The MV Leresti Afris Shipping International Corporation v MV Leresti (DMD Maritime Intervening)

• Jurisdiction: South Africa
• Judge: Squires J
• Judgment Date: 23 November 1993
• Docket Number: A201/92
• Hearing Date: 26 August 1992
• Counsel: C J Pammenter for the applicant G O Van Niekerk for the intervening respondent
• Court: Durban and Coast Local Division

Squires J:

The applicant in this matter is a company registered in Panama, but which carries on business in Sandton, Johannesburg. On 7 May this year, it chartered the respondent vessel 'Leresti' from DMD Maritime Ltd, the intervening respondent, for a H round voyage of 60/70 days' duration within the area of the Indian Ocean and Red Sea, with the point of delivery of the vessel to be at Port Louis. The terms of the charter party provided, inter alia, for payment of any final hire charges, deductions for any counter value of bunkers, estimated disbursements and so on, to be refunded or I paid by the owner or charterer respectively, as such credits or debits emerged in the balancing up exercise on redelivery. The agreement also provided that any dispute arising between owners and charterer would be referred to arbitration in London in accordance with the English Arbitration Act of 1950.

Delivery of the vessel in terms of the charter was made on 21 May, and the applicant complained that it had been withdrawn from charter by the J

Squires J

owner on 17 July; and when such withdrawal took place, there was an improvement in A the level of the bunkers to the applicant's credit of 12 534 odd United States dollars. Moreover, there had been, so it was said, some over-sanguine estimates by the owner as to the vessel's rate of fuel consumption at the sailing speed of 12 knots, and the applicant had two speed claims in consequence of this. The first from its voyage Port B Louis-Bombay-Karachi-Dubai and return; and the second from a voyage Port Louis to Durban and Durban to Port Louis. These claims, together with some undisputed smaller items for disbursements on behalf of the owners, amounted to $44 333,75, and C this sum the applicant intended claiming from the owners in arbitration proceedings in London - either instituted, or to be instituted, in terms of the charter.

On 26 August, when the respondent vessel came into Durban harbour, the applicant, by urgent ex parte proceedings to that end, obtained an order for the arrest of the ship - doing so in order to obtain security for the amount of its claim and the estimated D costs of some $20 000. In making the application, it should also be stated, the applicant had alleged and proceeded on the basis that the owner of the respondent vessel was DMD Maritime Ltd. It had relied in so doing on a number of documents, including the charter party, which identified that company as the vessel's owner. The E application did also include a Lloyd's list of shipowners, which included the respondent vessel in a large group of others as being owned by the Romanian national shipping line - Romline. But the register is marked 1991–92, and the other documents included in the application are all from a later date than May 1992; and are either issued or signed by people who could be expected to accurately state what they did. F

It also appears from the supplemented papers now before me that apart from this arrest, two other persons with claims against the owner or charterer also arrested this ship. One arrest by a local company called Amoil (Pty) Ltd was obtained on the same day as that by the applicant; and the second was ordered on the application of the master and crew, although it is not clear exactly when that took place. G

By a letter of 1 September, written by attorneys acting on behalf of DMD Maritime Ltd, the applicant was advised that the owner of the arrested vessel was not that company, but the Romanian national shipping line; and that DMD Maritime Ltd was only the bare boat charterer. In the ensuing contact and exchanges between the two H sets of representatives thereafter, the applicant asked for sight of this agreement of charter, and that was supplied on 4 September. In the mean time DMD Maritime launched a counter-application in which it obtained leave to intervene as a respondent in the application to arrest the vessel, and to ensure the speedier release of the arrested I ship rather than argue the setting aside of the order, it submitted to the provision of security in the sum of $72 000 against the release of the respondent vessel from arrest - that sum representing the sum claimed by the applicant with interest for two years, and the estimated costs.

Of more importance for the present purposes, however, is the fact that the second respondent itself then brought an application for security to be lodged by the applicant for a claim which the intervening respondent J

Squires J

intended bringing against the applicant in the arbitration proceedings contemplated by A the latter. In a separate application on 3 September, DMD Maritime Ltd also succeeded in setting aside the arrest of the vessel that had been obtained at the behest of Amoil (Pty) Ltd, and effectively settled the claim by the master and crew.

Its application for leave to intervene was granted, and the release of the arrested B respondent vessel was ordered on provision of the security offered. The counter-application for security to be furnished by the applicant was adjourned to enable the applicant to reply. In the event, the provision of security by the intervening respondent was not provided nor necessary because, on being satisfied that DMD C Maritime Ltd was not the owner of the vessel, the applicant agreed on 4 September to the vessel's...