Sotramon LTD V Mediterranean Shipping Co LTD 2013 SCJ 135
Sotramon LTD V Mediterranean Shipping Co LTD 2013 SCJ 135
Sotramon Ltd.
Plaintiff
v
Mediterranean Shipping Co. Ltd.
Defendant
Judgment
On 12 August 1999, the plaintiff retained the services of the defendant, a shipping
company, for the dispatch of a crawler crane to Weldex International Offshore Limited at
Felixstowe, in England. The crawler crane was packed in sixteen containers and loaded on
vessel MV Marcocomander in Port Louis. When the ship reached Felixstowe, part of the
consignment, namely a 15-ton ballast, went missing.
Consequently, the plaintiff claimed damages from the defendant and averred that the
defendant’s failure to deliver the whole consignment constituted a breach of contract for which it
was liable. The defendant denied liability, and averred that all sixteen containers had been
delivered at the port of discharge. It also averred that by virtue of a limitation clause in the
contract of carriage, it could not be held liable for any loss or damages in connection with goods
in an amount exceeding 100 pounds sterling per container, unless the nature and value of such
goods had been declared by the plaintiff before the shipment and inserted in the bill of lading.
Furthermore, by way of a plea in limine litis, the defendant moved for the enforcement of
another jurisdiction clause in the contract of carriage which expressly provided that all claims
arising from the contract shall be referred to the High Court of Justice in London.
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Following the plea in limine litis, the plaintiff amended its plaint with summons. It
appeared from the averments contained therein that the plaintiff had shifted its cause of action
to one in tort. The amended plaint made no reference to a breach of contract by the defendant,
and the plaintiff averred instead “gross negligence on the part of the defendant in failing to
ensure that the whole of the consignment was landed and delivered to the consignee”. The
plaintiff also averred that such failure constituted a «faute lourde» on the part of the defendant.
Before hearing submissions on the plea in limine litis, learned Counsel for the plaintiff
was requested to clear any ambiguity in the cause of action and learned Counsel confirmed that
the plaintiff’s cause of action was no longer one for breach of contract but one grounded in tort.
The matter was then proceeded with on that basis, and in its ruling the court set aside the plea
in limine litis.
Learned Counsel for the defendant has now moved that the plaintiff’s claim be dismissed
inasmuch as the plaintiff should have grounded its cause of action on «responsabilité
contractuelle» in view of the «règle de non-cumul des responsabilités délictuelles et
contractuelles».
There is evidence on record from the plaintiff’s representative that the parties had
entered into a contract of carriage by sea and that the contractual relationship between the
parties was embodied in a Bill of Lading. It cannot be disputed therefore that by virtue of this
contract of carriage, the defendant had agreed to transport the entire consignment from Port
Louis to Felixstowe, and that the loss of the 15-ton ballast was a result of the non-performance
of its obligation under the contract.
The issue for my determination now is whether a plaintiff, who had sustained damages
as a result of the breach of the conditions of a contract, can choose to ground his action in tort.
i.e under article 1382 of the Civil Code.
Learned Counsel for the defendant submitted that according to French law, a party who
is bound by the conditions of a contract cannot opt to ground his cause of action in tort. Counsel
for the plaintiff on the other hand submitted that a party need only plead pertinent facts and that
it is for the court to decide what qualification to be brought to the cause of action.
Now, it is well settled by our case law that the principle of «non-cumul de la
responsabilité contractuelle et délictuelle» derived from French law is also applicable in
Mauritius. In Kinoo v. Currumthaullee and Anor [1977 MR 363] the Court made it clear that
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a plaintiff cannot have recourse to “cumul” in such a way as to recover damages both under a
contract and in tort, nor can he proceed by means of a hybrid action in which case he would be
asking the court “to apply in turn the rules governing in contract and the rules governing actions
in tort, according to what set of rules best serves his purpose”.
Our courts have followed the above principle as obtains in France and have consistently
held that where damages result from a breach of contract, the plaintiff should base his action in
contract and not in tort. Vide TFP International Ltd. v. S. Itoola [2002 SCJ 147], The Hong
Kong & Shanghai Banking Corporation v. Mamad Safii Sairally [2002 SCJ 227].
In The Hong Kong & Shanghai Banking Corporation v. Mamad Safii Sairally
(supra), the appellate court stressed on the fact that the two types of liability cannot be
intertwined, the more so when one party is attempting to evade the provisions of a limitation
clause under a contract, and the court referred to Encyclopédie Dalloz, Responsabilité (en
général):
«Note 180: Une jurisprudence sans faille rejette l’application des articles 1382 et 1383
du code civil à des parties qui sont dans une situation contractuelle,
lorsque, par exemple, le créancier les invoque pour échapper à une clause
restrictive de la responsabilité (V. Supra, No. 155)».
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This matter was also considered at length in Austral v Air Abdool Hamid Ismael
Hurjuk [2010 SCJ 202], where the appellate court explained the rationale for the principle of
“non-option” to be found in Précis Dalloz Droit Civil Les Obligations 5e Edition by François
Terré, Philippe Simier and Yves Lequette at paragraph 835:
I therefore hold that the plaintiff is bound by the terms of its contract of carriage and
cannot ground its action in tort.
Learned Counsel for the plaintiff submitted that the court should not dismiss the case
outright at this stage but that it should adopt the approach of the French courts which hear the
parties on the merits in order to decide subsequently which cause of action best suits the case.
Learned Counsel referred to Répertoire Civil Dalloz Responsabilités Contractuelles at
Notes 8 and 9 which reads as follows :
pas se borner à rejeter la demande, car il lui appartient de se prononcer sur l’éventuel
droit à une réparation, en fonction des règles contractuelles».
It is to be noted that the French courts have adopted the above procedure by virtue of
specific provisions in their Nouveau Code de Procédure Civile.
«Note 78 (2): Le juge peut-il d’office restituer le débat sur son terrain exact?
In The Hong Kong & Shanghai Banking Corporation v. Mamad Safii Sairally
(supra), the appellate court, after allowing an appeal where the learned Magistrate had awarded
damages for liability in tort despite a contractual relationship between the parties, made the
following observation:
“It is interesting to note that in France the trial Court would not necessarily
dismiss an action wrongly entered in tort rather than in contract but could consider the
action on the contractual plane: see Encyclopédie Dalloz, Responsabilité at notes
194, 195. But this is done in France by virtue of Article 16 of the Nouveau Code de
Procédure Civile, a provision which we do not have in our law”.
In the circumstances, I do not propose to hear the parties further and I non-suit the
plaintiff. With costs.
N. Matadeen
Judge
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20 March 2013