South African Railways and Harbours v Lennon Ltd

• Jurisdiction: South Africa
• Citation: 1945 AD 157

South African Railways and Harbours Appellant v Lennon Ltd Respondent
1945 AD 157

1945 AD p157

Citation	1945 AD 157
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
Heard	October 11, 1944
Judgment	October 30, 1944

Flynote : Sleutelwoorde

Shipping — Agent receiving case of goods from ship — Case subsequently found to be empty — Action against agent for value of goods — Proof that goods in case when unshipped — Admissions in plea — Magistrate's Court Rules — Act 32 of 1917, Order XV, Rule 3.

Headnote : Kopnota

In an action for the value of the contents of a case of goods which upon being opened in the possession of the defendant administration was found to be empty, the plaintiff based his claim upon the ground that when the defendant received the case from a ship on behalf of the plaintiff and gave the ship a clean receipt, the case was empty and that the defendant had negligently failed to perceive this. In the alternative the plaintiff alleged that when defendant took delivery of the case it contained goods of the value claimed and that defendant in breach of its duty had wrongfully failed to deliver the goods to the plaintiff. In its plea to the main claim the defendant denied that the pilferage had occurred while the case was in its possession, admitted giving a clean receipt to the ship, and denied negligence. It further pleaded in paragraph 6 of its plea that the case when unshipped was in good outward order and condition. In answer to the alternative claim the defendant repeated paragraph 6 of its plea and stated that by virtue of section 54 of Act 22 of 1916 it was absolved from liability. The defence based upon this section was abandoned at the trial. There was no evidence as to when the goods had been extracted from the case. The plaintiff having succeeded in a magistrate's court upon the alternative claim and an appeal having been dismissed.

Held, dismissing an appeal, that the defendant in pleading the defence based on section 54 of the Act in answer to the plaintiff's alternative claim had denied neither the allegation that the case contained goods when delivered to the defendant nor the allegation that the value of the goods was as stated in the summons; that the plea to the alternative claim contained nothing inconsistent with either of these allegations; that by virtue of Order XV, Rule 3 of Act 32 of 1917, these allegations should be taken to have been admitted and that consequently the defendant had no answer to the claim based upon its failure to deliver the goods in question.

The case of Ebert & Co. v Port Elizabeth Harbour Board (1904, E.D.C. 226), referred to.

The decision of the Eastern Districts Local Division in South African Railways and Harbours v Lennon Ltd., confirmed.

Case Information

Appeal from a decision of the Eastern Districts Local Division (GUTSCHE, J., and GANE, J.), after leave had been granted, dismissing an appeal from the magistrate's court, Port Elizabeth.

The facts appear from the judgment of TINDALL, J.A.

1945 AD p158

O. V. Sampson, for the appellant Appellant has not admitted that the case contained perfumery, the onus was on respondent.

The receipt means at most "received in apparent good order and condition". Appellant, as agent, was not required to open the case to see if its contents were perfumery, nor bound by the statement on the case. If estopped by the receipt appellant would be in a worse position than a shipowner in to the contents; no estoppel was pleaded; Halsbury, Laws of England (Hailsham ed., vol. 30, para. 560 at p. 389, note v). The Bill of Lading and Invoice are not admissible against appellant. See Ebert & Co. v Port Elizabeth Harbour Board (1904, E.D.C. 225). Respondent has not established that the case contained perfumery and has not, therefore, proved its damage. As to the main claim, see in regard to the position of the shipowner and the form of Bill of Lading, Halsbury (supra at para. 560, pp. 388, 389); New Chinese Antimony Co. Ltd. v Ocean Steamship Co. Ltd. (1917, 2 K.B at pp. 669-70); Hannam & Co. v Donald Currie & Co. (4 E.D.C at pp. 376-7); Hailsham (supra, para. 560 at p. 391); Moore v Harris (1 App. Cas. 318 at p. 326); Arndt & Cohen v Deutsch-Australische Dampschiffs v Gesellschaffts (16 C.T.R. 519 at p. 520). Here there was nothing to show what the contents were. Compania Naveira Vascouzada v Churchill & Sim (1906, 1 K.B. 237); Brandt and Another v Liverpool, Brazil & River Plate Steam Navigation Co. Ltd. (1924, 1 K.B. 575). The Bill of Lading was issued under the Carriage of Goods by Sea Act, 1924, vide Article III, Rule 3 and 4, and Halsbury (supra at pp. 612, 613, note (d)); there was no declaration under Article IV, Rule 5. Evidence that the claim would have been paid does not advance respondent's case. Thomson Watson & Co. v Poverty Bay Farmers' Meat Co. Ltd. (1924 CPD 380); Story, Agency (para. 222). Negligence on the part of the appellant was not established. As to Customs Duty, respondent acted upon the Invoice and Bill of Lading if the case was received empty by the appellant, a claim for repayment should be made, as having been made in mistake of fact.

F. G. Reynolds, K.C., for the respondent: The onus is on appellant to prove no fault or negligence in regard to the goods lost, Wessels, Law of Contract (vol. 1, para. 2084); Lituli v Omar (1909, T.S.192); Travers (Joseph) & Sons Ltd. v Cooper (1915, 1 K.B. 73). As the case was Consigned to appellant intact, it is liable under Act 22 of 1916 and also as common carrier. Ebert v Port Elizabeth

1945 AD p159

Harbour Board (supra); Crawford & Louw v Allan Line (1912, A.C. 130 at p. 13,3); Act 22 of 1916, secs. 33 and 18 (1); Davis v Lockstone (1921 AD 153). The damages would be the cost or value of the goods when lost, and that would include duty paid, Wessels (supra, vol. II, para. 3518). If the goods were not lost after they were consigned to appellant, then appellant is liable in that the goods were lost et landing. Appellant gave a clean receipt, with the result that the ship was released, McLachlan on Shipping Law (p. 605); Holt & Holt v Union Castle Co. (18 S.C. 38), Appellant owed a duty to use a very high degree of care in landing and employing proper persons, Wessels (supra vol. 1, paras. 2093-2095); Ebert's case (supra). There was a breach of that duty. As to damages, the value of the contents has been proved, viz.: (a) that the value is admitted, Act 32 of 1917, Order XV, Rule 3; (b) that appellant by its conduct accepted this value, and further, the invoices, as proof. It is estopped, see Act 9 of 1913, secs. 41, 43, 47; Winter v S.A.R. (1929 AD 100); Natal Provincial Administration v S.A.R. (1936 NPD 643). Respondent altered its position because of appellant's conduct. Shipping companies accept invoices as proof, as here; (c) that the documents signed by appellant plus Roods delivered are shown to be those in. the invoices, etc., all other goods sent duly arrived, Naidoo v Ismail (1935, P. -H., L.9). Further, respondent is entitled to be put into the same position as if his action against the ship were not lost. In an action against the ship the Bill of Lading would be the clearest evidence of the case having been received in good outward order, which covers obvious emptiness. Silver v Ocean Steamship Co. (1930, 1 K.B. 416 at p. 425); Crawford & Louw's case (supra); Smith v Bedowin Co. (1896, A.C. 70). Moreover it was shown that appellant's shippers would pay out on invoices if no clean receipt were given. As to the Customs Duty on the lost goods, it was paid owing to the negligence of appellant who would be liable in any event in law, whether "foreseeability" or "natural consequences" theory is adopted. The Polemis case (1921, 3 K.B., 560).

There was no appeal in the Provincial Division as to this issue, Act 32 of 1917, Order XXX, Rule 2. (2) as amended; the success is not substantial and all costs were incurred on the issue on which. appellant failed. Ngobese v Slatter Bros. (1935 NPD 284). If the goods were lost between the 10th and 16th April when they

1945 AD p160

were in the warehouse before consignment to the railways, appellant is again liable; for appellant had to use the greatest care, Wessels (supra, paras. 2093 to 2095); Ebert's case (supra); and there was a breach of that duty, Smith N.O. v Bedowin...