The plaintiff-excipient, an incola of this Court, was the holder of a bill of lading issued by the defendant at Antonia, Brazil, on 15 April 1972. The defendant-respondent, a Danish company, and as such a peregrinus, was obliged to carry onboard the vessel Lise Nielsen the plaintiff's cargo of timber from Brazil to East London, South Africa, and to deliver it to the holder of that bill. Clause 2 of the bill states:

The Hague Rules contained in the International Convention for the Unification of certain Rules relating to Bills of Lading, dated Brussels 25 August 1924, as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply.

The plaintiff alleged short delivery of the timber and claimed that the defendant breached its obligations under the bill. On 27 April 1973, the plaintiff obtained a court order attaching another vessel of the defendant, the Lotte Nielsen

to found and confirm jurisdiction pending the institution of an action by the applicant against [the defendant], claiming damages …, which action shall be instituted within 21 days from the date of this order.

Pursuant to this order, the attachment of the Lotte Nielsen was effected on the same day. On 11 May 1973, summons in this matter was issued. By a special plea, the defendant pleaded that it has been discharged from all liability for the damage allegedly suffered by the plaintiff by virtue of art 3.6 of the Hague Rules, which provides:

In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

The defendant argued that 'suit was brought' on 11 May 1973 and that the timber ought to have been delivered on 7 May 1972. By an exception, the plaintiff contended that the plaintiff brought suit on 27 April 1973. The issue was therefore whether the plaintiff brought suit on 27 April or 11 May.

The parties accepted that although the phrase requiring interpretation appeared in an international Convention to which South Africa was not a party, it must be interpreted in accordance with the principles of South African law since: (a) the action has been instituted in this Court which, by virtue of the attachment mentioned above, has jurisdiction; (b) the point in issue is when 'suit was brought'; (c) that question can only be determined by reference to the domestic law of this Court (forum regit processum).

Held: Special plea struck out.

By attaching the defendant's vessel the plaintiff did 'bring suit' within the requisite period under art 3.6.

The Hague Rules were not incorporated into Brazilian law. In contrast, South African does incorporate the Hague Rules verbatim under Ch VIII of Act 57 of 1951 (ie the South African Merchant Shipping Act 1951), which applies only 'in relation to and in connection with the carriage of goods ... from any port in the Republic to any other port' (see s 307(1) of that Act) and is therefore not compulsorily applicable to the shipment in question. The Hague Rules consequently applied to the shipment under cl 2 of the bill.

The first difficulty which arises is that the word 'suit': this 'is unknown to our law and is … in English law used to denote a suit in Chancery as distinguished from an action at Common Law': Collet v Priest 1931 AD 290, 300. Nevertheless, case law indicates that 'to bring suit' is to be interpreted as meaning 'to pursue the appropriate remedy by the appropriate procedure': The Merak [1965] 1 All ER 230 (CA) 238 (CMI2133).

The plaintiff claims from the defendant damages which it is alleged to have sustained by reason of the defendant's failure to deliver a portion of a consignment of timber. The appropriate procedure was therefore to institute an action for damages. Since, however, the defendant is a peregrinus and this Court in any event did not have jurisdiction on one or other of the common law grounds, the plaintiff had of necessity to obtain an attachment ad fundandam jurisdictionem before it could institute the action. The attachment was therefore the first necessary procedural step for the purpose of pursuing the plaintiff's remedy against the defendant. An attachment to found or confirm jurisdiction is effected for the purpose of obtaining redress or the recognition of a right. Since it is, as a matter of law, a necessary step in the proceedings, it cannot be said to be 'ancillary' or 'preliminary' (Behr v SA Railways & Harbours 1924 OPD 309, 315). By attaching the vessel the plaintiff in fact initiated the procedure designed to enforce its remedy against the defendant.

It was unnecessary to deal with the numerous authorities cited by the parties to support their arguments on the general principles of prescription. This was not a case of extinctive prescription. The Court described the period mentioned in art 3.6 as '12 months' and held that it was in the nature of 'an expiry period' and accordingly the general principles of prescription cannot operate: President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (AD) (President Insurance) 780.