Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd

• Jurisdiction: South Africa
• Judge: Friedman J
• Judgment Date: 16 September 1977
• Citation: 1977 (4) SA 682 (C)
• Court: Cape Provincial Division

Friedman, J.:

On 8 August 1977 the respondent obtained an order for the attachment ad fundandam jurisdictionem or, F alternatively, ad confirmandam jurisdictionem, of a tug belonging to the applicant and called the Kiyo Maru No. 2 (hereinafter referred to as the tug) which was then lying in the Table Bay Docks. The attachment was granted in order to enable the respondent to institute an action for damages against the applicant arising out of the wrecking of two vessels belonging to the respondent on the coast between Camps G Bay and Llandudno, as a result of which both vessels have become a total loss. The order also provided:

"that the said tug be released on security being furnished to the applicant to the satisfaction of the Registrar for any judgment, including costs, which may be given against respondent in the said action."

Pursuant to this order which was granted ex parte and as a H matter, of urgency in view of the allegation that the tug was about to sail from the Cape Town docks for an unknown destination, the tug was attached and is at present still under attachment in the Cape Town docks. On 24 August the applicant launched proceedings, also as a matter of urgency, for an order setting aside the attachment order granted by this Court on 8 August. Mr. Friedman, who, together with Mr. Ipp, appeared for the applicant in this latter application, has raised a number of points, which he described as being in the nature of points in limine, on the basis of

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which he contended that the order granted on 8 August should be set aside. In the alternative he argued that the order should be amended so as to provide that the security which the applicant is required to furnish in order to secure the release A of the tug should not exceed the value of the tug. I shall deal with each of the points which have been raised in argument, Before doing so, however, it will be necessary to set out the relevant facts as they appear from the papers before me.

On 4 March 1977 a towage charter was entered into at Osaka in Japan between the applicant (to whom I shall henceforth refer B as Yorigami) and the respondent (to whom I shall refer as Nissho). In terms of the towage charter Yorigami, as the owner of the tug, chartered the tug to Nissho for the purpose of towing Nissho's two motor tankers, Antipolis and Romelia, from Piraeus in Greece to Pusan, Korea, or Kaohsiung, Formosa, as C may be designated by Nissho as the charterer. It is perhaps relevant at this stage to mention that Nissho is a company incorporated according to the laws of Japan which carries on business in Osaka and Tokyo as, inter alia, ship owners, charterers of ships and import and export merchants. Nissho also carries on business in the Republic having places of business in Johannesburg and in Cape Town and it is alleged that pursuant to the establishment of such places of business D in the Republic, Nissho has complied with the provisions of sec. 322 of the Companies Act, 61 of 1973, as amended, and is registered within the Republic as an external company. Yorigami is a company registered according to the laws of Japan, which carries on business in Kobe, Japan and elsewhere as, inter alia, owners and charterers of tugs.

E In the affidavit deposed to by Kengi Sugiura, the manager of Nissho's Cape Town office, in support of the ex parte application, it was stated that Yorigami provided the master and the crew for the tug and that such personnel remained at all material times in the employ of Yorigami. It was stated further that the towage of the tankers commenced in Piraeus, Greece, on or about 20 April 1977 and that on the night of 27 F and the early morning of 28 July 1977 while the master of the tug was manoeuvering the tug and the tow in the vicinity of Table Bay within the jurisdiction of this Court, the tow lines to first the Antipolis and thereafter to the Romelia, parted and as a consequence both these vessels drifted ashore between G Camps Bay and Llandudno and each vessel has become a total loss. Para. 6 of Kengi Sugiura's affidavit in the ex parte application reads as follows:

"Applicant contends that the parting of the tow line as aforesaid was occasioned by the negligence of the master of the tug in that

(i)

whilst his tow was in an unseaworthy condition he attempted in dangerous weather conditions to enter the anchorage in Table Bay;

(ii)

on being directed by the Port Captain to proceed to H sea he executed a manoeuvre which in prevailing weather conditions was unseamanlike and unsafe;

(iii)

generally he failed to take proper and adequate precautions to maintain the seaworthiness of the tow or for the protection of the Antipolis and Romelia.

Applicant contends that as a consequence of such negligence on the part of the master the respondent (Yorigami) as the master's employer, is liable to applicant (Nissho) in damages."

Inasmuch as many of the issues which arise in this application depend on the construction of the towage charter it is germane at this stage to refer to certain of the relevant terms. In terms of clause 3 (b) the tug

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owners, i.e. Yorigami, agreed

"to furnish the use of towing hawsers and other towing gear necessary for the towage service, to connect with bridles furnished and installed by the tug owner in accordance with underwriters' requirements, and to be connected up within the absolute discretion of the master of the tug, including navigation lights and black shapes on tows."

A Clause 5 provided that the charterers would have the tow in such condition as would meet the requirements of a surveyor of a competent classification society for a certificate of seaworthiness. In addition, the tow would be prepared for towage by the charterers to the satisfaction of the tugowners.

B Clause 9 provided that in the event of the tow breaking away from the tug during the course of the towing service, the tug would stand by and render all reasonable service in saving the tow and reconnecting the tow line without making any claim for salvage, unless circumstances arose beyond actual contemplation of the towage services.

Clause 16 is, perhaps, the most important and I therefore quote it in full:

C "Provisions as to liability

(a)

This agreement is a towage charter and shall not be construed to be or give rise to a personal contract.

(b)

Neither the tug owner, the tug, nor her owners, operators, managers, agents, or charterers shall be liable for any loss, damage or delay (1) resulting from act of God, force majeure, perils of the sea, enemy, strikes, labour D troubles, hostilities, war, epidemic, quarantine, embargo, restraint of any government, rulers or people, or for deviation resulting from the saving or attempting to save life or property at sea; or (2) for any loss, damage or delay of whatsoever nature including but not limited to errors in navigation or management of the tug, fire or explosion, or for any defect in the hull, machinery and equipment of the tug or unseaworthiness thereof (whether existing at the commencement of the voyage or not) unless resulting from negligence which negligence shall not be E presumed, in fact or in law, but shall be affirmatively established."

Clause 17 contains a provision to the effect that if any dispute should arise in connection with the interpretation and fulfilment of the towage charter, such dispute shall be decided by arbitration in the city of Osaka.

Finally, in clause 19 it is provided that the agreement shall be construed and its performance shall be determined in F accordance with the laws of Japan.

The first point taken by Mr. Friedman on behalf of Yorigami, was that Nissho has failed, on the papers, to discharge the onus which rests upon it of establishing a prima facie case for an attachment. He argued that in para. 6 of the founding G affidavit in the ex parte application the deponent advanced certain contentions but that the affidavit contained no allegations of fact which, if accepted, would have established liability on the part of Yorigami and that accordingly no prima facie case was made out on those papers. Mr. Friedman also drew attention in this connection to the fact that in the founding affidavit Kengi Sugiura stated that he was the manager of the H Cape Town office of Nissho and that he was duly authorised by Nissho to bring the application and to depose to the founding affidavit, but that lie did not state that the facts to which he deposed were within his own personal knowledge.

The onus which rests upon an applicant for an order of attachment in a case of this nature is not a very heavy one. It is satisfied if there is evidence which - if accepted - will establish a cause of action. As STEYN, J., stated in Bradbury Gretorex Co. (Colonial) Ltd. v Standard Trading Co.

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(Pty.) Ltd., 1953 (3) SA 529 (W) at p. 533:

"It is only where it is quite clear that he has no action, or cannot succeed, that an attachment should be refused or discharged..."

In my opinion, although the deponent to the affidavit stated that:

A "Applicant contends that the parting of the tow line as aforesaid was occasioned by the negligence of the master of the tug"

he did not rest his case merely on that contention. He went on to elaborate the contention by setting out what, in my view amounts to allegations of fact namely, that the master of the tug had committed the acts set out in the three sub-paragraphs B to para. 6 of his affidavit, which acts formed the foundation of the contention that he had been negligent. The fact that Kengi Sugiura did not expressly aver that all the facts to which he deposed were within his personal knowledge, does not detract from the validity of the factual allegations made by him. I do not think it is necessary in a case such as this for any greater elaboration of the allegations on...