The parties have agreed that the issue raised by the defendant's special plea be decided in this application separately from the other issues in the case.The plaintiffs sue by way of an action in rem for damages for delivery in a damaged condition and short delivery of cargo carried by the defendant from Santos to Durban. The plaintiffs sue as holders of a bill of lading which embodies the terms and conditions upon which the cargo was carried. Clause 2 of the conditions of carriage renders the Hague Rules applicable to this transaction, and art 3.6 of the Hague Rules provides that '[i]n 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'.

It is common cause that the cargo was discharged at Durban and delivered between 12-20 July 1989, and that any cargo which the defendant failed to deliver should have been delivered by 20 July 1989. The question for decision is whether the plaintiffs' claim is time-barred by virtue of art 3.6 of the Hague Rules.

Held: The defendant's special plea is dismissed.

To 'bring suit' within the meaning of art 3.6 of the Hague Rules is to commence the appropriate proceedings for enforcing the claim. (See The Merak [1965] 1 All ER 230 (CA) at 238; Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA 381 (D) at 383.) And the question of when suit is brought is determined by the law of the country and the practice of the court where suit is brought.

According to the plain meaning of s 3(5) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act) the arrest of the property serves to institute or commence the action in rem. That is what actually institutes or commences the action, notwithstanding that in terms of s 1(2) it is deemed (for the purposes of laws relating to prescription or the like) to have commenced earlier by the issue of process. And s 3(10)(a) provides in plain and unambiguous language that if security or an undertaking is given to prevent the arrest the property is thereupon deemed to have been arrested. As the arrest institutes the action it follows that the action commences when the property is deemed to have been arrested.

No departure from the plain meaning of s 3(5) and (10)(a) is warranted, with the result that this action commenced with the giving of security on 21 July 1989.

[For the successful appeal to the Supreme Court of Appeal, see MV Jute Express v Owners of the Cargo Lately Laden on Board the MV Jute Express 1992 (3) SA 9 (A) (CMI826).]