Problems of the
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HAULIER and CARRIER
rr HERE is a widespread appreciation of the fact that one of the tendencies of the Road and Rail Traffic Act will be to increase the demand for haulage by contract. In acknowledgment of this circumstance I commenced last week an article in which I am indicating the points that should be kept in mind when an agreement for such a contract is being drawn up.
I am embodying the information in a report of a conversation I had with a haulier on this point. Until now I have dealt with the most important matters of what the haulier is to supply, and how much he is to be paid for it and when the payment is to be made.
Points That Must be Embodied.
I must again stress the importance of having a proper contract drawn up. All that I am doing in this and the previous article is disclosing the points which must have attention in an agreement and which a solicitor should have in mind in drawing up the agreement. My friend, the haulier, thought that the foregoing points were all that need be included in an agreement and, at the close of the previous article, I was about to enlighten him.
"You' might," I said, "want to alter the terms of the agreement at some time."
" Why should I want to do that?"
"There might be several reasons. I need mention only one and you will appreciate the possibility of needing to alter the terms. Suppose the price of petrol were to rise or suppose there should be a considerable alteration in the standard rate of wages for drivers . . ."
Oh! yes, I'd forgotten about that."
B46 "And there is the possibility of increases in taxation. Tell your solicitor to provide against these things. That will be clause 3. , 'You must also stipulate how the ngleage is to be recorded."
"Oh! there's a speedometer on the machine. Won't that do? "
"Certainly, but what is to happen if it gets out of order? "
" Well, I suppose we'd have to guess the mileage."
"Guessing may serve the purpose, but you can't put guesswork into an agreement that is to be legally binding. You may state that the mileage is to be measured by the speedometer, but provide that if the instrument goes out of commission the mileage during that period must be based on an average. I suggest you take an average of the mileage covered during the four preceding weeks."
"Is there anything more?"
Provision for Shed Days.
"Just a few items. You will reserve the right to withhold the vehicle from service on, say, one day per calendar month, to enable you to make adjustments and carry out maintenance operations. On the other hand, it is most likely that your customer will want to stipulate that if you keep it off the road for more than one day at a time you must agree to supply him with another vehicle of similar capacity." " Oh! shall I have to do that?"
"You certainly will and that is one of the liabilities which a haulier who enters into a-contract for hire takes upon himself."
'But that's going to cost me something."
"Of course it is, but you needn't worry. There was allowance made for that contingency in the figure which I recommended you to quote. It is not quoted as a separate item, but is included in establishment costs.
"Another safeguard which you must take is to arrange to have a clause inserted providing that if a breakdown results from overloading, your customer will have to bear the cost of the vehicle which has to be hired to replace it, as well as the expense involved in effecting the repair.
"The next clause is one which is designed to protect both you and your customer. It concerns the possibility of an accident and provides for the payment of compensation. The driver, of course, is in your employ.
Otherwise you yourself will not be able to obtain a licence under the new Act. I presume, therefore, that you have properly arranged for insurance to cover yourself against any claim by him under the Workmen's Compensation Act. If you haven't, you ought to do so."
'Is that included in the costs of operation you gave me? "
"It is in the establishment costs.
Indemnifying the Customer Against Claims.
"Returning to the point, assuming, as I have said, that you have insured your driver, it is still necessary for something to be inserted in the agreement stipulating that you indemnify your customer against all claims by the driver under the Workmen's Compensation Act, the Employers' Liability Act and at Common Law, as well as against claims by third parties in 'respect of injury or damage, where that may be mused by the negligence of your driver.
"Tell your solicitor, too, that you must be protected against liability to persons who ride on your vehicle without your permission, as well as against those whoride thereon lust to suit the convenience of your customer.
"Next you must make it quite clear that you takeno responsibility for the loss of any of the goods, however that loss may be brought about, nor for any money entrusted to the driver. it should be made a condition of the contract that the goods and any money paid in connection with the .work on which the vehicle is engaged, are entirely under the control of the customer.
" The usual clause about strikes, lock-outs, wars and other abnormal conditions will probably be suggested by your solicitor without any prompting from you, but you might find it advisable to remind.him that a commercial vehicle is in a somewhat unique position in the event of an outbreak of war, in that it is likely to be conimandeered. Reference to this (let us hope) extremely remote probability should provide that, in the event of any such commandeering, the customer may not claim compensation from you. You are obviously too young to remember what happened in that connection in 1914 and 1915. You may take it from me that a good many haulage contracts were seriously disturbed and would be again.
"There are just one or two more safeguarding clauses. One is that the terms of the contract are not to be considered to be varied except in writing."
"But isn't that " making it a little too stiff and formal? "
Avoiding Liability for Unauthorized Promises...
" Not really. The object is to prevent you from being bound to promises that your driver might make without reference to you. Arrange for a clause to be inserted providing against overloading and the carriage of dangerous goods. Insist, if you like, that, if the customer's business fairly permits it, the vehicle be used only on hard roads. Finally, get your solicitor to complete the agreement by a customary bankruptcy clause. If you arrange to have, all those points provided for, you are
not likely to come ad ri ft. " S.T.R.