Priyanka Fashions on 26 July, 2012 - It was contended that the its liability is limited to Rs. 100/-  but the signature of the consignor was not obtained in the consignment note. The learned counsel for the appellant relied a decision of the Honble Supreme Court in Bharati Knitting Company Vs. DHL Worldwide & Express Courier of Air Freight Ltd. reported in (1996) 4 SCC 704 where their Lordships opined that : where the liability of courier is limited to particular amount as per contract, the party signing the document is bound by the terms of it, and he is entitled only subject to the maximum amount mentioned therein. When the complainant did not sign it nor the courier service insisted the consignor to sign, the National Commission in Road Wings International Vs. Hindustan Copper Ltd. reported in 1999 (3) CPJ 23 (NC) held that the receipt did not constitute a special contract and that the liability need not be limited to the sum specified therein.

The recent enactment of Carriage by Road Act 2007, enlarged its scope and brought : Courier agencies engaged in door to door transportation of documents, goods, or articles utilising services of a person either directly or indirectly to carry or accompany such documents, goods or articles excluding the Govt. under its purview.  Still not much water has flown under the bridge.  Some Insurers adopt a modified ‘ Courier Despatch Warranty ’ excluding consignment of values less than 50000/- and some other conditions.

Elsewhere I had written that the fair expectation of Insurers was that Courier should have liability pertinent to that mode of transportation which they perform for that designed cargo i.e., if they carry by a truck [liability under Carriers Act] and if by air [that of an air carrier].  Now how will Insurers handle these transits in Inner Mongolia, China. 

Alibaba’s single day sales soared newer heights. Customers waiting eagerly for their parcel deliveries were not left disappointed after inventive Chinese couriers evaded one city's tricycle ban and delivered packages on horseback instead. Delivery men in Hohhot, Inner Mongolia, north China, were dismayed last month when the government decided that three-wheeled electric tricycles, their preferred mode of transport, should be removed from roads. However, quick thinking couriers brought in a fleet of horses to help them navigate the city this week, according to People's Daily Online.

The plucky delivery men brandished banners along with their heavy rucksacks, to indicate the service that they were providing to the public. Photographs of their valiant efforts to dodge busy traffic have become a hit on China's social media platforms WeChat and Weibo, after customers' late delivery fears were quelled. 'We applied for a dozen horses from a pasture when learning about the traffic regulation last month,' commented the manager of the online shopping store Sunning.

In China, the delivering of goods on horseback is said to be a tradition that dates back nearly 3,000 years, to around 800BC.  With $14.3billion spent during 'Single's Day' sales, demand for delivery men was enormous ~ now a defiant Courier has resorted to this mode – what will Insurers say ?

With regards – S. Sampathkumar

13th Nov. 2015.

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