Case No  584/97
In the matter between:
CONTROL CHEMICALS
Appellant
and
SAFBANK LINE LIMITED
First Respondent
SOUTH AFRICAN MARINE
CORPORATION LTD

Second
Respondent
ARGONAUT SHIPPING INC
Third Respondent
THE BANK LINE LIMITED
Fourth Respondent
CORAM
:   NIENABER,  SCHUTZ, SCOTT, ZULMAN et STREICHER JJA
HEARD
:   24 FEBRUARY 2000
DELIVERED :   28 MARCH 2000
Insuffiency of proof - carriage of dangerous goods by sea - explosion -
various theories as to cause - something extraordinary and unexplained must
have happened - appropriate order one of absolution from the instance.
Costs - documents missing from appeal record - handed up on morning of
hearing - half of perusal costs disallowed.
J U D G M E N T

SCOTT JA:
[1] The M V Recife sailed from Durban on 20 July 1991 bound for
various ports in South and North America. Some 50 days later and shortly before
1 am on 7 September 1991 there was an explosion, followed by a fire in a container
which had been stowed on deck in the top tier of the containers  on the forward
most hatch on the extreme port side. The Recife was then off the straits of Florida
and headed for Wilmington, North Carolina. The container in question had been
shipped aboard the vessel by the appellant for carriage from Durban to Savannah
in the USA pursuant to a contract of carriage evidenced by a bill of lading dated 20
July 1991 and issued to the appellant as shipper in Johannesburg. In terms of the
contract the first respondent was the carrier. The container was said to contain
1005 boxes of Klorman Chlorine replacement cartridges.Klorman Chlorine is a
trade name for commercial calcium hypochlorite in tablet form. The tablets are

intended for use as a water purifier particularly in swimming pools. Each cartridge
contained 10 tablets. Dry calcium hypochlorite with a content of more than 39%
available chlorine (as in the case of the tablets) is listed in the International Maritime
Dangerous Goods Code (The “IMDG Code”) within “Class 5.1 - Oxidizing
substances”. It was common cause that this had been brought to the notice of the
first respondent prior to commencement of the voyage.
[2] As a result of the explosion and ensuing fire several of the containers
stowed nearby were damaged, as were their contents. The vessel was likewise
damaged. The respondents instituted action as plaintiffs in the Court below against
the appellant for damages arising out of the fire. The first respondent, viz the carrier,
was the sub-charterer of the vessel. The other respondents were the time-charterers
and owners of the vessel as well as a company having an interest in the sub-
charterers. In view of an agreement reached between the parties as to the issues the
Court a quo was called upon to decide, it became unnecessary to consider the

position of the other respondents. It was further agreed that the extent of the
damage suffered by the respondents and the quantum of their claims would likewise
stand over for later determination.
[3] The respondents’ action against the appellant, being the shipper of the
container in question, was founded in both contract and delict. Counsel for the
respondents conceded, however, that the evidence did not establish negligence on
the part of the appellant and relied solely on the claim in contract. In my view, the
concession was correctly made.
[4] It was common cause that the contract evidenced by the bill of lading
was governed by the Hague Visby Rules as incorporated in the (South African)
Carriage of Goods by Sea Act 1 of 1986 and that by reason of s 6(1)(b) of the
Admiralty Jurisdiction Regulation Act 105 of 1983 the “matter” was one in respect
of which the Roman-Dutch law was to apply. In their particulars of claim the
respondents relied in the first place on clause 6 of the bill of lading which purported

to impose strict liability on the shipper in respect of “any damage or expense
caused by the contents of the said container to other property or persons”.  By
reason, no doubt, of the provisions of clause 4 of the bill of lading which rendered
void any provision repugnant to the Hague Visby Rules, the respondents made no
attempt in this Court or in the Court below to rely on clause 6 of the bill of lading
and instead sought to establish their claim in contract solely on the basis of article
IV, rule 6, of the Hague Visby Rules which, as I have said, were incorporated into
the contract of carriage. The material part of the latter provision reads as follows.
“Goods of an inflammable, explosive or dangerous nature to the
shipment whereof the carrier, master or agent of the carrier has not
consented, with knowledge of their nature and character, may at any
time before discharge be landed at any place .... and the shipper of
such goods shall be liable for all damage and expenses directly or
indirectly arising out of or resulting from such shipment ....”
It was common cause that the contents of the container, viz calcium hypochlorite
in tablet form, constituted “goods of an inflammable, explosive or dangerous

nature” within the meaning of rule 6 quoted above and that this was known to the
carrier when the container was shipped aboard the vessel. The respondents’ case,
however, was that the calcium hypochlorite was defective or in a contaminated state
or had been improperly stowed in the container and that this had caused the
explosion. It was accordingly alleged that the carrier, master or agent of the carrier
had not consented to the shipment of the appellant’s goods “with knowledge of
their nature and character” as contemplated by the said article IV, rule 6.  In order
to succeed in the action the respondents were accordingly obliged in the first place
to discharge the burden of proving on a balance of probabilities that the cause of
the fire was the defective or contaminated state of the calcium hypochlorite or its
improper stowage in the container. In the event of them doing so the further
question that had to be decided was whether the consent of the carrier or master
as contemplated in article IV, rule 6, was vitiated by reason of the defective or
contaminated state of the calcium hypochlorite or its improper stowage. The trial

Court found in favour of the respondents on both issues; hence the present appeal.
The judgment is reported sub nom The M V Recife Safbank Line Ltd and Others
v Control Chemicals (Pty) Ltd 1997 (4) SA 852 (C).
[5] It is necessary at this juncture to say something more about the nature
and the properties of calcium hypochlorite in the context of the present case and
its carriage by sea. It is a commercial chemical used for sanitising water and is said
to have an available chlorine content of 70%. Broadly stated, it is manufactured by
first extracting chlorine from sodium chloride using a process of electrolysis;  the
chlorine is then combined with a lime slurry resulting in calcium hypochlorite in
water and the water is thereafter taken off. The substance finally produced has a
content of approximately 70% pure calcium hypochlorite and 30% other salts
which serve to render the former more stable. The product, to which I shall for
convenience continue to refer simply as calcium hypochlorite, is highly reactive and
will react violently with organic materials, particularly fluids. As an oxidising agent

it will produce large quantities of oxygen if ignited and will burn at temperatures
higher than normal. Notwithstanding the presence of about 30% of inert substances
it remains inherently unstable. It is capable of self-heating to the extent of igniting
and producing a mild explosion. I shall refer to this process in more detail later.
[6] During the period from about the late 1960’s to the early 1970’s there
were a number of fires on ships emanating from cargoes of drums containing
calcium hypochlorite. Typically these occurred in ships in tropical waters but not
invariably so. A research programme sponsored by certain P and I clubs was
established in England, principally to find the cause of the fires. One of the
researchers was Dr V J Clancey of the Burgoyne group of companies which
specialises in the investigation of fires and explosions. An article subsequently
written by him entitled “Fire hazards of calcium hypochlorite” was published in
1975 in an international journal. In 1976 a circular to which Dr Clancey’s article was
attached was sent by the second respondent to all its marine superintendents and

those employed by its subsidiary or associated companies. It is apparent from the
article, and from a paper delivered by the same author at a symposium held at
Manchester in 1987, that the cause of the fires could not positively be identified.
Two hypotheses were advanced as possible explanations for the fires which
occurred within intact drums, i e where there was no possibility of contamination
resulting from spillage or the like. The first was a possible increased instability of
the product resulting from variations in the nature of the raw materials used in its
manufacture; the second was the introduction of some reactive contaminant before
packaging. What made the possible cause of the fires all the more elusive was,
however, their apparent rarity, given the large quantities of calcium hypochlorite
carried at sea. Ultimately Dr Clancey could do no better than attribute the
spontaneous explosions and fires to some “unusual” or “rogue” portion of the
cargo which was “for whatever reason, of lower stability or greater sensitivity than
normal”. In his 1975 article he, warned of “a real risk of spontaneous ignition” and

emphasized the need for further understanding of the problem. However, the
problem appeared to resolve itself, at least to the extent that from the mid-seventies
there appeared to be no further accidents; but this was not entirely so.  According
to the evidence, in 1988 a container of calcium hypochlorite ignited and exploded
at Durban harbour after being discharged from a ship. None of the witnesses at the
trial were aware of any similar accidents.
[7] The respondents sought to prove by way of a process of elimination
that the cause of the fire on board the Recife was the defective or contaminated
state of the calcium hypochlorite. This they sought to do by disproving the two
other possible causes that had been postulated. The first was that the heat of the
sun in the tropics had been sufficient to heat up the calcium hypochlorite to such
an extent as to cause a runaway chemical reaction, resulting ultimately in the
explosion. (It will be recalled that the container in question had been stowed in the
top tier and therefore in the sun.) The second possibility was that the temperature

of the calcium hypochlorite had similarly been raised beyond a critical level, but as
a result of a fire caused by spontaneous combustion in a tobacco-filled container
immediately aft of the container in question.   The latter possibility, referred to in
the evidence as the “tobacco theory”, was raised by the appellant for the first time
shortly before the trial. It was ultimately shown to be somewhat far-fetched. Dr
Buchan, an employee of the appellant at the time and the person who supervised
the production and packaging of the calcium hypochlorite tablets, explained
however that because the explosion itself had been so extraordinary he began
looking for some extraordinary event that might have caused it.
[8] The witness called on behalf of the respondents to disprove what I
shall call the “insolation theory” was Dr Atherton, who is a colleague of Dr Clancey
and similarly employed by the Burgoyne group of companies. Stated briefly,  his
evidence with regard to this aspect of the matter was as follows. He explained that
the “critical temperature” in relation to calcium hypochlorite is the temperature at

which the substance, given its particular mass and shape, will take an infinite length
of time to heat up to the extent of resulting in rapid decomposition and ignition. In
other words, provided the critical temperature is not exceeded, there will be no
explosion or fire. On the strength of a publication by a Japanese researcher, Dr
Atherton calculated that the critical temperature of a cartridge of tablets containing
approximately 70 grams of calcium hypochlorite would be of the order of 120°  -
130°C. He explained, however, that once the cartridges were assembled in a single
stow the critical temperature would be substantially reduced by reason of the effect
each cartridge would have on the other.   At this point, it is necessary to explain that
as calcium hypochlorite decomposes it releases heat; if the temperature is increased
the rate of decomposition is similarly increased as is the heat that is released. Once
a stage is reached where more heat is generated than is lost to the surroundings self-
heating will result, leading ultimately to a “thermal runaway” and ignition. The
calculation of a critical temperature in relation to the whole stow involves therefore

determining the extent of the transfer of heat between the cartridges. Although
extremely difficult  given the nature and extent of the packaging, Dr Atherton
considered the critical temperature to be of the order of 80°C but felt that a range
of 70° to 90°C was a fair assessment.   However, in the course of cross-
examination I understood him to concede that the critical temperature of the whole
stow could even have been as low as 60°C.
[9] Turning to the likely temperature of the stow, Dr Atherton accepted
that the ambient temperature attained in the container could be as much as 20°C to
24°C above the outside ambient temperature. According to the deck log the highest
air temperatures recorded in the latter part of August were in the region of 34°C. It
follows that a maximum ambient temperature in the container could have been in the
vicinity of 58°C. Dr Atherton testified, however, that for the purpose of determining
the temperature of the stow in relation to its critical temperature regard had to be
had not to maximum peak temperatures but to the mean ambient temperature

calculated over a period of 24 hours.   Relying largely on a publication by one P C
Bowes,   he justified this conclusion on the basis of the thermal inertia of the stow
considered in the light of the diurnal variations in the temperature; in other words,
he said  the temperature of the stow would always lag behind the maximum ambient
temperature. Having regard to the temperatures recorded in the deck log he
concluded that the mean temperature within the container, and hence the maximum
temperature attained by the stow, had not exceeded 35°C which he pointed out was
well below the critical temperature as calculated by him.
[10] Dr Atherton rejected the “tobacco theory” and concluded that
notwithstanding the extreme care taken at the appellant’s factory to avoid
contamination or the use of inferior chemicals, the only inference one could draw
was that however improbable it may seem, some contaminant or impurity must have
found its way into a “rogue” tablet resulting in its critical temperature being
substantially reduced and that once the ambient temperature in the container

reached a certain level this “rogue” tablet would have begun releasing heat at a rate
which ultimately caused the whole stow to heat up and ignite.
[11] It is necessary to consider briefly the “tobacco theory”. On leaving the
port of La Guaira, Venezuela, a container of tobacco was struck by the ship’s
crane and damaged. The Recife arrived at New Orleans some six days later. The
damaged container was discharged and remained at new Orleans while the ship
sailed up the Mississippi River, returning about a week later. On her return the
contents of the damaged container were transferred to a new container which was
stowed on board immediately aft of the container of calcium hypochlorite. The
ship’s log revealed that isolated thunder showers were experienced between La
Guaira and New Orleans and that it rained on and off on the day the contents of the
damaged container were transferred to the new container. The hypothesis advanced
on behalf of the appellant was that the tobacco had probably become wet prior to
the new container being shipped aboard and that a fire caused by spontaneous

combustion could have resulted in the forward face of the container heating up
sufficiently to heat the adjacent container of calcium hypochlorite to the extent of
causing its contents ultimately to ignite.  Evidence of a technical nature was
adduced on both sides as to the amount of oxygen that would have been available
in the tobacco container and whether it would have been sufficient to support a fire
of such a magnitude as to be of any consequence. There was also some debate
regarding the extent to which heat would be transferred from the one container wall
to the other having regard to the gap of 90 cm between the two containers. The
Court a quo found it unnecessary to resolve these issues. I agree. In the first place,
on the basis of the expert evidence led at the trial it would seem highly improbable
that, given the size of the tobacco stow and the short period between its possible
wetting and the explosion, there could have been an actual fire caused by
spontaneous combustion.  Of even more significance, however, was the evidence
of the first officer regarding the events immediately following the explosion. He

testified that after extinguishing the fire in the calcium hypochlorite container the
members of the fire-fighting team hosed down the surrounding containers to cool
them off. Having done so, they experienced no difficulty working in the gaps
between the containers when extinguishing  the fires which they discovered had
started in some of the surrounding containers. Had the heat radiating from a fire in
the tobacco container been such as to increase the temperature of  the calcium
hypochlorite in the adjacent container to the extent of causing it ultimately to ignite
they would not have been able to pass between the two without being aware of
what, according to the appellant’s expert, Dr Erens,  would have had to have been
a considerable amount of heat emanating from the tobacco container. In the event,
they had to feel the metal for warm spots to ascertain in which of the surrounding
containers  fires had started. It follows that in my view the “tobacco theory” was
correctly rejected as a cause of the fire.
[12] The appellant was  entitled, if it wished, to plead or attempt to prove

some other cause of the explosion; but it was under no duty to do so. The onus of
proof remained throughout upon the respondents.  (See for eg the remarks of Lord
Brandon in The “Popi M” [1985] 2 Lloyd’s Rep 1 (HL) at 5.) In addition to raising
the “insolation theory” and the “tobacco theory” as possible causes of the
explosion, the appellant adduced direct evidence regarding the production and
packaging of calcium hypochlorite tablets at its factory at the relevant time in order
to demonstrate the care and the steps taken to avoid the introduction of any
contaminant or the use of any defective material. Dr Atherton subsequently visited
the factory.  He could point to no inadequacies in the procedures adopted by the
appellant. He contended, however, that something “out of the ordinary” must have
occurred; something which was no more than a “remote” possibility. The import
of his evidence, therefore, was that once it was accepted that insolation was not the
cause of the accident (on the basis of his calculations) then the cause had to be
some defect or contaminant in what he called a “rogue tablet”, even if the

possibility of that occurring could be categorized as remote.
[13] In these circumstances,  it is unnecessary to record in any detail the
safety procedures adopted by the appellant in its manufacturing and packaging
process to guard against contamination. It is, however, necessary to say something
about the appellant’s tablet making process. In 1978 the appellant found a way of
compacting calcium hypochlorite in such a manner as to produce a slow dissolving
tablet. It is the holder of patents both in the United States and South Africa and is
a major producer of such tablets. At the time of the trial it had produced something
in the region of 40 million tablets. The appellant does not make its own calcium
hypochlorite; this is obtained in granule form from a South African factory which
manufactures the substance under licence of a large American corporation which
is one of the major producers in the world. Broadly stated, the tablets are
manufactured by adding zinc stearate to serve as a lubricating agent to facilitate the
tabletting process as well as a fine powder of chlorite of lime to fill the voids within

the granules. According to the evidence these additives are all obtained from
reputable sources. The mixture is compressed into tablets in a machine which
applies a pressure of 35 tonnes per square inch. The tablets are then packed into
non-reactive cartridges which are sealed and double shrink-wrapped and then put
into boxes which are likewise sealed.
[14] Dr Atherton doubted whether the calcium hypochlorite itself would
have contained an unstable ingredient - possibly because in the drying process the
product is heated to a temperature of approximately 100° which would be likely to
cause the unstable ingredient to reveal itself in the form of an explosion.   He
thought, however, that one of the additives such as the zinc stearate could have
contained some impurity or otherwise some contaminant such as an insect or grease
from the presses of the tablet machine could have found its way into the calcium
hypochlorite during the tablet-making process.
[15] Dr Buchan, who is a chemist and who worked with calcium

hypochlorite on a daily basis, pointed out, however, that the compression of the
calcium hypochlorite with its additives in the tablet-making machine served as a
screening process. The application of pressure, he explained, has the same effect
as heating and the pressure applied would be such as to cause any contaminant or
any unstable ingredient to react almost spontaneously. He argued that calcium
hypochlorite in tablet form,  having survived the pressure required to make it into
a tablet, was therefore safer than calcium hypochlorite in any other form. He
accordingly resisted the contention that some contaminant or unstable ingredient
could have survived the tablet making process and remain dormant within a tablet
for a period of some 50 days before manifesting itself. Furthermore, he pointed out
that the tablet has a hard surface and is not susceptible to contamination in the same
way as granules. In the case of the latter a contaminant can readily find its way to
a point where the heat produced cannot escape so that there would be an
exponential build-up of heat. In the case of a tablet, however, any contaminant will

remain on the surface and the heat produced by the reaction  with the contaminant
will dissipate without any build-up of heat within the tablet.
[16] The Court a quo found the evidence of Dr Atherton to be both logical
and objectively acceptable and came to the conclusion that the explosion could not
have been caused simply by the heat of the sun, ie that the “insolation theory” had
been disproved, and that therefore a contaminant or a defect in the calcium
hypochlorite must have caused it to destabilize.
[17] Some observations with regard to what I have called the “insolation
theory” will not be out of place. The exercise undertaken by Dr Atherton was,  of
course, wholly theoretical and his conclusion that the critical temperature of the
stow as a whole would not have been less than 70°C to 90°C, or possibly 60°C,
was based on a number of assumptions which, he readily conceded, precluded an
accurate calculation. The exercise would also appear to have been premised on the
assumption that there would be no room for any variation in what was loosely

called “normal” calcium hypochlorite. On the basis of Dr Atherton’s own
calculations the ambient temperature within the container could have reached
something of the order of 58°C which is near enough to 60° to be of no
consequence. Based on the article by Bowes, Dr Atherton argued that one had to
look at the mean temperature and not at peak temperatures. It is true, as emphasized
by the trial Court, that Dr Atherton’s evidence in this regard stood alone. But there
was evidence that the IMDG Code is constantly revised and updated on the advice
of a team of experts. What is significant is that the properties of calcium
hypochlorite are said in the code to include the following:
“Critical ambient temperature of decomposition may be as low as 60
degrees C.”
An ordinary reading of this sentence would suggest that once the ambient
temperature reaches 60°C there would be a risk of decomposition. The code, as
explained by several of the respondents’ witnesses, is directed at the ordinary

carrier or master of a ship and not a person qualified in chemistry. It should
therefore be construed accordingly. In these circumstances, it may well be that the
Bowes theory is not necessarily one which is universally accepted. The Court a
quo placed great store on the apparent absence of explosions since the early
seventies notwithstanding the vast quantities of calcium hypochlorite carried by
ships. It will be recalled that there was in fact an explosion in 1988. Nonetheless,
it is true that fortunately such explosions have become indeed rare. But the evidence
does not disclose whether containers of calcium hypochlorite are regularly stowed
on the top tier in the tropical or sub-tropical sun for periods  as long as was the
case in the present instance. There may be other distinguishing factors; one does
not know.
[18] I mention all these factors to illustrate the imponderables that exist and
the difficulty that arises when reliance is placed solely on what in reality is no more
than a theoretical exercise. But whatever role the heat of the sun may or may not

have played it must not be overlooked that the onus upon the respondents would
not necessarily be  discharged simply by disproving the “insolation theory”.
[19] It appears from what has been said above that the Court a quo
concluded that once the insolation theory was disproved the cause of the explosion
must have been a defect or contaminant in the calcium hypochlorite. This step in
its reasoning appears from the judgment to have been based at least partly upon
what was stated to be a concession by counsel that if the one was not the cause,
it had to be the other. In this Court counsel for the appellant, who also appeared at
the trial, explained that there had been a misunderstanding in that he had conceded
no more than that he himself could suggest no other cause. As I have indicated,
however, there was no obligation on counsel or the appellant to do so.
[20] It is clear from the Clancey articles and acknowledged by Dr Atherton,
that the cause of the explosions in the late sixties and early seventies was never
positively identified and remains a matter of speculation. Indeed, all the indications

are that there is still much to be learned about the factors that may cause, or
contribute to, the decomposition of calcium hypochlorite. It was suggested that the
likely cause of those explosions was in effect either the presence of a contaminant
or some defect or variation in the raw materials used in the manufacturing process.
This, of course, was the cause of the explosion postulated by Dr Atherton in the
present case. As in the previous instances Dr Atherton was able to do no more than
suggest a number of possible contaminants or point to ingredients  such as zinc
stearate that may have contained an impurity. No tests were conducted to
demonstrate that such an impurity or contaminant would remain dormant for such
an extended period before manifesting itself. All that Dr Atherton had to rely upon
was that the explosions in the past  had been preceded by lengthy delays. However,
not only was the cause of the past explosions not positively identified, but the
calcium hypochlorite involved in those explosions was in granular or powder form;
not in tablet form.  In other words, it had not been subjected to the tablet-making

process which according to Dr Buchan would have served as a screen for
contaminants or defects. Dr Atherton’s response was simply that it depended on
the contaminant and the extent of the compression. No attempt was made by him
or any other of the respondents’ witnesses to identify or explain the nature of a
contaminant that would survive the compression associated with tablet-making
without immediately setting off a reactive process but instead would do so for no
apparent reason more than 50 days later; nor was any attempt made to quantify the
minimum compression that would have been required to serve as a screen. Dr
Atherton’s response was therefore hardly persuasive and in my view was no answer
at all to Dr Buchan’s evidence.
[21] The Court a quo dealt with Dr Buchan’s evidence in relation to the
tablet-making process (at 863 J- 864 B) as follows:
“Although Dr Buchan attempted to convince me that it was not really
possible for contaminated products to leave his factory as the high
pressures in the tablet-making machine would ferret out any

contaminants lurking in the ingredients, he did subsequently concede
that ignition may well have occurred in tablets after they left the
compacting machine. In any event, given that tablet making is an art
rather than a science, according to Dr Buchan, and that the raw
materials used do lack consistency, it seems to me that one cannot
exclude this as a probable cause.”
[22] The “concession” to which the learned judge refers requires
elaboration. It was put to Dr Buchan in cross-examination that a Mr Noppe, a
former employee of the appellant who had become the appellant’s factory manager
after Dr Buchan left in 1993, had told counsel for the respondents that on several
occasions while he was employed at the factory tablets had ignited some 10 to 30
minutes after they had come out of the tablet-making machine. Dr Buchan had no
knowledge of these incidents but stressed the difference between the short delay
alleged and a delay of more than 50 days. In any event, his evidence was to the
effect that if there was a defect or contaminant  in the mixture the reaction on
compaction would be “almost” spontaneous. In other words, he acknowledged the

possibility of some delay. The point is, and Mr Noppe’s experience did not indicate
the contrary, the effect of compaction was to initiate a reaction, even if the delay of
10 to 30 minutes was unusually long. Mr Noppe, I should add, was not called as
a witness.
[23] The reference to tablet making being an “art rather than a science” also
requires comment. The judge appears to have regarded this as some sort of
concession in relation to the chemical stability of the tablet. This was not the case.
The “art” related essentially to determining the correct quantity of zinc stearate and
chlorite of lime to be added to the calcium hypochlorite. There was no suggestion
that these chemicals affected the stability of calcium hypochlorite in any way.
[24] In my view, therefore, there was no justifiable basis for disregarding
Dr Buchan’s evidence as to the effect of the tablet-making process. He was
obviously an expert in his field with many years experience in the tabletting of
calcium hypochlorite. It is true that certain aspects of his subsequent conduct were

criticized by the trial Court but he was not found to be untruthful. Once regard is
had to his evidence as to the screening effect of tabletting calcium hypochlorite,
it had to follow that a delay of 50 days or more would be wholly inconsistent with
a defective ingredient or contaminant being the cause of the explosion. The same
is true of the contention that there would have been a lowering of the critical
temperature of the tablets by reason of a defective ingredient or contaminant.  I
have previously referred to Dr Atherton’s evidence to the effect that something out
of the ordinary must have occurred and that one was looking at “remote
possibilities”. No doubt that is so, but in all the circumstances I can see no
justification for the inference that whatever the cause of the explosion might have
been it had to relate to the state of the calcium hypochlorite when it was shipped on
board.   Something extraordinary and unknown could just as well have occurred
during the voyage.   Once one is driven to look for remote possibilities and assume
that something unknown and out of the ordinary must have happened,  one in truth

simply does not have the answer. In such cases the result must inevitably be
determined by the incidence of the burden of proof.
[25] In The “Popi M”, supra, at 6 Lord Brandon, in relation to the cause
of the sinking of a ship, said the following:
“In my opinion  Mr Justice Bingham adopted an erroneous approach
to this case by regarding himself as compelled to choose between two
theories, both of which he regarded as extremely improbable, or one
of which he regarded as extremely improbable and the other of which
he regarded as virtually impossible. He should have borne in mind,
and considered carefully in his judgment, the third alternative which
was open to him, namely, that the evidence left him in doubt as to the
cause of the aperture in the ship’s hull, and that, in these
circumstances, the shipowners  had failed to discharge the burden of
proof which was on them.”
The learned judge in the Court below referred to this passage in Lord Brandon’s
speech but in my judgment erred in not adopting the third alternative that was open
to him.
[26] It follows that in my view the respondents failed to discharge the

burden of proving that the cause of the explosion was the defective or
contaminated state of the calcium hypochlorite or that it had been improperly
stowed in the container. That being so, they failed to establish that the shipment of
the “goods” was without the consent of “the carrier, master or agent” within the
meaning of article IV, rule 6, of the Hague Visby Rules. The Court a quo
accordingly erred in not granting absolution from the instance with costs.
[27] It is unfortunately necessary to have to comment on the state of the
record. During the course of the trial various documents were handed in almost on
a daily basis. These included the summaries of the expert witnesses, Captain
Browne and Dr Erens as well as a “second report” of Dr Atherton. The summary
of Dr Erens’ evidence and Dr Atherton’s report were of particular importance.
Each  referred in his evidence-in-chief  to his  summary or report  and was later
cross-examined on its contents.   But neither document formed part of the record
and their absence rendered passages in the evidence of both witnesses virtually

unintelligible, particularly in view of its technical nature. To make matters worse the
respondents’ counsel referred to the missing documents, or some of them, in his
heads of argument and stated that with the concurrence of the appellant’s legal
representatives they would in due course be forwarded to the Registrar of this
Court. That did not happen. Instead, a bundle of missing documents was handed
up on the morning of the hearing. The documents were unaccompanied by an
application for condonation for their late filing. The workload of this Court is such
that records have to be read and assimilated during the recesses. The absence of
documents necessary to properly understand the evidence is not only frustrating
and annoying for the judges concerned but can impair the smooth running of the
court. There is no reason why portions of the record should have to be read a
second time by judges during term time for no better reason than that the original
record was defective. As an indication of  this Court’s displeasure, I propose to
disallow both sets of attorneys for the appellant, i e the local and Bloemfontein

attorneys, 50 percent of their costs of perusing the record.
[28] In the result the following order is made.
(a)
The appeal succeeds with costs, save that 50 percent of
the costs of the appellant’s local and Bloemfontein
attorneys in respect of the perusal of the appeal record
is disallowed.
(b)
The order made by the Court a quo is set aside and the
following is substituted:
“Absolution from the instance is granted with costs.”
D G   SCOTT
JUDGE OF APPEAL
NIENABER
JA)
SCHUTZ
JA)
-    CONCUR
ZULMAN
JA)
STREICHER
JA)

.