C E Heath & Co (Marine) Ltd v Crimson Navigation Corporation SA

• Jurisdiction: South Africa
• Judge: Shearer J
• Judgment Date: 03 August 1987
• Citation: 1988 (1) SA 457 (D)
• Hearing Date: 14 May 1987
• Court: Durban and Coast Local Division

Shearer J:

On 16 February 1987, a rule was granted in this Court calling upon the respondent and any other person interested to show cause why an order should not be granted for the attachment of the vessel Phillippine H Commander and the right, title and interest of the respondent therein to found jurisdiction in an action to be instituted by the applicant for the sum of US$1 289 898,11 with interest and costs. It was also ordered that the rule operate forthwith as an interim order pending the final determination of the present application.

I In papers lodged on 25 February 1987, the respondent sought to anticipate the return day of the rule and asked for the rule to be discharged. The matter, however, came before me on an extended return day and Mr Shaw, for the applicant, sought the confirmation of the rule and Mr Wallis, for the respondent, its discharge.

The parties are both peregrini and s 4(4) of the Admiralty Jurisdiction Regulation Act 105 of 1983 confers upon this Court the J jurisdiction to

Shearer J

A make an order to found or confirm jurisdiction where the claimant is not an incola. The applicant is a company which carries on business as marine insurance brokers in the United Kingdom. The respondent is described in the founding affidavit as a corporation registered according to the laws of Panama which carries on the business as shipowner. It was also alleged that 'it is a subsidiary and managed by Golden Ocean (Holdings) Ltd'. I must accept, for the purposes of my B decision, that these latter allegations are incorrect. Golden Ocean (Holdings) Ltd had no interest in the respondent company and the company which managed the vessel was Golden Ocean Management Ltd.

In December 1984 a vessel Goldean Mariner owned by the respondent C required salvage services. These were rendered by a salvage tug, the Koyo Maru. By reason of such services the Goldean Mariner became subject to a lien in favour of the supplier. To prevent the arrest of the vessel, the applicant was asked to furnish to the corporation of Lloyds and to the owners of the Koyo Maru a guarantee for any amount for which the Goldean Mariner would be liable for such salvage. The applicant did so on the basis that counter-security would be furnished to the D applicant. This was furnished by Golden Ocean (Holdings) Ltd who undertook and agreed

'that the vessel's hull and machinery policies insofar as they relate to the above vessel will be held to your order'.

E The vessel was the Goldean Mariner.

From October to December 1986, the applicant paid out a total of US$1 289 898,11. It may be added that on 13 January 1987 the Goldean Mariner, then known as the Testarossa, sank and became a total loss. The F applicant now seeks to exercise a right of recourse against the respondent. That such a right is available to the applicant against the respondent is disputed and I must decide whether such a right is prima facie established and, if so, whether I should exercise my discretion in favour of the grant of the relief sought. The test to be applied in deciding whether or not a case has been prima facie made is dealt with G by Steyn JA in Bradbury Gretorex Co (Colonial) Ltd v Standard Trading Co (Pty) Ltd 1953 (3) SA 529 (W) at 533:

'The authorities and considerations to which I have referred seem to justify the conclusion that the requirement of a prima facie cause of action, in relation to an attachment to found jurisdiction, is satisfied when there is evidence which, if accepted, will show a cause of action. H The mere fact that such evidence is contradicted would not disentitle the applicant to the remedy. Even where the probabilities are against him, the requirement would still be satisfied. It is only where it...