Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd

• Jurisdiction: South Africa
• Judge: Kriek J
• Judgment Date: 08 March 1974
• Citation: 1974 (4) SA 381 (D)
• Hearing Date: 07 September 1973
• Court: Durban and Coast Local Division

Kriek, J.:

The excipient is the plaintiff in an action instituted by it against the respondent, and I will refer to the parties as plaintiff and defendant respectively. The plaintiff is an incola of this Court while the

Kriek J

defendant is a Danish company and as such a peregrinus. On 27 April 1973 this Court, at the instance of the plaintiff, granted an order attaching the vessel "Lotte Nielsen", the property of the defendant -

"... to found and confirm jurisdiction pending the institution of an action by the applicant against Progress A Steamship Co. Ltd. of Copenhagen, Denmark, claiming damages in the sum of R1 271,16, alternative relief and costs, which action shall be instituted within 21 days from the date of this order".

The plaintiff was also granted leave to sue the defendant by edictal citation.

The facts relevant to the issue raised by the exception may be summarised as follows:

(a)

B In terms of a bill of lading issued by the defendant at Antonia, Brazil, on 15 April 1972 (and of which the plaintiff has at all material times been the holder) it became obliged to carry on the vessel "Lise Nielsen" a cargo of 643 bundles of timber, the property of the plaintiff, from Brazil to the port of C East London, Republic of South Africa, and there to deliver such timber to the holder of the bill of lading.

(b)

The cargo of timber to which this bill of lading related is alleged by the plaintiff to have been received by the defendant on the vessel in question in D good order and condition for the purpose of being carried to East London.

(c)

The plaintiff claims that the defendant, in breach of its obligations under the bill of lading, failed to deliver a part (316 bundles) of the said cargo. The value of the missing timber which should have been delivered, with the rest of the cargo, on 7 May 1972, is R1 271,16.

(d)

E Clause 2 of the bill of lading reads:

"The Hague Rules contained in the International Convention for the Unification of certain Rules relating to Bills of Lading, dated Brussels 25 August 1924, as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such F enactments are compulsorily applicable, the terms of the said Convention shall apply."

(e)

Brazil has no enactment incorporating either directly or indirectly the Hague Rules.

(f)

Chap. VIII of Act 57 of 1951 (which in fact incorporates the Hague Rules verbatim) applies only -

"... in relation to and in connection with the carriage of G goods... from any port in the Republic to any other port...".

(vide sec. 307 (1) of the Act) and is therefore not compulsorily applicable to the shipment in question.

(g)

In terms of clause 2 of the bill of lading the Hague Rules consequently apply to the shipment.

(h)

H That portion of art. III, sub-art. 6, of the Hague Rules which is relevant to this matter reads:

"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within...