MV MSC Spain; Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Scott JA, Farlam JA, Cloete JA, Lewis JA and Cachalia JA
• Judgment Date: 20 March 2007
• Citation: 2008 (6) SA 595 (SCA)
• Docket Number: 204/06
• Hearing Date: 16 February 2007
• Counsel: MJD Wallis SC (with AM Stewart SC) for the appellant.G Lopes (with GR Thatcher) for the respondent.
• Court: Supreme Court of Appeal

Scott JA: I

[1] This is an appeal, with special leave, from the judgment of the full court of the Pietermaritzburg High Court exercising its admiralty jurisdiction which upheld an appeal from a decision of Combrinck J, who had absolved the defendant, now the appellant, from the instance. The judgment of the full court is reported at 2006 (4) SA 495 (N). The case J

Scott JA

A concerns two containers of litchis shipped on board the vessel, MSC Spain, at Durban for carriage, one, to Jebel Ali, Dubai, the other, to Damman, Saudi Arabia, pursuant to the terms of two bills of lading. The shipper was the respondent, a company which carries on business at Durban as an exporter, inter alia, of perishable fresh fruit to the Middle B East. I shall refer to it as Tebe. The bills of lading were issued by the appellant as agent for the carrier, being the owner of the vessel. On arrival at the ports of discharge the litchis were found to have deteriorated in consequence of a delay in the completion of the voyage. Tebe sued the appellant both in contract and delict. The claim in contract was C misconceived; the appellant acted at all times as an agent. The claim in delict was founded upon the alleged negligent failure of the appellant to advise Tebe of a delay in the commencement of the voyage and a change in the proposed route of the vessel to the ports of discharge.

D [2] The appellant is a South African company. Its business is that of ships' agent in South Africa for the Geneva-registered company, Mediterranean Shipping Co SA (hereinafter referred to as MSC Geneva). The latter operates a large and well-known fleet. It owns some of the vessels in the fleet; others it operates in pursuance of time charters. The relationship between the appellant and MSC Geneva is governed by a E written agency agreement, a copy of which was admitted in evidence. The appellant's duties as agent include typically the acceptance of bookings and the marketing of its principal's services. It is also authorised 'to issue, sign and stamp' bills of lading on behalf of its principal 'and/or the Master'.

F [3] The MSC Spain was on time charter. Rider clause 66 of the charter party reads:

The Master, Charterers and/or their agents are hereby authorised by Owners to sign on Masters' and/or Owners' behalf Bills of Lading as presented without prejudice to this Charter Party. . . .

G It was in terms of this clause that the appellant acted directly as the owner's (ie the carrier's) agent in issuing the bills of lading.

[4] At the commencement of the trial the judge, as requested by the parties, ordered that certain issues be decided first and that the remaining H issues stand over for later determination. Those to be decided, shortly stated, were the following:

(1)

Did Tebe have locus standi to sue, whether in contract or delict, for damages arising out of the loss of the consignment of litchis?

(2)

Did the appellant contract with Tebe as principal or as agent and, if I as principal, what were the terms of the contract?

(3)

Is the appellant liable to Tebe in delict for damages by reason of the former's negligent failure to inform Tebe that:

(a)

the estimated date of departure of the MSC Spain . . . from Durban to Jebel Ali was delayed; and

(b)

J the route of the vessel from Durban to Jebel Ali was changed?

Scott JA

(4)

Can the appellant rely on the Himalaya clause [1] in the bills of lading A and if so, is it excused from all liability?

[5] The trial court found for the appellant on the issue of Tebe's locus standi and granted absolution from the instance. It decided none of the other issues referred to above. Tebe's appeal to the full court was successful. The latter court held that Tebe's locus standi had been B established. It held further that the appellant was liable to Tebe in delict for any damages it may have suffered in consequence of the appellant's failure to inform Tebe of the vessel's change of route and that the appellant was not protected from such liability by the Himalaya clause in the bills of lading. The only issue on which Tebe was unsuccessful was C the second issue listed above. In this regard it appears that Tebe's claim was initially prosecuted on the incorrect assumption that the appellant and MSC Geneva were one and the same entity and that that entity was the carrier with whom Tebe had contracted. In view of the provisions of the bills of lading, to which I shall refer later, this would have precluded any claim in delict. But, as indicated above, it is quite clear on the D evidence that the appellant was at all times acting as agent for MSC Geneva or the owners of the vessel.

[6] It is necessary at this stage to record the events leading up to the conclusion of the contracts of carriage, evidenced as they were by the E bills of lading, and the circumstances in which the vessel came to be delayed and her route to the Middle East altered.

[7] The normal route followed by MSC Geneva's vessels from Durban to Dubai is via the East African ports of Dar-es-Salaam and Mombasa, then the ports of Mumbai and Karachi, and thereafter to Dubai. The voyage F takes about 21 to 25 days. Tebe had previously shipped consignments of fruit on MSC Geneva vessels to the Middle East but had ceased to do so in favour of other shipping lines which followed a more direct route and completed the voyage in about 15 days. Although litchis were packed in reefer (refrigeration) containers, time remained of critical importance because of their perishable nature. In about November 2001 the G appellant received instructions from MSC Geneva to secure cargo for a special voyage of the MSC Spain from Durban, via the island of Reunion, to Dubai where the vessel was due to go off hire. The voyage would take between 12 and 14 days and the estimated date of departure was 6 December 2001. On 26 November 2001 the appellant's assistant trade H manager, Mr Roshand Premchund, approached Mr Mahomed Jangda, who is Tebe's operations director, with a view to procuring cargo for the

Scott JA

MSC Spain's voyage. Jangda considered the timing to be perfect. Eid, which was preceded by 30 days of fasting, fell on 15 December that year and would be followed by 10 days of celebration. A consignment of litchis which arrived in Dubai on about 18 or 20 December would therefore be readily marketable. Jangda accordingly arranged with his B supplier in Malelane (who traded under the name of Laughing Waters) to dispatch a consignment of litchis to Durban. He also arranged with his forwarding agents, WSS Africa, to make the necessary booking, which the latter did on the same day, namely 26 November 2001. A

[8] The litchis arrived in Durban on 2 December 2001. They were C placed in cold storage to cool to the appropriate temperature and then packed into two containers. The containers were moved to the container terminal on 6 and 8 December, respectively, where they remained until...