Standard Conditions of Carriage for Transnet Limited trading as Spoornet

Please note that there are special conditions for the packing, loading, acceptance, transport and delivery of livestock, dangerous goods, hazardous goods, explosives, perishable goods and abnormal loads carried in rail wagons or freight containers.

Spoornet must be told in advance when a consignor wishes it to carry any of these items, in order that the special service conditions can be complied with. Please take special note of Clause 15, which relates to exclusion of liability, optional insurance and provides that insurance claims must be lodged within 180 days.

Definitions & Interpretation
Applicability of this Agreement & Other Provisions
Charges & Quotations
Transport Documents & Special Instructions
Liberty to Deviate & Make Special Arrangements
Packing, Loading & Securing
Inspection
Containers & Railwagons
Marking
Collection & Delivery
Delivery
Delays in Loading or Unloading
Things over which Spoornet has no Reasonable Control
Spoornet Entitled to Act as Agent or Principal in Contracting with Third Parties
Exclusion of Liability, Optional Insurance & Claims
Euthanasia for Animals, Birds & Livestock
Claims Against the Servants & Employees of Spoornet by the Consignor, Consignee or Third Party
Terms of Payment and Accounting
Lien, Recovery of Charges & Unclaimed Goods
Jurisdiction
Official Addresses

1. Definitions & Interpretation

Unless the context otherwise clearly requires, the following words shall have the meanings herein ascribed to them:

"Abnormal freight container" means a freight container or tank container which has dimensions exceeding the standard size determined by the International Standards Organisation, or in the case of an open top container, where the load protrudes above the freight container, whether of standard size or not.
"Abnormal loads", in relation to those carried by rail, means goods having outside dimensions which exceed those on the load profile diagram below, and/or weigh more than eighteen metric tons per package or unit. In relation to goods to be carried by road, loads are abnormal if they exceed the dimensions of a standard freight container and/or the axle mass load limit is exceeded, and/or the gross mass exceeds 24 000 kg.
"This agreement" means these Standard Conditions of Carriage, applicable from 1 April 1998, read together with and incorporating the service conditions for specific types of goods.
"Business" means all and any business undertaken, including any advice, information or service provided, whether gratuitously or not, by Spoornet.
"Consignment" means goods conveyed under a single transport document in one or more road vehicles or rail wagons in relation to such vehicle or wagon loads, or goods conveyed in one freight container in relation to containerised goods.
"Consignee" means the person nominated by the consignor to take delivery of the goods, and in the absence of any such nomination means the person representing himself, and reasonably accepted by Spoornet, to be duly authorised to accept delivery on behalf of the consignee.
"Consignor" means any person requesting Spoornet to convey the consignment, including his agent, and whose signature appears on the transport documents issued by Spoornet and completed by the consignor for a particular consignment. In Electronic Data Interchange transactions, and other instances where normal transport documents are not issued, the consignor is the person who requests Spoornet to convey goods.
"Dangerous" and/or "Hazardous goods" means the materials defined as such by the South African Bureau of Standards 0228 and the International Maritime Dangerous Goods ("IMDG") Code.
"Explosives" means the materials listed in the Explosives Act No 26 of 1956, including any amendment thereto or replacing legislation, and South African Bureau of Standards 0228 and the International Maritime Dangerous Goods ("IMDG") Code.
"Freight Container" means any article of transport equipment constructed in accordance with the specifications of the International Standards Organisation designed for multimodal transport, and the term includes an abnormal freight container.
"Goods" means any goods tendered to or coming under the control of Spoornet on behalf of any consignor or consignee and shall include any container, transportable tank, bolster, pallet, package, tarpaulin or other covering not supplied by or on behalf of Spoornet as well as any animal, whether living or dead, and dangerous goods, explosives and hazardous substances.
"Perishable goods" means any goods which, by their nature, rot, wither or deteriorate over a period of time.
"Service Conditions" means the special instructions available from Spoornet upon request relating to loading methods for general, dangerous and/or hazardous goods, and the packaging, acceptance, transport and delivery of those goods, when conveyed in freight containers, railwagons and road vehicles.
"Spoornet" means Transnet Limited trading as Spoornet.
"Transport Documents" means a combined consignment note and truck label, freight transit order, driver's instruction for road vehicles, container terminal order, container list, packing declaration for dangerous goods, transport emergency cards ("tremcards") and the communication sent to Spoornet in relation to Electronic Data Interchange transactions.
The headnotes and subnotes in this agreement are inserted for convenience only and shall not be relevant for the purpose of interpretation.
Any expression which denotes the singular includes the plural and vice versa, any gender includes the other genders, and a natural person includes a juristic person and vice versa.

2. Applicability of this Agreement & Other Provisions

Business is undertaken by Spoornet subject to this agreement which shall be deemed to be incorporated in and be a part of any agreement between Spoornet and the Consignee or Consignor, particularly where there is a sale of goods agreement between Consignor and Consignee which expressly or impliedly contemplates that the goods will be carried by Spoornet.
Spoornet shall not be deemed a common carrier nor a public carrier and deals with goods only on the basis set out in this agreement.
No agent or employee of Spoornet, other than a director or an individual authorised thereto by the board of directors, has Spoornet's authority to alter or vary this agreement nor shall any act or omission of Spoornet be construed as a variation or waiver of any of this agreement.
The Consignor warrants that it has the requisite authority of the Consignee and any other party who may have an interest in the goods to engage the services of Spoornet and to contract on the basis of this agreement.
The person representing the Consignor contracting with Spoornet warrants that he is duly authorised to do so.
If any legislation is compulsorily applicable to any business undertaken by Spoornet then this agreement shall, in relation to that business, be read as subject to such legislation which shall be incorporated herein and if any part of this agreement be repugnant to such legislation such part shall, in relation to that business, be void to that extent only and no further.
If, and to the extent that, Spoornet in fulfilling its obligations to a particular person is, or becomes, bound by contractual or other rights and obligations to rail service providers in countries other than South Africa, then such rights or obligations shall be incorporated in this agreement, whether or not inconsistent with this agreement and/or any other terms and conditions agreed to by Spoornet.
Each and every provision contained in this agreement and any other terms and/or conditions agreed between Spoornet and any other person shall be capable of independent enforcement, thus enabling any Court or other competent tribunal to enforce the remaining provision if it adjudges one or more provisions to be wholly or partially invalid.
This agreement shall also govern any further or additional work or service which may not initially have been contemplated but is nevertheless performed by Spoornet.
Spoornet is entitled to amend and supplement this agreement from time to time, but no changes will be retrospective.

3. Charges & Quotations

Spoornet shall be entitled to charge for all services rendered and goods supplied by it.
Where Spoornet has made a specific quotation for its charges based on the incorrect information furnished to it by the Consignor about the characteristics, dimensions and weight of those goods then Spoornet shall be entitled to alter its price to reflect the true position, and to levy extra charges. In particular Spoornet may charge up to double the applicable correct rate where there is an under declaration of weight by more than two (2) tons because such a declaration is dangerous and can lead to derailment.
All reference to tonnage in a quotation shall be deemed to be metric tonnes unless otherwise expressly stated.
Prices in respect of traffic on Spoornet lines will furthermore be subjected to the raising of an energy levy based on diesel fuel price increases/decreases, which may occur during the period 1 April to 31 March of each year and to price adjustments related to statutory enactments. The energy levy determination, shall be as reflected on this website, under the subheading tiled - Energy Surcharge.

4. Transport Documents & Special Instructions

Spoornet shall only accept goods into its care if it has been timeously furnished with fully completed transport documents, or the relevant Electronic Data Interchange information, by the Consignor who warrants that all information reflected on the transport documents is accurate in all respects, and especially for Customs and Consular purposes.
The Consignor shall indemnify Spoornet and hold it harmless against all losses, damages, expenses and fines arising from any inaccuracy or omission made by the Consignor in the transport documents.
Wherever it is necessary, for the purpose of these conditions or any other purpose whatever, for special instructions such as stoppage or diversion of goods to be given to Spoornet, such instructions shall only be recognised by Spoornet as valid if they are timeously given and agreed to by Spoornet.
In addition, in order to render such special instructions valid, they shall either be given in writing by the Consignor or, if owing to the urgency of the situation it is not practicable to give same in writing, they may be given orally and thereafter confirmed in writing as soon as reasonably practicable.

5. Liberty to Deviate & Make Special Arrangements

If at any stage while it is conveying, or otherwise dealing with, the goods Spoornet, in its sole discretion, considers that it is in the interests of the Consignor, Consignee or other party who owns the goods, to depart from any special instructions, Spoornet shall be entitled to do so with impunity.
Spoornet shall have absolute discretion as to the means, route and procedure to be followed in performing the carriage of goods or other business.
In all cases where there is a choice of tariff rates or premiums offered by carriers, warehousemen, underwriters, or others depending upon the value declared or the extent of the liability assumed by the carrier, warehousemen, underwriter or other person, Spoornet shall have absolute discretion and authority to determine what liability, if any, shall be imposed on the carrier, warehousemen, underwriter or other persons, and to declare the value of the goods, unless express instructions in writing are timeously given by the Consignor.
Spoornet is not obliged to make any declaration for the purpose of any statute or convention or contract as to the nature of goods, nor as to any special interest in delivery or otherwise, nor to seek any special protection from any carrier unless expressly instructed by the Consignor in writing.

6. Packing, Loading & Securing

The Consignor is responsible for ensuring that all goods have been properly, lawfully and sufficiently packed, loaded, secured and/or prepared to both withstand all modes of transport applicable to the journey contemplated and to avoid personal injury to any person or damage to Spoornet equipment. Inadequate packaging or packing may result in any claim for damages being rejected by the insurers where that was the proximate cause of the loss or damage.
Guidelines for packaging, packing and loading methods are available from Spoornet on request.If goods are likely to harbour or encourage vermin or other pests the Consignor must ensure that those goods are free from such creatures upon loading and are packaged appropriately.

7. Inspection

Spoornet shall at all times be entitled, but not obliged, to unpack any goods to inspect same in order to establish whether the nature and manner of packing or stowage endangers the employees, premises or equipment of Spoornet. If, in the opinion of Spoornet, the goods do so endanger its employees, premises or equipment then the actual cost of repacking or restowing to the satisfaction of Spoornet shall be borne by the Consignor.

8. Containers & Railwagons

The Consignor warrants the suitability and safety of all containers and freight containers supplied by it, and that it shall take reasonable steps to ensure that any freight containers or railwagons supplied by Spoornet are in suitable condition for the conveyance of the goods concerned.

9. Marking

The Consignor warrants that all goods have been properly, lawfully and sufficiently marked for identification and labelled and shall indemnify Spoornet against all losses, damages, expenses and fines arising from any inaccuracy or omission in that respect.

10. Collection & Delivery

The Consignor shall, unless otherwise agreed, arrange:

that the goods are delivered to the freight container, railwagon or road vehicle in which they are to be transported; and
that the goods are loaded onto and unloaded from the road vehicle or railwagon, or packed and unpacked into and from the freight container.

The Consignor shall indemnify Spoornet against all and any losses and/or damages sustained by the latter arising out of the Consignor loading goods onto a railwagon or road vehicle and the Consignee unloading goods from railwagons or road vehicles.

Unless adequate warning signs are clearly visible the Consignor or Consignee, as the case may be, shall accept all responsibility for damage or loss of whatsoever nature within his or the Consignee's premises to:

road vehicles or loads, due to unsuitability of means of access to the loading or unloading points;
roadways, manholes and covers, mains, pipes, bridges, weighbridges or approaches, including anything of a like nature leading to the loading or unloading point, due to the weight or nature of the road vehicle or its load.

11. Delivery

Spoornet shall have completed its carriage obligations once the goods have arrived at their nominated destination, or are tendered for delivery there but the Consignee refuses or is unable to accept them, in which case Spoornet shall make reasonable attempts to notify the Consignor for disposal instructions.

12. Delays in Loading or Unloading

The Consignor shall pack,load or fill the goods, and the Consignee shall unpack,unload or decant the goods, into, onto or from wagons or freight containers or tank containers within the time limits set out below in relation to the equipment specified.
Time for packing, loading and filling will commence running when the wagons or freight containers are made available to the Consignor at the appropriate place for loading. Time for unpacking, unloading or decanting will commence running when the goods reach their nominated destination. Provided that if delivery takes place over a weekend or on a public holiday the relevant time period shall commence running at 08h00 on the next business day, unless the Consignee is running its normal business on the day of delivery in which case time shall start counting from the time of actual delivery.
If the equipment or operations of Spoornet are delayed after the expiry of the relevant period of time, then Spoornet shall be entitled to raise its standard usage charge for the type of wagon or freight container concerned, until the Consignee advises that the wagons, freight containers or tank containers are ready for collection by Spoornet or the delay to Spoornet ceases, whichever is the earlier.

The time limits for the various types of equipment are as follows:

Rail wagons only 24 hours,
Freight containers on railwagons 12 hours,
Freight containers and tank containers measuring 6 metres or more in length collected/delivered by road 4 hours,
Freight containers and tank containers measuring 3 metres in length collected/delivered by road 2 hours and
If the cartage driver is in attendance upon request of consignor or consignee 15 minutes.

13. Things over which Spoornet has no Reasonable Control

In the event of any situation or circumstance arising over which Spoornet has no reasonable control and which renders the fulfilment of its obligations impracticable or impossible, then notwithstanding anything to the contrary in this agreement Spoornet shall consult with the Consignor or Consignee to make alternative arrangements. If no agreement is reached after those consultations Spoornet shall be entitled to deliver the goods to the nearest reasonable destination or to make use of any reasonable alternative route to that initially commenced by or agreed to by Spoornet.

14. Spoornet Entitled to Act as Agent or Principal in Contracting with Third Parties

Unless otherwise agreed in writing, Spoornet shall, in procuring the carriage, storage, packaging or handling of the goods, be entitled to subcontract all or any of those duties.
Spoornet shall be entitled to act as the agent of the Consignor, Consignee or other person having risk in and title to the goods, in dealing with rail service providers in countries other than South Africa.

15. Exclusion of Liability, Optional Insurance & Claims

Exclusion of Liability: - Spoornet carries and otherwise deals with all goods at the sole risk of the owner of the goods and/or other person in whom the risk of loss or damage in the goods lies at any material time and Spoornet shall not be liable for any loss or damage to the goods whatsoever whether due in whole or in part to any degree of negligence or breach of contract. Nor shall Spoornet be liable for any consequential or economic loss whatsoever, including but not limited to loss of production or profit, arising out of such loss or damage.
Optional Insurance: - However, Spoornet shall endeavour to effect any insurance the Consignor or Consignee validly instructs it to effect over a particular consignment of goods and/or a freight container not owned by Spoornet before despatch of same, or attachment of risk, whichever happens earlier. Instructions may validly be given in any of the following ways:
1. indicating in the appropriate space on the transport documents that insurance is required; or
2. an indication to the Spoornet employee making telephonic bookings that insurance is required; or
3. Notification on the relevant Electronic Data Interchange communication with Spoornet that insurance is required.
Any of the above valid indications by the Consignor that insurance is required shall be deemed to be made for and on behalf of the person bearing the risk in the goods at the time they are lost or damaged.
The Consignor shall be liable to pay the insurance premium, unless and until it has been paid by another person. If the premium is not paid by the due date there will be no insurance cover.
Any insurance effected shall be subject to such exceptions and conditions as may be imposed by the insurance company or underwriters taking the risk. In particular the insurance shall be limited to physical loss or damage to the goods themselves, including all packing materials, labels and the like when necessary for commercial purposes, and/or a freight container not owned by Spoornet together with a refund of railage in proportion to the loss if included in the insured value of the goods.
Spoornet shall not be obliged to obtain separate cover for any risks so excluded.
Spoornet shall not be under any obligation to obtain separate cover for individual consignments but may insure all or any of such consignments under any open or general policy held by Spoornet from time to time, and in particular Spoornet shall be entitled should it so wish to declare the goods on any open or general insurance policy.
Should any insurer dispute its liability, whether in whole or in part, under any insurance policy in respect of any goods, the consignor or consignee concerned shall have recourse against such insurer only, and Spoornet shall not have any responsibility or liability whatsoever in relation thereto notwithstanding that the premium paid on such policy may differ from the amount paid by the consignee or consignor to Spoornet in respect thereof.
In so far as Spoornet agrees to arrange insurance, Spoornet acts solely as agent for and on behalf of the Consignor, and/or any other person bearing the risk in the goods at the time they are lost or damaged.
Documentary proof of the insurance concerned may be inspected or obtained during business hours from any Spoornet Area Manager or Container Services Manager.
Claims: - Any claim brought against the insurers may be lodged during business hours with any Spoornet Sales Support Office, who will accept notification of the claim in the capacity as agent of the insurers or underwriters.
It will be in the interests of any claimant to IMMEDIATELY report any discrepancy, loss or damage to Spoornet telephonically in order to arrange inspection of the goods, and to obtain an incident number from Spoornet.
A claim form (Obtainable from Spoornet) must be lodged with the Spoornet Account/Customer Manager within 180 (One Hunderd and Eighty) calender days from the date the goods reached, or ought to have reached, their final destination, failing which the claim will irrevocably lapse and be of no force and effect.
If the claim is rejected, summons may be served on the insurers GUARDRISK INSURANCE COMPANY LIMITED at EASTWING, WERKSMANS CHAMBERS, 22 GIRTON RD., PARKTOWN, JOHANNESBURG or the re-insurer CIGNA INSURANCE COMPANY at 2 HOOD AVENUE, ROSEBANK, JOHANNESBURG.

16. Euthanasia for Animals, Birds & Livestock

Void

17. Claims Against the Servants & Employees of Spoornet by the Consignor, Consignee or Third Party

The Consignor and Consignee undertake that no claim shall be made by either of them, nor any party, against any servant or employee of Spoornet personally for any loss or damage caused by such persons while acting in the course and scope of their employment.

18. Terms of Payment and Accounting

Unless otherwise agreed between duly authorised representatives of Spoornet and the Consignor, respectively, the terms of payment to Spoornet shall be cash in advance of conveyance or, in the case of approved accounts, within 25 days of presentation of statements, as the case may be. Interest will be charged on late payments.
An alleged claim (or counter claim) by any person against Spoornet shall not constitute a defence for deferring or withholding payment to Spoornet. Care should be taken to pay insurance premiums timeously, failing which there will be no cover.

19. Lien, Recovery of Charges & Unclaimed Goods

Spoornet shall have a lien over all goods for which storage and railage charges are due and in the event of non-payment of all moneys due by the Consignor, Consignee or their agent to Spoornet within 3 (THREE) months after they become due, Spoornet shall be entitled, without prejudice to any other rights which it may have, and without further notice to the Consignor or Consignee
1. to open and examine any part of the consignment, and
2. at the option of the Spoornet, to sell the whole or any part of the consignment, either by public auction or by private treaty, and to apply the proceeds of any such sale, after deducting all the expenses thereof, in payment of or towards any sum due by the Consignor or Consignee, to Spoornet.
Spoornet shall pay over the surplus (if any) of the proceeds of such sale under this clause to the Consignor, but shall otherwise be released from all liability whatsoever in respect of the consignment.
The Consignor and Consignee jointly and severally indemnify Spoornet against any claims or fines which may be instituted or levied against Spoornet arising out of or as a result of any sale under this agreement.
Spoornet shall be entitled to sell or dispose of any goods where:
1. a Consignee cannot be identified; or
2. the goods cannot be delivered because they are insufficiently or incorrectly addressed; or
3. where the goods have not been collected or accepted by the Consignee or any other person within 7 (SEVEN) days of their having arrived or being tendered for delivery by Spoornet, as the case may be. Provided that where Spoornet has an address for the Consignee (or in the case of a freight container, the container operator) then sale or disposal shall be effected only after the expiration of 30 (THIRTY) days from the posting written notice of its intention to do so to that address by registered mail.
Perishable Goods: Notwithstanding anything to the contrary in this agreement, if perishable goods arrive at their destination in such a condition that they will, in the opinion of Spoornet, become worthless if the owner or person entitled to claim them has not claimed them, or refuses to claim them, Spoornet may, AFTER reasonable attempts to obtain disposal instructions from the Consignor and Consignee, immediately sell such goods in any manner, or if the goods have in fact become worthless, to destroy them.

20. Jurisdiction

This agreement and any other terms and/or conditions agreed between Spoornet and any person, and the determination of any other dispute to which Spoornet is a party arising out of the alleged improper performance or non-performance thereof based on any cause of action whatsoever shall be subject to the exclusive jurisdiction of the courts of the Republic of South Africa.

21. Official Addresses

For the services of all legal documents and written notices connected with this agreement, the Consignor accepts as its official address the address appearing on the relevant transport document, and Spoornet accepts as its official address its head office at Spoornet, Room 2705, 27th Floor, Carlton International Trade Centre, 150 Commissioner Street, Johannesburg (Postal Address; PO Box 8621, Johannesburg, 2000). For the service address of claims against the insurers please see Clause 15.