Sunnyface Marine Ltd v Hitoroy Ltd (Trans Orient Steel Ltd and Another Intervening); Sunnyface Marine Ltd v Great River Shipping Inc

• Jurisdiction: South Africa
• Judge: King J
• Court: Cape Provincial Division

King J:

This is the extended return day of an order in terms whereof a cargo of approximately 60 715 tonnes of iron ore laden aboard the vessel Great Eagle berthed in Saldanha Bay, and all the respondent's right, title and interest therein was attached ad fundandam et confirmandam jurisdictionem in an action to be instituted by applicant against I respondent for damages and payment of the balance of freight and demurrage allegedly due by respondent to applicant. The application was necessitated by reason of the provisions of s 3(2)(b) of the Admiralty Jurisdiction Regulation Act 105 of 1983.

Applicant now seeks the confirmation of the attachment. This is opposed by Trans Orient Steel Ltd on the basis that it, not the J respondent, is the

King J

A owner of the cargo; Trans Orient seeks the setting aside of the attachment.

It is common cause that Trans Orient is owner of the cargo by reason of a reservation of ownership clause in terms whereof it retained ownership thereof until it received payment in full of the purchase price from the purchaser, respondent.

It is also common cause that respondent has paid 90% of the purchase price, and the question which arises is whether this fact confers a B right on respondent which is attachable at the instance of a creditor of respondent, such as applicant is alleged to be, and, if so, whether that right (or 'right, title and interest' as it is styled) entitles applicant to an order for the attachment of the cargo itself, bearing in C mind that the cargo is still owned by the seller, Trans Orient.

The onus is on applicant to establish on a balance of probabilities that respondent has an attachable interest in the cargo. See Lendalease Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and Others 1976 (4) SA 464 (A) at 489B-C.

The law of the contract in terms whereof respondent purchased the D cargo is, it is common cause, the law of Hong Kong. The contract was entered into in Hong Kong and clause 9 of the contract so provides. It is also common cause that, for purposes of this application, the law of Hong Kong is to be regarded as the same as English law.

In order to apply foreign law the Court needs the guidance of experts on the subject. On behalf of the applicant an affidavit from Mr Gray, a E solicitor who practises in London and who has previously practised in Hong Kong, was filed. Trans Orient has made available an affidavit from Thomas QC of the Hong Kong Bar; he is a former Attorney-General of the territory. Each of these learned gentlemen has furnished a legal opinion. Mr Gray's opinion was given prior to that of Mr Thomas which F has enabled the latter to deal with the views of the former.

Mr Gray comes to the conclusion that respondent has an attachable beneficial interest in the cargo, whereas Mr Thomas reaches the opposite conclusion. Having regard to the situation of the onus, I am not satisfied that the views and conclusions of Mr Gray are to be preferred to those of Mr Thomas. I am accordingly unpersuaded that in terms of the G law to be applied respondent has an attachable interest in the cargo.

In any event the interest which respondent has in the cargo, and to which I shall refer shortly, does not in my view entitle a creditor to attach the actual cargo as opposed to the rights...