Brobulk Ltd v Gregos Shipping Ltd and Others (A71/2009) [2010] ZAKZDHC 2 (28 January 2010)

Brobulk Ltd v Gregos Shipping Ltd and Others (A71/2009) [2010] ZAKZDHC 2 (28 January 2010)

The court held that the applicant was only required to establish a prima facie claim that is enforceable before the arbitration tribunal, and that the issue of whether the claim is a 'cargo claim' under the Inter-Club Agreement is a question of fact, not law. The applicant presented conflicting expert opinions on English law, and the court found that the applicant had made out a prima facie case. The respondents and intervening party failed to discharge the onus of showing that the claim was not enforceable. Accordingly, the application to set aside the arrest was dismissed, and costs were awarded to the applicant, including costs for obtaining expert opinions.

Citation
[2010] ZAKZDHC 2
Parties
Applicant: Brobulk Limited; Respondent: Gregos Shipping Limited; Respondent: M V "Gregos"; Respondent: Searoute Maritime Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
28 January 2010
Case Number
A71/2009
Procedural Posture
Admiralty and Maritime Application / Application to Set Aside Arrest of Ship; Interlocutory
Outcome
Application to set aside the arrest of the ship dismissed; costs awarded to the applicant.
Judges
Swain
Legal Topics
Arrest of Ship, Security for Claim, Associated Ship, Application of English Law, Inter Club Agreement, Prima Facie Claim
Admiralty and Maritime Arrest of Ship Security for Claim Associated Ship Application of English Law Inter Club Agreement Prima Facie Claim

Case Brief

Summary, issues, holding and outcome

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Parties

Brobulk Limited

Applicant

Gregos Shipping Limited

Respondent

M V "Gregos"

Respondent

Searoute Maritime Limited

Respondent

Procedural Posture

Admiralty and Maritime Application / Application to Set Aside Arrest of Ship; Interlocutory

Legal Issues

  1. 1 Whether the applicant has established a prima facie claim against the intervening party as required by Section 5(3) of the Admiralty Jurisdiction Regulation Act.
  2. 2 Whether the applicant's claim is a 'cargo claim' under the Inter-Club New York Produce Exchange Agreement 1996, and thus not presently enforceable.
  3. 3 Whether the issue of English law is a question of law or fact for the purposes of the application.

Ratio Decidendi

The court held that the applicant was only required to establish a prima facie claim that is enforceable before the arbitration tribunal, and that the issue of whether the claim is a 'cargo claim' under the Inter-Club Agreement is a question of fact, not law. The applicant presented conflicting expert opinions on English law, and the court found that the applicant had made out a prima facie case. The respondents and intervening party failed to discharge the onus of showing that the claim was not enforceable. Accordingly, the application to set aside the arrest was dismissed, and costs were awarded to the applicant, including costs for obtaining expert opinions.

Court Disposition

Application to set aside the arrest of the ship dismissed; costs awarded to the applicant.

Orders

  • Searoute Maritime Limited is granted leave to intervene in these proceedings.
  • The application by the intervening party and the respondents to set aside the deemed arrest of the second respondent and for the return of the letter of undertaking is dismissed.