Mycsa Mulder Y Co Import Export SA v Transnet SOC Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Graham Lopes J
• Judgment Date: 15 October 2021
• Court: KwaZulu-Natal Division, Durban
• Docket Number: A66/2014
• Citation: 2021 JDR 3176 (KZD)

Lopes J:

[1]

On the 27th August 2014, an action-in-personam was instituted by Mycsa Mulder Y Co Import Export SA ('Mycsa'), a company incorporated in accordance with the laws of Spain, against Transnet SOC Ltd which trades as Transnet Port Terminals ('Transnet'). Mycsa's claim is in delict, for cargo allegedly lost whilst in the care of Transnet.

[2]

Mycsa alleges: -

(a)

On the 2nd of May 2012, 30 pieces of cargo, constituting a Sennebogen 5500 Star-lifter crane ('the crane'), was offloaded from the MV 'Red Cedar' ('the ship') into the care and custody of Transnet at the Point Multipurpose Terminal in Durban Harbour, and stored in what was referred to as the 'staging area' in the terminal.

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(b)

The crane had been dismantled prior to loading and was loaded on board in Leixoes, Portugal.

(c)

On the 27th September 2012, the area where the crane was stored was declared a 'Virtual State Warehouse' by the Department of Customs ('Customs'), in terms of the Customs and Excise Act, 1964 ('the Act'). This occurs when break-bulk cargo has not been cleared through customs within 28 days from the date of landing. It is normally then removed to the State Warehouse. The Controller of customs is permitted, in terms of s 43 of the Act, to allow the cargo to remain where it is, but declare the area where it is a Virtual State Warehouse, and the cargo is then deemed to be under the control and direction of the Controller of customs.

(d)

The cargo was only ultimately cleared and removed from the staging area on the 30th September 2013, and then it was transported to Beira in Mozambique, by road. The arrangements for the payment of customs dues, the removal of the cargo from the staging area and its transportation to Beira were carried out by Exposure Management Services (Pty) Ltd, trading as Interlogix.

(e)

Interlogix was reimbursed by Grinrod Ships Agency (Pty) Ltd trading as King & Sons, the clearing and forwarding agents in Durban. King & Sons, in turn, were reimbursed by Mycsa.

(f)

When the dismantled parts of the crane arrived in Beira, it was discovered that:

(i)

A base plate counterweight or bracket ('the base plate') with a mass of 13.3mt, and ten counterweights, each weighing 4.8mt were not delivered;

(ii)

Ten items, comprising what turned out to be some type of flooring cover, which did not belong to Mycsa, were

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delivered in error to Beira. They were, in short order, returned to Durban by King & Sons.

(iii)

A quantity of electrical equipment was removed or stripped from the crane, and it is common cause that that electrical equipment never arrived in Beira.

(iv)

Various defences were raised by Transnet including a special plea of prescription. Mr CJ Pammenter SC, who appeared with Mr AJ Boulle for Transnet, recorded that the special plea would not be pursued, save insofar as it may be indicative of the period for how long any duty of care which may have been owed by Transnet to Mycsa, existed.

(v)

At the outset of the trial Mr PJ Wallis SC, who appeared for Mycsa requested an amendment to the particulars of claim, to reduce the amount claimed in respect of the ten missing counterweights and damage suffered by the loss of electrical equipment to €126 820, 47. In addition, Mycsa claimed the sum of R1 194 722 in respect of the base plate.

[3]

The issues before me were accordingly: -

(a)

Whether the missing base plate and the other ten counterweights were ever loaded aboard the ship.

(b)

Whether those items were ever discharged at Durban.

(c)

Whether they were ever loaded on the trucks to be transported to Beira.

(d)

Whether Transnet owed a duty to Mycsa in respect of the missing items, if so, for how long;

[4]

The matter of quantum was eventually agreed by the parties to be;

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(a)

€36 1 18,35 in respect of the base plate, and

(b)

€72 066,50 in respect of the ten counterweights.

No agreement was concluded as to the value of the lost electrical components.

[5]

The first witness for Mycsa was Mr Olaf Mulder. The important aspects of his evidence were:

(a)

Mycsa was formerly part of a much larger company, which was de-merged into four separate companies. Mycsa kept the business involving the importation, distribution and servicing of cranes for various European manufacturers, such as Sennebogen;

(b)

The crane was described as a 'crawler crane' with a lifting capacity of 180mt;

(c)

The lost items from the crane were the base plate and the ten other counterweights which are mounted onto, and are affixed to, the rear of the crane when it is working;

(d)

The base plate runs the entire width of the crane and the ten counterweights, five on each side, sit on top of the base plate;

(e)

During or about March 2012, Mycsa, the owner of the crane, concluded an instalment sale agreement with Gruas Usabiaga ('Usabiaga'), a crane hire company operating in Northern Spain;

(f)

The price was to be paid by Usabiaga by forty-eight monthly instalments of €1 3 570,00, together with a final payment of €738 303,42;

(g)

The sale of the crane was registered in Spain, with the object of protecting Mycsa. However, Mycsa agreed to the issue by the Spanish authorities of a permit to Usabiaga, to enable it to remove the crane from Spain to South Africa;

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(h)

None of the instalments were ever paid by Usabiaga, and the crane was never returned to Mycsa;

(i)

Usabiaga was to have hired the crane out to an entity in Durban, CraneCom. This deal, for one or other reason fell through, and the crane was never cleared and uplifted by CraneCom in Durban;

(j)

Eventually Mycsa cancelled the instalment sale agreement in July 2013. By that stage, the crane had been carried aboard the ship from Leixoes to Durban, under a MACS bill of lading;

(k)

The crane was dismantled prior to shipment in Leixoes and the bill of lading records that there were '30 pieces';

(l)

There were clearly problems during the loading, because parts of the crane were, at some stage, removed from the harbour area of Leixoes and then returned to it. There was also some paintwork damage caused to the lattice boom sections because a forklift was used to load the crane;

(m)

A report was compiled by Usabiaga regarding the loading of the crane which was eventually forwarded to Mycsa. It formed part of the record before me. The personnel of Usabiaga in Leixoes were asked to leave the port area, apparently because of protests which they lodged because of the manner in which the crane was being handled. In the report are two photographs of items being lifted aboard the ship. Mr Mulder testified that, from the photographs:

(i)

he could clearly see the base plate and some of the counterweights being suspended below a gantry which was used in the reloading of some of the parts which had been removed. The gantry is suspended immediately above the deck of the ship. What Mr Mudler in fact said, was;

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'I am sure that it is like stapled goods. The narrow one, is one of the base counterweights. It is either base counterweights or one of the chassis counterweights of the machine. They are very similar in aspects. Then there is three, apparently three, of the 10.48mt counterweights on top.'

(ii)

Mr Mulder could see that, on top of the weights in the sling, was a pulley block with a hook ('hook-block') which is used to do the lifting by the crane;

(n)

He later said that he was certain that it was the base plate, weighing 13.3mt. He was able to say this because of the thickness evidenced by the item in the photograph;

(o)

As part of the court record there was a number of photographs of the crane, apparently taken after they had arrived in Beira. Evident in the photograph is a large boxed-shaped number of the floor coverings which did not form any part of the crane. Other parts of the crane were identified by Mr Mulder, but the base plate and the counterweights were nowhere to be seen. Mr Mulder expressed the view that it was impossible to be mistaken about the floor coverings not being part of the crane, because they were made of rubber and would have no effect as a counterweight, which is made of cast-iron. Mr Mulder was unable to identify the hook-blocks (two of them) which were depicted in the photographs. The first one was the wrong colour for Sennebogen equipment, and the other was clearly marked 'Liebherr'. He testified that they would not normally have used the equipment of another manufacturer with the crane, apparently because of the risks in Europe of being prosecuted for doing so;

(p)

Mycsa paid a total of $260 000 for clearing the crane from the harbour and transporting it to Beira;

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(q)

Mr Mulder testified that when the crane arrived in Beira, the base plate was missing as well as the 10.48mt counterweights. In addition, the electrical installation had been, as he described it, 'plundered and vandalised and partly robbed'. The electrical equipment included a load limiting device, certain sensors and a wind measurement device which were all missing. It then transpired that it was not Mr Mulder who saw the crane in its original condition when delivered to Beira, but a certain Mr Fernka, a director of Mycas who is no longer employed by the company;

(r)

Mr Mulder referred to a SAD500 customs declaration form, compiled and signed in Durban, and dated the 25th September 2013. The block numbered 31 on that document refers to 'BREAKBULK CARGO STC29 PKGS CRAWLER CRANE IN CKD FORM'. STC is an acronym for 'said to contain' and CKD is 'completely knocked down'. The document is signed by one Kershni Bharat, a customs broker employed by Interlogix. A further SAD500-custom declaration form dated the 27th...