18533666 Carriage of Passengers

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By Dr. R.W. Tenga

CARRIAGE OF PASSENGERS BY SURFACE TRANSPORT

By:

Dr. R.W. Tenga

THE STATUS OF THE LAW

The Carrier of Passengers at Common Law

The status of the carrier of passengers is similar to the carrier of goods at c

common law.1 The distinction made between a common carrier and private carrier

applies too in the carriage of passengers but here, different consequences arise.

The common carrier of passengers cannot refuse just as the common carrier of

goods cannot refuse a consignment. Yet at common law the carrier of persons does

not have the absolute insurers liability imposed on the carrier of goods. Thus

according to Kahn-Freund the use of the term common carrier of passengers

needs clarification. He writes:

It refers to the duty to carry, but in no way to the standard of the

carriers liability towards his passengers. In other words, the

common carrier of passengers resembles the common carrier which

he must enter not contracts of carriage, but not in the type of

liability implied in those c contracts or imposed by the laws. Neither

carriers by rail nor carriers by road have ever been absolutely liable

for the safety of their passengers, but they were under a duty to

allow potential passengers to use their services.2

As such the liability of the carrier of passengers was measured against the

standard of care of the reasonable man. The carrier is bound therefore to

exercise all due care, and to carry safely as far as reasonable care and

1 See Halsburys Law of England, 2nd Ed., Vol. 4, at pp. 60-85; Kahn-Freund Law of Carriage by Inland

Transport, 4th Ed., London, Stevens & Sons, 1965 pp. 449-643.2 Kahn-Freund, ibid., pp. 452-453.

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forethought can attain that end.3The carrier is subjected to a high standard of

care and is liable for the negligence of his servants, but not for the acts of persons

over whom he has no control.4The liability of the carrier of passengers is one that

falls on the principles of the law of negligence. Negligence is a tort, that is, a civilwrong, which gives rise to liability for damages but does not necessarily consist in a

breach of contract. It means that a carrier has certain duties which arise from

the law and there is no need to express these duties in a contract. This position

has been accepted in our case law; in the case of Lakhammshi Govendji & Co. vs.

Hasham Seleman Ltd5 the court quoted with approval Lord MacNaghtens holding in

the case of The Irrawady Flotila Coy v. Bugwandas6 where he wrote:

The obligation imposed by law on common carriers has nothing to do

with contract in its origin. It is a duty cast upon common carriers by

reasons of their exercising a public employment for reward. A

breach of this duty is a breach of the law, and for this breach an

action lies founded on the common law, which action wants not the aid

of contract to support it.

This, of course, does not mean that one cannot include such liability in a contractual

document; all it means is that a separate course of action can still arise

notwithstanding the absence or presence of a contractual obligation. It is also true

that contractual stipulation on certain aspects may vary the carriers duty.

Statutory Regulation of Passenger Carriage:

Statutory laws has been at the forefront in regulating carriage of passengers. The

original higher standard of duty for common carriers was imposed precisely because

these, and innkeepers, exercised a public employment. Their called was one that

3 See: Readheed v. Kidland Rail Co. (1869) L.R. 4 Q.B. 379.4 Daniel v. Metropolitan Rail Co. (Directors) (1871) L.R. 4 H.L. 45.5 (1960) E.A. 40 (T).6 (1891) 18 CAL. 620.

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brought human beings, and their property, under the control of carriers. Hence

statutory intervention indicates the necessity to regulate this form of business.

Firstly, to make clearer the carriers duty which appears rather foggy in theancient concepts and, secondly, given modern diverse forms of transportation, the

status of parties in the contract of carriage needed precise and specific regulation.

The statutes stand out in the regulation of road passenger vehicles. First; the Road

Traffic Act, 1973,7 which is an enactment aimed at regulating allow motor vehicles

and their use. It provides for registration of motor vehicles, the issuance of

licences for driving, provisions for proper use of motor vehicles and creates

offences against bad or reckless driving causing injury or death. The Ac t also

deals with control of traffic. For example, provisions of traffic signs, special

parking places for bus stops, loading zones for goods vehicles, taxi-cab stands, etc.

Also provision for display of road licences and evidence of possession of motor

insurance.8 The Traffic Act gives a classification of vehicles for its purposes and

those related to passengers are styled either as passenger vehicles or public

service vehicles. A passenger vehicle is defined as a vehicle that is constructed

or adopted solely for the carriage of passengers and their effect. A public service

vehicle is defined as a motor vehicle which carries or is intended to carry

passengers for hire or reward, whether or not used or constructed solely for that

purpose; and where such a vehicle can accommodate not more than 6 passengers

including the driver it is known as taxi-cab, otherwise it is a public omnibus.9 We

are concerned here with the public service vehicles. There are vehicles that ply

for hire which is defined as including first, standing on any public taxi rank or

7 The Road Traffic Act, 1975 (No. 30 of 1973).8 See: The Display of Road Licence and Evidence of Motor Insurance Regulation of 1979, GN of

1979. This is in accordance with the requirements of the Act under S.6A and 11(a) and also The Motor Vehicles

Insurance (3rd Party Risks) Ord. Cap. 169.9 S. 2 (1) Traffic Act, 1973.

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stand, second, being offered for hire by any notice, advertisement or

announcement, and third standing or travelling whilst exhibiting a for hire notice

of any kind.

Finally for public service vehicles the Traffic Act imposes the qualified duty of a

common carrier by a specific provision. Section 109 of the Road Traffic Act

provides:-

(1) The person in charge of any vehicle standing or playing for hire and

not engaged shall not without lawful excuse refuse to take any lawful

passenger.

(2) No person hiring a vehicle shall wilfully refuse to pay on demand the

legal fare due from him.

The carrier has a duty to carry a lawful passenger unless he has a lawful excuse

which is presumably similar to that provided under the common law.

The second major Act which is concerned with the regulation of carriage of

passengers is the Transport Licensing Act, 1973.10 The major purpose of this Act

is regulation of commercial transport, for goods and passengers, in such a way that

the available means of transportation would be used efficiently. Licensing aims at

eliminating routes. Licensing authorities are established under the Act and they

authorize vehicles to ply a given trade under enumerated conditions. An

authorised vehicle is given a licence which enumerates conditions and the type of

carriage business the owner has to run.

10 The Transport Licensing Act 1973, (No. 1 of 1973).

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The Act does define a public service vehicle in similar terms as the Road Traffic

Act, 1973. It further provides that a licence granted in respect of a public

service vehicle is termed a Road Service Licence.11 In respect of such a licence,

S.11(3) provides:

A road service licence shall entitle the holder thereof to use the

authorized vehicle for the carriage for hire or reward of passengers

and their baggage:

Provided that a licensing authority may, in its discretion and subject

to such conditions as it may impose in a road service licence, permit

the holder of such licence to carry goods.

The licence remains in force for two years.12 However licences of shorter duration,

e.g. for a season or execution of a particular task, may be issued.13 Finally, in

considering the issuing of a licence the licensing authority is required to have

regard to certain matters in exercising its discretion. These are listed under s.27

and include the extent to which the proposed service is necessary or desirable in

the public interest; the applicants reliability, financial stability and facilities at his

disposal for carrying out the proposed services; the suitability of roads; the

previous conduct of the applicant; the elimination of unnecessary services and

unremunerative services and the coordination of all forms of passenger transport;

etc.

General conditions as regards the licences are given under s.28 of the Transport

Licensing Act, 1973. These are aimed at imposing the duty on the carrier to have

a road-worthy vehicle. Section 28(1) applies to all licenses and it provides:

11 S.3 (1) and 11(1) (a) & (3) of the Transport Licensing Act, 1973, [hereinafter TLA]12 S. 12 (1) (a) TLA 1973.13 S. 12 (2).

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28(1) It shall be a condition of every licence-

(a) that all authorised vehicles are maintained in a fit and

serviceable condition;

(b) that the provisions of any law for the time being inforce relating to limits of speed and weight, laden and

unladen, the loading of goods vehicles, and the number

of passengers to be carried, are complied with in

relation to the authorized vehicles;

(c) that in relation to the authorised vehicles the

provisions of any law for the time being in force with

respect to the time for which the drivers of certain

vehicles may remain continuously on duty and the hours

which they are to have for rest are observed;

(d) that the provision of this Act and of the regulations

relating to the keeping of records are complied with.

Failure to follow these conditions and where injury or loss has occurred would

entitle a victim thereof to damages. The same section allows the licensing

authority to attach particular conditions to a road service licence holder. Section

28(3) provides:

28(3) A licensing authority may attach to a road service licence such

conditions as it may think fit with regard to the matters to

which it is required to have regard under this Act and, in

particular, for securing that-

(a) the fares shall not be unreasonable;

(b) where desirable in the public interest, the fares shall

be so fired as to prevent wasteful competition with

alternative forms of transport, if any, along the routes

or any part thereof, or in proximity thereto;

(c) the vehicles shall be operated in accordance with

timetables approved by the licensing authority and that

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copies of the timetables and fares shall be carried and

be available for inspection in every vehicle used on the

service;

(d) the holder of the licence reports to the licensing

authority in the event of any vehicle specified in thelicence not being used on the service for any period

exceeding one month;

(e) passengers shall not be taken up or shall not be set

down except at specified points, and generally for

securing the safety and convenience of the public.

These conditions may be specifically attached to a given Road Service Licence

depending on the information the licensing authority has on the type of service the

carrier wants to offer. The conditions attached must be adhered tot absolutely

and any breach attracts penal sanctions. Case law is replete with instances where

these conditions have been breached. A classic case is that of Hamed Abdallah v.

Republic.14 In that case the holder of a licence for a Public Service vehicle was

convicted of failing to comply with the special conditions of his road licence

contrary to section 23(3) of the Transport Licensing Ordinance, Cap. 373 (now

section 28(3) of the 1973 Act), and penalised under section 26(1) of the Ordinance

(now section 32(1)). On appeal he argued that he was not in the Bus, nor was he

aware o the commission of the offence. Furthermore, he argued that s.26 of Cap.

373 did not impose absolute liability. Biron, J. dismissed the Appeal and held that

s.26(1) of the Ordinance (presently s.32(1) of the Transport Licensing Act 1973)

creates an absolute liability. In a strong worded judgment he wrote:

Just as in the case of the sellers of food, if they were not subjected

to strict liability they could always escape punishment by pleading

ignorance and the public would in consequence suffer; likewise in the

case of owners of transport, if they were not subjected to strict

liability for the observance of the special conditions attached to the

14 [1964] E.A. 270 (T).

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licence, they could escape punishment by pleading ignorance. The

proprietors of public service vehicles can in a very large measure

ensure that special conditions in general, and time-tables in

particular, are observed by their employees, I therefore hold, and

so rule, that the liability created by the section under which the

appellant was not a party to, or even aware of, the breach of thespecial condition.

Once again the common carriers absolute liability comes through. Yet it is quite

obvious ha this absolute liability is slackened when the breach of the want of care

concerns a public corporation, e.g. the Railways Corporation, as will be observed

below.

Under s.28(5) of the Transport Licensing Act, 1973, the Minister may, by order,

attach to a road licence, conditions which may be necessary to protect public

interests. These may include the making of refunds where the holder is unable to

carry passengers for the whole or part of the journey contracted for. Also he may

direct what quantity of personal luggage maybe carried by passengers free of

charge and which might be paid for as excess baggage.15 He may further provide

conditions ensuring that where a person has paid for his carriage to his destination

in a vehicle understanding that it will leave the embarkation point at a certain time

there will be accommodation for the individual in such a vehicle.

Finally, section 28(6) declares that any contractual condition between the holders

of a licence granted under the Act and his customer which is less favourable to the

customer then such a condition shall be null and void. And where a carrier fails to

comply with the conditions in his licence he shall be guilty of an offence under

section 32(1).

15 S.28 (5) (b) & (c) TLA 1973.

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Thus statutory regulation of road passenger services imposes certain duties and

conditions upon the carrier of passenger. These duties and conditions are, as we

shall see, also implied under common law. Whilst it may be an offence not to follow

statutory conditions, it is also evidence for a case of damages where loss or injuryhas occurred for failure to adhere to such conditions.

The other major form of surface transportation is that by railway. Statutory

regulation of rail transportation did occur from the earliest time. There are two

acts of Parliament in Tanzania which regulate Railway Carriage of passengers.

These are the Tanzania Railways Corporation Act, 1977,16 (TRC), and the

Tanzania-Zambia Railway Authority Act, 197517 (TAZARA). For the sake of

brevity our discussion will centre on the TRC Act which is similar to the TAZARA

Act. Suffice it to say the obligations of the carrier of passengers by rail imposed

by common law have been adopted into the Act with certain qualifications. These

will be discussed after an elaboration of the elements of the contract of carriage

as accepted at common law.

16 Tanzania Railways Corporation Act, 1977, No. 11 of 1997.17 Tanzania Zambia Railways Authority Act, 1975, No. 23 of 1975.

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THE CONTRACT OF CARRIAGE OF PASSENGERS

General Conditions:

It should be noted at the outset that by the phrase contract of carriage of

passengers, we are concerned with carriage of passengers at separate fares. Thus

excluded are all other contracts relating to letting out of vehicle at lump sum such

as is the case with Tour Operators or Self-drive hires or any case of taxi-cab

operations.

It is assumed here that in many cases of the business of carriers, through not

absolutely always, it is necessary to enter into a contract of carriage between the

carriers on the one hand and the passenger on the other. And normally such

contract is contained in the ticket issued by the carrier at a consideration, that is,

the fare paid by the passenger. The ticket thus being the document evidencing the

contract of carriage, is always enshrined with the terms and conditions under which

such ticket is issued. Therefore, it is these terms and conditions which govern the

contractual relationship between the carrier and his passenger.

The problem which surface immediately is the fact that such terms and conditions

fall into the family of what we always refer to as standard form contracts, in the

sense that they are devised and imposed by the carrier in total ignorance of the

passenger who may come to know of them only when he purchases his ticket. He

may not even be availed of them at all as the tickets often only refer to their

existence in particular carriers tariff books or otherwise. In fact for what has

been justified as an expedient way of carrying on the business of carriage, the law

has given absolute discretion on carriers as to the coming and enforcement of such

standard form terms and conditions of carriage. For example section 42 of the

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Tanzania Railways Corporation Act, 197718 has left to the Corporation enormous

powers to:

Determine the conditions upon which passengers and luggage shall becarried by the Corporation and different conditions may be

determined in different cases, such conditions shall be published in

the Tariff Book and shall, subject as aforesaid, have effect from the

date of such publication or from such later date as may be specified

therein.

It follows therefore, that apart from the many limitations of liability which may be

provided for by written law the carrier may proceed further to limit his liability

under a contract of carriage through the terms and conditions of carriage in his

tariff books. It is not intended in this paper to deal with remedies available in law

relating to limitation clauses in standard form contracts of carriage. Sufficient to

say at this juncture that the liability of carriers under contracts of carriage quite

often suffers from numerous limitations and exclusions imposed by carriers, who

are the stronger parties, to the detriment of the passengers, who come in as weak

parties.

But, this does not mean that the carriers legal responsibility is only restricted to

contracts of carriage. There is a wide field of carriers liability which is not

outside the purview of contractual liability, and which cannot be restricted by the

former. As stated by Khan Freund:

To claim the rights of a passenger it is thus not necessary to havemade a contract with the carrier. The carrier is under an obligation

to maintain the requisite standard of care, and he owes this duty to

all those who are lawfully using his services, no mater whether they

18 S.42 (1) (a) of TRC Act, 1977.

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are carried as fare-paying passengers under a contract or as

gratuitous passengers under a licence.19

Thus the carrier who breaches such an obligation becomes subjected to liability in

Tort, in particular, the tort of negligence. In practice, contractual liability and

tortuous liability exist side by side. It is assumed that one does not go unremedied

simply because he is not covered by a particular contract of carriage. We have in

mind such people, as persons travelling without a ticket, or with a free pass as in

the case of the Tanzania Railways Corporation,20 or one limited from claiming a

carrier by contract or by any law or in any other way; in case of injury due to

intentional or negligent acts of the carrier or his servants, such person can claim

under any of the heads of tortuous liability. Tortuous liability of carriers is again a

subject of another separate paper; suffice it to say at this juncture that Tort law

can in many instances provide alternative remedies in cases of a restricted carriers

liability under contracts of carriage.

But one important thing to mention is respect of the carriers liability to passengers

is the question of standard of care. Both under contract and in tort, a carrier is

obliged to conform to a particular standard of care. This requirement is part of

the common law, as well as a statutory duty. For example, section 32 (1) of the

Tanzania Railways Corporations Act, 1977 provides that:

The Corporation shall not be liable for the loss of life of, or personal

injury to, any passenger where the loss of life or personal injury is

caused by the want or ordinary care, diligence or skill on the part of

the Corporation or of any employee(emphasis added).

Briefly stated, the standard of care is said to consist in doing what a reasonable

man would do and in not doing what such reasonable man would not do in the

19 Kahn-Freund, supra, note 1, at p. 451.20 See s.32 (2) & (6) of TRC Act.

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vehicle.27 The ticket does not list conditions of carriage but refers to

conditions listed in the Railways book or regulation styled as the tariff book

obtainable in the corporations offices. Under Section 55 of the Act the

corporation is authorised to prepare and publish a tariff book containing alloperational regulations of the Corporation. The TRC under the section may

issue other books, timetables and documents. At every book station a tariff

book, a list specifying fares for carriage of passengers, and a timetable of

the passenger transport services operated by TRC must be displayed. This

is to cover the requirement of notice of contractual conditions which

otherwise a ticket bearing passenger is unaware of, whilst he is assumed to

have consented to the same. These conditions do vary the common law

principles of carriage.

(b) The Contract of Carriage of Passengers by Rail:

It is basic to the law of contract that the parties cannot except themselves

form their fundamental obligation in contract. For example, the carrier

cannot exempt himself from carrying passengers without committing a

fundamental beach of the contract of carriage.

The TRC Act protects passengers from fundamental breach by the carrier.

Under S.43 of the Act a general right of persons to be carried as

passengers is provided for as a statutory right. The section provides:

43. Subject to the provisions of this Act, any person whohas tendered to an authorized employee of the

Corporation the proper fare for the ticket he desires

shall be entitled to obtain such ticket and to be

carried as a passenger by the Corporation in

27 Kahn-Freund, supra, note 1, at p. 552.

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accordance with the conditions subject to which such

ticket is issued.

A ticket or free pass would be issued only where the prospective passenger is not

suffering from any mental disorder or contagious or infections disease or is not

under the influence of liquor. Such ticket or free pass is issued subject to

availability of room in the train and if no room is available the fare may be refunded

under the provisions of Section 44(2) of the Act.

Thus although the Corporation must carry a fare-paying passenger it would only do

so if there is room. And the Corporation, under Section 32 of the Act, is liable for

the loss of life or personal injury to passengers only where such misfortune is

caused by the want of ordinary care, diligence or skill on the part of the

Corporation or of any employee. It is obvious that TRC exempts itself as an

absolute insurer for carriage. Passengers travelling without permission, or on free

pass, or travelling over the railway in the course of construction, etc., cannot claim

anything even under the reasonable care clause.28 And for all passengers the

corporation is not liable for loss of life or injury which arises by: an act of God; act

of War; fire or accident from machinery, boilers or steam; or any peril or accident

of the inland waterways, or navigation of whatsoever nature or kind and from

whatsoever cauls arising.

Furthermore, under section 35 of the Act, TRC is not liable for any loss arising

from the delay to passengers caused:

(a) by the failure of any train, vessel or vehicle to start or complete any

journey; or

28 Section 32 (2) TRC Act.

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(b) by the late starting or late arrival of any train, vessel or vehicle from

whatever cause arising.

Thus, as Kahn Freund notes, the contract of carriage by Railway does not give thepassenger the right to be carried by any particular train at any particular time.29

It is paradoxical that the contract or carriage by rail does not guarantee the

passenger any enforceable right to be carried at all.30 Although as common law if

there is no carriage at all the standard rule is that the carrier would be liable in

damages.31 Under Tanzanian law, it would seem, the carrier is only bound to refund

the fare when he fails to provide service. Yet it is obvious that damages may go far

beyond mere refund of fare.

The carriage of passengers luggage is covered under section 47 of the Act. The

luggage is carried subject to two conditions. First, that unless the luggage is

delivered to an employee for carriage after paying the appropriate charge and

receiving a valid receipt such luggage would be carried at the risk of the passenger.

Second, that the conditions relating to carriage of goods under the Act shall apply

to the carriage of luggage. For example, under Section 37 the TRC exempts itself

from liability for loss of specified articles unless their value is declared before an

employee of the Corporation and any payments listed in the Tariff Book are made.

The second schedule to the Act lists specified articles as gold, silver, other

precious metals, coined or uncoined, watches, government securities, maps, cameras,

opium, musk, musical and scientific instruments, Ivory, or any article the value of

which exceeds Shs. 20,000/= per tonne. If not declared the Corporation, under

Section 37, shall not pay more than Shs. 500/= for loss or damage. Passengers

have to be thus wary in declaring such articles and their value.

29 Kahn-Freund, supra, note 1, at p. 55830 Ibid. p. 559.31 Hobbs v. London and South Western Railway (1875) L.R. 10 Q.B. 111.

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Since TRC is a statutory body, certain breaches of the contract of carriage are

punishable as offences. Passengers may not travel without a valid ticket or free

pass or travel in a class they did not pay for. Such conduct is punishable and whereone is convicted he may be ordered to pay a fine not exceeding Shs. 1,000/= or

imprisonment not exceeding 6 months according to S.72 (1) of the Act. Under S.73

of the act a list of offences is given and sections 74 and 75 provide for offences

relating to tickets.

Thus the carrier is protected by statute as a contractual party and definitely the

doctrine of equality of contracting parties does not apply. The carrier must receive

proper fare as of right and where the carrier does not the passenger is held

criminally liable. Terms of contract are set by the carrier in absolute discretion.

Therefore the doctrine of consensus ad item is also a figment of the imagination

here. Passengers are subject to ticket and passenger offences which do not exist

in other forms of public transport. In this regard the contract of carriage by

Railway is significantly different form the common law concept of the contract of

carriage. The carrier here is much protected and is not held responsible as the

common carrier at common laws.

Finally, loss of life and injury is also regulated under general law. Damages may be

paid under the law Reform (Fatal Accidents and Miscellaneous Provisions)

Ordinance. Case law has provided standards of computing damages under the

Ordinance.32

CONCLUSION

32 See: Columba Abdallah Killo v. Jedavji Kunerji Patel t/a Amradha Construction Co. and 2 Others 1978

L.R.T., n. 20; cf: Khimji and Another v. Tanga Mombasa Transport Co. Ltd [1962] E.A. 419.

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The discussion here has been rather descriptive due to certain constraints.

First, the Law of Transport of passengers, a sis the case of the law of carriage

generally, ha snot developed an acting case law with regard to civil litigation. This isboth due to the law legal consciousness of the participants in the transport

business and also due to the criminal law nature of most of the reported litigation.

The absence of an active civil practise is reflected din the absence of a healthy

transport jurisprudence, as it were.

Secondly, not much has been written on passenger transport. The few texts that

exist are either colonial reports (mostly of administrative nature) or works based

on other disciplines, e.g. economics, which are different from law.

Thirdly, the law regulating transport has operated from the public oriented

perspective. For example, the Railway Authorities are public bodies much defended

by statutes vis--vis the private individual. Most of Tanzanias public service

vehicles, after Arusha, fell under the ownership of parastatals, e.g. UDA, KAMATA,

RETCOs, etc. The statutes or Tariff Books created around these Corporation have

tendered to be overly protected of the public institution vis--vis the individual.

This factor, coupled with the low level of legal consciousness of the civil society in

Tanzania, has somehow led to no consistent demands of peoples rights vis--vis

carriers being undertaken.

Finally, the scarcity of means of transportation has always played on the psyche of

the passengers who have tended to regard the service as a privilege whose merit

need not be questioned. A Tanzanian passenger will brave the vagaries of change of

schedules, loss of luggage, cancellation of tickets without notice, harassment,

overloading, senseless speeding, over-charging of fares, etc., without questioning

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the right of the carrier to do so. Consumer protection here is in order and civil

organisation around an issue like this is absolutely necessary.

The picture emerging from this paper is the theoretical predominance of theancient principles of the common law as the legal foundation and a confused scheme

of transportation services based on several statutes. It is possible to see a growth

of private operators (e.g. Dala-Dala in Dar es Salaam) but this of itself does not

guarantee, in terms of independent pressure, a reform of the laws from the civil

society. There is definitely a need to work out a uniform system regarding rights

and duties of carriers and those of passengers.

Documents

18533666 Carriage of Passengers