Hi-jacking is a common phenomenon of modern life and a consignor who entrusts his goods to a road carrier may wonder whether the carrier is relieved of liability if the loaded vehicle is hi-jacked.

The common law liability of a carrier is conditioned by the Conditions of Carriage under which the carrier contracts with the consignor to carry his goods. These conditions are broadly in standard form these days, those mostly operated being the conditions issued by the Road Haulage Association for the use of their members and others and those used by the NFC group including the BRS companies and NCL. These two sets of conditions are broadly the same although there are some differences which are immaterial for present purposes.

These conditions provide that the carrier shall not be liable for loss or misdelivery of or damage to the goods occurring during transit due to “riot, civil commotion, strikes, lockouts, stoppage or restraint of labour from whatever cause”. The onus is on the carrier to prove that the loss is due to one or other of these causes if he is seeking relief thereunder. And the NFC conditions carry a proviso that the carriers shall not be relieved of liability if they fail to prove that “they used all reasonable foresight and care in the carriage of the goods”.

Can it be contended that hi-jacking constitutes a riot and so relieves the carriers of liability? Three points should be noted. First; legally, there appears to be no decided case on this question. Second; in practice, some carriers and their insurers have invoked this clause to escape liability; others have not. Third; the five essential ingredients of a riot may well exist in some cases of hi-jacking but not necessarily in all.

The five essential elements of a riot were laid down by Phillimore, J., at the beginning of the century in Field v. Receiver of Metropolitan Police [1907] 2 K.B. 859. These are: