Cool-South is a wholesale and retail seafood supplier of fish, seafood, and culinary delights to Melbourne's ever-growing hospitality industry. Till Next Time (TNT) isone of Australia's largestproviders of integrated refrigerated transport and cold storage.

In June this year, Cool-South emailed TNT asking for a quote for the transportation of two containers of frozen seafood. The seafood was to be picked up on Monday 29 August from Port Darwin (Northern Territory, Australia) to be delivered on Thursday 1 September at Cool-South warehouse in Preston, Melbourne.

TNT, via email, sent a quotation, which included the statement that TNT standard terms would apply and attached a copy of these. The terms included the following exclusion clause:

Under no circumstances shall the carrier, TNT, beliable or responsible in any capacity for or in respect of-

A. anyLoss of or Damage toor in connection with the Goods which arises or is due to any occurrence, after such Goods have beendelivered or made availableby or on behalf of the Carrier at the place of delivery, or

B. anyLoss of the Goodsarising or resulting at any time from

fire not caused by the actual fault of the Carrier, or

quarantine restrictions, or

any cause or event which the Carrier could not avoid or the consequences of which the Carrier could not prevent by the exercise of reasonable diligence.

After receiving TNT's quotation, a senior manager at Cool-South replied as follows: "Dear TNT team, we are delighted to confirm the freight of two containers Darwin-Melbourne with your company. We hope this will be just the beginning of a prosperous commercial partnership". The senior manager accepted TNT's quotation without having read the standard terms of the company.

Last Monday, on 29 August, three TNT employees picked up the two containers from Port Darwinas agreed. After inspecting the containers, one of the drivers noted on a delivery receipt that the consignment appeared in good order.

Unfortunately, the drive down to Melbourne was not uneventful. Before crossing the border between the Northern Territory and Queensland, the TNT truck was involved in a road accident just after sunset. According to a police report, the accident was because of the fault of another truck driver (not TNT) who was speeding and, consequently, was not able to stop at the red lights at a major intersection and collided with the TNT truck.

The TNT truck was then taken by tow truck to the nearest police station, where it was unloaded. The following morning, Tuesday 30 August, another TNT truck was outside the police station ready to pick up the containers and, thus, to complete the delivery. However, to the surprise of everyone, one of the containers had disappeared. It is still a mystery as to how and where it was stolen, but the fact is that the new truck collected just one container.

On Friday last week (2 September), the remaining container was delivered to the Cool-South warehouse in Preston... and immediately everyone at the premises could "smell" that something was wrong. Indeed, the container's cooling system had been damaged in the accident: Rather than frozen seafood, the consignment already looked and smelled like something between steamed rotting seafood and an old laksa soup.

Cool-South immediately contacted TNT, demanding full compensation for the non-delivered container as well as for the container of spoiled seafood.

A calm representative of TNT replied then, "haven't you read our standards terms yet?"

YOUR TASK (10 marks) Last week you started working at Cool-South. This morning you read an email from your supervisor the senior manager\\ entered into the contract with TNT - asking you to outline the effects of the exclusion clause in relation to the matters in contention with TNT. In particular, she asked you to address the following matters: A. If we (Cool-South) became aware of this exclusion only after the incident, how is it that it can be a term of the contract? Besides, we never signed that document. B. Assuming that the exclusion clause is a term of the contract, does it cover the damage to the consignment? C. Does the exclusion clause cover the case of non-delivery of the half of the goods (ie. the stolen container), considc that this interpretation would arguably defeat the main object of the contract? If so, discuss whether the carrier is exemptec from liability by part (A) or (B) of the exclusion clause, or both of them. D. Finally, would your answer be different had the accident been caused by the fault of TNT's own driver