Asiatic Shpping Services Inc. v Elgina Marine Company Ltd (487/07) [2008] ZASCA 111; 2009 (1) SA 246 (SCA) ; [2009] 1 All SA 423 (SCA) (23 September 2008)

Asiatic Shpping Services Inc. v Elgina Marine Company Ltd (487/07) [2008] ZASCA 111; 2009 (1) SA 246 (SCA) ; [2009] 1 All SA 423 (SCA) (23 September 2008)

The court found that Elgina Marine Company Ltd had established a genuine and reasonable need for security under s 5(3) of the Admiralty Jurisdiction Regulation Act. The close association between Asiatic and PIL, PIL's reluctance to be bound by the arbitration award, and the provision of security by PIL rather than Asiatic supported a reasonable apprehension that Asiatic would not satisfy any award made in Elgina's favour. Asiatic's failure to provide details of its assets and its evasive responses further justified Elgina's concern. The burden of proof was discharged on a balance of probabilities, and the requirements for a security arrest were met. The appeal was accordingly dismissed.

Citation
[2008] ZASCA 111
Parties
Appellant: Asiatic Shipping Services Inc; Respondent: Elgina Marine Company Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 September 2008
Case Number
487/07
Procedural Posture
Admiralty and Maritime Appeal / Appeal From High Court, Durban
Outcome
Appeal dismissed with costs.
Judges
Scott, Streicher, Heher, Combrinck, Leach
Legal Topics
Security Arrest, Genuine and Reasonable Need, Burden of Proof, Arbitration Award Enforcement
Admiralty and Maritime Security Arrest Genuine and Reasonable Need Burden of Proof Arbitration Award Enforcement

Case Brief

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Parties

Asiatic Shipping Services Inc

Appellant

Elgina Marine Company Ltd

Respondent

Procedural Posture

Admiralty and Maritime Appeal / Appeal From High Court, Durban

Legal Issues

  1. 1 Whether Elgina Marine Company Ltd established a genuine and reasonable need for security under s 5(3) of the Admiralty Jurisdiction Regulation Act.
  2. 2 Whether the burden of proof was discharged by Elgina to justify the arrest of property for security.
  3. 3 Whether the association between Asiatic and PIL affected the risk of non-satisfaction of an arbitration award.

Ratio Decidendi

The court found that Elgina Marine Company Ltd had established a genuine and reasonable need for security under s 5(3) of the Admiralty Jurisdiction Regulation Act. The close association between Asiatic and PIL, PIL's reluctance to be bound by the arbitration award, and the provision of security by PIL rather than Asiatic supported a reasonable apprehension that Asiatic would not satisfy any award made in Elgina's favour. Asiatic's failure to provide details of its assets and its evasive responses further justified Elgina's concern. The burden of proof was discharged on a balance of probabilities, and the requirements for a security arrest were met. The appeal was accordingly dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.