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[2013] ZAGPJHC 277
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Repo Wild CC v Oceanland Cargo Terminal (Pty) Ltd (23044/2010) [2013] ZAGPJHC 277 (14 November 2013)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 23044/2010
In the matter between
REPO WILD CC
Plaintiff
and
OCEANLAND CARGO
TERMINAL (PTY) LTD
Defendant
Coram:
WEPENER
J
Heard
:
12
NOVEMBER 2013
Delivered
:
14
NOVEMBER 2013
Summary:
Shipping
– Admiralty Jurisdiction Regulation Act 105 of 1983 –
Question of jurisdiction of Local Division raised –
agreement
between parties relating to land transport only – Claim not a
maritime claim as defined – no direct connection
between claim
arising out of agreement to convey goods by land and the carriage of
goods by sea – not matter to be referred
to court adjacent to
the territorial waters of the Republic.
J U D G M E N T
WEPENER J:
[1] The plaintiff
claims payment of an amount of R1,106,571.96 being damages suffered
by it as a result of the defendant’s
breach of an agreement in
terms of which the latter had to insure certain goods belonging to
the plaintiff. It is common cause
that the agreement was partly oral
and partly in writing. It is further common cause that the plaintiff
and the defendant agreed
that the defendant would transport goods for
the plaintiff in containers that are the property of the defendant.
Having failed
to insure the contents of the containers as undertaken
by it, the defendant is sought to be held liable for the contents of
a container
which had been lost.
[2] The duty of the
defendant was to convey the containers, containing the plaintiff’s
property, to the defendant’s
premises at Landmarine, Kazerne,
Johannesburg; to store the goods at Kazerne until the plaintiff
provided the defendant with further
instructions and to deliver the
containers with the plaintiff’s goods to a specified container
depot in Durban when instructed
by the plaintiff to do so.
[3] From the
aforegoing it is quite clear that the entire agreement related to the
conveyance of goods by land. The vessels
for doing so were containers
belonging to the defendant. The fact that the plaintiff intended
sending the goods from Durban by
sea has no bearing on the agreement
between the parties and such facts are, in my view, irrelevant for
the determination of the
dispute between the parties.
[4] Shortly before
the trial was to commence the defendant served a special plea in
which it contended that the plaintiff’s
claim was a maritime
claim as defined in s 1(1)(i) of the Admiralty Jurisdiction
Regulation Act 105 of 1983 (the Act) and that,
accordingly, in terms
of the provisions of s 3(3) of the Act, the action should have been
instituted in a court whose area of jurisdiction
was adjacent to the
territorial waters of the Republic. This court, if of course, not
such a court.
[5]
The parties were in agreement that the special plea be determined
separately in accordance with Rule 33(4) of the Uniform
Rules and
being of the view that it would be convenient to separate this issue
as it is incumbent of a court to determine the issue
at the outset
pursuant to the provisions of s 7(2) of the Act,
[1]
I
issued an order which separated the hearing of the special plea from
all other issues.
[6] The special plea
alleges at 31 to 33:
‘
1A.1.
The Plaintiff’s claim arise from an agreement relating to the
conveyance, storage and insurance of a container
and its contents;
1A.2. In terms of the
Plaintiff’s written instructions to the Defendant relating to
the aforesaid container, which instruction
so are contained in “P2”
hereto, the said container was intended for the carriage of goods by
sea, its port of loading
being Durban and its port of discharge being
Shanghai;
1A.3. In the premises:
1A.3.1. The said
container was a container asa defined in terms of section 1(1) of the
Admiralty Jurisdiction Act No 105 of 1983
(the Act);
1A3.2. The Plaintiff’s
claim is a maritime claim as defeined in terms of section 1(1)(i) of
the Act;
1A.3.3. The Plaintiff’s
action is an action in personam;
1A.4. In terms of the
provisions of section 3(3) of the Act, an action in personam may not
be instituted in a court of which the
area of jurisdiction is not
adjacent to the territorial waters of the Republic unless the
provisions of section 3(3)(a), (b) or
(c) are applicable;
1A.5. The provisions of
sections 3(3)(a), (b) and (c) are not applicable to the Plaintiff’s
claim;
1A.6. The area of
jurisdiction of this Honourable Court is not adjacent to the
territorial waters of the Republic;
1A.7.
In the premises and in the event of the Plaintiff disputing that its
claim is a maritime claim, this Honourable Court ought
to determine
whether the Plaintiff’s claim is a maritime claim and in the
event of it holding that such claim is a maritime
claim, then matter
ought to proceed is a court competent to exercise its admiralty
jurisdiction
.’
[7] As I have
already indicated, the agreement related not to the conveyance,
storage and insurance of a container which was
the vessel used for
the conveyance and was the property of the defendant, it related to
the conveyance of the plaintiff’s
goods. Also, the fact that
plaintiff intended to convey the goods by sea at some later stage had
no bearing on the terms of the
agreement between the parties and the
plaintiff’s intention is irrelevant to the determination of the
nature of the agreement
between the parties unless the defendant can
show that, by some operation of law, those facts are indeed relevant.
The defendant
did not advance any basis upon which it can be held
that the plaintiff’s intention to later convey the goods by sea
has any
relevance to the agreement between the parties.
[8] The allegations
regarding the intention of the plaintiff are consequently irrelevant.
The only relevant allegation is
that which is contained in paragraph
1A.1 of the special plea. Again, the agreement between the parties
related to the conveyance
of the plaintiff’s goods from
Johannesburg to Durban. The conveyance was by means of a container
which was owned by the defendant.
Although the special plea alleges
that the insurance also related to the container, such is incorrect.
The written part of the
agreement relied upon by the defendant
provides for two general purpose containers to be conveyed and that
the “goods in
transit to be covered”. The goods in
transit are the goods which the plaintiff placed inside the
containers and which the
defendant had to convey to Durban. The claim
does consequently not arise from the insurance, or the failure
thereof, of the container
itself but from the failure to insure the
contents of the container.
[9] The only
question that is left is whether the claim arises from an agreement
relating to the conveyance and storage of
a container as pleaded in
para 1A.1 by the defendant. I am of the view that it does not. The
claim has nothing to do with the vehicle
in which the goods were
conveyed. It is claim regarding the goods which were conveyed and
lost.
[10]
That being so, the fact that the container is by definition
[2]
a
container as defined in the Act is of no consequence as no claim is
made in relation thereto. Having regard to the aforegoing
the enquiry
effectively comes to an end. The further argument on behalf of the
defendant is based on the premise that the plaintiff’s
claim
relates to the conveyance, insurance and storage of a container,
which I have held to be factually incorrect. A maritime
claim,
subject only to the jurisdiction of the court which is adjacent to
the territorial waters of the Republic,
[3]
requires
the claim to arise out of or relating to ‘any container or
agreement relating to any container’.
[4]
The
claim for a loss of goods as a result of a failure to insure it does
not arise out of and is not relating to a container nor
any agreement
relating to the container itself.
[5]
[11] In
Sandrina
[1885] 1 Lloyd’s reports Rep 181 (HL) Lord Keith, when dealing
with a provision in the English Act, stated the following:
‘
It
would on the other hand be unreasonable to infer from the expression
actually used “relating to” that it is intended
to be
sufficient that the agreement in issue should be in some way
connected, however remotely, with the carriage of goods in a
ship.
There must in my opinion be some reasonably direct connection with
such activities.’
[12]
In Admiralty Jurisdiction: Law and Practice in South Africa,
[6]
Hofmeyr
makes reference to Cremean Admiralty Jurisdiction in Australia, New
Zealand, Singapore and Hong Kong where it is suggested
that:
‘
Having
reference to a similar provision to s 1(1)(g) that in order to
constitute a maritime claim there must be a reasonably direct
connection between the claim and the sea carriage in order for the
claim to fall within the jurisdiction’.
[13] Hofmeyr
suggests that the legislator could hardly have intended that the loss
or damage to goods which had at any time
previously been carried in a
ship, should constitute a maritime claim. I agree with these views
and similarly, goods which have
not been placed on a ship and are in
the process of being stored or transported by land should, in my
view, not be dealt with by
the Admiralty Courts, particularly where
the agreement between the parties relates to the transport of goods
on land only.
[14] Counsel for
plaintiff, relying on the passage in
Sandrina
, argued that
there should be some reasonably direct connection between the
plaintiff’s claim and a container or the claim
and the
agreement relating to the container, before it can be said that the
claim arises out of or relates to an agreement relating
to a
container. I am in agreement with these submissions which would
follow from the factual finding made by me.
[15] The legislator
could not have intended that every agreement where mere reference to
a container is made should be determined
by a court under its
Admiralty Jurisdiction. If this were so every case relating to the
land transportation of goods in containers
would be determined in
accordance with the rules and procedures applicable to maritime law.
In this regard I also heed the cautionary
note expressed by Hofmeyr
at p 21:
‘
The
Act, and more particularly a series of amendments to the Act, have
served to expand the boundaries of the admiralty jurisdiction
further
that other jurisdictions which have inherited the philosophy from
English Admiralty Law. This enthusiasm to extend the
scope of
admiralty jurisdiction must not, it is submitted, be allowed to
result in the abrogation of principle and the inclusion
of claims
which do not properly fall within the purview of admiralty
proceedings. If the boundaries of jurisdiction are stretched
too far,
well recognised principles will be diluted and the rationale for a
separate admiralty jurisdiction will be undermined.
’
[16] Having regard
to the nature of the claim and the agreement as pleaded by the
plaintiff and the defendant, I find that
this court has the necessary
jurisdiction to determine the plaintiff’s claim and that the
matter does not constitute one
relating to a maritime claim and
insofar as is necessary I direct that the matter shall proceed in the
Gauteng High Court, Johannesburg
Local Division.
[17] In the
circumstances the special plea is dismissed with costs.
WEPENER
J
JUDGE
OF THE
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
APPEARANCES
COUNSEL FOR THE
PLAINTIFF: G Redman
Instructed by Robert H
Kanarek Attorneys
COUNSEL FOR THE
DEFENDANTS: SR Mullins SC
with him SW Collins
Instructed by Naidoo
Maharaj Inc
[1]
Section
7 - Disputes as to venue or jurisdiction:
(2) When in any
proceedings before a provincial or local division, including a
circuit local division, of the Supreme Court of
South Africa the
question arises as to whether a matter pending or proceeding before
that court is one relating to a maritime
claim, the court shall
forthwith decide that question, and if the court decides that-
(a) the matter is one
relating to a maritime claim, it shall be proceeded with in a court
competent to exercise its admiralty
jurisdiction, and any property
attached to found jurisdiction shall be deemed to have been attached
in terms of this Act;
(b) the
matter is not one relating to a maritime claim, the action shall
proceed in the division having jurisdiction
in respect of the
matter: Provided that if jurisdiction was conferred by the
attachment of property by a person other than an
incola of the
court, the court may order the action to proceed as if the property
had been attached by an incola, or may make
such other order,
including an order dismissing the action for want of jurisdiction,
as to it appears just.
[2]
Section 1(1) of the Act reads:
”
container”
means a container for the carriage of goods by sea, including any
such container which is empty or otherwise
temporarily not being
used for such carriage;
[3]
Section 3(3) of the Act reads:
An action in personam
may not be instituted in a court of which the area of jurisdiction
is not adjacent to the territorial waters
of the Republic unless-
(a) in the
case of a claim contemplated in paragraph (a), (b), (j) or (u) of
the definition of 'maritime claim',
the claim arises out of an
agreement concluded within the area of jurisdiction of that court;
(b) in the case of a
claim contemplated in paragraph (g) or (h) of that definition, the
goods concerned are or were shipped under
a bill of lading to or
from a place within the area of jurisdiction of that court;
(c) the maritime claim
concerned relates to a fund within, or freight payable in, the area
of jurisdiction of that court.
[4]
Section 1(1)(i) of the Act.
[5]
It
was common cause that the exclusions contained in s 3(3)(a), (b) and
(c) do not apply.
[6]
2
nd
Ed, p 32 footnote 84.