MV Alina II Transnet Ltd v MV Alina II

• Jurisdiction: South Africa
• Judge: Goliath J
• Judgment Date: 05 September 2013
• Citation: 2013 (6) SA 556 (WCC)
• Hearing Date: 21 May 2013
• Docket Number: AC 104/2009 and AC 3/2010
• Counsel: RWF MAcWilliam SC (with D Cooke) for the applicant. M Fitzgerald SC (with D Melunsky) for the respondent.

Goliath J:

[1] This is an interlocutory application for the discovery of certain documents in terms of rule 35(7) of the Uniform Rules of Court. The applicant seeks an order compelling the respondent to comply with a J notice in terms of rule 35(3). The respondent opposes the application.

Goliath J

[2] The applicant is the port authority at Saldanha Bay that instituted A two actions in this court against the respondent. The applicant since identified itself as Transnet Ltd and its two actions have been consolidated. The respondent is the MV Alina II (the vessel). On 29 October 2009 the vessel berthed at the Langebaan Iron Terminal at the port. On completion of the loading on 31 October 2009 the vessel took on a port B list and it was discovered that the vessel's hull had pre-existing damage and that there had been ingress of water into the double-bottom port ballast tank caused by the fracture of the vessel's hull. As a result the damaged vessel remained at the terminal until 26 March 2010. The vessel's extended occupation of the terminal resulted in there only being C a single berth available to load other vessels during this period. Consequently the applicant is claiming significant damages from respondent arising out of this incident. In addition to this, substantial damages were sustained, not only by the applicant, but also by the owner of the cargo which had been loaded on board the vessel at Saldanha, Anyang Steel International Trading Co Ltd (Anyang), and various companies in the Kumba Iron Ore Group of companies which had chartered the vessel D from her owner.

[3] In the event that the respondent is found liable to the applicant, the respondent has indicated that it intends to seek a stay in the proceedings on the basis that:

[3.1]

A number of legal proceedings have been brought or threatened E to be brought in arbitration proceedings in London against it in relation to the same incident, in the capital sum of US$15 932 272,45.

[3.2]

It and the vessel's owners are entitled to bring proceedings for an order limiting their total liability for that incident in terms of F s 261(1)(b) of the Merchant Shipping Act 57 of 1951 (MSA).

[4] Anyang has instituted arbitration proceedings against the vessel's owners in London, and Kumba Shipping Hong Kong Ltd (Kumba HK) has commenced arbitration proceedings against the owner in London. G Applicant is seeking disclosure of these arbitration documents in respondent's possession for the purposes of inspection in terms of rule 35(3). In its notice in terms of rule 35(3) the applicant seeks inspection of three categories of documents:

•

The pleadings and all other documents filed of record and/or exchanged between the parties in, or in relation to, the proceedings H instituted by way of arbitration or court process against the respondent, the owner and/or those who have an interest in her, by or at the instance of:

o

the person(s) responsible for the interdict referred to in para 8 of defendant's plea; and/or

o

Anyang; and/or I

o

any other persons, apart from those referred to in the preceding two subparagraphs.

•

Documents discovered and/or made available by the parties to each other in the aforesaid proceedings (the discovered documents);

•

All documents in which claims against the respondent or the owner J

Goliath J

A have been intimated or demanded arising out of the incident referred to in para 25 of the defendant's plea, apart from claims by those persons already listed in paras 25.1 to 25.3 of the plea (the claim documents).

[5] Applicant contends that two aspects of the pleadings filed in both B matters are particularly relevant to the application:

•

The defence pleaded by the defendant that the vessel did not depart from the berth as a result of her condition, but by virtue of an interdict brought by Anyang under case No AC 107/2009 to interdict various parties from removing the vessel from her berth.

•

The defendant's reliance on limitation of liability in terms of C s 261(1)(b) of the Merchant Shipping Act 57 of 1951.

[6] Applicant highlighted para 8 of plaintiff's amended particulars of claim where plaintiff pleads that the damage to the vessel —

'detracted from the vessel's seaworthiness and/or rendered her unseaworthy. D As a result of the damage and the fracture (of her hull), she was prohibited from departing, alternatively was unable to depart, from the terminal.'

In response, in para 8 of the defendant's amended plea, the defendant raised as an express defence the fact that —

E 'the vessel was prohibited from departing from its berth at the terminal not as a result of any condition of the vessel or any act or omission of those responsible for the vessel but by virtue of an interdict granted by the above Honourable Court on 18 December 2009 which was thereafter periodically extended and which was at all times opposed by the owners of the defendant'.

F [7] The applicant disputes this defence and replicates that:

•

the Anyang interdict application was launched as a result of the vessel's condition at that time.

•

The interdict was necessitated by virtue of the condition of the vessel when she entered the port.

•

At the relevant time it was reasonably foreseeable that the vessel's G entry into the port in such defective condition could give rise to legal proceedings such as the Anyang interdict application, which may have resulted in the detention of the vessel.

[8] Applicant therefore submits that the nature of Anyang's cause of H action against the vessel's owner which gave rise to the Anyang application is directly relevant to the defendant's defence to plaintiff's claim. This cause of action forms the subject-matter of the Anyang arbitration, hence documents filed in the Anyang arbitration are directly relevant to this action.

I [9] Respondent contends that applicant had identified those aspects which it considered relevant in the Anyang arbitration, namely, the amount claimed by Anyang, and the nature of the claim, including any allegations regarding the interdict. Respondent has provided the applicant with all this information. Applicant is therefore aware that the amount of Anyang's claim is US$11 234 054,57 and £5892,50, the J nature of the claim being based on Anyang being the holder of a bill of

Goliath J

lading, and the pleadings containing no more 'allegations regarding the A interdict' than are already in the respondent's plea. Respondent therefore argues that there is no need to order the production of pleadings in the Anyang arbitration, since they are irrelevant. Any further information regarding the arbitration will not assist the applicant in establishing the main issues in dispute, namely (a) its disputed contract with the vessel's B owner; or (b) the disputed legal duties owed to it by the owner and/or crew; or (c) any alleged breaches of contract or duties by the owner and/or crew; or (d) whether the vessel was detained at Saldanha Bay because of her unseaworthy condition or the interdict; or (e) its damages.

[10] Respondent further contends that applicant's statement that C 'Anyang's cause of action [in the arbitration proceedings] against the vessel owner which gave rise to the Anyang interdict application is directly relevant to the defendant's defence to the plaintiff's claim' is logically and legally untenable. It is argued that the effect of the vessel's stay at Saldanha must be determined on the basis of pre-existing facts. It D cannot be determined by allegations in a subsequently instituted arbitration, even if by the same party and even if based on the same or similar allegations. Furthermore, what is relevant for causation is the basis on which the interdict was brought, the interdict's effect, and whether any factors prevailing at the time were causally connected to the vessel's stay E at Saldanha. These facts are then to be considered on the basis of a 'sensible retrospective analysis'. Consequently, respondent submits that Anyang's plea in the arbitration will not assist in an enquiry as to what caused the vessel's extended stay at the iron-ore terminal. Issues raised in applicant's replication should also be considered on the basis of a F 'sensible retrospective analysis' in determining whether respondent's denial of causation is to be upheld, and nothing after the release of the vessel from the interdict is relevant in that inquiry. In any event, it is argued that the applicant was a party to the interdict proceedings and is in possession of all relevant documents relating to the interdict.

[11] Section 261(1) of the Merchant Shipping Act 57 of 1951 states: G

'261 When owner not liable for whole damage

(1) The owner of a ship, whether registered in the Republic or not, shall not, if any loss of life or personal injury to any person, or any loss of or damage to any property or rights of any kind, whether movable or immovable, is caused without his actual fault or privity — H

. . .

(b)

if no claim for damages in respect of loss of life or personal injury arises, be liable for damages in respect of loss of or damage to property or rights to an aggregate amount exceeding 66,67 special drawing rights for each ton of the ship's tonnage . . . .'

[12] In terms of s 261(3) of the MSA the entitlement to limit only arises I in respect of —

'claims for damages in respect of . . . loss of or damage to property or rights arising on any single occasion, and in the application of the said provisions claims for damages in respect of loss, injury or damage arising out of two or more distinct occasions shall not be combined'. J

Goliath J

A [13] In its plea the defendant avers that:

'26.

The defendant and the owner of the defendant are entitled to bring proceedings...