Bouygues Offshore and Another v Owner of the Mt Tigr and Another

• Jurisdiction: South Africa
• Judge: Farlam J
• Judgment Date: 13 December 1994
• Docket Number: AC 105/94
• Court: Cape Provincial Division

Farlam J:

This is an application for the confirmation of attachments made

on 25 July 1994 in terms of an order granted by my Brother Scott.

Pursuant to that order the motor tug Tigr (to which I shall hereafter refer as 'the tug'), which is the property of first respondent, was C attached ad fundandam vel confirmandam jurisdictionem in an action in personam which first applicant intends instituting against first respondent in this Court for the damages it alleges it has suffered in consequence of the grounding of its barge, the Boss 400, on the rocks at Oude Schip just south of Sandy Bay on 26 June 1994.

D Also pursuant to the order the bunkers (fuel oil and marine diesel oil) and lubricants aboard the tug were attached ad fundandam vel confirmandam jurisdictionem in an action in personam first applicant intends instituting in this Court against second respondent for the damages it alleges it has suffered in consequence of the grounding of its barge, as E well as for payment of the sum of US $225 500 in respect of the towage price first applicant paid to second respondent and interest thereon.

First applicant avers that second respondent (which is the charterer of the tug in terms of a time charter entered into by it and first respondent on 8 February 1994) is the owner of the bunkers and lubricants aboard the tug.

F On 26 May 1994 first applicant entered into a towage agreement with second respondent in terms whereof first applicant hired the tug to tow its barge, the Boss 400, from Pointe Noire, Congo, to Cape Town.

(In what follows I shall refer to the time charter as the 'supplytime' and to the towage agreement as the 'towcon'.)

G First applicant alleges that it validly rescinded the towcon by reason of certain misrepresentations made to it regarding the tug's pulling capacity, with the result, so it says, that its claims against the respondents, which are based on various grounds which I shall set out presently, can proceed unaffected by the exemption clause contained in the towcon, the benefits of which are available not only to second respondent, H but also to first respondent (which was not a party to the towcon) by reason of a Himalaya clause in the towcon which provides, inter alia, that the owner of the tug can have the benefit of all exemptions granted by the towcon.

When the order of 25 July 1994 was granted, the tug was already under attachment at the behest of first applicant in an action in rem which I first applicant had instituted on 30 June 1994 against her for damages, being the alleged value of the barge. This Court made an order on 4 July 1994 appointing an examiner to take on commission the evidence of the master, chief engineer, radio officer and crew of the tug. The order provided, inter alia, that the record of the evidence taken by the J examiner should form part of the record of the action in rem.

Farlam J

A On 6 July 1994 notice of intention to defend the action in rem was given, ostensibly on behalf of the defendant, that is to say, the tug, but in fact quite clearly on behalf of first respondent.

Subsequently first respondent, in answer to a further application brought by first applicant, brought a counter-application for an order in terms B whereof, inter alia, it was permitted to cross-examine any witness called by first applicant at the commission.

After the attachments which form the subject-matter of these proceedings were made, the action in rem was withdrawn. Both respondents have opposed the confirmation of the attachments granted on 25 July 1994. First respondent contends that, by entering appearance to defend the action in C rem and applying for permission to cross-examine the witnesses at the commission (the evidence at which was to be evidence in the action in rem), it must be taken to have personally submitted to the jurisdiction of this Court, so that, in terms of the rule that the property of a foreign peregrinus who has already submitted to the Court's jurisdiction will not D be attached to found or confirm jurisdiction against him, its tug should not have been attached in these proceedings.

First respondent also contends that there is no prima facie case against it and that it has a valid defence to each of first applicant's claims.

Second respondent contends that it is not the owner of the bunkers and E lubricants (which I shall, for the sake of brevity, call 'the bunkers' in what follows) and that, as none of its property has been attached, no order should be made against it in these proceedings. In the alternative and in any event, it contends that no prima facie case has been made out against it, so that, even if it is found to be the owner of the bunkers, F the attachment should not be confirmed.

First applicant's claims against second respondent are based both on the provisions of the towcon, which, it says, second respondent, by not tendering the tug at Pointe Noire in a seaworthy condition and in all respects ready to perform the towage, breached and on allegations that G second respondent is liable to it for damages for fraudulent or negligent misrepresentation and for negligence because, so it is alleged, second respondent's towing master, who at all material times was aboard the tug, was negligent in failing to advise the master (1) that it was unsafe to embark on the voyage without emergency towing arrangements in place and/or (2) that it was unsafe to proceed close to the coastline immediately prior H to the grounding, regard being had to the weather conditions then prevailing.

First applicant's claims against first respondent are based on allegations (1) that first respondent, through its agents, fraudulently or negligently misrepresented to it the pulling capacity of the tug; (2) that it was in I breach of the duty of care it owed third parties to ensure that the tug was fit to perform towage contracts; (3) that it and/or its servants, namely the master and crew, were in breach of the duty of care owed to third parties to ensure that the towing gear was adequate and that emergency arrangements were in place, and (4) that the master and crew of J the tug proceeded close to the shoreline when it was unsafe to do so.

Farlam J

A First applicant claims against second respondent both in contract and in delict, while its claims against first respondent, if valid, can only arise in delict.

At a late stage in the proceedings, the hull and machinery underwriters of the tug were permitted to intervene as additional applicants to sue for B some of the damages allegedly sustained by first applicant in respect of which by French law, so it is alleged, the claims have been subrogated to the underwriters who wish, and may, if French law is to be applied, be obliged to claim in their own names. Inasmuch as their counsel associated himself with the submissions advanced by first applicant's counsel, it is C not necessary to refer further to second applicants in this judgment.

The counsel who appeared for first applicant and for both respondents were all agreed that, in considering whether first applicant has established a prima facie case in respect of its claims, this Court must apply the English law because that is the law which the trial Court will be obliged D to apply if the action should proceed in this Court.

This submission is based, inter alia, on s 6(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, read with s 2 of the Colonial Courts of Admiralty Act of the United Kingdom, 53 and 54 Victoria c 27, and s 6 of the Admiralty Court Act, 3 and 4 Victoria c 65.

In terms of those sections, in matters relating to

E 'all claims and demands whatsoever in the nature of . . . damage received by any ship or seagoing vessel or in the nature of towage'

(to quote s 6 of the 1840 Act), the law to be applied by this Court in the exercise of its jurisdiction under Act 105 of 1983 (to which I shall hereinafter refer as 'the Admiralty Act') is English admiralty law as it F was on 1 November 1983. See Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 339B-D.

It is not suggested that the English law to be applied has changed in any material respect since 1 November 1983.

G First applicant's claims against second respondent, based on the towcon, are clearly covered by s 6 of the 1840 Act, as are the delictual claims based on the negligence of its towing master, and the claims against first respondent based on its alleged duty to ensure that its tug was fit to perform towage contracts, and its alleged negligence in respect of the towing gear, the emergency towing arrangements and the decision to proceed H close to the shoreline.

But what is the position in regard to delictual claims against the respondents based on the alleged fraudulent or negligent misrepresentations regarding the towing capacity of the tug? The words 'damage received by any ship or seagoing vessel' are, as Lord Herschell LC I said in Mersey Docks and Harbour Board v Turner and Others, the Zeta [1893] AC 468 at 485, '. . . certainly as wide as could well be conceived'.

In the discussion of the ambit of the admiralty jurisdiction in respect of damage received by a ship appearing in Geoffrey Hutchinson Roscoe's Admiralty Practice 5th ed at 85-6, reference is made to cases where shipowners sued harbour and dock authorities in respect of damage received J by their ships when lying in unsafe berths, and the point is made

Farlam J

A that such an authority owes a duty to shipowners, inter alia, to give warning of defects in its harbour or a berth therein 'so as to negative the representation implied in the invitation to make use of the berth'. It thus appears that the admiralty jurisdiction in respect of damage received by a ship extended to all cases where ships received damage...