MV Pasquale Della Gatta MV Filippo Lembo Imperial Marine Co v Deiulemar Compagnia di Navigazione Spa

• Jurisdiction: South Africa

MV Pasquale Della Gatta
MV Filippo Lembo
Imperial Marine Co v Deiulemar Compagnia di Navigazione Spa
2012 (1) SA 58 (SCA)

2012 (1) SA p58

Citation	2012 (1) SA 58 (SCA)
Case No	638/2010; [2011] ZASCA 131
Court	Supreme Court of Appeal
Judge	Navsa JA, Brand JA, Lewis JA, Leach JA and Wallis JA
Heard	August 18, 2011
Judgment	September 15, 2011
Counsel	MJ Fitzgerald SC (with D Melunsky) for the appellant.; S Mullins SC for the respondent.

Flynote : Sleutelwoorde F

Shipping — Admiralty law — Maritime claim — Enforcement — Security arrest — Claimant to establish prima facie case — Semble: Facts in opposing G affidavits that claimant does not contradict should be taken into account — Arrest of ship having serious consequences — Court ought not to shut its eyes to relevant factual material — Both parties entitled to fair hearing — Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(3).

Headnote : Kopnota

Under s 5(3) of the Admiralty Jurisdiction Regulation Act 105 of 1983 a court H may order the arrest of a ship for the purposes of providing security for a claim. The claimant must establish a prima facie case, which requirement will be satisfied if the claimant shows that there is evidence that, if accepted, would establish a cause of action. The allegations on which the claimant relies must amount to an inference which may reasonably be drawn from the facts alleged.

I Semble: There is much to be said, in deciding whether the applicant has established a prima facie case, for taking into account the facts in the opposing affidavits that an applicant does not contradict, at least where there is no reason to believe that in future proceedings, with the advantages of discovery, those facts are capable of being challenged. Disregarding such evidence seems inconsistent with the constitutional requirement that both J parties are entitled to a fair hearing, and confers an unjustifiable advantage

2012 (1) SA p59

on the arresting party. The arrest of a ship is a matter with serious A consequences. It is incongruous in determining the validity of an arrest to ignore materially relevant and undisputed evidence. Its consideration does not offend against any basic principle relating to proof of a prima facie case.

Semble: While the fact that the merits will be considered at a later stage may provide justification for adopting this low-level test in cases of attachments to found jurisdiction, it is not relevant to the consideration of an application B for a security arrest in terms of s 5(3) of the Act. A security arrest is not directed at establishing the court's jurisdiction in future proceedings, but at obtaining final relief in the form of an order that security be provided for the outcome of proceedings in another forum, usually in another jurisdiction. This is a special jurisdiction vested in our courts under the Act, and in determining whether to order an arrest it is inappropriate for the court to C shut its eyes to admissible and relevant evidence that is not and cannot be disputed. This is especially so since obtaining security may play a crucial role in decisions concerning the future conduct of the foreign proceedings and can even lead to their being abandoned or settled. (Paragraphs [22] – [23] at 69D – 70C.)

Cases Considered

Annotations: D

Reported cases

Southern Africa

Atlantic Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GmbH of Bremen 1986 (4) SA 865 (C): dictum at 874F – J applied E

Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A): dictum at 581G – H and 582F – J applied

Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris 1989 (3) SA 820 (A): dictum at 832I – 833A applied

Dabelstein and Others v Lane and Fey NNO 2001 (1) SA 1222 (SCA): considered F

Ecker v Dean 1937 SWA 3: dictum at 4 applied

Erasmus v Davis 1969 (2) SA 1 (A): referred to

Great River Shipping Inc v Sunnyface Marine Ltd 1994 (1) SA 65 (C): dictum at 75I – 76C applied

Hülse-Reutter and Others v Gödde 2001 (4) SA 1336 (SCA) ([2002] 2 All SA 211): dictum in paras [12] – [14] applied

Katagum Wholesale Commodities Co Ltd v The MV Paz 1984 (3) SA 261 (N): dictum at 269H applied G

Kwikspace Modular Buildings Ltd v Sabodala Mining Co SARL and Another 2010 (6) SA 477 (SCA): dictum in para [7] applied

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): dictum in para [36] applied

Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700 (A): dictum at 706B – D applied H

MV Alam Tenggiri: Golden Seabird Maritime Inc and Another v Alam Tenggiri SDN BHD and Another 2001 (4) SA 1329 (SCA): dictum in paras [12] – [15] applied

MV Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD 2000 (1) SA 286 (C): dictum at 298E – I applied I

MV Snow Crystal: Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal 2008 (4) SA 111 (SCA): dictum in para [36] applied

MV Wisdom C: United Enterprises Corporation v STX Pan Ocean Co Ltd 2008 (1) SA 665 (C) ([2007] 3 All SA 87): referred to

MV Wisdom C: United Enterprises Corporation v STX Pan Ocean Co Ltd 2008 (3) SA 585 (SCA): dictum in para [26] applied J

2012 (1) SA p60

Premier, Limpopo Province v Speaker of the Limpopo Provincial Government and Others 2011 (6) SA 396 (CC): referred to A

Pucjlowski v Johnston's Executors 1946 WLD 1: referred to

Shepstone & Wylie and Others v Geyser NO 1998 (3) SA 1036 (SCA) ([1998] 3 All SA 349): dictum at 1042C – D applied

Stock v Stock 1981 (3) SA 1280 (A): dictum at 1296F applied

Zygos Corporation v Salen Rederierna AB 1984 (4) SA 444 (C): dictum at 457C – D applied. B

England

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) ([1939] 3 All ER 722): dictum at 733E – F applied

Darbishire v Warran [1963] 3 All ER 310 (CA): referred to C

National Justice Compania Naviera SA v Prudential Assurance Co Ltd ('The Ikarian Reefer') [1993] 2 Lloyd's Rep 68 [QB (Com Ct)]: dictum at 81 – 82 applied

The Argonaftis [1989] 2 Lloyd's Rep 487 QB (Adm Ct): referred to

The London Corporation [1934] 50 Ll L Rep 14 (Adm): referred to

The London Corporation [1935] 51 Ll L Rep 67 (CA): discussed. D

Statutes Considered

Statutes

The Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(3) : see Juta's Statutes of South Africa 2010/11 vol 1 at 2-113.

Case Information

E An appeal from the Western Cape High Court, Cape Town (Baartman J sitting as court of first instance).

MJ Fitzgerald SC (with D Melunsky) for the appellant.

S Mullins SC for the respondent.

Cur adv vult. F

Postea (September 15).

Order

G [A] In the appeal against the judgment in the case of the arrest of the Pasquale della Gatta (case No AC 20/09 in the High Court) the following order is made:

(a)

The appeal is dismissed with costs.

(b)

The cross-appeal is upheld with costs and the order of the High H Court is altered to read as follows:

'(i)

The order for the arrest of the Pasquale della Gatta granted ex parte on 20 March 2009 and the deemed arrest of the vessel pursuant to the provision of security to obtain its release from that arrest are set aside.

(ii)

The applicant is ordered to pay the costs of the application on I the scale as between attorney and client.'

(c)

The order for the provision of counter-security by the applicant, Imperial Marine Co, is set aside.

[B] In the appeal against the judgment in the case of the arrest of the Filippo Lembo (case No AC 8/09 in the High Court) the following order J is made:

2012 (1) SA p61

(a)

The appeal succeeds to the extent that paras 6 and 7 of the order of A the High Court are altered in the following respects:

(i)

by the deletion in para 6(a) of the amount of US$17 477 128,40 and its replacement by US$7 047 177,50;

(ii)

by the deletion in para 6(b) of the figure of US$3 408 040 and its replacement by US$1 374 199,61; B

(iii)

by the deletion in para 7(a)(i) of the words 'claims 1(a) – (f) US$20 485 587,17' and their replacement by 'claims 1(a), (b), (d) and (e) US$7 029 824,59';

(iv)

by the deletion of paras 7(b) and (d);

but is otherwise dismissed.

(b)

The cross-appeal succeeds and para 2 of the order of the High C Court is altered in the following respects:

(i)

by the deletion of paras 2(a)(iii) and (iv) thereof;

(ii)

by the deletion in para 2(a)(v) of the figure of US$1 699 675,20 and its replacement by US$878 825,23;

(iii)

by the deletion in para 2(a)(vii) of the figure of D US$12 201 958,32 and its replacement by US$7 171 621,26.

(c)

Each party is ordered to pay half the costs of and attendant upon the preparation of the record in relation to this matter, being volumes 1 to 9 and 16 of the record of appeal, and is otherwise ordered to bear its own costs. E

Judgment

Wallis JA (Navsa JA, Brand JA, Lewis JA and Leach JA concurring):

Introduction

[1] On 3 July 2003 Imperial Marine Co (Imperial Marine) and the F second respondent, Deiulemar Compagnia di Navigazione Spa (Deiulemar), concluded a long-term time charterparty on the NYPE form in respect of the George T, a Capesize bulk carrier of some 170 000 dwt. A dispute arose in 2005 when the vessel suffered damage to its main engine and underwent repairs at Pylos, Greece. Deiulemar G treated the vessel as off-hire whilst it was under repair. It thereafter commenced arbitration proceedings against Imperial Marine in London in terms of the charterparty, alleging various breaches of the charterparty and claiming damages flowing from this incident. Imperial Marine responded with both a defence and a counterclaim to recover the unpaid H hire and the cost of repairs. In June 2007 a further dispute arose over the dry-docking of the vessel and this caused Deiulemar to terminate the...