The MV Snow Delta Discount Tonnage Ltd v Serva Ship Ltd

• Jurisdiction: South Africa
• Judge: Foxcroft J
• Judgment Date: 17 September 1996
• Citation: 1997 (2) SA 719 (C)
• Docket Number: 103/96
• Hearing Date: 17 September 1996
• Counsel: M Wragge for the applicant J J Gauntlett (with him RWF MacWilliam) for the respondent
• Court: Cape Provincial Division

Foxcroft J:

This is the return day of a rule nisi issued by this Court in terms of which respondent was required to comply with certain aspects of the order. The rule is set out in the draft order which was made an order of Court marked 'X'. Paragraph 2 of the order is the relevant paragraph and, indeed, only para 2.1 remains of any E importance since applicant, through its counsel, has indicated that there is no intention to attempt to ask for a confirmation of the rule in respect of paras 2.2, 2.3 and 2.4. All that is in issue before me is whether para 2.1 of the rule should be confirmed or discharged.

Without going into too much detail in this regard and because of the shortness of time, F I need only say that the basis of the abandonment of the rule in respect of paras 2.2, 2.3 and 2.4 is applicant's acknowledgement that it erred, when seeking this rule, in believing that the MV Snow Delta was the subject of a demise charter. It has subsequently been discovered that a time charter was the appropriate charter and, as a G result, the aspects of the rule nisi relating to bunkers, provisions and other matters have fallen away.

Paragraph 2.1 attaches the following property belonging to the respondent:

'2.1 All of respondent's possessory right, title and interest in the MV Snow Delta ("the vessel") currently lying alongside at the Port of Cape Town, H including any possessory right which might arise from the respondent's possession and control of the vessel in terms of a demise charterparty concluded between the respondent and the vessel's owners.'

As I have already indicated, the reference to a demise charterparty was incorrect. This led, in turn, to a further application indicating an intention to amend the form of order, I removing the reference to a demise charterparty and substituting therefor a time charterparty. However, Mr Wragge indicated that he was no longer proceeding with the amendment of the rule, but sought confirmation of the rule in respect of the relief contained in 2.1 on the basis that the rule in regard to respondent's interest included the right, which he submitted was an attachable right, to use the vessel as a time J charterer.

Foxcroft J

The other words in the first line of that part of the rule, viz 'respondent's possessory A right, (and) title . . . ', do not seem to be appropriate to this possible source of attachable relief. It is conceded in effect that 'title' is not applicable, that being a reference to ownership, and 'possessory right' is also not really capable of meaning what it would normally mean. However, Mr Wragge did submit that the right to the B use of the vessel which the time charterer still held, despite his having on-chartered it to Universal Reefers, could be regarded as a form of possessory right or at least interest.

The urgency of this matter has arisen because the vessel, the MV Snow Delta, is, on the papers, due to sail this evening at six o'clock in order to load a substantial cargo of C fruit which, if not loaded very soon, may result in further substantial damages situations arising. I am therefore compelled to give the reasons for my decision in this matter now. I would have liked to have considered the problem at much greater length, but time does not permit.

In essence this is a case between peregrini in this Division. The matter has already D been before the English High Court and in a full copy of the judgment delivered in that matter on 23 May 1996 it appears that - and I read from page 15 of the judgment:

'First, both parties were concerned to avoid a South African domicile for the participating companies for reasons which certainly included, but may have E gone beyond, matters of fiscal preference. Thus, Serva had been deliberately incorporated in the Isle of Man, and DTL similarly had been deliberately incorporated in Jersey. So it was that the original agreement executed in South Africa had been torn up so that the parties could ensure that their contract was executed outside South Africa - as it turned out, in January 1995, in the Isle of Man. . . . ' F

Despite the finding of the English Court that this matter was one where the parties had deliberately sought to...