MV New Market Taxfield Shipping Ltd v Cargo Currently Laden on Board the MV New Market and Others

• Jurisdiction: South Africa
• Judge: Griesel J
• Judgment Date: 13 April 2006
• Citation: 2006 (5) SA 114 (C)
• Docket Number: AC29/2006
• Hearing Date: 05 April 2006
• Counsel: M Wragge SC for the applicant. G O van Niekerk SC for the second and third respondents.
• Court: Cape Provincial Division

Griesel J:

[1] The applicant, Taxfield Shipping Ltd, is the owner of the E MV New Market (the vessel). A cargo of 29 594 mt of Portland cement (the cargo) is currently on board the vessel. The cargo was arrested in rem pursuant to a warrant of arrest issued out of this Court on 9 March 2006, at the instance of the second and F third respondents. The second respondent is Parmex Ltd (Parmex) and the third respondent is Ibeto Cement Co Ltd of Nigeria (Ibeto Cement). The basis of the arrest was a claim that either Parmex or Ibeto Cement is the owner of the cargo, of which they claim delivery. (It has subsequently become evident that Parmex is currently the holder G of the original bill of lading and that Ibeto Cement will be entitled to the bill of lading when ownership of the cargo passes by delivery.)

[2] Pursuant to the arrest of the cargo, the applicant launched the present proceedings as a matter of urgency, seeking an order setting aside the arrest of the cargo. The application is being opposed H by Parmex and Ibeto Cement, whereas the fourth and fifth respondents, Access Bank plc (Access Bank) and Asiana Marine Inc (Asiana Marine), play no active role in these proceedings and abide the decision of the Court. I shall accordingly refer herein to Parmex and Ibeto Cement collectively as 'the respondents', except where it is necessary to refer to either of them individually. I

[3] The urgency of the present application is not in issue and arises, inter alia, from the fact that the cargo of cement is of a perishable nature, which may cause such cargo to deteriorate and, in the process, cause damage to the vessel. J

Griesel J

Factual background A

[4] On 23 September 2005 the applicant and Asiana Marine entered into a voyage charterparty on the Gencon (1994) form in terms of which the vessel was chartered for a voyage from China to Port Harcourt in Nigeria. The vessel arrived at the port of Taizhou, China, on 10 October 2005 and commenced loading the cargo shortly afterwards. It B completed loading and departed from the port of Taizhou on 15 October 2005. On the same date, a bill of lading was issued on the Congenbill 1994 form on behalf of the master of the vessel, pursuant to the terms of the charterparty.

[5] On 24 November 2005 the vessel arrived at the port of C Port Harcourt in Nigeria. A notice of readiness was tendered during the early hours of 25 November 2005 and the vessel was, by that time, ready to discharge the cargo. However, during the next three months, no one presented the bill of lading to take delivery of the cargo. It appears from the documentary evidence that the cargo was due to have D been imported by Parmex, as seller, for Ibeto Cement, as purchaser, under the authority of an import permit issued by the Federal Ministry of Industry of Nigeria on or about 6 September 2005. This import permit was, however, cancelled by the Nigerian president on or about 19 October 2005 - approximately four days after the E vessel had sailed from the port of loading - with the result that the vessel was not permitted to discharge the cargo at Port Harcourt. The applicant was not informed of the cancellation of the import permit.

[6] By 23 February 2006, after all efforts to obtain the requisite permission had failed, and based on the advice of its F experts, the vessel was ordered to the next convenient port where the cargo could be discharged and sold.

Proceedings in Hong Kong

[7] In the meanwhile, the applicant's attempts to obtain agreement from the other parties for the sale of the cargo were likewise G unsuccessful. On 25 February 2006 the applicant, accordingly, caused an originating summons to be issued out of the High Court of the Hong Kong Special Administrative Region, Court of First Instance (the Hong Kong Court). In the summons, the applicant sought an order authorising it to sell the cargo without prejudice to the rights H of the other parties to the action and, after sale, to pay the proceeds, after deducting the expenses thereof, into an escrow account to be held by the applicant's solicitors or into Court to abide the outcome of an arbitration to be held in Hong Kong in terms of the charterparty and the contract of carriage evidenced by the bill of lading. I

[8] At the hearing that took place on 7 March 2006, Ibeto Cement was represented by solicitors and applied for a postponement of the matter, which application was...