Control Chemicals v Safbank Line Limited and Others

On 20 July 1991, the MV Recife sailed from Durban bound for ports in South and North America. On 7 September 1991, approximately 50 days later, an explosion and fire occurred in a container stowed on deck containing 1005 boxes of Klorman Chlorine replacement cartridges (commercial calcium hypochlorite tablets) shipped by the appellant. The container was being carried under a bill of lading dated 20 July 1991 with the first respondent as carrier. Calcium hypochlorite with more than 39% available chlorine is listed in the IMDG Code as a Class 5.1 oxidizing substance, and its dangerous nature was known to the carrier prior to commencement of the voyage. The explosion and fire damaged several nearby containers, their contents, and the vessel itself. The respondents (carrier, time-charterers, owners, and interested company) sued the appellant (shipper) in contract and delict for damages arising from the fire. The appellant's negligence claim was conceded to fail, leaving only the contract claim based on Article IV, Rule 6 of the Hague Visby Rules, which were incorporated into the contract via the Carriage of Goods by Sea Act 1 of 1986.

• Whether the respondents discharged the burden of proving on a balance of probabilities that the cause of the explosion was the defective or contaminated state of the calcium hypochlorite or its improper stowage in the container
• Whether the carrier's consent to shipment was vitiated under Article IV, Rule 6 of the Hague Visby Rules due to lack of knowledge of the true 'nature and character' of the goods
• Whether the shipper could be held strictly liable for damage arising from shipment of dangerous goods under the contract of carriage
• The appropriate standard and burden of proof where the cause of an explosion remains uncertain despite expert evidence

The appeal succeeded with costs (subject to a 50% disallowance of perusal costs due to defective record). The trial court's order was set aside and replaced with an order granting absolution from the instance with costs.

Where a plaintiff seeks to establish liability under Article IV, Rule 6 of the Hague Visby Rules on the basis that dangerous goods were shipped without the carrier's consent with knowledge of their true 'nature and character', the plaintiff bears the burden of proving on a balance of probabilities that the goods were defective, contaminated or improperly stowed. Where expert evidence establishes only remote theoretical possibilities and something extraordinary and unexplained must have occurred, but the evidence does not establish what that was or whether it related to the initial condition of the goods or events during the voyage, the plaintiff has failed to discharge the requisite burden of proof. A court is not compelled to choose between competing improbable theories but may find that the evidence leaves the true cause in doubt, resulting in the failure of the party bearing the onus.

The Court made several obiter observations: (1) It commented on the IMDG Code's statement that the 'critical ambient temperature of decomposition may be as low as 60 degrees C' for calcium hypochlorite, suggesting this should be construed as it would be understood by an ordinary carrier or master rather than a chemist, possibly indicating that once ambient temperature reaches 60°C there is a risk of decomposition; (2) The Court noted the absence of evidence regarding whether containers of calcium hypochlorite are regularly stowed on top tiers in tropical/sub-tropical sun for extended periods, suggesting there may be distinguishing factors explaining the rarity of such explosions; (3) The Court expressed strong displeasure regarding the defective state of the appeal record, noting that various important documents (expert summaries and reports) were missing from the record and only handed up on the morning of the hearing without application for condonation, and emphasized that this impairs the smooth running of the court and wastes judicial time during term; (4) The Court commented that there is still much to be learned about factors that may cause or contribute to decomposition of calcium hypochlorite, noting that even the cause of explosions in the late 1960s and early 1970s was never positively identified.

This case is significant in South African maritime and contract law for several reasons: (1) It applies the principles from The Popi M regarding burden of proof where the cause of an incident remains uncertain - courts need not choose between improbable theories but may find the evidence leaves the matter in doubt; (2) It interprets Article IV, Rule 6 of the Hague Visby Rules regarding liability of shippers of dangerous goods, clarifying that the carrier must prove lack of consent 'with knowledge of their nature and character' which extends beyond mere knowledge of the general dangerous classification to include actual condition/defects; (3) It demonstrates the high standard of proof required in maritime casualties where expert evidence involves theoretical calculations and assumptions rather than demonstrated facts; (4) It emphasizes that where something 'extraordinary and unknown' must have occurred, the cause could equally have arisen during the voyage as from the initial condition of goods; (5) The case illustrates the application of Roman-Dutch law to admiralty matters under section 6(1)(b) of the Admiralty Jurisdiction Regulation Act 105 of 1983; (6) It provides guidance on the interplay between contractual terms in bills of lading and the mandatory provisions of the Hague Visby Rules.