Hay and Australian Postal Commission [1979] AATA 89 (6 July 1979)

Last Updated: 12 March 2007

ADMINISTRATIVE APPEALS TRIBUNAL

Postal compensation - suitcase damaged in course of post - uninsured parcel - whether suitcase "contents" for purposes of compensation - Re: Bendall and Australian Postal Commission referred to - "fault or negligence of sender"
Postal Services Act 1976 ss 7, 115
Postal By-Laws 283, 284, 288, 292, 293
Universal Postal Union Postal Parcels Agreement, Articles 18, 23, 39, 40, 104

DECISIONS AND REASONS

Re: KEITH HENRY HAY

And: AUSTRALIAN POSTAL COMMISSION

No. 79/16003
AAT Decision No 225

Mr R.K. Todd (Senior Member)

Date: 6 July 1979

ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION

No: 79/16003

Re: KEITH HENRY HAY

And: AUSTRALIAN POSTAL COMMISSION

DECISION

The Tribunal decides to affirm the decision of the delegate of the Australian Postal Commission made on 10 January 1979 rejecting the claim for compensation made by Keith Henry Hay.

DATED this 6th day of July 1979.

(Sgd) R.K. Todd

(R.K. Todd)

Senior Member

REASONS FOR DECISION

This application seeks review of a decision made by a delegate of the Australian Postal Commission to disallow a claim for compensation in respect of damage to a suitcase which occurred in the course of its delivery by post from the United Kingdom to Australia.

The suitcase in question was an expansion type 28" fibre suitcase, reinforced around the edges with aluminium bead. The applicant, while travelling in the United Kingdom, decided that he would return some items of personal clothing to Australia and, having packed the suitcase accordingly, he took it to the Vauxhall Bridge Road Post Office, Victoria, London. The suitcase was addressed to the applicant's daughter. When he took it to the Post Office he asked a young man behind the counter how the case would go. He was told "There is no trouble because we send dozens of them in this manner". He was also told that "it will go in a bag". The applicant thought that the suitcase would be carried in its own bag and considered that this would be sufficient for the purpose. He did not ask whether he should wrap the suitcase or do anything to it. He paid the requisite postage and received a certificate of posting which was tendered in evidence. He did not read the conditions on the back of the certificate. Condition No. 2 of these conditions read as follows:

"(2) No legal liability attaches to the Post Office in respect of the issue of this certificate. Compensation is paid for the loss of or damage to parcels addressed to most of the countries to which the Parcel Post extends; in certain cases compensation is payable only if loss or damage occurs in the British Service. For conditions as to permissible contents, compensation and insurance of overseas parcels, see Post Office Guide."

On the face of the receipt at the top under the words "Overseas Parcel Post" appear the following words: "Certificate of Posting of an uninsured ordinary parcel for abroad". At the foot of the receipt there appear also the words "For insured, COD, FDD or Express parcels use number portion only".

The applicant did not consult the Post Office Guide. He made no other enquiries as to any directions laid down by the Post Office in the United Kingdom as to packaging of suitcases for posting. There was doubt as to whether the customs declaration which he made out referred only to the contents of the suitcase or included a reference to the case itself. Asked if he had considered insuring either the contents of the suitcase or the suitcase itself he replied that he had, but that it had slipped his memory at the time and that afterwards it was too late because it had gone.

The suitcase was in a damaged condition when it was delivered to the addressee. It had been purchased in Singapore in the course of the applicant's journey to the United Kingdom and when posted it was in good condition. When delivered one of the hinges at the back was completely ripped off and the other was useless. One of the locking devices on the front of the case was useless and the other would close but would not lock with the key. The applicant had not sought to discover whether the damage could be repaired or to obtain a quotation therefor. In the result I find that the suitcase was not totally damaged so that no question of the repayment of postal charges arises: See Article 39(4) of the Universal Postal Union Postal Parcels Agreement (referred to below).

It was agreed at the hearing that should compensation be payable an appropriate compensation would be an amount of $19, which was within the maximum compensation payable under the combined operation of Postal By-law 284 and UPU Postal Parcels Agreement Article 39 for an uninsured parcel weighing between 5 and 10 kilograms, namely 60 French Francs converted into Australian Dollars as $20.80.

Evidence was given to the Tribunal by Mr NFD Brewster, a very experienced postal officer who is currently the Acting Manager of the Central Mail Exchange in Adelaide, and who explained the various ways in which the suitcase would be carried during its journey. When accepted from Mr Hay at the Post Office, it would have been transferred by UK Post Office van, train or private contractor to the Central Post Office, Loudon. From there it would have been processed in the normal manner and packed again, possibly with other parcels in the bag. From there it would be placed in a container containing 300 to 350 mail bags. If the bag was on the bottom of a container with up to 10 bags on top of it, there would, as he said, be certain pressures applied to the case. The container would then be lifted on to a ship by crane and in transit by ship the shaking and rolling involved causes all the bags to pack down. The container would then have been taken off the ship in Melbourne and transported to marshalling yards where it would have been unloaded by Post Office employees, and, being destined for Adelaide, would have been extracted, taken to the railway either by truck or by direct transfer and then placed in a railway van called a D van, where the same type of container loading procedure would have occurred. On arrival in Adelaide, the container would have been placed on a 5 ton truck and transferred to the Central Mail Exchange. The bags would have been checked in individually and placed on a conveyor taking them to the foreign opening section on the first floor of the central exchange. After a screening process had occurred, the suitcase would have been taken to its town of destination by train, having again been placed in a bag. Mr Brewster expressed the opinion that the suitcase had not been adequately protected for the purposes of transmission by international post. In his opinion, the outer cover was very important and whether a case would withstand the pressures to which it would be subjected through the post would be dependent upon how the items were packed inside. He expressed the opinion that the suitcase should have been covered with a stout material to protect it if it were to be regarded as "contents".

The statutory provisions which are here applicable are as follows: Section 7(4) of the Postal Services Act 1975 provides that "it is the duty of the Commission, in performing its functions, to comply with the provisions of any convention to the extent that it imposes obligations on Australia in relation to matters within the functions of the Commission". Pursuant to the powers conferred by Section 115 of that Act, Postal By-Laws have been made by the Australian Postal Commission and provide, in Part XI thereof and so far as relevant, as follows:

"283. In this Part, unless the contrary intention appears –

'damage' includes total or partial loss, or theft of the contents of an article and

'damaged' has a corresponding meaning."

"284.(1) Compensation in respect of articles lost or damaged during international transmission is payable by the Commission in accordance with the convention applicable to that transmission and, subject to By-laws 293 and 297, is not payable by the Commission except in accordance with that convention.

(2) The provisions of this Part apply in relation to claims in respect of articles lost or damaged during international transmission except to the extent that those provisions are inconsistent with the provisions of conventions applicable to that transmission."

"288. Compensation is not payable under this Part in respect of damage to an article unless the claimant delivers to the Commission the wrappings in which the article was delivered to its addressee and any contents of the article which have been delivered and which are alleged to have been damaged."

"292. (1) Compensation is not payable under this Part in respect of damage to the contents of an article if -

(a)	the contents were fragile and could not be, or were not, adequately wrapped to protect them in the ordinary course of transmission;
(b)	the contents were bank notes lodged otherwise than for transmission by registered post or courier service;
(c)	the contents were coins, jewellery or negotiable securities which -

(i) were lodged in wrappings which were not securely sealed; or
(ii) were lodged, for transmission otherwise than by registered post or courier service, in wrappings which, by reason of their shape, fastening or transparent or of anything written on their outer surface, enabled the nature of the contents to be ascertained;

(d)	the contents were likely to perish or to become physically offensive during the ordinary course of transmission;
(e)	the contents were enclosed in a letter card; or
(f)	the wrappings of the article were inadequate, or inadequately fastened, having regard to the contents, to protect them during the ordinary course of transmission.

(2) Without limiting the generality of paragraph 290(1), where the Commission has required, by or under a By-law, that contents of a particular kind shall be wrapped in a specified manner to prevent them causing damage to mail or officers, compensation is not payable under this Part in respect of contents of that kind that are not wrapped in the specified manner."

"293.(1) The compensation payable under this Part in respect of an article shall not exceed whichever is less of -

(a)	the value of those contents for which compensation is claimed; or
(b)	the amount prescribed in paragraph (2)."

The international convention which is applicable is the Universal Postal Convention to which both the United Kingdom and Australia are signatories. Pursuant to that convention a further agreement was concluded, namely the Universal Postal Union Postal Parcels Agreement and this agreement determines the question of compensation for articles lost or damaged in the course of transmission between the United Kingdom and Australia. Article 39(1) of that agreement provides -

"1. Postal administrations shall be liable for the loss of, theft from or damage to parcels except as provided for in Article 40 ..."

Article 40(2)(i)(c) provides –

"Postal administration shall not be liable:

(1) for the loss, theft, or damage of parcels -

(a) and (b) ....

(c) when the damage has been caused by the fault or negligence of the sender or arises from the nature of the contents of the parcel;

(d) (e) and (f) "

Mr Kelly, who appeared for the respondent, made three main submissions:

(i) He first argued that the UPU Postal Parcels Agreement (which I shall call "the convention") did not operate so as to provide any indemnity in respect of the outer wrappings of a parcel, and the suitcase in question was to be regarded as constituting such an outer wrapping.

(ii) Alternatively, he argued that if the suitcase was to be regarded as constituting "contents" for the purposes of the Convention then the same was not in fact packed at all and the provisions of Article 40(2)(i)(c) thereof, previously referred to, applied so as to exempt from liability on the basis of the damage having arisen from the nature of the contents of the parcel.

(iii) In the further alternative, by the provisions of Article 40(2)(i)(c) there is no liability where the damage has been caused by the fault or negligence of the sender, and it was contended that the applicant in this instance should as a reasonable man have informed himself of the circumstances of the transmission and taken greater care to pack the suitcase adequately for postal transmission.

Submission (i) involves the assumption that the suitcase is to be regarded as having constituted the outer wrappings of the parcel, the contents of which was the clothing which was packed in the suitcase. There is in my opinion a good deal of logical support for such an assumption. It does not seem to me to be obvious that a suitcase in such circumstances ceases to be a wrapping and takes on the character of contents simply because it has, subject to ordinary wear and tear, a continuing life. Instead of wrapping the clothes in a paper or cardboard parcel, a suitcase was used as wrapping. It is unnecessary however to decide this nice philosophical point. It is enough to approach the problem upon this hypothesis. So doing, my conclusion is that the convention is based upon the premise that the indemnity there provided for is one in relation to the contents of a postal article and not in relation to its outer wrappings. Articles 39 and 40 of the convention have already been referred to, but for the purpose of their interpretation Articles 18(b) and 104 are of importance. Article 18(b) provides:

"Provided that the contents do not come within the prohibitions listed in Article 19 or within the prohibitions or restrictions applicable in the territory of one or more of the administrations called upon to take part in the transmission, every parcel, to be admitted in the post, shall:

(a) ...

(b) be packed in a manner adapted to the nature of the contents and the conditions of transport;

(c) ...

(d) ...

(e) ..."

Article 104 provides:

"1. Every parcel shall be packed and closed in a manner befitting the weight, the shape and the nature of the contents as well as the mode and duration of conveyance; the packing and closing shall protect the contents against crushing or damage by repeated handling; they shall also be such that it is impossible to tamper with the contents without leaving clear traces thereof.

2. Every parcel shall be made up particularly securely if it has to be:

(a) conveyed over long distances.
(b) transhipped or handled many times.
(c) protected against major changes in climate, temperature or, in the case of conveyance by air, variations in atmospheric pressure."

Certain Articles relating to insurance are also relevant, for while the parcel was not here insured it is still proper as a matter of interpretation to note that by its terms the assumption is that it is the contents of parcels that may be insured:

"23.1 The following rules shall govern the insured value of insured parcels:

(a) ...
(b) senders:

(i) may not insure the parcel for a value exceeding the actual value of its contents;

(ii) may insure part only of the actual value of the contents of the parcel."

Article 39(2) provides for an indemnity corresponding, in principle, to the actual amount of the loss, theft or damage, but the indemnity may in no case exceed

"(a) for insured parcels, the amount of the insured value in gold francs .....

(b) for other parcels, the following amounts:

....."

The whole tenor of these provisions appears to be that the provisions in relation to insurance and the provisions in relation to compensation are provisions relating to contents of parcels. I have already set out Postal By-Laws 283, 284(1) and (2), 288, 292 and 293(1). These appear to be in no way inconsistent with the provisions of the applicable convention (see By-Law 284(2)), but rather to be consistent with it. In By-Law 283, I think it is clear that it assumes that it is damage to the contents of a postal article that is being referred to, and that the word "includes" is related not to the word "contents" so as to provide that damage to something other than contents may be being referred to, but only to the words "total or partial loss, or theft", those being occurrences that might, were it not for the definition, be thought not to be embraced by the word "damage". By-Law 288 clearly distinguishes between wrappings and contents, and assumes that contents shall be wrapped and that it is damage to contents and not to wrappings that will be in issue. By-Law 292 also assumes that it is compensation in respect of contents that is in issue.

I was referred to Studebaker v. Charlton Steam Shipping Co. Limited (1938) 1 KB 459 and to Whaite v. Lancashire and Yorkshire Ry. Co. (1874) LR 9 Ex67 in relation to the question of what may be regarded as a package but I think that these authorities are of but marginal assistance and that the matter falls to be decided upon the construction of the particular provisions to which I have referred.

The next submission was that if the suitcase were, contrary to the previous assumption, to be properly regarded as contents for the purpose of recovery of compensation pursuant to the convention, then there is no liability where the damage arises from the nature of the contents of the parcel (see Article 40(2)(i)(c) above). This submission was developed in some detail but I do not propose to go into it, as I am clearly of the opinion that the proper analysis of the position is that advanced in terms of the third submission, namely that, regarding the suitcase as contents, it was not wrapped at all, and there was a complete failure to comply with the provisions of Article 18 and Article 104. Even without regard to these two latter provisions I should have thought that the posting of an article without any wrapping at all leaves the sender open to a finding that any damage that is caused by his fault within the meaning of Article 40(2)(i)(c), and I here so find. In so saying I hasten to add that I am making no criticism of the applicant, but have been impelled to so find because of the considerations which I now set out, but which I preface with a reference to the recent decision of the Tribunal in Re: Lloyd Bendall and Australian Postal Commission (No.79/12007). In that case the applicant had first made enquiries at a Post Office in the United Kingdom regarding the requirements for wrapping and transmitting a suitcase and its contents by post to Australia. He had then returned to his hotel, had carefully packed the suitcase, mainly with clothing, and in order to provide additional protection for the contents had surrounded them with a sheet of corrugated cardboard inside the case. He had secured the case with straps as the Post Office had suggested and also put rope on to the straps so that they could not move. After checking the weight of the case on the hotel scales, he had returned to the Post Office to lodge the suitcase for transmission and he believed that in preparing the suitcase for transmission he had followed all the advice that he had been given regarding protection of the case during transit. The Post Office scales had then shown the case to be slightly over 10 kilograms in weight. He had accordingly removed some of the contents, repacked the case and its strappings and lodged it for despatch. He had enquired whether the case and its contents were insured against loss or damage and had been told that they were. The Tribunal decided that in the circumstances of the despatch of the suitcase and its contents it was not possible to conclude that there was any lack of care or fault on the part of the sender in the preparation of the suitcase and its contents for despatch and it was found that the sender had taken all steps which a reasonable and prudent citizen should take before despatching such goods by post by making enquiries at the Post Office.

I think that on the whole, and despite the fact that the applicant was to a degree not adequately helped by the counter staff, he did not take adequate steps to ensure that the suitcase itself, regarded as contents of the parcel, was protected. He sent it unprotected after a fairly casual enquiry. The applicant had had commercial experience with the postal authorities in Australia and expressed himself as being very satisfied with the service and standard of care that he had there received. He obviously felt very let down by what he saw as bad or insufficient advice, and it is true that the Post Office employee to whom he spoke was given more to optimism than to knowledge of the Post Office regulations, for the UK Post Office Guide in fact indicate that suitcases "should be protected by stout fibre board covering the sides". Nevertheless, I do not think that the applicant had, as the applicant had in Re: Bendall, really addressed himself to the peculiar problems attaching to the consignment by post of an article intended to serve as a container of consigned articles, but which was itself also intended by the consignor to arrive at its destination in good order and condition. The fact that a suitcase is designed for the purpose and only for the purpose of carrying a tides, usually of a personal nature largely consisting of clothing, perhaps tends to suggest to its owner that it has some inherent capacity to act as a container and to maintain its own physical integrity in the process. It seems to me, however, that a person who desires to consign a suitcase by post in these circumstances and to protect both itself and its contents, must take at least reasonable steps to wrap it in some way. Accordingly the decision of the Tribunal is to affirm the decision of the delegate of the Australian Postal Commission.

I think it appropriate to add the comment that if the practice of committing suitcases to the post is, as would appear from the comment made at the counter in this case, a common one, then the . postal authorities at least in the UK and Australia but hopefully in the other member countries of the convention also, should include in any circular instructions sent to Post Offices some guide to counter staff as to what they should say by way of warning, at the point of acceptance of the article for posting, in relation to the possibility of damage occurring to the suitcase itself.