UPS SCS South Africa (Pty) Ltd v Hendrik Cornelis van Wyk t/a Skydive Mossel Bay

The respondent, Mr Van Wyk, operated a skydiving business and owned a Cessna aircraft engine that had been sent to the USA for overhaul. In December 2012–January 2013, he and the appellant, UPS SCS South Africa (Pty) Ltd, concluded a contract of carriage by way of an exchange of emails for the transport of the reconditioned engine by sea from Oklahoma, USA to George, South Africa. After Van Wyk gave the ‘go ahead’ by email, UPS required him to complete and sign a credit application in order to open an account, which contained standard trading conditions limiting UPS’s liability. These conditions were not furnished or explained to Van Wyk at the time the contract was concluded. While the engine was in transit within the USA, the truck carrying it caught fire and the engine was destroyed. UPS denied full liability, contending that its standard trading conditions limited liability to a nominal amount. Van Wyk sued for the replacement value of the engine.

The application for leave to appeal was dismissed with costs, including the costs of two counsel. The appeal was dismissed with costs, including the costs of two counsel, leaving intact the High Court order holding UPS liable to pay R386,140.30 plus interest and costs.

The case confirms that exemption or limitation-of-liability clauses in standard form documents will not bind a contracting party unless they are properly incorporated into the contract and clearly brought to that party’s attention. It reinforces established South African principles on incorporation of terms in contracts of carriage and underscores the carrier’s liability for loss of goods notwithstanding the use of subcontractors. The judgment also illustrates the limits of reliance on consumer protection legislation where the dispute can be resolved on ordinary contractual principles.