Mechanisation Company Ltd (Appellant) v Emcar Ltd (Respondent)[Record No. 1392]
Emcar Ltd (Appellant) v Mechanisation Company Ltd (Respondent)[Record No. 1395]
2021 SCJ 15
18/01/2021
FACTS
MECOM was the owner of a sugar cane harvester (the ‘machine’) which was to be sold to a prospective buyer in South Africa for the sum of ZAR 1,000,000. MECOM entered into an agreement with EMCAR as freight forwarder for the purposes of the shipment of the machine from Mauritius to South Africa.
While it was partly dismantled in South Africa, the machine was found to be in a damaged state and the then prospective purchaser cancelled the acquisition accordingly. It was only after a long time that MECOM was able to sell the machine at a much lower price (ZAR 350,000).
MECOM claimed damages from EMCAR as compensation from the damages suffered resulting from EMCAR’s failure to abide by its contractual obligations.
In the first appeal, the Mechanisation Company Ltd (MECOM) claimed damages for breach of contract to EMCAR Ltd (EMCAR) following which, the trial judge ordered EMCAR to pay an amount of ZAR 360,614 (or its equivalent in the Mauritian currency) to MECOM as from judgment date together with interest thereon as from 29 May 2015 up to the final payment date. Mecom contested the quantum of damages and claimed an amount of ZAR 650,000 plus interests as from date of entry of the plaint.
In the second appeal, EMCAR is challenging both the trial judge’s finding of liability for breach of contract and the amount of awarded damages.
The two appeals were consolidated.
MAIN ISSUES
EMCAR denied liability and submitted inter alia that:
(i) it has not received the machine in good state and condition when it was partly dismantled and loaded on the ship;
(ii) the amount claimed was excessive and unjustifiable;
(iii) it was merely acting as an ‘intermédiaire’ in order to organise the transport of the machine;
(iv) the damage to the machine was caused prior to its ‘prise en charge’ by it;
(v) it was not responsible for the delay in causing repairs to be effected to the machine and for the loss of opportunity to sell the machine;
(vi) the action should fail since MECOM failed to serve a notice ‘mise en demeure’ upon it.
DECISION OF THE COURT
First appeal
The Court ordered EMCAR to pay an amount of ZAR 710,614 (or its equivalent in Mauritius currency) to MECOM plus interest as from the date of the plaint up to the date of final payment.
Second appeal
Dismissed with costs against EMCAR
The decisions of the Court were based namely on the following rationale:
(i) EMCAR was a « commissionaire de transport » with respect to the agreement it entered into with MECOM as “commettant” and therefore, EMCAR was fully responsible for the “avaries” caused to the machine by virtue of articles 95, 96 and 97 of the Mauritius Code de Commerce. In that respect, it is essential to reproduce the provisions of the said articles which respectively state that:
- Art. 95: “Le Commissionnaire qui se charge d’un transport est garant de l’arrivée des marchandises et effets dans le délai convenu ou dans un délai raisonnable, hors les cas de force majeure légalement constatée.
- Art.96 : « Il est garant des avaries ou pertes de marchandises et effets, s’il n’y a stipulation contraire ou force majeure.
- Art. 97 : « Il est garant des faits du commissionnaire intermédiaire auquel il adresse les marchandises. »
(ii) the “Commissionnaire de Transport” is bound by an “obligation de résultat"and is liable not only for his personal acts but also for the acts of third parties whom he has engaged for executing the “contrat de transport”;
(iv) the machine was damaged prior to it being taken in charge by EMCAR;
(v) EMCAR had the contractual obligation to ensure that the machine reached destination in good state;
(vi) EMCAR would still be liable even if the machine was damaged whilst it was loaded on the ship by Cargo Handling Corporation (CHC);
(vii) as stated in the bill of lading, EMCAR was responsible for the acts and omissions of the employees of the CHC and the ship since it resorted to their services for the performance of the contracts;
(viii) the cancellation of the sale by the prospective South African purchaser was a direct consequence of the damages caused to the machine as a result of EMCAR’s failure to accept liability which it knew very well and thus causing delay to MECOM to have the repairs done;
(ix) the contractual documents between MECOM and EMCAR were consistent with the aforementioned provisions of the Code de Commerce.
Attorney for Mechanisation Company Ltd: Jean Jacques Robert
