Borne Logistics CC v Zvoimpex and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ploos van Amstel J
• Judgment Date: 14 February 2022
• Docket Number: A04/2022
• Hearing Date: 04 February 2022
• Court: KwaZulu-Natal Local Division, Durban
• Citation: 2022 JDR 0731 (KZD)

Ploos van Amstel J:

[1]

The applicant in this matter is Borne Logistics CC. It claims to be the owner of funds in a bank account which have been arrested by the respondent in the institution of an action in rem. It disputes that the claim made by the respondent is a maritime claim as defined in the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act') and seeks the setting aside of the arrest.

[2]

The respondent is Zvoimpex a.s., a company whose principal place of business is in Slovakia. It issued an admiralty summons in rem in this court, exercising its admiralty jurisdiction, in which the defendant is cited as 'The Freight Advanced to Borne Logistics CC and held at First National Bank, 267 Florida Road, Morningside, paid into bank account number 62628861561…'. The warrant of arrest in rem refers to 'the freight being the defendant, in the amount of $180 000…situated in or held at the First National Bank account number 62628861561…'. The return of service records that pursuant to the warrant of arrest the sheriff had arrested 'All funds as per warrant of arrest currently held in account no 62628861561'.

[3]

A number of issues arose in the papers and during argument. These included whether the plaintiff's claim is a maritime claim; whether the funds were capable of being arrested in rem; and whether the arrest can stand as a security arrest for an action in personam if there is no valid action in rem.

[4]

I deal firstly with the nature of the claim. If it is not a maritime claim as defined then the other issues will fall away and the action must proceed in the ordinary civil jurisdiction of this court.

[5]

The claim arose out of written agreements for the sale of timber logs to the respondent. Copies of the agreements are annexed to the summons. They were CIF contracts, with delivery to take place in the ports of Shanghai and Nansha in China. The first contract was for the sale of 3000 cubic meter of African Pine at a unit price of USD 129 per cubic meter, for a total price of USD 387 000; the second contract was for the sale of 5 000 cubic meter at a unit price of USD 138 per cubic meter, for a total price of USD 690 000; and the third contract for the sale of 1223 cubic meter at a unit price of USD 148 per cubic meter, for a total price of USD 181 004. All three contracts provided for the payment of a deposit and the balance against the delivery of copies of the shipping documents.

2022 JDR 0731 p3

Ploos van Amstel J

[6]

The respondent's case is that it has made a number of payments to Borne Logistics in terms of the first two agreements, and that some of the timber was delivered to it in partial fulfilment of the contracts. It says Borne Logistics however, in breach of its obligations, failed to deliver the rest of the timber, in consequence of which it cancelled the contracts and wants the money back in respect of which it has not received timber.

[7]

Borne Logistics says the respondent's claim is for restitution in terms of a contract of sale, which is not a maritime claim. The respondent says a part of what it paid constituted freight, and to that extent its...