The steady flow of case law relating to the inter-relationship between forwarder, carrier and sub-contractor shows no sign of diminishing. The interpretation of Road Haulage Association Conditions of Carriage and the application of indemnity clauses was discussed in some detail in the recent decision of Chas. Davis (Metal Brokers) Ltd. v. Gilyott & Scott, Ltd.1

In this case three parties were involved, the plaintiff metal brokers, who bought 110 ingots of tin which was warehoused with the first defendants who were a multiple group undertaking, inter alia, warehousing, haulage, and shipping and forwarding operations. The plaintiffs instructed the first defendants to deliver the goods to named consignees. The first defendants arranged with the second defendants, who were road hauliers, for the carriage of the goods which were stolen in transit. It was agreed that the loss resulted from the negligence of the second defendants’ servants.

Given a relatively simple set of facts, Mr. Justice Donaldson was then faced with an interesting combination of problems that can occur in this recurrent situation where a shipper and the actual carrier transact business through an intermediary.

The plaintiffs argued that the first defendants were carriers, thus making the second defendants their sub-contractors. The first defendants argued that they were in fact forwarding agents following Jones v. European & General Express Co. Ltd.,2 and as such had contracted with the second defendants as agents for the plaintiffs. The Court held that on the evidence the first defendants were carriers.

Irrespective of the particular facts, it is regrettable that the Court dealt with the problem in a piecemeal fashion. This is not an area where legislation would serve any useful purpose, but bearing in mind our increasingly close relationships with the civil law countries of the Common Market some form of juridical development is desirable. Three possibilities can and do occur in such a relationship. Firstly, the intermediary may be a mere traditional forwarding agent and create privity between the shipper and the actual carrier. Secondly, the intermediary may be a forwarder as in Lee Cooper, Ltd. v. Jeakins & Sons, Ltd.,3 that is, he acts as a principal in the transaction and does not create privity between the actual carrier and the shipper. Thirdly, the intermediary may be treated as a carrier himself, with the offending carrier employed as a sub-contractor.

In practice it is probable that the second category is the most common relationship created in respect of road haulage to and from the British ports. In the recent case of J. Evans & Sons (Portsmouth) Ltd. v. Andrea Merzario, Ltd.,4 Mr. Justice Kerr treated the forwarder as being a “transportation contractor”, which is really only a variant of the Lee Cooper v. Jeakins approach of treating the forwarder as a principal. However, it was a move in the right direction to overcoming the traditional impasse