South African Railways and Harbours v Smith's Coasters (Prop) Ltd

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Curlewis JA and Roos JA
• Judgment Date: 27 January 1931
• Citation: 1931 AD 113
• Hearing Date: 06 November 1930
• Court: Appellate Division

De Villiers, C.J.:

This is an appeal from the Durban and Coast Circuit Local Division dismissing an exception to defendants' plea. The appellant brought an action, inter alia, for the sum of £7,660 for damages under the following circumstances, as set out in the declaration. The appellant under Act 22 of 1916 controls, manages and superintends Durban Harbour and the ships arriving at and departing from the same. On the 22nd October, 1927, the steamship Karin, of which the respondents were the owners, sank in the approach to Durban Harbour within the jurisdiction of the appellant as defined in the Second Schedule to the above Act . As the respondents neglected to remove the Karin the appellant caused its removal by dispersal by a company called Refloating

De Villiers, C.J.

Limited, with which, after calling publicly for tenders, the plaintiff made a contract for the performance of the work for the sum of £7,660, which was duly paid. To this the respondents pleaded, amongst other defences, that the damage suffered by the plaintiff was due to an occurrence which took place without defendants' actual fault or privity within the meaning of sec. 503 of the Merchant Shipping Act (1894) of Great Britain (57 and 58 Vic. C. 60) as amended by sec. 1 of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900 (63 and 64 Vic. C. 32) and that the liability of the defendants, in the premises, does not exceed the amount of £8 sterling for each ton of the ship's tonnage, in accordance with the provisions of the said section. That the tonnage of the ship Karin calculated for the purposes of sec. 503 is 375.25 and the defendants' liability therefor cannot exceed the sum of £3,002. To this defence the plaintiff excepted as bad in law in that the plaintiff is the Crown and the provisions of the Merchant Shipping Acts relied on do not bind the Crown. The exception was dismissed by TATHAM, J., the learned Judge holding that the liability of a shipowner is limited by sec. 503 of the Merchant Shipping Act 1894 as amended by the 1900 Act in relation to claims by the Railways & Harbours Administration.

That the appellant is in reality the Crown has not been seriously questioned (Winter v South African Railways & Harbours (1929 AD 104) ). But in support of the judgment the respondents rely in the first place upon the wide terms of sec. 2 of the Crown Liabilities Act, 1910. As was pointed out by Lord DE VILLIERS, C.J., in Minister of Finance v Barberton Municipal Council (1914 AD 335), the Act was intended as a remedial measure to meet the numerous cases in which redress was sought by individuals against the Government, for the obtaining of which they did not even have the Petition of Right in the English Law to fall back upon. A liberal construction to accord with the intention of the Legislature was consequently placed upon the Act by this Court in South African Railways v Edwards (1930 AD 3), where it was held that the opening words of sec. 2 were not intended to be cut down by the express mention of the liability of the Crown both in contract and in tort. The express reference to contract and tort in our Act is probably due to the fact that in the case of Hottihewage Siman Appu v The Queen's Advocate (9 A.C. 571) the Privy

De Villiers, C.J.

Council held that general words recognising a right of action by a private party against the Queen's Advocate where the amount or value in dispute exceeds ten pounds do not include actions for damages ex delicto. This decision was invoked in Farnell v Bowman (12 A.C. 643) where it was strenuously argued that the Government was not liable in tort. The words which had to be construed in that case occurred in New South Wales Act 39 Vict. No. 38, which was an Act to enforce claims against the Government, sec. 2 whereof provided: -

"Any person having or deeming himself to have any just claims or demand whatever against the Government of this Colony. . . . "

But Lord HOBHOUSE, who delivered the judgment of the Privy Council held that the words of the section were amply sufficient to include a claim for damages for a tort committed by the local Government by their servants. The express insertion in our Act of 1910 of the Crown's liability in contract as Well as in tort was probably to clear up this position and obviate a similar argument being advanced in future. But however that may be, it was held by this Court that the express mention of the Crown's liability in contract and tort was not intended to be exhaustive, and that the Legislature did not thereby intend to cut down the opening words of the section. The Court therefore came to the conclusion that the opening words governed, and that the actio de pauperis fell within the terms of the Act. But that does not mean that we are now at liberty to travel beyond the fair limits of the Act. It is true the section is couched in wide terms:

"Any claim against His Majesty in His Government of the Union which would, if that claim had arisen against a subject, be the ground of an action in any competent court, shall be cognizable by any such court. . . ."

Upon these words it is now sought to make the Crown liable wherever the subject is liable. The argument is that the Act makes justiciable by the Court any claim against the Crown which, had it been against a private person, would have been enforceable by action with the implication that all prerogatives and rights have therefore gone by the board. This argument in one stroke does away with all the prerogatives of the Crown which is its own conclusive refutation. In South African Railways v Edwards

De Villiers, C.J.

(supra) at page 9 it was said that it was the intention of the Legislature, by using such wide language, to make the liability of the Crown co-extensive with that of the subject. But that must naturally be understood to be within the limits of the Act . The Act gives a right of action...