Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another

• Jurisdiction: South Africa
• Judge: Van Heerden J
• Judgment Date: 11 November 1985
• Citation: 1986 (4) SA 329 (D)
• Hearing Date: 15 March 1985
• Court: Durban and Coast Local Division

Van Heerden J:

This action in personam has been brought in this Court sitting as a Court of Admiralty by the plaintiff against the two defendants. All three parties are peregrini not only of the area of jurisdiction of this Court but also of the Republic of South Africa. The plaintiff is a company incorporated according to the laws of Switzerland and carries on business as J the owner, charterer and operator of ships in Geneva, Switzerland. Both the defendants are companies incorporated

Van Heerden J

and registered according to the laws of Liberia with their A principal places of business in Athens, Greece. They entered appearance to defend with the reservation that such entry was not to be construed as an admission that the action had been properly brought, either in the form or in respect of the claim or the quantum thereof.

It is convenient to give a brief recital of the outline of B events leading up to this action to present a clearer picture of what the plaintiff's claim is all about. On 29 May 1980 at Copenhagen the first defendant as owner of the vessel, MV Aegis Pioneer (the vessel), time-chartered it to P V Christensen (Christensen) of Denmark; on 20 July 1980 the first defendant sold the vessel to the second defendant and on 27 May C 1981 at Hamburg Christensen time-chartered it to the plaintiff; on 15 June 1981 at Hull, England, three 40-foot containers were loaded on board the vessel for carriage to Berbera under a bill of lading (exh C1) and on 7 August 1981 whilst en route from Jeddah to Berbera the plaintiff instructed the master of the vessel by radio to proceed to Djiboute instead because, so it was stated, all Berbera cargo receivers D had agreed to take delivery of their cargo there; the containers were discharged at Djiboute but the plaintiff failed thereafter, it was alleged, to provide them with reasonable protection where they remained in unshaded conditions for several weeks until they were oncarried by the plaintiff to Berbera where the contents were found to be worthless. The E owners of the cargo consequently, through their London attorneys, Clyde & Co, instituted proceedings in rem against the owners of the vessel in the High Court of Justice, Queen's Bench Division, Admiralty Court, London, for damages in the sum of US $300 000

"for breach of contract and/or duty in or about the loading, F handling, custody, care and discharge of the cargo and the carriage thereof on board the vessel"

and caused the vessel to be arested in Rotterdam, thereby obliging the defendants to furnish the cargo owners with security. The defendants were of the view that one of them - the uncertainty as to which one arose because of the sale of the vessel on 20 July 1980 - had a claim in delict against G the plaintiff to recover the sum of US $300 000 but in order to pursue their claim it was necessary for property of the plaintiff to be attached to found and confirm jurisdiction in this Court. The vessel, Atlantic Victory, then under charter to the plaintiff, found itself in Durban harbour and on 10 November 1983 the defendants on an ex parte application brought H as a matter of urgency, obtained an order from this Court authorising the attachment to found and confirm jurisdiction of all the plaintiff's right, title and interest in the bunkers on the Atlantic Victory and to any freight monies due to the plaintiff in the hands of its Durban agent and the release thereof against security for the payment of the sum of US $300 I 000 with interest thereon and costs of the action. The defendants were furthermore granted leave to sue the plaintiff by edictal citation. The assets were duly attached whereafter the defendants were given notice that the plaintiff would move this Court on 15 November 1983 for the order to be set aside and the assets to be released. There was also a prayer that the defendants be ordered jointly and severally to lodge security for payment of any costs and/or damages the plaintiff might have suffered as a result of the attachment. On the mentioned J date, after the

Van Heerden J

A application had already been ordered to stand over to the following day, the defendants withdrew the attachment without security being provided and by agreement between the attorneys the plaintiff's application was adjourned sine die subject to, according to the plaintiff's attorney, the reservation of the B plaintiff's rights to proceed with the application either wholly or with specific reference to the claim for security. This is not being disputed by the defendants' attorney save for averring that the purported reservation of rights depended entirely upon whether the plaintiff had any rights, other than to the costs of the application, which were capable of being reserved.

C The plaintiff thereafter instituted the present action by issuing a writ of summons in personam and this in turn was followed by the launching of an application by the defendants to have the writ set aside on grounds specified therein. When the matter came before the Court, however, it was the plaintiff's action and not the defendants' application that was D by agreement between counsel proceeded with. The Court was asked to decide the issue of liability only and whether as a matter of law the defendants were liable to compensate the plaintiff and was informed that quantum would meanwhile be left in abeyance. The minutes of the pretrial conference were handed in as exh A and certain formal admissions in exh B were made. E These admissions relate to a bundle of documents forming exh C and are to the effect that the documents are what they purport to be, that those which purport to be communciations were sent by the person by whom they had purportedly been sent on or about the dates thereon and were received by those to whom they had ostensibly been sent unless the evidence disclosed F otherwise. Counsel were furthermore agreed that all the affidavits - contained in four bundles numbered A, B, C and D - relating to the various applications already referred to would by leave of the Court in terms of Rule 94 of the Colonial Court of Admiralty and Vice-Admiralty Court Rules form part of the evidence. Such leave was granted. The only other evidence G led was that of Captain Luddecke, a director of the plaintiff company.

The plaintiff's claim is based on s 5 (4) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act), the contention being that the attachment was "without good cause" within the meaning of that expression in the section for H reasons (a) that the Court had no jurisdiction to grant the attachment; (b) that neither in fact nor in law did a sufficient or good cause of action by the defendants against the plaintiff exist; and (c) that the defendants failed, prior to seeking the attachment, properly and sufficiently to investigate their potential liability to the cargo claimants. I In amplification of the contention that the Court had no jurisdiction, the submission was that the claim against the plaintiff was not a maritime one under the Act and, in any event, the Act does not operate retrospectively to cover the claim which arose before the Act came into operation and was not justiciable under the Court's admiralty jurisdiction before that date. In regard to (b) it was submitted that "without good cause" covered cases where the attachment ought not to have been granted either because as a matter of fact or law there J was no cause of action or because the basis of the defendants' claim had not been

Van Heerden J

properly and correctly investigated. Finally, it was contended A that the claim for security in the sum of US $300 000 plus interest and costs was excessive.

The plaintiff's claim is resisted on several grounds, the first being that the defendants had not consented or submitted to the jurisdiction of this Court nor had there been any attachment of B property owned by them to found or confirm jurisdiction; secondly, that their claim was a maritime one under the Act and on the stated facts did in law disclose a cause of action; and, thirdly, that "without good cause" has to be equated with "without reasonable and probable cause" and that it has not been shown that the defendants lacked an honest belief founded C on reasonable grounds that the institution of proceedings by them was justified.

In the view it takes of the matter, the Court finds it unnecessary to consider all the grounds relied upon by the parties for their respective contentions.

The contention that the Court lacked jurisdiction in that the defendants had not consented or submitted thereto and that D there had not been any attachment of property was advanced in the papers to have the plaintiff's writ of summons set aside but was not pursued in argument and accordingly need only be dealt with briefly. Section 3 of the Act provides for the enforcement of any maritime claim by an action in personam against, inter alia, a person who has submitted to the E jurisdiction of the Court.

Submission to the jurisdiction of a court is a wide concept and may be expressed in words or come about by agreement between the parties. Voet 2.1.18. It may arise through unilateral conduct following upon citation before a court which would F ordinarily not be competent to give judgment against that particular defendant. Voet 2.1.20. Thus where a person not otherwise subject to the jurisdiction of a court submits himself by positive act or negatively by not objecting to the judgment of that court, he may, in cases such as actions sounding in money, confer jurisdiction on that court. Herbstein and Van Winsen The Civil Practice of the Superior Courts in G South Africa 3rd ed at 30; Pollak The South African Law of Jurisdiction at 84 et seq. In consenting to the matter proceeding the defendants clearly submitted to the Court's jurisdiction. This adequately disposes of the...