Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris

• Jurisdiction: South Africa
• Judge: Corbett CJ, Botha JA, Hefer JA, Kumleben JA, Grosskopf AJA
• Judgment Date: 01 June 1989
• Citation: 1989 (3) SA 820 (A)
• Hearing Date: 05 May 1989
• Court: Appellate Division

Botha JA:

The issues in this appeal relate to the application, in unusual circumstances, of the novel procedure for the arrest of a ship which was introduced into our maritime law by the provisions of s 5(3)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act').

D The appeal is directed against an order dismissing, with costs, an application brought on notice of motion by the appellants against the respondent in the South Eastern Cape Local Division. Zietsman J, who made the order in the Court a quo, granted leave to the appellants to appeal against it to this Court.

E In order to understand the nature of the application in the Court a quo and the relief sought therein, and to describe the identities of the parties involved in the litigation, it is necessary to outline the events which gave rise to the application.

Towards the end of 1985 the ship Thalassini Avgi took on a load of general cargo in various ports in the Far East, including F Singapore, Yokohama, Kobe and Hong Kong, for carriage to various ports in the Middle East, including Aden, in the People's Democratic Republic of Yemen ('South Yemen' or 'Yemen'). The owner of the MV Thalassini Avgi was Astromando Compania Naviera SA ('Astromando'), a corporation which is domiciled in Panama, and which has a recorded address in G Athens, Greece. The vessel was registered in Greece and most of her crew were Greeks. The voyage of the Thalassini Avgi took place pursuant to a time charterparty entered into between Astromando and Nippon Yusen Kaisha ('NYK'), a Japanese corporation based in Tokyo. As the charterer of the vessel, NYK issued bills of lading, in the standard form used by it, in respect of the various consignments of goods taken on board the H ship including goods destined for consignees who were in South Yemen.

The Thalassini Avgi arrived at Aden, her last port of discharge, on 2 February 1986. On 4 February 1986 a fire broke out on board the vessel. It destroyed or damaged much of the cargo still on board. The ship herself was also extensively damaged (apparently she was later taken to a 'scrapping port', after she had been sold by auction by the I Yemeni authorities). The Yemeni consignees, being the holders of the bills of lading and owners of the cargo which was destroyed or damaged, suffered losses which they claim total US dollars 1 037 407 in value. They were all insured against such losses with the South Yemen Insurance and Reinsurance Co, a corporation registered in accordance with the laws J of South Yemen ('the Yemen Insurance Co').

Botha JA

A The scene now shifts to the harbour of Port Elizabeth; the time, April 1986. In port, there was the ship Dimitris, taking on a cargo of steel for carriage to the United States. The owner of the MV Dimitris is a Panamanian based corporation, Compania de Navegacion Aeolus SA. On 21 April 1986 an application was made to the South Eastern Cape Local Division for an order for the arrest of the Dimitris, under s 5(3)(a) B of the Act, read with ss 3(6) and (7). It needs to be said at once that this application, to which I shall refer as 'the first application', is not in a direct sense at stake in this appeal, although, as will appear in due course, it plays an important role in the consideration of the appeal. The application which led to the order which is now under C appeal came later; I shall refer to it as 'the second application'.

In the first application the applicants were stated in the founding affidavit to be the Yemeni consignees to whom I have referred above. They were cited in the papers (quaintly, it seems to me) as 'The Cargo Laden and Lately Laden on Board the Vessel Thalassini Avgi '. They were D also the applicants in the second application, cited in the same fashion. I shall refer to them as 'the appellants'. The respondent in the first application, as in the second, was the MV Dimitris. I shall, however, refer to the vessel by name, and to her owner (as mentioned above, Compania de Navegacion Aeolus SA) as 'the respondent'.

The founding affidavit in the first application was deposed to by E Mr John Edward Hare, a member of a firm of attorneys in Cape Town representing the appellants on instructions from Messrs Clyde & Co, a firm of solicitors of Guildford, in the United Kingdom. It will be convenient at this stage to refer to some of the averments contained in Mr Hare's affidavit. He mentions that the appellants are the holders of bills of lading and owners of the cargo on board the Thalassini F Avgi which was destroyed or damaged in the fire, as referred to earlier, and annexes a schedule listing their names and the values of their claims for damages. For reasons which need not be explained, the exact number of the claimants cannot be determined from the list, but it would G appear that they number between 50 and 60. Mr Hare states that they bring a 'collective' application through common marine assurance cover held by the Yemen Insurance Co, which has a legal liability to indemnify them to the extent of their respective losses, and upon so doing, will become subrogated to the rights of each individual assured. Messrs Clyde & Co act also as solicitors for the Yemen Insurance Co. Mr Hare H states further that the Dimitris is an associated ship of the Thalassini Avgi, and in support of this he refers to allegations concerning the persons in control of Astromando and the respondent, which are set forth in an affidavit made by him in a contemporaneous application by NYK for the arrest of the Dimitris. It is not necessary to canvass those allegations, since it was common cause in this appeal that the I Dimitris was indeed an associated ship of the Thalassini Avgi, in accordance with the provisions of ss 3(6) and (7) of the Act. Nor is it necessary to give further attention to the NYK application for the arrest of the Dimitris, for the course that that application took and its eventual outcome do not affect the issues in this appeal. Finally, J in Mr Hare's affidavit the following is said:

Botha JA

A '... (I)t is unlikely that any cargo claims (other than the request for security herein) will be brought to this jurisdiction for trial....

Without the security of the arrest of the Dimitris as an associated ship of the Thalassini Avgi therefore applicants will have little chance of satisfaction of any judgment obtained in actions commenced either in Japan (the country of jurisdiction in the bill of lading B contracts) or in South Yemen where the applicants are domiciled.'

It is to be noted, with a view to what is to follow later in this judgment, that the appellants contemplated the commencement of proceedings either in Japan or in South Yemen.

The first application, which was brought ex parte, resulted in an order of the Court being issued on 21 April 1986. I quote the C relevant parts of it:

'2.

That the MV Dimitris at present lying alongside in Port Elizabeth harbour be arrested by the deputy sheriff for the district of Port Elizabeth (in his capacity as Admiralty Marshall) in an action in rem to be instituted by applicants (as plaintiff) against respondent (as defendant) in the above honourable Court in which D action applicants will claim against respondent as a maritime claim as defined by s 1(1)(ii)(i) read with s 1(1)(ii)(y) of Act 105 of 1983:

2.1

the amounts indicated against their individual names and bills of lading shown on schedule X hereto, being damages suffered by each claimant arising out of the loss of or damage to cargo shipped on board the Thalassini Avgi for carriage to and discharge at the port of Aden during February 1986, which E amounts aggregate US dollors 1 187 407;

2.2

interest a tempore morae on each claim;

and/or, in the event of any of the above claims being brought for adjudication before any competent Court elsewhere than in the Republic of South Africa,

2.3

the provision of security as a maritime claim in terms of s 1(1)(ii)(y) and/or in terms of s 5(3)(a) of Act 105 of 1983 with F regard to or arising out of the aforesaid claims which amount in aggregate to USD 1 187 407;

and in any event, in respect of each claim,

2.4

costs of suit; and

2.5

alternative relief.

3.

That the said vessel be released from arrest on security being furnished to the applicants to the satisfaction of the G Registrar for any judgment, including interest and costs, which may be given in the said action in rem and on respondent selecting a domicilium citandi et executandi within the area of jurisdiction of this honourable Court.

...

7.

That the respondent is given leave to apply for this order to be discharged on 48 hours notice to the applicants care of their attorneys.

H ...

9.

That the costs of this application be costs in the cause in the said action in rem.'

The order was duly served in accordance with the directions for service contained in it (which I have omitted from the quotation above). A few days later the Dimitris, the shipment of her cargo having I been completed, was ready to sail. For the respondent it was a matter of urgency that she should do so as soon as possible. This appears from an affidavit deposed to on 27 April 1986 by Mr Marthinus Theunis Steyn, a member of a Cape Town firm of attorneys acting for the respondent. This affidavit was made in contemplation of an application being made to the Court on behalf of the respondent for an order releasing the J Dimitris from arrest. In the event,

Botha JA

A no such application was in fact brought before the Court. The parties, through their attorneys, reached an agreement allowing for the release of the vessel from arrest, thus rendering it unnecessary to obtain an order of the Court.

From Mr Steyn's affidavit the following appears. The respondent B entered into negotiations with the appellants, the parties acting through their...