Mediterranean Shipping Company v Sotramon Limited

Under Mauritian law, a claim for loss caused by non-performance of an obligation created by contract is contractual. It cannot be brought in delict merely because the breach amounts to faute lourde. The seriousness of the breach may affect whether a contractual exclusion or limitation clause is available, but it does not change the cause of action. A delictual claim may remain possible where the conduct constitutes an independent wrong rather than merely a contractual breach. The appeal was allowed because the alleged short delivery was, in substance, contractual non-performance.

A Mauritian company claimed damages from a carrier for alleged short delivery of a crawler crane under a bill of lading. The first-instance judge held that the claim could not be pursued in tort and ordered that the plaintiff be non-suited. The Court of Civil Appeal reversed that decision and allowed the case to proceed as an action in tort based on faute lourde. The Privy Council considered whether a contracting party may sue in delict for non-performance where the failure to perform is grossly negligent.

The Board allowed the appeal, set aside the judgment of the Court of Civil Appeal and restored the order made by Matadeen J.

1. Nature of the claim. The parties’ relationship arose solely from a contract of carriage. The loss alleged was the consequence of the carrier’s failure to deliver the goods promised by the contract. Such a claim is contractual in nature. Under the Mauritian non-cumul principle, the claimant could not recast it as a delictual claim merely by alleging faute lourde.
2. French and Mauritian authorities. The mainstream French position treats contractual and delictual liability as mutually exclusive where the loss results from non-performance of a contractual obligation. Mauritian courts are not bound to follow French law, although the relevant Mauritian appellate authorities had decisively rejected the proposed tort option. The Board regarded L’Inattendu Co Ltd v Cargo Express Co Ltd [2001] SCJ 7 as doctrinally unsatisfactory. It found no adequate basis for the Court of Civil Appeal’s reversal of the established Mauritian approach.
3. Effect of faute lourde. The Board accepted that faute lourde may prevent reliance on a contractual exclusion or limitation clause. That consequence belongs to contract law. The gravity of the breach does not alter the contractual foundation of a claim for failure to perform the contractual obligation.
4. Independent wrongs. The Board left open the possibility that conduct may support a delictual claim where it constitutes a genuinely independent wrong, rather than a breach only because contractual performance was deficient. That qualification did not assist the claimant, whose complaint concerned only non-delivery under the contract.
5. Choice of law and final order. The argument proceeded on the premise that the issue was governed by Mauritian law, and the Board expressed no view on the effect of the bill of lading’s English-law clause. The claimant was ordered to pay the defendant’s costs before the Board and the appellate court, subject to written submissions within 28 days seeking a different order.

• Privy Council: In [2017] UKPC 23, the appeal was allowed. The Court of Civil Appeal’s judgment was set aside and the first-instance order was restored.
• Court of Civil Appeal, Mauritius: The appeal from Matadeen J was allowed. The action was permitted to proceed on the basis of tort and alleged faute lourde.
• Supreme Court of Mauritius at first instance: Matadeen J held that the claim could not be grounded in tort and ordered that the plaintiff be non-suited.