South African Railways and Harbours v Lyle Shipping Co Ltd

• Jurisdiction: South Africa
• Judge: Steyn JA, Reynolds AJA, Hall AJA, Price AJA and Ogilvie Thompson AJA
• Judgment Date: 05 June 1958
• Citation: 1958 (3) SA 416 (A)
• Hearing Date: 16 May 1958
• Court: Appellate Division

Steyn, J.A.:

This is an appeal, with the leave of the Court a quo, against a judgment dismissing an exception taken by the appellant E against the declaration filed by the respondent in an action for damages occasioned to its ship, the Cape Sable, in a collision with a tug owned by the appellant, which occurred when the tug approached the ship in the course of operations under a towage contract. The contract was concluded by the acceptance on behalf of the appellant of an F application by the respondent for the services of a tug in the harbour of East London. On the form used for the purpose there is the following clause:

'I hereby agree to accept all such assistance or service of whatsoever nature on the condition that the said Administration will not be liable for any loss or damage that may be occasioned to the said ship through accident, collision or any other incident whatsoever occurring whilst the tug . . . is engaged in any operation in connection with holding, G pushing, pulling or moving the said ship.'

The respondent relied on a breach of this contract and alleged, inter alia, that it was an implied term of the contract that the appellant would provide a tug sufficiently seaworthy for the purposes of the operations contemplated, that the appellant and its servants would H perform those operations with reasonable skill, diligence and care, and that the collision was due solely to the negligence of the appellant or its servants acting in the course of their employment and within the scope of their authority, in a number of respects enumerated in the declaration.

In further particulars supplied by the respondent it is stated that the implied term referred to, arose from the fact that the contract between the parties was a contract of towage; and that the contract

Steyn JA

did not exclude the appellant's liability for damage caused to the ship by reason of its failure to provide a sufficiently seaworthy tug, or to carry out the contract with reasonable skill, diligence and care.

To this declaration as amplified by the further particulars the appellant excepted on the ground that it is bad in law and discloses no A cause of action, inasmuch as in terms of the alleged contract, it is absolved from all liability for any damage suffered through the negligence of itself or its servants in relation to the operation in question.

The question raised on appeal is whether or not the clause quoted above exempts the...