Bouygues Offshore and Another v Owner of the Mt Tigr and Another

• Jurisdiction: South Africa

Bouygues Offshore and Another v Owner of the Mt Tigr and Another
1995 (4) SA 49 (C) [*]

1995 (4) SA p49 A

Citation	1995 (4) SA 49 (C)
Case No	AC 105/94
Court	Cape Provincial Division
Judge	Farlam J
Heard	November 17-29, 1994
Judgment	December 13, 1994

Flynote : Sleutelwoorde

Contract — Rescission of — Rescission of partly performed service contract on grounds of fraudulent misrepresentation — Whether representee entitled to rescind because restitutio in integrum impossible — Need to make C restitution based upon considerations of equity and fairness — Representee entitled to waive restitution due to him — Restitution in essence required so that representee not unjustly enriched at representor's expense — That representor not be prejudiced a secondary consideration to be taken into account only when some benefit obtained by representee — Fact that service D contract partially performed no bar to rescission if imposition of some order for payment of money as adjunct to order for rescission able to bring about full adjustment of equitable rights of parties.

Shipping — Towage contract — Clause exempting charterer of tug from any liability for loss or damage sustained by tow — 'Himalaya clause' E extending exemption from liability conferred on charterer to, inter alia, tug owner — Barge being towed by charterer in terms of towage contract grounded — Barge owner rescinding towage contract on grounds of fraudulent misrepresentation — Barge owner making out prima facie case for damages on grounds of negligence against tug owner — Whether tug owner escaping F liability by virtue of Himalaya clause — Maxim omnis ratihabitio retrotrahitur ac priori mandato aequiparatur applicable — Thus, when tug owner made tug available and took on tow, authority given to charterer with retrospective effect to contract on tug owner's behalf for exemption — In sphere of ratification where, ex hypothesiU the 'agent' had no G authority at all at time of (subsequently ratified) contract, unrealistic and artificial to adopt approach that all that tug owner retrospectively authorised charterer to do was to conclude exempting contract and had not authorised misrepresentations inducing contract — Authority to make representations to induce contract, without which contract would not have H been concluded, to be taken to have been included in authority retrospectively conferred on agent (charterer) — Barge owner thus entitled to rescind contract with tug owner contained in Himalaya clause as consequence of misrepresentations.

Shipping — Carriage of goods by sea — Exemption from liability — 'Himalaya I clause' — Clause designed to combat exposure of servant, agent or subcontractor of carrier to liability from which carrier exempted —

1995 (4) SA p50

Not intended to create exemption enuring for benefit of servant, agent or subcontractor even where carrier's exemption lost through, for example, rescission. A

Shipping — Admiralty action in personam — Attachment of property (vessel) to found or confirm jurisdiction — Vessel previously attached in action in rem- Peregrine owner entering appearance to defend action in remon B behalf of vessel — Once vessel attached in in personam proceedings, action in rem withdrawn — Whether owner entitled to oppose confirmation of attachment on grounds that, by entering appearance to defend in rem proceedings, owner taken to have submitted to jurisdiction — Rule 6(3) of Admiralty Rules made in terms of Admiralty Jurisdiction Regulation Act 105 C of 1983 — In terms of Rule 6(3), owner entering appearance to defend action in rem not regarded as having submitted to in personam jurisdiction — Attachment to found or confirm in personam jurisdiction thus not precluded.

Headnote : Kopnota

D The first applicant (hereafter 'the applicant') was the owner of a barge which had been grounded on the Cape Town coastline while being towed from Pointe Noire, Congo, to Cape Town by a tug owned by the first respondent and chartered by the second respondent, in terms of a towage contract between the applicant and second respondent. The applicant sought confirmation of an order attaching ad fundandam vel confirmandam jurisdictionem the tug and the bunkers aboard the tug in actions in E personam which it intended instituting against the respondents for damages it allegedly had suffered as a result of the grounding, as well as (as against the second respondent) for repayment of the towage price it had paid.

The towage agreement with the second respondent had been concluded on 26 May 1994. Prior thereto the applicant had requested quotations for the proposed tow by a tug having a bollard pull of 90-100 tons. A data sheet containing the information that the first respondent's tug had a static F bollard pull of 80 tons and a brake horsepower of 7 200 was sent by the second respondent's agent to the applicant's agent. Thereafter the applicant's agent was advised that the tug could be made available. The person who had signed the towage contract on the applicant's behalf had been sent the data sheet prior to signing. It appeared from the evidence, however, that problems with one of the tug's engines had been experienced continuously since November 1993. On 5 May 1994 the tug master had G informed the second respondent's agent that urgent repairs to the port engine and the turbocharger were required and, on 6 May, he had sent a telefax to the agents, giving a comprehensive report on the damage and stating in specific terms that the tug was operating at only 60% of its power. It had originally been intended that a complete new turbocharger would be fitted at Cabinda or Pointe Noire. It was subsequently proposed, per radio telegram sent by the agent to the tug on 26 May (the day on which the contract had been signed), that spare parts and an engineer be H sent to the tug at Pointe Noire or at Cape Town. When it had become apparent that the repairs could not be done at Pointe Noire, it had been decided that they would be done at Cape Town, after the tow had been performed.

The towage contract contained a clause exempting the second respondent from liability for any loss or damage sustained by the tow, whether or not caused through breach of contract, negligence or any fault; it also I contained a Himalaya clause whereby the exemption from liability conferred on the second respondent was extended to, inter alia, the first respondent. It was the applicant's case, however, that it had validly rescinded the tow contract by reason of misrepresentations concerning the tug's towing capacity, with the result that its claims against the respondents could proceed unaffected by the exemption and Himalaya clauses.

When the attachment orders sought to be confirmed had been granted, the tug was already under attachment in an action in rem which the applicant had instituted against her. A subsequent order had appointed an examiner J to take evidence on

1995 (4) SA p51

A commission, such evidence to form part of the record of the action in rem. After the attachments in the present proceedings had been granted, the action in rem was withdrawn.

The first respondent opposed confirmation of the present attachment on the grounds that (a) by entering appearance to defend (on behalf of the tug) in the action in rem and by applying for permission to cross-examine the witnesses at the commission, it had to be taken to have submitted to the B jurisdiction of the Court so that, in terms of the rule that the property of a peregrinus who had already submitted to the jurisdiction of the Court would not be attached to found or confirm jurisdiction against him, its tug should not have been attached; and (b) that there was no prima facie case against it. The second respondent opposed confirmation of the attachment on the grounds that it was not the owner of the bunkers aboard the tug and that, since none of its property had been attached, no order should be made against it. It contended, in the alternative and in any C event, that no prima facie case had been made out against it.

The applicant's claims against the second respondent were based upon (A) the provisions of the towage contract which, it alleged, the second respondent had breached by failing to provide a tug sufficient for the purpose for which she was to be employed, in that the tug had not been tendered at Pointe Noire in a seaworthy condition and in all respects ready to perform the tow; and (B) fraudulent or negligent D misrepresentation, and negligence in that the second respondent's towing master, who at all material times had been aboard the tug, had been negligent in failing to advise the master (1) that it had been unsafe to embark upon the voyage without emergency towing arrangements in place and/or (2) that it had been unsafe to proceed close to the coastline immediately prior to the grounding, regard being had to the weather conditions then prevailing.

Its claims against the first respondent were based on allegations that (1) E the first respondent, through its agents, fraudulently or negligently had misrepresented to it the pulling capacity of the tug; (2) it had been in breach of the duty of care it owed to third parties to ensure that the tug had been fit to perform towage contracts; (3) it and/or its servants, namely the master and crew, had been in breach of the duty of care owed to third parties to ensure that the towing gear was adequate and that emergency arrangements were in place; and (4) the master and crew of the tug had proceeded too close to the shoreline when it had been unsafe to do F so.

Held, that all the applicant's claims against the respondents in the present proceedings, including those based on alleged tortious liability arising from misrepresentation, fell to be decided in accordance with English admiralty law as it...