MT Tigr Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and Another Intervening)

• Jurisdiction: South Africa

MT Tigr Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and Another Intervening)
1998 (3) SA 861 (SCA)

1998 (3) SA p861

Citation	1998 (3) SA 861 (SCA)
Case No	214/97
Court	Supreme Court of Appeal
Judge	Scott JA
Heard	May 5, 1998
Judgment	May 27, 1998
Counsel	M J D Wallis SC (with him M Wragge) for the first appellant; D A Gordon SC (with him S R Mullins) for the second appellant; M J Fitzgerald SC (with him P A van Eeden) for the respondent; No appearance for the intervening parties

Flynote : Sleutelwoorde

Jurisdiction — Attachment to found or confirm jurisdiction — Application by defendant to attach property of peregrinus C with view to joining peregrinus as third party from whom contribution or indemnification to be claimed if defendant found liable to plaintiff — Defendant denying liability to plaintiff — Defendant required to establish both its own liability to D plaintiff and that of third party — Defendant not required to produce evidence under oath establishing its own liability to plaintiff — To extent that such liability an element of defendant's claim against third party, sufficient for defendant to rely upon allegations in plaintiff's particulars of claim — To rebut that element peregrinus third party having to show that E plaintiff's particulars of claim either excipiable or clearly without substance — Defendant remaining obliged to produce evidence in ordinary way which, if accepted, would establish third party's liability to plaintiff.

Shipping — Attachment to found or confirm jurisdiction — Application by defendant to attach property of peregrine tug owner and charterer with view to joining them as third parties from whom contribution or indemnification to be claimed F if defendant found liable to plaintiff for stranding of plaintiff's barge — Defendant denying liability to plaintiff — To join third parties defendant required to show own liability to plaintiff and that of third parties — Evidence of defendant's liability — Defendant filing plaintiff's particulars of claim to show own liability — Section 6(3) of Admiralty Jurisdiction G Regulation Act 105 of 1983 empowering Court to admit hearsay evidence — Evidence tendered and accepted by Admiralty Court almost invariably hearsay — Level of applicable test thus low — In absence of third parties' showing that particulars of claim excipiable or clearly without substance, distinction between evidence under oath, particularly when based on hearsay, and allegations contained in pleadings not justifying defendant's being obliged to produce H evidence under oath establishing its own liability.

Jurisdiction — Attachment to found or confirm jurisdiction — Value of property to be attached — Application by defendant to attach property of peregrinus with view to joining peregrinus as third party from whom contribution or I indemnification to be claimed if defendant found liable to plaintiff — Value of property attached substantially less than plaintiff's claim — If property attached having value when attachment order granted and served, fact that property might thereafter become valueless not affecting Court's jurisdiction once such jurisdiction founded and confirmed by attachment. J

1998 (3) SA p862

Headnote : Kopnota

A defendant who denies liability but seeks to attach the property of a peregrinus with a view to joining him as a A third party so that, in the event of the defendant being held liable, a contribution or indemnification can be claimed from the peregrinus need not produce evidence under oath which, if accepted, would establish the defendant's liability to the plaintiff. To the extent that such liability is an element of the defendant's claim against the third party, B it is sufficient for the defendant to rely upon the allegations contained in the plaintiff's particulars of claim. To rebut this element of the defendant's claim the peregrinus third party would have to show that the plaintiff's particulars of claim are either excipiable or otherwise clearly without substance. As far as the other element of the defendant's claim against the peregrine third party is concerned, namely that the third party is liable to the plaintiff, C the defendant would remain obliged in the ordinary way to produce evidence which, if accepted, would establish liability. (At 870I--871B.)

A barge owned and insured by the first and second intervening parties respectively had run aground off the coast near Cape Town. At the time of the grounding it was being towed by a tug owned by the first appellant and chartered by the second appellant. The intervening parties instituted action against the respondent, alleging that D the loss of the barge had been caused by the negligence of the respondent's servants in the port control office at Cape Town. The respondent obtained a rule nisi in a Provincial Division attaching the tug and its bunkers (the latter owned by the second appellant) to confirm the Court's jurisdiction over the appellants, which would enable the respondent to join them in the action as third parties from whom it intended claiming a E contribution or indemnification in the event of its being held liable to the intervening parties. The rule was confirmed. In an appeal it was argued that the respondent had failed to show a prima facie cause of action and had failed to show that the subject-matter of the attachment had some value, however small.

Held, as to the first issue, that in terms of s 6(3) of the Admiralty Jurisdiction Regulation Act 105 of 1983 the F Court had the power in the exercise of its discretion to admit hearsay evidence. In admiralty cases the evidence tendered and accepted by the Courts was almost invariably of a hearsay nature. 'Double hearsay' from an undisclosed source had even been accepted for this purpose. It followed that the level of the test applied was, generally, a low one. (At 868H--I.)

Held, further, that the respondent's situation was different from that of a prospective plaintiff seeking an G attachment order or arrest in that the respondent's success was dependent upon its establishing that the appellants were joint wrongdoers. In order to do so it would have to establish both that the appellants were liable to the intervening parties and that it was liable to the intervening parties. (At 868I--869B.)

Held, further, as to the appellants' objection to the respondent's tendering the intervening parties' particulars of H claim to support its allegation that it was liable to them on the grounds that the particulars of claim had not been made under oath, that, in the absence of the appellants' being able to show that the claim was excipiable or clearly without substance, the distinction between evidence under oath, particularly when founded on hearsay, I and allegations contained in pleadings did not justify the respondent's being obliged to produce evidence under oath which, if accepted, would render it liable to the intervening parties. A contrary finding would, for all practical purposes, preclude a defendant in the respondent's position from seeking to attach property of a peregrine. (At 870G--H/I.)

Held, further, as to the second ground of attack, founded on the contention that, because the value of the tug was substantially less than the amount of the J

1998 (3) SA p863

barge owner's claim the security provided by the tug would be exhausted by the execution of a judgment in the A barge owner's favour and, because the respondent's claim against the tug owner was predicated upon the latter's liability to the barge owner, there would be no security left against which the respondent would be able to execute, that if the property attached had a value when the attachment order had been granted and served, the fact that it might thereafter become valueless would not affect the Court's jurisdiction once that had been founded B and confirmed by the attachment. (At 871G/H--H/I.)

Held, further, that, in any event, the circumstances in which and the party at whose instance security would be exhausted was dependent upon a number a factors which were unknown at that stage. (At 871I.)

The decision in the Cape Provincial Division in MT Tigr: Transnet Ltd t/a Portnet v Owners of the MT Tigr C and Another (Bouygues Offshore and Another Intervening) confirmed on appeal.

Cases Considered

Annotations

Reported cases

Ex parte Acrow Engineers (Pty) Ltd 1953 (2) SA 319 (T): referred to D

Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A): referred to

Bouygues Offshore SA v Caspian Shipping Co and Others (No 2) [1997] 2 Lloyd's Rep 485 (Adm Ct): referred to E

Bouygues Offshore SA v Caspian Shipping Co and Others (No 3) [1997] 2 Lloyd's Rep 493 (Adm Ct): referred to

Bouygues Offshore SA v Caspian Shipping Co and Others (No 5); Ultisol Transport Contractors Ltd v Bouygues Offshore SA and Another [1997] 2 Lloyd's Rep 533 (Adm Ct): referred to

Bouygues Offshore and Another v Owner of the MT Tigr and Another 1995 (4) SA 49 (C): referred to

Bradbury Gretorex Co (Colonial) Ltd v Standard Trading Co (Pty) Ltd 1953 (3) SA 529 (W): dictum at 533C--E approved F

Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris 1989 (3) SA 820 (A): referred to

Caspian Basin Specialised Emergency Salvage Administration and Another v Bouygues Offshore SA and Others (No 4) [1997] 2 Lloyd's Rep 507 (Adm Ct): referred to G

Katagum Wholesale Commodities Co Ltd v The MV Paz 1984 (3) SA 261 (N): referred to

Longman Distillers Ltd v Drop Inn Group of Liquor Supermarkets (Pty) Ltd 1990 (2) SA 906 (A): dictum at 914E--G applied

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): applied in part H and distinguished in part

Ultisol Transport Contractors Ltd v Bouygues Offshore and...