Cristal Motor Spares (Pvt) Ltd t/a Cristal Fabrics, Crafts and Designers v South African Airways

### Preamble
1
HH 135-13
HC 2877A/10
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CRISTAL MOTOR SPARES (PVT) LTD

t/a CRISTAL FABRICS, CRAFTS AND DESIGNERS

versus

SOUTH AFRICAN AIRWAYS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 4 April 2013 and 8 May 2013

Plea in abatement

L. Uriri, for the plaintiff

S. Bhebhe, for the defendant

MATHONSI J:  The plaintiff is a Zimbabwean registered company which deals in art and craft products. The defendant is an international airline carrier which, although constituted in South Africa, is licenced to operate in Zimbabwe and has offices in Harare.

On 3 May 2010, the plaintiff instituted summons action against the defendant out of this court seeking relief in the form of what it termed “special damages” of US$13 765-29 and “general damages” of US$47 000-00. The plaintiff also sought interest on both sums and costs of suit. The plaintiff’s summons and declaration was only served upon the defendant on 21 September 2010, whereupon the defendant entered appearance to defend.

In its declaration, the plaintiff pleaded in relevant part as follows:-

“3.	 Plaintiff’s claim is in terms of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (‘Warsaw Convention’) as read with the Carriage by Air Act [Cap 13:04]. The Warsaw Convention provides the sole and exclusive cause of action and sole remedy for a passenger who claims for loss, injury and damages sustained in the course or arising out of his international carriage by air.

4.	On or about the 22nd of April 2008, the plaintiff contracted the defendant to carry the plaintiff’s cargo from Harare to Porto Algere in Brazil via Johannesburg, for an arts and craft exhibition scheduled for the 2nd of May 2008 under air waybill number 083-8384 4740 and 083-83844736. The plaintiff handed in its consignment to the defendant an air carrier on the 22nd of April 2008 and two air waybills number 083-8384 4740 and 083-8384 4736 were executed on the same date. The defendant confirms the plaintiff’s bookings and at no time did the defendant explain anticipated delays to freight on flights to Brazil. The carriage by air of the plaintiff from Harare to Porto Algere in Brazil via Johannesburg constituted international carriage within the meaning of Article 1(2) of the Convention for the Unification of Certain Rules Relating to International Carriage, by Air (‘Warsaw Convention’) as incorporated into Zimbabwean law by s 2 of the Carriage by Air Act [Cap 13:04]. The Warsaw Convention is incorporated as a schedule to the Act. The Carriage by Air Act is a piece of legislation designed to enable effect to be given to the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955, concerning internal carriage by air.

5.	The requested flight date was the 23rd of May. The cargo that the defendant was contracted to transport consisted of mainly pieces of sculpture of diverse shapes and sizes.

6.	The plaintiff paid the necessary payments and airfares and the defendant agreed to carry the plaintiff’s consignment. In terms of both Air Waybill number 083-8384 4740 and 083-83844 736 the waybills were marked and endorsed “URGENT CARGO FOR EXHIBITION MUST FLY AS BOOKED PSE NOTIFY CONSIGNEEE UPON ARRIVAL OF THE CARGO EXHIBITION TO BE HELD ON THE 2ND (SIC) OF MAY 2008’.

7.	In breaching of the agreement between the plaintiff and the defendant, the defendant failed and or delayed to deliver the plaintiff’s cargo in time for the exhibition scheduled for the 2nd of May 2008 and the cargo only arrived on the 10th of June a period of one month and ten days after the exhibition to the prejudice of the plaintiff.

8.	The exhibition would have enabled the plaintiff to display, show case and sell its wares. In anticipation of the business at the exhibition the plaintiff paid for accommodation, booked and paid rentals for exhibition stands among other things.

9.	The delay in the delivery of the plaintiff’s consignment occasioned patrimonial loss and or financial prejudice and or actual and special damages to the plaintiff in the sum of US$13 765-29 broken down as follows:-

AIRWAY BILL NOS 083-838 44740 AND 083-838 44736

Duty and tax paid					US$4 000-00

Air tickets for 2 from Harare to Brazil		US$2 998-00

Top up fees for fares					US$   340-00

Transport from Salvado to Sao Paulo			US$   402-30

Accommodation					US$1 902-30

Tickets from Port Alegree to Cutitiba			US$   172-41

Immigration						US$     96-55

Rentals for exhibition stands 				US$3 568-98

Airfare from Johannesburg South Africa to?		US$   150-00

Penalty fee for change of ticket 			US$   134-75

Total						          US$13 765-29

10.	As a result of the breach of contract by the defendant, the plaintiff suffered further general damages in the form of loss of business in the sum of US$30 000-00 (later amended to US$51 845-00).

11.	The defendant lost part of the plaintiff’s cargo valued at US$17 000-00 (later deleted).

12.	Despite demand, the defendant has failed and or neglected to pay the plaintiff its, loss in the sum of US$13 765-29 in respect of special damages and US$51 845-00 in respect of general damages.

WHEREFORE the plaintiff prays for:-

Special damages in the sum of US$13 765-29

General damages in the sum of US$51 845-00

Interest a tempore morae

Costs of suit”.

The defendant duly filed a plea in abatement to the plaintiff’s summons which is 2

pronged namely that the plaintiff’s claim was bad at law by reason of failure to submit a written complaint to the carrier within 21 days provided for in Article 26 of the Warsaw Convention (the Convention) and that the claim is prescribed in terms of Article 29 of the Convention as read with s 8 of the Carriage By Air Act [Cap 13:04] (“the Act”).

Although r 126 of the High Court of Zimbabwe Rules 1971, entitle the plaintiff to respond to a plea in abatement, the plaintiff did not do so and the matter was set down without any replication from the plaintiff.

Mr Bhebhe for the defendant submitted that in terms of the plaintiff’s declaration, the scheduled date of arrival of the consignment was 23 May 2008 but the cargo only arrived in Brazil on 10 June 2008. For the plaintiff’s claim to be sustained it was required by Article 26(2) of the Convention to lodge a written complaint within 21 days which it did not do. For that reason, Mr Bhebhe argued, the plaintiff’s claim was bad at law.

It is common cause that the plaintiff’s claim is premised on the Convention as read with the Act through which the convention was incorporated into our municipal law. Section 3 of the Act provides:-

“The Convention, a translation of which is set out in the First Schedule, and the Supplementary Convention, a translation of which is set out in the second schedule, shall, so far as they relate to the rights and liabilities of carriers, carriers’ agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Zimbabwe in relation to any carriage by air to which those Conventions apply, irrespective of the nationality of the aircraft performing the carriage”.

Clearly therefore the Convention has been domesticated into Zimbabwean law. The

plaintiff’s declaration also makes it clear in para 3 that the claim is made in terms of the Convention. Indeed it is the Convention which provides an exclusive cause of action and sole remedy for a party seeking damages for loss arising from international carriage.

Article 1 of the Convention makes it also abundantly clear that it applies to all international carriage of persons, baggage or cargo performed by aircraft for reward.

Article 26 of the Convention provides:-

“(1)	Receipt by the person entitled to delivery of baggage or cargo without

complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.

(2)	In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty one days from the date on which the baggage or cargo has been placed at his disposal.

(3)	Every complaint must be made in writing upon the document of carriage or by separate notice in writing dispatched within the times aforesaid.

(4)	Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part” (The underlining is mine).

The plaintiff’s claim is based on delayed delivery which led to loss of business as well as expenses for travel and bookings. In terms of para 7 of the declaration the cargo only arrived in Brazil on 10 June 2008 instead of the scheduled date, that is, 23 May 2008. The plaintiff was therefore required by Article 26 to submit a written complaint to the defendant no later than 21 days from 10 June 2008.

The plaintiff’s pleadings are silent on whether the requisite complaint was made. Indeed upon being requested by the defendant to particularise whether such complaint was made the plaintiff was evasive electing to only state in the further particulars, para 3 that:-

“Yes, the plaintiff filed a complaint and the defendant has the complaint letter”

Even after the defendant placed the filing of the complaint in issue in its plea, the plaintiff was content with not filing any replication.

In an effort to breath some life into the plaintiff’s case, Mr Uriri appearing for the plaintiff, in the true spirit of advocacy, submitted that upon receipt of such inadequate particulars the defendant should have requested further and better particulars. To the extent that it did not, the issue of whether a written complaint was made or not is now a matter of evidence to be determined at the trial.

One can only sympathise with Mr Uriri who, in spite of his ingenuity, clearly has got a bad case. If indeed the plaintiff was aware that there was compliance with Article 26, it was for the plaintiff to plead that position. The plaintiff had an opportunity to do so in the declaration, it allowed that opportunity to slip away because the declaration is silent on such necessary averment. When the plea was filed, the plaintiff still had a chance to replicate in terms of r 126 and include the written complaint. It did not.

I therefore have no hesitation in concluding that no written complaint was made in terms of Article 26.  For that reason Article 26 (4) that failing complaint within the times given, no action shall lie against the carrier, kicks in.

It was necessary for the plaintiff to make the averment that Article 26 was complied with. A claim brought in terms of the Convention must certainly contain an averment that the requirements of the Convention for bringing such a claim, in this case Article 26, have been complied with. It is critical to plead the cause of action; Chifamba v Mutasa HH 16/08, Alesp Enterprises (Pvt) Ltd v Natural Stone Export Co (Pvt) Ltd HB 59/04.

The defendant also relies on the issue of prescription in seeking to defeat the plaintiffs claim. Mr Bhebhe for the defendant cited Article 29 of the Convention which provides:

“(1)	The right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2)	The method of calculating the period of limitation shall be determined by the law of the court seized of the case”.

Mr Bhebhe submitted that as the plaintiff has alleged that the cargo was supposed to arrive in Brazil on 2 May 2008, or is it 23 May 2008, the prescriptive period of 2 years expired on 2 May 2010 or 23 MAY 2010 and in order to interrupt the running of prescription the plaintiff should have not only issued but served summons upon the defendant by 2 May 2010 or 23 May 2010. Having failed to do so the plaintiff’s claim is prescribed.

Mr Uriri for the plaintiff challenged that argument from essentially 3 fronts. In the first, he took the view that only 1 right is extinguished by Article 29, namely the claim for damages. As part of the plaintiff’s claim was for expenses incurred, it was not extinguished since it was a claim for restitution. He referred me to the United States Court of Appeal decision in UPS Supply Chain Solutions Inc v Qantas Airways Ltd DC No CV-06-07267-DSF in which that court reasoned that although the original claim had been for damages to an aircraft engine while in transit from New Zealand to the United States, UPS’s third party action against Qantas did not seek compensation for damage sustained to the engine but rather that UPS, as a contracting carrier, was seeking indemnification and contribution from Qantas having met the original damages claim. It ruled that the claim did not fall under the “right to damages” referred to in Article 35 of the Montreal Convention similar to Article 29 of the Warsaw Convention.

In my view, although that case is persuasive authority, it is clearly distinguishable from the present in which the plaintiff clearly avers in its declaration that it seeks “special damages” and “general damages”. To my mind, to suggest that a claim for compensation of loss suffered by the plaintiff on its tryst to Brazil in the form of travel and accommodation expenses as well as loss of business, is a claim for restitution as opposed to damages, is an unnecessary splitting of hairs, the proverbial distinction without difference.

Mr Uriri, in the second front argued that the Convention makes use of words which are not provided for in the Prescription Act [Cap 8:11] and as such the interpretation in the Prescription Act has no application to this case. The running of prescription should not be reckon as in that Act because Article 29 uses the phrase “if an action is not brought within two years”.

I do not agree. In fact a cursory look at Article 29 proves the fallacy of that argument. Article 29(2) specifically provides that the method of computing the prescriptive period is determined by the law of the court seized of the case. That law is the Prescription Act s 7(1) of which provides that the running of prescription is only interrupted by the service of process.

It is also instructive to defer to the provisions of s 8(3) of the Carriage By Air Act [Cap 13:04] the legislation which domesticates the Convention. That section, although dealing with referral to arbitration is useful in appreciating the intention of the legislature. It provides:-

“(3)	Subsections (1) and (2) and Article 29 of the Convention shall have effect as if references in those provisions to an action included reference to an arbitration; and for the purpose of this subsection an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party or parties a notice requiring him or them to appoint an arbitrator ….”

By parity reasoning, it must follow that the legislative intent was always that only service of process would interrupt prescription.

On the third front, Mr Uriri submitted that the defendant is estopped from relying on the Convention because in correspondence which exchanged hands between the parties before the action was instituted, the defendant had led the plaintiff to believe that it would not rely on the provisions of the Convention to defeat the plaintiff’s claim. The misrepresentation caused prejudice to the plaintiff by lulling it into a false sense of security that the defendant was not relying on the Convention as it had disregarded it. He argued that the long silence and inaction of the defendant misled the plaintiff.

While it is true that the plaintiff’s case may have been compromised badly by its failure to file a replication, I am unable to find any misrepresentation on the part of the defendant. The requirements for estoppel were set out in Barclays Bank of Zimbabwe Ltd v  Air Zimbabwe Corporation  1994(1) SA 639(H). They are;

A representation by words or conduct which might reasonably be expected to mislead;

The misleading of the representee.

The inducement of the representee to alter his position on the faith of such representation.

The representor must have intended that the representation should be acted upon by the representee though this is normally presumed.

It is inconceivable that the plaintiff would have been misled by the defendant’s refusal

to meet its claim. At no point did the defendant even suggest a remote willingness to pay. In my view the requirements of estoppel are not met and that doctrine cannot set it.

I therefore conclude that the plaintiff’s claim under the convention has been extinguished by prescription.

Accordingly, the plaintiff’s claim is hereby dismissed with costs.

V. Nyemba & Associates, plaintiff’s legal practitioners

Kantor & Immerman, defendant’s legal practitioners