MV Snow Crystal Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal

• Jurisdiction: South Africa
• Judge: Scott JA, Farlam JA, Cloete JA, Combrinck JA and Hurt AJA
• Judgment Date: 27 March 2008
• Citation: 2008 (4) SA 111 (SCA)
• Docket Number: 250/07
• Hearing Date: 03 March 2008
• Counsel: A Subel SC (with RJ Howie) for the appellant. JJ Gauntlett SC and M Wragge SC for the respondent.
• Court: Supreme Court of Appeal

Scott JA:

[1] The respondent is Snow Crystal Ltd, a company registered in the F Cayman Islands. It is the owner of the MV Snow Crystal, a fruit carrying reefer vessel which is managed by Holy House Shipping AB of Stockholm, Sweden. It instituted an action in personam against the appellant in the High Court, Cape Town (exercising its admiralty jurisdiction) for the payment of damages arising from the failure on the part of the latter to G make the Sturrock dry dock in Cape Town harbour available for the docking of the vessel during the period 1 to 14 December 2001. The matter came before Davis J who upheld the respondent's claim for damages under certain heads but rejected its claim under others. [*] The appeal is with the leave of the court a quo. There is no cross-appeal. H

[2] It was common cause both in this court and in the court below that the respondent's claim was a maritime claim within the meaning of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983. It was also common cause that in terms of s 6(1)(b) of that Act the law to be applied was 'the Roman-Dutch law applicable in the Republic'. In its plea the appellant denied the existence of the contract relied upon by the I respondent. The issues on appeal were the existence or otherwise of a

Scott JA

A contract between the parties, and if there was a contract, its nature and scope, its terms, whether the appellant was precluded from performing by reason of a supervening impossibility, and the respondent's entitlement to damages. Before dealing with these issues it is necessary to set out the facts upon which the respondent based its claims. Much is B common cause.

[3] In 2002 the Snow Crystal was on time charter to Universal Reefers. In terms of the charterparty, which made provision for a 'long term' charter, the charterers were given the option of trading with the vessel for either eight months of the year or for the full year. The charterers chose C the eight-month option for 2002. It was the practice of Holy House Shipping to operate the vessel on the spot market during the off-hire period. In that year, however, it was decided to use part of the four-month period to have the vessel repaired and surveyed for classification purposes. The charter period had been negotiated to recommence in Cape Town on 14 December 2002. Mr Thure Gellerbrant, a technical D superintendent in the employ of Holy House Shipping, accordingly made arrangements for the vessel to be laid-up and dry docked in Cape Town. The first step in the process was to contact Mr Ivan Separovic. He was both the sole member of I Separovic CC, which traded in Cape Town as Ivan Engineering, and the proprietor of Quay Maritime E Services. Ivan Engineering was duly engaged to carry out the steel and pipe repairs on the vessel and Separovic in his capacity as proprietor of Quay Maritime Services, was instructed by Gellerbrant to make a dry dock booking.

[4] Separovic spoke to Mr Etienne Gouws, the dock master, as early as F March 2002. The latter advised Separovic that the Sturrock dry dock was available for the period 1 December to 14 December 2002 and a booking was made for that period. On 15 March 2002 Separovic wrote to Captain Lock, the acting port captain, recording that the dry dock had been booked for that period, describing the work to be done on the Snow G Crystal and seeking information regarding the availability of berth 700, being the repair berth, from October to December 2002.

[5] Early in June 2002 Gouws requested Separovic to put in what he described as an 'official booking' for the vessel. Separovic duly completed a printed form prepared by the appellant. It is necessary to H describe this form in some detail. It is headed 'Portnet: Port of Cape Town' with a subheading 'Application for the use of drydock, or syncrolift' (Portnet is a division of the appellant). The form, as filled in, commences

I/we Quay Maritime Services request that the vessel: Snow Crystal be dry docked . . . from 1.12.2002 (date) to 14.12.2002 (date).

I What follows is a record of the vessel's particulars such as gross tonnage, overall length and 'extreme' breadth. Spaces for other particulars such as the vessel's draft were left uncompleted. The document was signed by Separovic and dated 5 June 2002 as agent for the vessel. It is not disputed that he had authority to do so. A space left for the signature of J the dock master was left blank. The words 'See reverse side for

Scott JA

conditions' are printed at the foot of the page. The reverse side of the A form contained three printed paragraphs. The first was headed 'Declaration'. Its grammatical construction is less than perfect and it contains a number of printing errors. It is necessary to quote it in full.

Declaration

(1)

Declare regulation 60(1) of the Regulations for the Harbours of B the Republic of South Africa and that I understand and concur with the Provisions of that regulations.

(2)

That all shore-side connections required by the vessel, especially fire-fighting water connections, is my responsibility and are operating to my satisfaction and that the ongoing integrity of these connections shall be my responsibility for the duration of the C period which my vessel occupies the Drydock.

(3)

I take note that the salt water is free of charge and fresh water is payable as per Harbour Tariff book and agree to monitor the consuming thereof in order to accept the Applicable charges.

(4)

That the sides of my vessel will be kept clear by removing all over board smoking buoys, EPIRB buoys, lights etc which might be in D the way of the crane wires.

(5)

Only accredited shiprepair firms to be used.

(6)

The gangway on board to be kept in a sole and serviceable condition and not misused.

It is common cause that in subpara (1) the reference to 'regulations 60(1)' E should be to 'regulation 61' and that the words 'to be applicable' should be inserted after the words 'South Africa'. Paragraph 2 of the reverse side of the form deals with spray painting in the Robinson dry dock and when the syncrolift is used. Paragraph 3 contains various conditions relating to pollution control in the dry dock facilities. [1] F

[6] Regulation 61(1) is of particular importance. It reads:

(1)

Before a ship is admitted to a drydock in a harbour the name and full particulars of the ship shall be entered in a book to be kept for that purpose at the port office of the harbour, and the owner, G master or agent of the ship shall sign an agreement acknowledging himself to be bound by the following conditions and undertaking to pay the applicable charges specified in the Official Harbour Tariff Book.

I interpose that Gouws explained in his evidence that the form completed and signed by Separovic was called 'an application form' but it H was 'basically' the agreement envisaged in reg 61(1). As stated in that regulation, the 'conditions' by which the owner, master or agent agrees to be bound are set out in regs 61(2) - (19). Not all of these have a bearing on the issues in the appeal and I quote below those that have some relevance to a greater or lesser degree. I

Scott JA

(2)

A When ship may lose her turn.Should a ship not be placed in a drydock on a day duly appointed for that purpose owing to the default of the master, such ship shall, if the drydock be required for other ships, lose her turn in the order shown in the entry book, and the master, owner or agent of such ship shall pay to the Transport Services the expenses, if B any, which may have been incurred in preparing the drydock for the reception of such ship.

(3)

When preference may be given.Notwithstanding any previous arrangements to the contrary, the port captain may give priority to any ship in a damaged or leaky condition or to a ship that requires a drydock for a period not C exceeding seventy two hours.

(4)

No ship to have absolute right to use drydock.No ship shall have an absolute right to the use of a drydock either in turn or at any other time. The decision of the port captain in all cases of dispute as to turn, shall be final.

(5)

. . .

(6)

D Ships to be drydocked under supervision of dockmaster.Every ship shall be drydocked under the direction and supervision of the dockmaster and in the presence of the master, whose duty it shall be to be present at the time appointed for drydocking, and to remain there until such drydocking is completed.

(7)

When ship to be considered as properly placed on blocks or E cradle.

When the dockmaster has declared a ship to have been properly and safely placed upon the blocks of a drydock or cradle of a slip, the master shall forthwith satisfy himself that his ship has been so properly and safely placed, whereupon the ship shall be deemed to have been properly and safely drydocked or slipped.

(8)

F How two or more ships in one drydock to be dealt with.

(a)

When two or more ships are in joint occupation of a drydock such ships shall remain in the drydock until such time as all are capable of being floated; but no ship shall be charged for the use of the drydock beyond the time she actually requires G it; provided that the master of such ship has given to the port captain twenty four hours notice in writing of the readiness of his ship to leave the drydock and the port captain is satisfied that the notice is correctly given.

(b)

The port captain may, however, after having given twenty four hours written notice, forthwith order the undocking of H any or all of such ships as may be ready to leave the drydock, and may also admit any other ship to the occupation of the drydock, jointly with a ship already in occupation thereof.

(9)

Limit of time for occupation of a drydock.

(a)

No ship shall remain in occupation of a drydock for a longer period...