Bocimar NV v Kotor Overseas Shipping Ltd (323/93) [1994] ZASCA 5; 1994 (2) SA 563 (AD); [1994] 2 All SA 245 (A) (9 March 1994)

Bocimar NV v Kotor Overseas Shipping Ltd (323/93) [1994] ZASCA 5; 1994 (2) SA 563 (AD); [1994] 2 All SA 245 (A) (9 March 1994)

The Supreme Court of Appeal held that Bocimar bore the onus of proving, on a balance of probabilities, that the security provided by the arrest of the CRNA GORA was inadequate and that there was a genuine and reasonable need for additional security through the arrest of the KORDUN. The court found that Bocimar failed to discharge this onus, as the evidence showed that the CRNA GORA would likely provide sufficient security for Bocimar's claim, taking into account the vessel's value and the quantum of prior mortgagee claims. The court rejected Bocimar's argument that the need for security could be established on a prima facie basis and confirmed that the correct standard is the balance of...

Citation
[1994] ZASCA 5
Parties
Appellant: Bocimar NV; Respondent: Kotor Overseas Shipping Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 March 1994
Case Number
323/93
Procedural Posture
Admiralty and Maritime Appeal / Appeal From Cape of Good Hope Provincial Division, Order Setting Aside Arrest of Vessel
Outcome
Appeal dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
Corbett, Joubert, Goldstone, Nienaber, Kriegler
Legal Topics
Security Arrest, Associated Ship, Onus of Proof, Balance of Probabilities, Judicial Sale, Quantum of Claim
Admiralty and Maritime Security Arrest Associated Ship Onus of Proof Balance of Probabilities Judicial Sale Quantum of Claim

Case Brief

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Parties

Bocimar NV

Appellant

Kotor Overseas Shipping Ltd

Respondent

Procedural Posture

Admiralty and Maritime Appeal / Appeal From Cape of Good Hope Provincial Division, Order Setting Aside Arrest of Vessel

Legal Issues

  1. 1 Whether the appellant established a genuine and reasonable need for additional security by arresting the KORDUN.
  2. 2 Whether the security provided by the arrest of the CRNA GORA was inadequate for Bocimar's claim.
  3. 3 What is the correct standard of proof for establishing the need for security under section 5(3) of the Admiralty Jurisdiction Regulation Act.

Ratio Decidendi

The Supreme Court of Appeal held that Bocimar bore the onus of proving, on a balance of probabilities, that the security provided by the arrest of the CRNA GORA was inadequate and that there was a genuine and reasonable need for additional security through the arrest of the KORDUN. The court found that Bocimar failed to discharge this onus, as the evidence showed that the CRNA GORA would likely provide sufficient security for Bocimar's claim, taking into account the vessel's value and the quantum of prior mortgagee claims. The court rejected Bocimar's argument that the need for security could be established on a prima facie basis and confirmed that the correct standard is the balance of...

Court Disposition

Appeal dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include those occasioned by the employment of two counsel.
  • The order of arrest and the release of the vessel KORDUN is confirmed.