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[1995] ZASCA 38
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Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd (285/93) [1995] ZASCA 38; 1995 (3) SA 42 (AD); [1995] 2 All SA 463 (A) (30 March 1995)
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ANDERSON SHIPPING (PTY) LTD Appellant
and
POLYSIUS (PTY) LTD Respondent
CORAM:
JOUBERT, E.M. GROSSKOPF, EKSTEEN JJA et
NICHOLAS, OLIVIER AJJA
Heard:
9 March 1995
Delivered:
30 Maart
1995
JUDGMENT
JOUBERT JA:
During November 1987 the parties to this appeal entered into an oral
2
agreement with each other in terms of which the appellant
company
("Anderson"), which exercised the business of a public carrier,
undertook for
reward to convey on behalf of the respondent company
("Polysius") two of the
latter's cases of machinery parts from Durban Harbour to Leeudoorn Mine.
Anderson removed the cases from Durban Harbour but failed to deliver
them,
or delivered them in a damaged state, to Polysius in consequence of which
the
latter sued Anderson in the Witwatersrand Local Division for payment of
R415
765-38 damages. In its special plea Anderson stated that the claim of
Polysius
was based on absolute liability regulated by the Praetor's
Edictum de
nautis.
cauponibus et stabulariis
("the Edict"), which referred to public
carriers by
water and not to public carriers by land. Being a public carrier by land
Anderson was accordingly not obliged in law to pay any amount to
Polysius.
The latter excepted to the special plea on the ground that the Edict formed
part
of modem South African law and it has been extended to public carriers by
land. COETZEE J upheld the exception to the special plea with costs and
struck it out. With leave from the Court
a quo
Anderson now appeals to
this
3 Court.
The issue in this appeal is whether or not the Edict is
applicable to public carriers by land in South Africa.
ROMAN LAW
The Praetor framed his Edict in a terse single sentence:
Nautae caupones
stabularii quod cuiusque salvum fore receperint nisi restituent in eos judicium
dabo
. (I will grant an action against sea carriers, innkeepers and
stablekeepers if they fail to restore to any person any property of
which they
have undertaken the safe-keeping). Since the jurist Marcus Antistius Labeo (bom
c 48 BC and died 10 AD) was the earliest
Roman jurist to comment on the Edict,
as appears from D 4.9.1.3, the inference is reasonably acceptable that it was
published during
the first century BC. As regards the origin of the Edict
concerning
nautae
it is possible that the Praetor may have been
influenced by the Sea Laws of Rhodes. See the doctoral thesis of Dönges,
The Liability for Safe Carriage of Goods in Roman-Dutch Law.
1928, p
1-10.
The Edict was enforced by the praetorian action,
actio de recepto
which
4 was described by later jurists, e.g. Voet (1647-1713) 4.9.2, as the
actio de
recepto rei persecutoria quasi ex contractu
. The formula of the action
granted
by the Praetor to a plaintiff for the instruction of the Judex against a sea
carrier
as defendant was as follows:
Si paret Numerium Negidium, cum navem exerceret, Auli Agerii res quibus de
agitur, salvas fore recepisse neque restituisse, quanti
ea res erit, tantam
pecuniam judex Numerium Negidium Aulo Agerio condemna, si non paret
absolve.
(The names Aulus Agerius and Numerius Negidius are the
fictitious names of
the plaintiff and defendant respectively). A sea carrier who took charge
of
freight or property belonging to a customer undertook liability for the
custodia
thereof as if he had concluded an express contract to that effect (
quasi
ex
contractu).
Should the freight or property become lost or damaged
while in the
custodia
of the sea carrier the latter will be liable for full damages
fin simplum)
unless he can prove by an
exceptio
that the loss or damage was caused
by
damnum falale
or
vis maior
. e.g. owing to shipwreck or action
by pirates,
(without
culpa
on his part) D 4.9.3.1 .
5 According to D 4.9.1.1 (Ulpian) the reason for the introduction
of
absolute liability on the part of
nautae, caupones et
stabularii
was that they had
by the exercise of their business the means
or opportunity for conspiring with
thieves against their customers. According
to Pomponius the Praetor wanted
to repress dishonesty on the part of "hoc genus hominum" (D 4.9.3.1).
The law as contained in the Edict was praetorian law (
ius
honorariuml
which could not abolish or amend the
ius
civile
. It was a peculiarity of Roman
law that these two systems of law existed side by side until they were
blended
into one system under Diocletian although traces of the praetorian law do
feature in the codification of Justinian.
Before the publication of the Edict the liabilities of sea carriers
(nautae)
were regulated by the ordinary principles of the
ius civile
. The
legal
relationship between sea carriers and their customers could vary according
to
the nature of the contract agreed to e.g.
locatio conductio opens
faciendi
if the
conveyance was undertaken for reward, or
depositum
if there was no
reward,
or mandate, or even an innominate contract where the
quid pro quo
for
the
6 conveyance consisted of something other than money. The liability of
the sea
carrier would be based on
dolus
or
culpa levis
in the
case of
locatio conductio
operis faciendi
(D 19.2. 13.5 et
25.7), on
dolus
or
culpa lata
in the event
of
depositum
(D 16.3.32, D 44.7.1.5, Inst 3.14.3),
dolus
or
culpa levis
in the
instance of the
actio mandati directa
under Justinian. It was the
existence of
these provisions of the
ius civile
which caused the jurist Pomponius
to marvel
at the introduction of the Edict in D 4.9.3.1:
miratur igitur, cur
honoraria actio
sit inducta, cum sint civiles
. (Watson's translation: "Therefore, he
is surprised
that the praetorian action has been introduced, since there are civil
actions
available . . . ")
I may conclude the relevant principles of the Roman law by drawing
attention to another
actio de recepto
introduced by the Praetor.
Justinian in his
Inst 4.5.3 referred to this remedy as an
actio quasi ex maleficio
according to
which a sea carrier could be held liable in the event of the customer's
goods
being stolen or wilfully damaged on board of the ship by his employees.
Here
too the customer could elect rather to avail himself of the
ius civile
e.g. the
7
actio furti
. See D 47.5.1.3. For purposes of this appeal it
is not necessary to
investigate this remedy further.
The conclusion is inescapable that the Romans never extended the principles
of the Edict to carriers by land.
For a discussion of the Edict by modem authors see: Buckland, A Text-Book of
Roman Law, 3rd ed. p 531; Van Oven, Leerboek van Romeinsch
Privaatrecht, 3e
druk, p 309-310; Thomas, Textbook of Roman Law, 1976, p 319; Zimmermann, The Law
of Obligations, 1990, p 514-516.
ROMAN-DUTCH LAW
It is a long leap in lime from the collapse of the Western Roman Empire in
476 AD to the reception of Roman law in the Netherlands
during the 15th century.
It covers a period of almost 1 000 years. I could find nothing in the works of
the Medieval Glossators,
or of the Commentators, in support of the proposition
that the provisions of the Edict should be extended to public carriers by land.
Moreover, during the 17th century Italian and Spanish jurists applied the
principles of marine insurance to transport by land (
Mutual and
8
Federal Insurance Co Ltd v Oudtshoom Municipality
1985 (1) S A 419
(A)
at
p 428 A-C).
In the German States which adopted Roman law there was a
diversity
of opinion among the German jurists over the question
whether or not the
provisions of the Edict should be extended to public carriers by land. It
would
serve no purpose to count heads. Von Glück (1755-1831) in his
Ausführliche
Erläuteruns der Pandecten
(1800), vol 6 part 1 book 4 title 9
para 493
furnishes reasons in favour of the extension to "unsere Postmeister und
Landkutscher" in view of the peculiar unsafe conditions without security
which
made the public use of roads unsafe along or through woodland.
In France the jurist Domat (1625-1695) in his work, The Civil Law (1722) book
1 section 2 paras. 3 and 4 (translated by William Strahan)
applied the extension
of the Edict to carriers by land or fresh water. The extension was adopted in
art 1784 of the Code Civil and
art 103 of the Code Commercial.
To revert to the Roman-Dutch law that applied in the Graefschap (since 1580
the Province) of Holland and West Friesland. I have made
a careful
9 study of
the works of the leading Dutch jurists which compels me to agree with
the conclusion reached by Dr Dönges,
op.cit.,
para. 57 (v), viz
that the Dutch
jurists are silent on the question of the extension of the
Edict to carriers by
land. The
Praelectiones ad Grotium
by Van der Keessel (1738-1816)
were
published and translated into Afrikaans from 1961. It would seem that Dr
Dönges did not take cognizance of the unpublished manuscript in the
library
of the University of Leiden. I studied Van der Keessel's comments on Gr
3.1.32, 3.20.5 and 3.38.9 but they do not shed new light on the enquiry. I
also
had the additional advantage of consulting the
Observationes
Tumultuariae
by
Van Bynkershoek (1673-1743), (published from 1926 onwards i.e. after Dr
Dönges presented his doctoral thesis in 1925 to the University of
London) as
well as the
Observationes Tumultuariae Novae
by Pauw (1712-1787),
(published from 1964 onwards). I was unable to find in them a single
instance
where the Hooge Raad extended the Edict to carriers by land.
Another legal source that I studied is the Dutch
Zee-Rechten
as
embodied in the
Placaet van Keyser Karel V.
19 Juli 1551, in 1 G.P.B.
782-
10 795, and the
Placaet van Coninck Philips.
31 October 1563, in
1 G.P.B. 796-
884. Both placaats, which were influenced by the
Maritime
law of Visby,
also
contained provisions relating to ships, belonging to
private persons, which were
employed in commerce and for carrying
merchandise. In arts 43, 44 and 50 of
the Placaet of 19 July 1551 the liability of a shipmaster (schipper) to a
merchant (koopman) for certain types of damage or loss of the freight or
goods
on board the ship was based on his "schult" or
negligentia
. The
position was
exactly the same under the Placaet of 31 October 1563 as appears from arts
8,
9 and 11 thereof. De Groot (1583-1645) significantly heads chapter 20 of
his
book 3:
Van huir tusschen schippers, reders, bevracthers ende
bootsgezellen
(Lee's translation:
Of hire between masters, shipowners, freighters, and
crew)
which is preceded by chapter 19 headed:
Van huir ende verhuring
(Lee's
translation:
Of letting and hiring
). This is an indication that he
founded a
shipmaster's liability to a merchant for loss of or damage to the freight on
the
Roman
actio locati
which required
dolus
or
culpa,
as
indicated
supra.
In
3.20.7 he repeats the substance of the above-mentioned provisions of the
11
placaats. In his
Koopmans Handbook
(1808) book 4
chapter 2 p 452-507 Van der Linden (1756-1835) discusses very fully the Dutch
maritime law in accordance with the afore-mentioned
two placaats as amended and
supplemented by subsequent legislation.
It appears from the aforegoing that legislation in the Province of Holland
and West Friesland brought the liability of carriers by
sea closer to the Roman
actio locati
. The tendency therefore was to restrict the Edict, not to
extend it.
In the light of the aforegoing I have come to the conclusion that according
to Roman-Dutch law the Edict was not applied to carriers
by land.
SOUTH
AFRICAN LAW
It remains to ascertain what the attitude of the South African case law is in
regard to the applicability of the Edict to public carriers
by land. It is wise
to commence with the judgments of this Court.
In
Davis v Lockstone
1921 AD 153
this Court held that the Edict was
the basis of the liability for an hotel keeper for the loss of his guests'
luggage
12
brought into the hotel. The correctness of that decision does
not arise in the
present appeal. In the course of his judgment Solomon JA
stated at p 159: "That the Praetor's Edict is in force in South Africa has
been
recognised by the Courts in many cases
chiefly in connection with the
liability of shipowners
". (My underlining). The underlined words amount to
an
obiter dictum
and are in any event too widely stated. They should with
due respect be qualified in order to avoid the creation of a mistaken
impression.
While it is indisputable that the liability of public carriers by
land was considered in a few decisions of the Courts the fact remains
that such
decisions were not based upon a proper investigation of such liability according
to the principles of Roman-Dutch law as
applied in the Province of Holland and
West Friesland. See also the instructive analysis of the earlier decisions in
question by
Cilliers AJ in
International Combustion Africa Ltd v Billy's
Transport
1981(1) SA 599 (WLD) at p 602 F-605 C.
In
Essa v Divans
1947 (1) SA 753
(A) this Court decided that the Edict
did not apply to the owners of a parking-garage in the circumstances of
that
13 case. Schreiner JA (p 775) stated the following in his judgment: "We
were
presented with the argument that the Edict has been held to cover the
liability
of common carriers by land because their functions were regarded
as
sufficiently closely analogous to those of mariners. Well, I am prepared
to
assume
that what I have no reason to doubt is the well-established
extended
liability of common carriers in our law is founded rather upon the
enlargement,
by analogy, of the scope of the Edict than upon an appreciation of the
advantages of assimilating our law in this respect to the English Common
Law". (My underlining). That assumption contained in an
obiter dictum
is
with due respect not binding on this Court since the Edict has according
to
Roman-Dutch law never been extended to carriers by land as I demonstrated
supra.
In
Histor Boerdery (Edms) Bpk v Barnard
1983 (1) SA 1091
(A) this
Court did not decide the question of the applicability of the Edict to
public
carriers by land. Viljoen JA (at p 1096F-G) left the question undecided
because it had not been fully argued. He assumed for purposes of his
judgment
14
that the Edict had been extended to carriers by land (at p
1096F-G). Van
Heerden AJA likewise assumed for purposes of his judgment that the Edict
applied to carriers by land (p 1106A).
The position is then that this Court is now not bound or fettered by any of
its previous decisions to decide whether or not the Edict
is applicable to
public carriers by land in South Africa. Nor am I persuaded by the decisions of
the Courts as to the applicability
of the Edict to public carriers by land in
the face of the principles of Roman-Dutch law as applied in the Province of
Holland and
West Friesland. Cilliers AJ in his judgment (
supra)
correctly
pointed out that the earlier decisions of the Courts on the extension of the
Edict to carriers by land did not rest upon
a thorough investigation of the
Roman-Dutch law. This also applies to the judgment in favour of the extension of
the Edict by King
J
HAll-Thermotank Africa Ltd v Prinsloo
1979 (4) SA 91
(T) which Cilliers AJ considered to be binding on him since he sat alone and was
unable to conclude that it was wrong in view
inter alia
of the
obiter
dictum
in
Essa v Divaris
(
supra)
.
15 In
Cotton Marketing Board of Zimbabwe v Zimbabwe
National
Railways
1990 (1) SA 582
(ZSC) it was held by
the Zimbabwe Supreme Court
that having regard to the fact that Zimbabwe was a
landlocked country where
the principal mode of transport was by land (p 589H)
the principles of the Edict
had to be applied to public carriers by land. That
ratio decidendi
does not
apply to South Africa with its long coast line and several harbours.
In the light of the aforegoing I have come to the conclusion that
in
accordance with the principles of Roman-Dutch law as applied
in the Province
of Holland and West Friesland the Edict is not applicable to public carriers
by
land. Even in the land of its birth the Edict as
ius honorarium
existed side by
side with the
ius civile
. We have no need of such a duality. To impose
the
absolute liability of the Edict on public carriers by land would be an
anomaly
while the liability of private carriers by land would be based on
dolus
and
culpa
levis
. The general principles of our law favouring liability based on
dolus
and
culpa levis
should be applied to both kinds of carriers by land.
16
It follows that the appeal must succeed. The Court
a quo
erred
in
upholding the exception taken by Polysius to Anderson's
special plea and by the striking out of the latter.
The following orders are
granted:
1
The
appeal succeeds with costs of two counsel
2
The following order is substituted for the order of the Court a
quo
: "The Plaintiff's exception to the defendant's special plea is
dismissed with costs".
C.P JOUBERT
JA
CONCURRED
E M GROSSKOPF JA EKSTEEN JA NICHOLAS AJA OLIVIER AJA