Over­load­ing leg­is­la­tion a jour­ney into the ab­surd

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

IHAVE for some time in this col­umn been rail­ing against the high quan­tity and low qual­ity of reg­u­la­tions that are pour­ing out of gov­ern­ment build­ings with no par­lia­men­tary over­sight. If cit­i­zens can be pun­ished for break­ing a law, they are en­ti­tled to know with rea­son­able cer­tainty what it is they can or can­not do. Oth­er­wise the law is void for vague­ness.

We have now moved into a new league. We have just wit­nessed the pass­ing of some reg­u­la­tions which are void for ab­sur­dity. In June 2012 new road traf­fic reg­u­la­tions were pub­lished, in­clud­ing reg­u­la­tions aimed at pre­vent­ing over­loaded ve­hi­cles from trav­el­ling on public roads. The aim is laud­able. If you over­load a goods ve­hi­cle or don’t dis­trib­ute the load prop­erly over the axles you can get ma­jor dam­age to our roads. See­ing no­body wants to pay for the roads, we had bet­ter pre­serve what we have got.

The Min­istry of Trans­port came up with the idea to put the onus on the con­signor and con­signee of goods. It will be their re­spon­si­bil­ity from next year (if any­one takes the reg­u­la­tions se­ri­ously) to see that over­load­ing does not take place. Con­signor and con­signee also have to see that the trans­porta­tion of goods is “fully in­sured for dam­ages that can oc­cur as a re­sult of an in­ci­dent”.

The con­signor may not of­fer goods for trans­port if the goods are not prop­erly loaded. The reg­u­la­tion does not ex­plain how the con­signor can know how the goods will be loaded at the time of of­fer­ing them for trans­port ex­cept per­haps not giv­ing an op­er­a­tor with a one-ton ve­hi­cle a three-ton load. More ab­surd is the fact that the con­signee may not ac­cept the goods if the ve­hi­cle is not prop­erly loaded. If the goods ar­rive on an over­loaded ve­hi­cle, the con­signee must refuse to ac­cept them, turn the ve­hi­cle away and let it go back onto the public roads, over­loaded, to cause yet more dam­age.

Sim­i­lar prob­lems ap­ply to the in­sur­ance. Firstly, what does it mean to be “fully in­sured for dam­age that can oc­cur as a re­sult of an in­ci­dent”? A ma­jor in­ci­dent hap­pen­ing when goods are trans­ported can lead to all sorts of claims in­clud­ing sub­stan­tial claims from third par­ties whose prop­erty or ve­hi­cles are dam­aged or mas­sive claims for en­vi­ron­men­tal dam­age caused by an over­turn­ing ve­hi­cle.

Full in­sur­ance against all pos­si­ble losses aris­ing from all pos­si­ble in­ci­dents is too ex­pen­sive for con­signors or op­er­a­tors to bear. In­sur­ers also ex­pect their in­sured to carry part of the loss so that they have skin in the game and don’t take un­nec­es­sary chances.

If the ve­hi­cle ar­rives and it has not been pos­si­ble to get full in­sur­ance, the con­signor must not ac­cept the goods. The ve­hi­cle must be sent back out onto the roads to carry on a jour­ney to who knows where and still with­out proper in­sur­ance.

It is dif­fi­cult to un­der­stand how ab­sur­di­ties like this can ap­pear in the gov­ern­ment gazette.

It has been a prin­ci­ple of our law since Ro­man times that there can be “no pun­ish­ment with­out a law”. That means a ra­tio­nal law that is ca­pa­ble of be­ing obeyed. The laws de­scribed above can­not be en­forced. But they carry the threat of crim­i­nal pro­ceed­ings and crim­i­nal sanc­tions.

Con­signors, car­ri­ers and con­signees are go­ing to have dif­fi­culty de­cid­ing what to do with this law. The clear an­swer is to ig­nore the ab­surd laws but no­body wants to be the first to spend money on de­fend­ing them­selves in a crim­i­nal court. Let’s hope that some na­tional body rep­re­sent­ing car­ri­ers take steps to have the laws set aside, which should not be too dif­fi­cult even if au­thor­i­ties try to en­force them. Per­haps the depart­ment will do the right thing and with­draw the laws and start again.

Trans­port min­istry needs to craft ra­tio­nal laws that can be obeyed

Pa­trick Bracher (@PBracher1) is a direc­tor at Nor­ton Rose Ful­bright.

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