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 No. 4/99 August 1999 |
uctSHIPLAW.com - Site update
1. A profusion of new decided cases
Since our last update there have been a number of important decisions handed down by the Supreme Court of Appeal and by the High Court at Durban and Cape Town. Our database of recent and unreported cases has been fully updated. Start at www.uctshiplaw.com/unrepcas.htm for a list of cases, with a very short summary. From the summary page you can link through to the synopses of Durban, Cape Town and Appeal cases.
Some of the cases added this month are listed below. References to "The Act" refer to the Admiralty Jurisdiction Regulation Act, 1983. Details of all the decisions are on our site at www.uctshiplaw.com/unrepcas.htm
Supreme Court of Appeal
The Heavy Metal #1 [31 May 1999]
Decision of the Cape High Court on control in relation to the associated ship. The Appeal court confirmed that it is not necessary for claimant to have available a current action in rem against the guilty ship before the associated ship provisions come into play - All that is required is that the owner or controller of the guilty ship at the time when the original claim arose is also the owner or controller of the associated ship when she is arrested - For purposes of s 3(7)(a)(b)(ii) of the Act, either de jure or de facto control is sufficient - In South African law, de jure control is exercised by the person controlling the shareholding of the company.The Cape Spirit [9 June 1999]
Security furnished for the release of a ship lapses and must be returned in terms of s 10(3)(a)(ii) of the Act if no further steps in the proceedings are taken within one year of the date of the giving of the security, irrespective of whether the security was given before or after the arrest of the ship -- If the security is to be returned, the corresponding action lapses in terms of s 1(2)(b)(iv) of the Act.
The Silvergate: [24 May 1999]
Res judicata - Whether litigant had a full and fair opportunity to litigate a dispute in a foreign court - what constitutes a full and final decision in the foreign court - Ownership of the vessel res judicata as a consequence of the foreign decision - Terms of a letter of undertaking to secure the release of the vessel in California precluded appellant from pursuing the proceedings in the court a quo.
The High Court
The Peregrine IV [Per Davis J, Cape Town, 12 July 1999]
Davis J confirmed the security arrest of the drillship Peregrine IV against an argument that the arrestor was adequately secured by having an alleged possessory lien over sister ships alongside in it's shipyard, and by the fact that the defendant owns a fleet of ships, and is a multi-national USA based company. In confirming the arrest (with reasons yet to follow) Davis J will presumably dismiss the shipowner’s contention that an arrest for security in terms of s 5(3) of the Act is only available against an impecunious debtor defendant, and will find that the applicant nevertheless had a genuine and reasonable need for security as required by s 5(3).
Reasons will be posted to the site as soon as they are handed down by the court.
The Heavy Metal #2 [Per Comrie J, Cape Town, 7 May 1999]
Application for counter-security following a security arrest in terms of s (5)(3) of the Act - For a counter-security order the Applicant must show that it has a prima facie claim as well as a genuine and reasonable need for security – Counter-security may be ordered in the discretion of the court – Applicant shipowner was unable to show that the Respondent arrestor had demanded excessive security or that the order for arrest was obtained without reasonable or probable cause and was therefore unable to show that it has a prima facie claim (for damages) to be secured.
The Riczun Trader #3 [Knoll AJ, Cape Town 26 April 1999]
The Riczun Trader spawned no fewer than three interlocutory applications: first (in inverse order), the court refused to compel discovery by a shipowner in terms of Rule 35(2) pending the shipowner's application to set aside the an arrest, upon grounds that no exceptional facts existed which would justify an order for discovery before the opposing party has yet filed papers. Discovery at this stage of the proceedings, said the court, would amount to a fishing expedition and would come perilously close to effectively reversing the onus which remains on the arrestor throughout the challenge of an arrest.
Second, in The Riczun Trader #2, the same judge dismissed an interlocutory application brought by the arrestor for security for costs of opposing the shipowner’s application to have the arrest of the vessel set aside. The court, in considering s 5(2)(b) and (c) and s 5(3) of the Act recognised that s 5(2)(b) gives the court in Admiralty the power to order the shipowner applying to have an arrest set aside to provide security, but found that this was a discretionary power in which common law considerations of fairness and justice should be taken into account - A court should be slow to order security for costs to be provided by such a shipowner who takes a stand to defend its vessel from arrest.
In The Riczun Trader #1 [11 Dec 1998], Conradie J had to deal with an arrestor’s interlocutory contention that its own obligation to furnish security was conditional upon the applicant shipowner seeking to have the arrest set aside furnishing security for costs in the present and main application. The court ruled against making the one security conditional upon the other - no tit-for-tat security was ordered.
The Limb [Donen AJ, Cape Town, 13 March 1999]
ruled that the Sheriff has no locus standi to sue for collision damages caused to a ship whilst under attachment
The Urgup [Thring J, Cape Town, 4 February 1999]
included an interesting analysis of the entitlement of parties to early discovery of documents in application proceedings. In denying arresting claimants who were burdened with the onus of proving an association of ships the opportunity of embarking on a fishing expedition for non-specified documentation relating to transactions which would support their contentions of the association, Judge Thring confirmed the general practice of allowing discovery in applications only in exceptional circumstances. He confirmed that the Court's approach should be similar to that in Anton Piller orders.
The Snow Delta [Thring J, Cape Town, reported in 1998 (3) SA 636 (C)]
By now most of the shipping world must be aware of Judge Thring’s decision allowing the attachment of an NYPE time charterer's rights arising out of a charterparty to found the jurisdiction of the court in Admiralty. The Cape High court found that the time charterer's rights reposed both where the debtor (the charterer) resides, and where the vessel covered by a time charterparty is situated. As incorporeal rights are, in SA law, attachable to found the jurisdiction of the court against a peregrine defendant in Admiralty, the time charterer's rights could be so attached, even in an action unrelated to the charterparty.
This decision can be contrasted with The Arena [Combrink J, Durban, 18 May 1999], a decision in which the court disallowed a Snow Delta type attachment of a voyage charterer’s rights, which the court found were not located at the situs of the vessel.
Other recent Durban High Court decisions which are summarised on the uctshiplaw.com site are:
The Mineral Ordaz [Pillay J, 20 April 1999] in which a settlement agreement settling an arbitration based on a charter party was found to have extinguished the original claim though the underlying nature of the claim remains the same - and thus remains within the admiralty jurisdiction of the court in admiralty.
The Agulhas [Combrink J, 11 May 1999] dealt with pure economic loss in the context of an application to set aside a deemed arrest for want of establishing a cause of action on the merits, or by declining to exercise jurisdiction.
The Kadirga 5 [Booysen J, McLaren J and Jappie J concurring, April 1999] was an appeal from single bench decision concerning the determination of whether three ships, each owned by a foreign company, were associated ships of the debtor vessel -- Evidence on the papers indicated that the ships were engaged in a common enterprise and controlled by the same person. The matter was referred to oral evidence.
Details of all the above decisions are on our site at www.uctshiplaw.com/unrepcas.htm
2. August Seaviews on line
George Young’s current edition of Seaviews
is on line at www.uctshiplaw.com/seaviews.htm
Some of the topics George deals with in his inimitable style this months are the
current port delays; seagoing jobs for officers; safety and security issues -
fires on box cargoes, container thefts; he discovery of the Waratah - and
a myriad of other issues current to shipping today. Don’t miss George’s
newsletter each month - and if you enjoy it, send him an e-mail care of us at shiplaw@law.uct.ac.za.
We will happily pass the message to George. We keep the previous month’s
newsletter on the site. July will be on the site until the end of this month.
3. MLA e-mail addresses
The MLA has made available a list of e-mail addresses of its members. Please notify us if your address needs changing. The addresses are at www.uctshiplaw.com/samla/mlamail.htm. Full contact addresses of the current Exco members are on site.
4. Marine Insurance Conference - November 1999
The University of Antwerp has convened a conference at Antwerp from 16 to 19 November 1999. With over 30 speakers, including two from South Africa, it promises to be one of the most probing international examinations of marine insurance law yet held. The website address for the November 1999 Antwerp conference on marine insurance is at http://marins-www.uia.ac.be/marins/ and gives full details of what should be a really exciting conference. It is being co-ordinated by the European Institute of Maritime and Transport Law, and the University of Antwerp.
Prof Huybrechts, who is the convener of the conference, can be contacted at youbelex@pandora.be.
5. "Shipping Law & Admiralty Jurisdiction in SA"
John Hare’s book on South African Shipping Law, has an important erratum:
The text of Appendix 7, the new South African Ship Registration Act, 1998, does not correspond with the text of the Act which was passed last year, but which has yet to come into effect once appropriate regulations have been drafted. The commentary on the new Act contained in Chapter 3 of the book is, however, written upon the basis of the correct version of the Act as passed.
The Ship Registration Act as enacted is at www.uctshiplaw.com/shipsreg.htm. We will happily send a copy by e-mail on request.
Would those who have a copy of the book, please insert the following erratum notice, at page 831.
| Shipping
Law & Admiralty Jurisdiction in South Africa Erratum - page 831 Appendix 7 The text of the Act in Appendix 7 on
page 831 differs from the final text of the Act passed as Act 58 of
1998. The text of the Act as passed may be found on the University of
Cape Town Marine & Shipping Law website at www.uctshiplaw.com/shipsreg.htm. Cape Town, July 1999 |
The web page of updates of Hare: Shipping Law will soon be available on our site, at www.uctshiplaw.com/booknew.htm. The page will include a list of typing gremlins found in the text. Eagle-eyed readers are welcome to e-mail jehare@law.uct.ac.za with any "typos" which the author has not included in the list. With your help, these errors will be corrected in the second impression of the book.
Details of the book are at www.uctshiplaw.com/books.htm.
To be added to or taken off the e-mail list for this bulletin, please contact shiplaw@law.uct.ac.za.