THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 204/06

NAME OF SHIP: mv  ‘MSC SPAIN’

In the matter between:

MEDITERRANEAN SHIPPING COMPANY
(PTY) LIMITED

APPELLANT

and

TEBE TRADING (PTY) LIMITED

RESPONDENT
________________________________________________________________

CORAM:
SCOTT, FARLAM, CLOETE, LEWIS et CACHALIA
JJA

DATE OF HEARING:
16 February 2007
DATE OF DELIVERY:
20 March 2007
Summary:  Delict – agent of carrier and shipping line has no legal duty to inform shipper
(or consignee) of proposed deviation so as to afford shipper the opportunity of removing
perishable cargo from ship if bill of lading permits such deviation.

Neutral citation: This judgment may be referred to as MSC Spain [2007] SCA 12 RSA

SCOTT JA/…..
SCOTT JA:

[1] This is an appeal, with special leave, from the judgment of the full court of
the Pietermaritzburg High Court exercising its admiralty jurisdiction which upheld
an appeal from a decision of Combrinck J, who had absolved the defendant, now
the appellant, from the instance. The judgment of the full court is reported at
2006 (4) SA 495 (N). The case concerns two containers of litchis shipped on
board the vessel, MSC Spain, at Durban for carriage, one, to Jebel Ali, Dubai,
the other, to Damman, Saudi Arabia, pursuant to the terms of two bills of lading.
The shipper was the respondent, a company which carries on business at
Durban as an exporter inter alia of perishable fresh fruit to the Middle East. I shall
refer to it as Tebe. The bills of lading were issued by the appellant as agent for
the carrier, being the owner of the vessel. On arrival at the ports of discharge the
litchis were found to have deteriorated in consequence of a delay in the
completion of the voyage. Tebe sued the appellant both in contract and delict.
The claim in contract was misconceived; the appellant acted at all times as an
agent. The claim in delict was founded upon the alleged negligent failure of the
appellant to advise Tebe of a delay in the commencement of the voyage and a
change in the proposed route of the vessel to the ports of discharge.

[2] The appellant is a South African company. Its business is that of ships’
agent in South Africa for the Geneva registered company, Mediterranean
Shipping Company SA (hereinafter referred to as ‘MSC Geneva’). The latter
operates a large and well-known fleet. It owns some of the vessels in the fleet;
others it operates in pursuance of time charters. The relationship between the
appellant and MSC Geneva is governed by a written agency agreement, a copy
of which was admitted in evidence. The appellant’s duties as agent include
typically the acceptance of bookings and the marketing of its principal’s services.
It is also authorised ‘to issue, sign and stamp’ bills of lading on behalf of its
principal ‘and/or the Master’.

[3] The MSC Spain was on time charter. Rider clause 66 of the charter party
reads:

‘The Master, Charterers and/or their agents are hereby authorized by  Owners to sign on Masters’
and/or Owners’ behalf Bills of Lading as presented without prejudice to this Charter Party . . . . ’

It was in terms of this clause that the appellant acted directly as the owner’s (ie
the carrier’s) agent in issuing the bills of lading.

[4] At the commencement of the trial, the judge, as requested by the parties,
ordered that certain issues be decided first and that the remaining issues stand
over for later determination. Those to be decided, shortly stated, were the
following:

(1)
Did Tebe have locus standi to sue, whether in contract or delict, for
damages arising out of the loss of the consignment of litchis?
(2)
Did the appellant contract with Tebe as principal or as agent and, if as
principal, what were the terms of the contract?
(3)
Is the appellant liable to Tebe in delict for damages by reason of the
former’s negligent failure to inform Tebe that:
‘(a)
the estimated date of departure of the MSC Spain . . . from Durban
to Jebel Ali was delayed; and
(b)     the route of the vessel from Durban to Jebel Ali was

changed?’
(4)
Can the appellant rely on the Himalaya clause1 in the bills of lading and if
so, is it excused from all liability?

1 The clause, which derives its name from the ship in Adler v Dickson  [1955] 1 QB 158 (CA),
provides that ‘no servant or agent of the carrier, including any independent sub-contractor
employed by the carrier in any circumstances whatsoever [shall] be under any liability whatsoever
to the merchant [which by definition includes the shipper, the consignee and the holder of the bill
of lading] for any loss or damage or delay of whatsoever kind arising or resulting directly or
indirectly from any act, neglect or default on his part while acting in the course and scope of or in
connection with his employment . . . ’.

[5] The trial court found for the appellant on the issue of Tebe’s locus standi
and granted absolution from the instance. It decided none of the other issues
referred to above. Tebe’s appeal to the full court was successful. The latter court
held that Tebe’s locus standi had been established. It held further that the
appellant was liable to Tebe in delict for any damages it may have suffered in
consequence of the appellant’s failure to inform Tebe of the vessel’s change of
route and that the appellant was not protected from such liability by the Himalaya
clause in the bills of lading. The only issue on which Tebe was unsuccessful was
the second issue listed above. In this regard, it appears that Tebe’s claim was
initially prosecuted on the incorrect assumption that the appellant and MSC
Geneva were one and the same entity and that that entity was the carrier with
whom Tebe had contracted. In view of the provisions of the bills of lading, to
which I shall refer later, this would have precluded any claim in delict. But, as
indicated above, it is quite clear on the evidence that the appellant was at all
times acting as agent for MSC Geneva or the owners of the vessel.

[6] It is necessary at this stage to record the events leading up to the
conclusion of the contracts of carriage, evidenced as they were by the bills of
lading, and the circumstances in which the vessel came to be delayed and her
route to the Middle East altered.

[7] The normal route followed by MSC Geneva’s vessels from Durban to
Dubai is via the East African ports of Dar-es-Salaam and Mombasa, then the
ports of Mumbai and Karachi, and thereafter to Dubai. The voyage takes about
21 to 25 days. Tebe had previously shipped consignments of fruit on MSC
Geneva vessels to the Middle East but had ceased to do so in favour of other
shipping lines which followed a more direct route and completed the voyage in
about 15 days. Although litchis were packed in reefer (refrigeration) containers,
time remained of critical importance because of their perishable nature. In about
November 2001 the appellant received instructions from MSC Geneva to secure

cargo for a special voyage of the MSC Spain from Durban, via the island of
Reunion, to Dubai where the vessel was due to go off hire. The voyage would
take between 12 and 14 days and the estimated date of departure was 6
December 2001. On 26 November 2001 the appellant’s assistant trade manager,
Mr Roshand Premchund, approached Mr Mahomed Jangda, who is Tebe’s
operations director, with a view to procuring cargo for the MSC Spain’s voyage.
Jangda considered the timing to be perfect. Eid, which was preceded by 30 days
of fasting, fell on 15 December that year and would be followed by 10 days of
celebration. A consignment of litchis which arrived in Dubai on about 18 or 20
December would therefore be readily marketable. Jangda accordingly arranged
with his supplier in Malelane (who traded under the name of Laughing Waters) to
dispatch a consignment of litchis to Durban. He also arranged with his forwarding
agents, WSS Africa, to make the necessary booking, which the latter did on the
same day, namely 26 November 2001.

[8] The litchis arrived in Durban on 2 December 2001. They were placed in
cold storage to cool to the appropriate temperature and then packed into two
containers. The containers were moved to the container terminal on 6 and 8
December, respectively, where they remained until the port authorities authorised
them to be moved to the ‘stack’ for loading onto the ship. In the meantime and
because of congestion in the port, the expected date of departure had been
altered to 10 December 2001. Loading eventually commenced on 11 December
and was completed on 13 December at 7.30 am. The ship left port on 13
December at 10.15 am.

[9] From the time the litchis were moved to the container terminal Jangda was
in constant communication with Premchund to ascertain the state of progress
and when the ship would sail. By 10 December 2001 he became concerned that
by the time the ship arrived in Dubai the celebration period would be over, and
that the market would not be able to accommodate the entire consignment of

litchis. He accordingly decided to split the risk by arranging for one of the
containers to be carried on to Damman in Saudi Arabia.
[10] In the meantime, another of MSC Geneva’s ships, the MSC Camille, while
heading for Dubai on the usual route, experienced a fire in her engine room and
had to be towed to Maputo, Mozambique, by a sister ship, the ‘MSC Daniela’.
Back in Durban, the appellant received an urgent instruction from MSC Geneva
to direct the master of the MSC Spain not to proceed further but to wait in the
outer anchorage. This was followed by a further instruction, received at 2.43 pm
on 13 December, to arrange a berth for the MSC Spain as she was returning to
port, which she did at 8.35 am on 14 December. On the instructions of MSC
Geneva the containers destined for Reunion were off-loaded and the vessel was
directed to proceed to Maputo to pick up cargo from the stricken MSC Camille. In
all, 171 containers were off-loaded out of a total of approximately 800. The MSC
Spain left Durban for Maputo at 4.57 am on 15 December.

[11] It was clear that the MSC Spain would be unable to accommodate the
entire cargo aboard the MSC Camille. The MSC Daniela was also available to
provide some assistance. As at 14 December when the MSC Spain was back in
port the appellant’s employees were therefore aware that she was no longer
going to Reunion, that she was calling at Maputo to pick up cargo and would be
discharging that cargo in due course. What they did not know at that stage was
which and how many of the ports of discharge on the normal route the MSC
Spain would by-pass en route to Dubai. That they only discovered on 20
December 2001 when they received an email from MSC Geneva setting out the
planned rotation. It then appeared that the only port on the normal route at which
the MSC Spain would not call was Mumbai. In the event, the vessel ultimately
arrived at the port of Jebel Ali in Dubai on 10 January 2002. One of the two
containers was then transshipped to another vessel which arrived at Damman on
14 January 2002.

[12] Before considering the claim in delict, it is necessary to refer briefly to the
question of Tebe’s locus standi. The only representative of Tebe to testify was
Jangda. He stated on a number of occasions in evidence that Tebe had
purchased the litchis from Laughing Waters, but he also described Tebe as the
former’s marketing agents for the Middle East. Although in the present case Tebe
had actually paid Laughing Waters R35 per carton for the litchis, he described
the payment as being in pursuance of a commercial arrangement rather than a
legal obligation. It appears that the arrangement between the parties involved
was an extremely loose one and that the price paid to Laughing Waters was
finally determined only once the litchis had been sold on the Middle East market
by the consignees. Counsel for the appellant defended the finding of Combrinck
J that a sale to Tebe had not been proved and contended that the evidence
supported the inference of a typical sale on consignment. Counsel for Tebe, on
the other hand, submitted that the court a quo had correctly found that a valid
sale had been concluded between Laughing Waters and Tebe and that
ownership had passed to the latter. It was contended further that in any event,
even in the absence of a sale to Tebe, the evidence gave rise to an inference of
an intention on the part of Laughing Waters to transfer ownership and on the part
of Tebe to acquire it. (Tebe did not deliver the bills of lading to the consignees.)
In view, however, of the conclusion to which I have come regarding Tebe’s claim
in delict it is unnecessary to decide the issue of locus standi and I shall assume,
without deciding, that Tebe did indeed have the necessary locus standi to pursue
its claim.

[13] I turn then to the claim in delict. What is immediately apparent is that
Jangda was fully aware of the initial delay and that the MSC Spain did not sail on
the estimated date of departure. What he did not know was that in the afternoon
of Thursday, 13 December 2001, and after the vessel had sailed, the master was
instructed to return to port, that the vessel did return on the morning of 14
December and left again in the early hours of the morning of 15 December en
route to Maputo. He testified that had he known that the vessel was coming back

to port and was thereafter to follow a less direct route to Dubai he would either
have had the containers of litchis transshipped to another vessel taking a more
direct route or he would have had the containers removed and sold the litchis on
the local market. It was the omission on the part of the appellant to inform him of
the vessel’s return to port on 14 December and subsequent deviation that formed
the basis of the claim in delict.

[14] Wrongfulness and fault are both requirements for liability under the
modern Aquilian action. Negligent conduct which is not also wrongful is therefore
not actionable. The inquiry into the existence of the one, save in the case of
dolus,2 is discrete from the inquiry into the existence of the other. However, the
issue of wrongfulness will more often than not be uncontentious.  This is because
the culpable conduct complained of will be prima facie wrongful. Typically, this is
the case where the negligent conduct takes the form of a positive act which
causes physical harm. But conduct which takes the form of an omission or which
results in pure economic loss is not prima facie wrongful.3 In such cases it
becomes necessary to determine whether there is a legal duty owed by the
defendant to the plaintiff to act without negligence4 or, as the inquiry has more
recently been formulated, whether, if the defendant was negligent, it would be
reasonable to impose liability on him for such negligence.5 This, in turn, is a
matter for judicial judgment involving criteria of reasonableness, the legal
convictions of the community, policy and where appropriate, constitutional

2 Minister of Finance and others v Gore NO 2007(1) SA 111(SCA) para 86.
3 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA) para 19; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking  v Advertising Standards Authority
SA 2006 (1) SA 461 (SCA) para 13.
4 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 797F; Minister of Safety
and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12; Local Transitional Council of
Delmas v Boshoff 2005 (5) SA 514 (SCA) para 14.
5 See Trustees, Two Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd 2006 (3) SA 138
(SCA) para 11 where the formulation of Anton Fagan ‘Rethinking wrongfulness in the law of
delict’ (2005) 122 SALJ 90 at 109 is cited with approval. See also Hirschowitz Flionis v Bartlett
2006 (3) SA 575 (SCA) para 27.

norms.6 Precedent may also play a role.7 Where, as in the present case, it is
contended that there existed a delictual legal duty in what was essentially a
contractual setting, relevant circumstances will include such factors as the extent
to which the plaintiff was or could have been protected against the risk of harm
by contractual provisions, whether the duty alleged could have arisen in the
absence of a contract and generally, depending on the circumstances, the mere
existence of the contract. In Trustees, Two Oceans Aquarium Trust v Kantey and
Templer (Pty) Ltd,8 for example, the court was not prepared to recognise the
existence of a legal duty in circumstances where the plaintiffs could have
protected themselves against pure economic loss by contractual means.
Similarly, in Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty)
Ltd9 the court, while recognising the possibility of a concursus actionum, declined
to accept the existence of a delictual legal duty in circumstances where the
plaintiff would previously have had a claim in contract but had subsequently
assigned its rights and obligations under the contract to a third party.

[15] To return to the present case, the court a quo found that the appellant
owed ‘a duty of care’ to Tebe and that its failure ‘to act’ was therefore wrongful. In
coming to this conclusion Levinsohn J, who delivered the judgment of the court,
noted that the appellant had procured Tebe’s business on the understanding that
the voyage would be of short duration, that the appellant was aware of the limited
shelf life of the consignment, that the appellant had been found to have been
privy on 14 December 2001 to information that was of vital importance to Tebe
and that there existed a relationship of ‘agent and customer’ between the
appellant and Tebe. In these circumstances, the learned judge observed that it
would have taken only one telephone call to inform Tebe of the situation and
expressed the view that had this been done ‘[Tebe] in all probability would have

6 See eg Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A-B; Minister of Law and Order v
Kadir 1995 (1) SA 303 (A) at 318E-G; Minister of Safety and Security v Van Duivenboden (n4)
para 22.
7 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA (n3) para
15.
8 Note 5.
9 1985 (1) SA 475 (A).

elected to take the containers off the vessel and sell the fruit on the local
market’.10 However, no regard appears to have been had to the terms of the
contract of carriage to which Tebe was a party, nor to the relationship between
the appellant and its principals.

[16] As previously mentioned, Tebe’s forwarding agents, WSS Africa, made
the necessary booking with the appellant. It is common cause that the bills of
lading were on the appellant’s standard form. Mr Christopher Pienaar, an
employee of WSS Africa, testified that he inserted the necessary particulars and
then submitted the bills to the appellant for the latter to issue. He said that before
doing so he sent them to Jangda to check. Jangda was presumably familiar with
the appellant’s standard bills of lading as he had previously shipped goods with
the same shipping line. The terms and conditions governing Tebe’s contracts
with the carrier were set forth on the reverse side of the bills. Clauses 4 and 7 are
of particular relevance. In terms of clause 4 the carrier is afforded the right to
deviate from the advertised or ordinary route. More particularly, the clause
provides that the vessel may call at ports other than those ‘in or out of the
advertised geographical, usual or ordinary route’ and ‘omit calling at any port or
ports whether scheduled or not’.11 In terms of clause 7, the carrier is afforded the
right to change sailing and arrival dates without notice.12 Also of relevance is the

10 2006 (4) SA 495 (N) at 509D-H.
11 Clause 4 of the bills of lading reads as follows: ‘THE SCOPE OF VOYAGE. The voyage herein
undertaken shall include usual or customary or advertised ports of call whether named in this
contract or not, also ports in or out of the advertised geographical, usual or ordinary route or
order, even though in proceeding thereto the vessels may sail beyond the port of discharge or in
a direction contrary thereto, or depart from the direct or customary route or in a direction contrary
thereto. The vessel may call at any port for the purpose of the current voyage or of a subsequent
voyage. The vessel may omit calling at any port or ports whether scheduled or not, and may call
at the same port more than once, either with or without the goods on board, and before and after
proceeding towards the port of discharge, adjust compasses, dry-dock, go on ways or to repair
yards, shift berths; undergo degassing, wiping or similar measures, take fuel or stores, land
stowaways, remain in port, sail without pilots, tow and be towed, and save or attempt to save life
or property, and all of the foregoing are included in the contract voyage. The vessel shall never
be called upon to proceed to a place where she cannot safely get and be always afloat.’
12 Clause 7 reads: ‘DEPARTURE AND ARRIVAL DATES in the Carrier’s liner position lists,
sailing lists and other advertisements are given without any warranty, and no claims shall be
acceptable for any change in the dates nor even in the case of the vessel’s non-departure for
whatever cause. Carrier shall have the right to change sailing and arrival dates without notice.’

introductory clause on the reverse side of the bills of lading. The penultimate
sentence of that clause reads ‘MSC [Geneva] shall act as agent of the owner or
demise charterer in arranging the transport covered by this Bill of Lading’. This
provision was presumably inserted so as to enable MSC Geneva to obtain the
benefit of the Himalaya clause. But whatever the reason, the effect was that for
the purpose of the contract of carriage MSC Geneva acted as the agent of the
owner in ‘arranging the transport’. That would include determining the route to be
followed and the ports of call.

[17] Tebe’s claim is for the loss it suffered as a result of the delay brought
about by the deviation from the initially proposed route. The appellant was not in
any way responsible for that deviation. It was furthermore at all times merely
acting as agent, either for the carrier or MSC Geneva. By reason of the clauses
in the bills of lading previously mentioned, Tebe would have had no claim in
contract or delict against the party responsible for the deviation, whether that
party was the carrier or MSC Geneva. Unable to recover from the principal, Tebe
seeks in effect to circumvent the consequences of the contract by holding the
principal’s agent personally liable in delict for failing to afford Tebe the
opportunity of removing its containers from the vessel on a ground not amounting
to a breach of contract on the part of the principal. But agents are contractually
bound to protect the interests of their principals. The legal duty that Tebe
contends was owed to it by the appellant would therefore be in conflict with the
contractual obligation which the latter had to its principal. Even if it were to be
accepted that the appellant was negligent, there can be no good reason in my
view, given the contractual setting, for the existence of a legal duty on the
appellant to take such steps as may have been reasonable to prevent the harm.
It follows that in my judgment the failure on the part of the appellant to advise
Tebe of the deviation so as to afford it the opportunity of removing its containers
from the vessel was not wrongful and the claim in delict must fail.

[18] For the sake of completeness I propose to deal briefly with the issue of
negligence. The finding of the court a quo that the appellant had been negligent
was founded on what the court held to be an overwhelming probability that the
appellant knew on 14 December when the MSC Spain returned to port that the
vessel would be re-routed to the various ports at which the MSC Camille had
been scheduled to call. Accordingly, so the court held, it was overwhelmingly
probable that the appellant’s employees knew that the MSC Spain’s transit time
was going to be significantly longer than originally contemplated.13  In my view,
the evidence does not support this finding. On 14 December the appellant’s
employees knew that the MSC Spain was to discharge the 171 containers (out of
a total of some 800) destined for Reunion and that the vessel was to pick up
cargo at Maputo. But they did not know at which ports that cargo was to be
discharged, in other words, at which of the ports on the normal route the vessel
would call. As I have previously said, they only learned this on 20 December
2001 when they received an email from MSC Geneva setting out the planned
rotation. Mr Neville Naidoo, the trade manager of the appellant at the time and
who testified on behalf of Tebe, conceded in evidence that if the MSC Spain was
to replace the MSC Camille (and call at all the ports of discharge) the transit time
would be the normal 25 days.14 But he emphasized that the MSC Spain already
had cargo on board and would not have been able to accommodate all the cargo
taken off the MSC Camille. When asked in cross-examination why he did not
inform Jangda (who, and whose business, was known to him) of the change in
the route he explained that based on the information then available he did not
anticipate a delay of any significance. There was nothing to suggest that this
belief was unreasonable or that any other employee of the appellant was better
informed than he on 14 December 2001.  In my view, therefore, Tebe failed to
establish negligence on the part of the appellant.

13 2006 (4) SA 495 at 508B-C.
14 See the passage in Naidoo’s evidence quoted at 507G.

[19] It follows that the appeal must succeed. In the circumstances it is
unnecessary to consider the question relating to the Himalaya clause. The failure
to do so must not, however, be construed as an endorsement of the views
expressed by the court a quo.

[20] In view of this court’s finding on the issue of delictual liability the appellant
is entitled to an order dismissing the claim with costs, as opposed to the order of
absolution from the instance granted by the trial court.
[21] The following order is made:

1.
The appeal is upheld with costs, such costs to include the costs of two
counsel.
2.
The order of the court a quo is set aside and the following is substituted in
its place:

‘(a)
The appeal is dismissed with costs;
(b)
The order of the trial court is altered to read:
“The action is dismissed with costs”.’

__________

D G SCOTT

JUDGE OF APPEAL

CONCUR:
FARLAM
JA
CLOETE
JA
LEWIS
JA
CACHALIA  JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDITERRANEAN SHIPPING CO (PTY) LTD v TEBE TRADING (PTY) LTD  CASE NO
204/06

From :
The Registrar, Supreme Court of Appeal

Date:
20 March 2007

Status:
Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal upheld an appeal from a judgment of a full Court of the
Pietermaritzburg High Court which had held the appellant, a ship’s agent, liable for damage to a
consignment of litchis carried on board the ship, MSC Spain, from Durban to Dubai. Following a fire in
the engine room of a sister ship, the Geneva operated shipping line directed the MSC Spain to deviate
from its planned route and to call at Maputo in order to pick up cargo off-loaded from the stricken ship.
As a result of the deviation the litchis, although in a refrigerated container, deteriorated to the extent
that they were unsaleable in the Middle East. The consignor claimed that the appellant, the local
agent, on learning of the proposed deviation, should have informed it of what was intended so as to
afford it the opportunity of removing the litchis from the ship and possibly selling them on the local
market. However, in terms of the bills of lading, which evidenced the contract of carriage, the carrier
was entitled to deviate from the advertised route. In these circumstances the SCA held that the
appellant owed no legal duty in delict to the consignor to afford it the opportunity of removing the litchis
from the ship. The court held that such a duty would be in conflict with the agent’s contractual
obligation which it owed to its principal.

--- ends ---