Ex parte Terminus Compania Naviera SA and Grinrod Marine (Pty) Ltd: In re The Areti L

• Jurisdiction: South Africa
• Judge: Berman J
• Judgment Date: 31 October 1985
• Citation: 1986 (2) SA 446 (C)
• Hearing Date: 24 October 1985
• Court: Cape Provincial Division

Berman J:

There are before me an aplication and a counter-application. In the former Terminus Compania Naviera SA ("Terminus") seeks - in terms of Rule 28 of the Admiralty I Court Rules - an order that the bunkers remaining on board the vessel Areti L, at the time of their attachment by order of this Court at the instance of Grinrod Marine (Pty) Ltd ("Grinrod") on 15 December 1983, were at all times wholly or partly its (Terminus') property. In the counter-application Grinrod applies for an order declaring, firstly, that such attachment was a valid one and, secondly, that it was entitled J to execute against a certain

Berman J

A bail bond furnished by Terminus. Both Terminus and Grinrod claim an order for costs in their favour.

The circumstances giving rise to the dispute between Terminus and Grinrod are not in dispute. It appears that at the time when the vessel called at Cape Town it was employed on a time B charter entered into at Singapore on 10 September 1983 between Terminus (the owner of the vessel) and Mondale Maritime Enterprises (Pvt) Ltd ("Mondale"), a Singapore-based company, now commercially insolvent. By reason of a claim which Grinrod had against Mondale for payment of an amount of R16 790, 75, the former sought and obtained the attachment of the bunkers aboard the vessel referred to above in order to found C jurisdiction in an action in personam it proposed instituting against Mondale in this Court. A dispute then arose between Terminus and Grinrod as to where ownership in the bunkers lay, Terminus contending that it owned them and Grinrod maintaining that Mondale was the owner of these bunkers.

D Terminus and Grinrod thereupon sensibly agreed that the former would procure and lodge - in terms of Rule 39 of the Admiralty Court Rules - a bail bond with the Registrar of this Court in an amount sufficient to cover the claim for R16 790,75, this to be done upon the express condition that Terminus retain the right to seek, in due course, the order now E sought by it. Pursuant to such agreement, the requisite bail bond was duly lodged and the vessel (with the bunkers aboard) was released from attachment and thereupon left South African waters.

On 16 May 1984, a writ having been served on Mondale in Singapore and no response having been made thereon, Grinrod obtained judgment by default against it in this Court for payment of R16 790, 75 (with costs). Here again Terminus and F Grinrod sensibly agreed, before this judgment was taken, that such judgment would be without prejudice to Terminus' right to seek the order referred to above, viz that it was the owner of the bunkers, which it would set about doing within a stipulated time and that pending the outcome of such proceedings Grinrod would not proceed to execute against the bail bond. The instant G application and counterapplication are then these "proceedings", the parties represented being Terminus and Grinrod (Mondale having been given notice but not appearing), and the question for determination can thus shortly be stated as follows, viz was the attachment of the bunkers which were aboard the vessel when it lay in Cape Town docks valid or not? In this regard it was contended by Mr Hofmeyr, who (with Mr H Hoberman) appeared for Grinrod, that if the bunkers were owned, either wholly or partly, by Mondale, the attachment was a valid one; Mr Comrie, who (with Mr Kuschke) appeared for Terminus, contending on the other hand that these bunkers were the property of Terminus (the owner of the vessel) and that I Mondale had no proprietary interest therein, and further that, even if the bunkers which had been supplied to the vessel during the charter to Mondale was its (Mondale's) property, such would, by confusio with the bunkers already on board at the commencement of the charter, render the bunkers on board when the vessel lay alongside at Cape Town docks not amenable to attachment.

The factual position with regard to the bunkers was the J following, viz when the vessel was delivered for the use of Mondale, as charterer, on

Berman J

19 September 1983 at Port Kelang, 423,38 metric tons of fuel A oil and 144,75 metric tons of diesel oil were then on board; two days later, on 21 September 1983, Mondale supplied to the vessel, and paid for, 300 metric tons of fuel oil and 70 metric tons of diesel oil; thereafter, at Singapore, and prior to arrival in Cape Town, Mondale supplied and paid for a further 150 metric tons of fuel oil. All the bunkers supplied to the B vessel both at Port Kelang and at Singapore were recorded for "charterer's account" and were presumably mixed with those already on board. A substantial quantity of these bunkers having been consumed whilst the vessel was en route from Singapore to...