International Marine Transport v MV "Le Cong" and Another (80/2005) [2005] ZASCA 106 (23 November 2005)

International Marine Transport v MV "Le Cong" and Another (80/2005) [2005] ZASCA 106 (23 November 2005)

The appellant failed to discharge the onus of proving that the MV 'Le Cong' and the Gaz Progress are associated ships within the meaning of section 3(6) of the Admiralty Jurisdiction Regulation Act 105 of 1983. The evidence established that Guangzhou and Shantou Sez, although both state-owned enterprises, are controlled by different levels of government under Chinese law: Guangzhou by the central government and Shantou Sez by the Shantou City Municipal Government. The constitutional and statutory provisions of the People's Republic of China, as interpreted by Guangzhou's experts, support the conclusion that there is no commonality of control. The appellant's reliance on the concept of...

Citation
[2005] ZASCA 106
Parties
Appellant: International Marine Transport SA; Respondent: MV 'Le Cong'; Intervening Respondent: Guangzhou Ocean Shipping Company
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 November 2005
Case Number
80/2005
Procedural Posture
Admiralty Appeal / Appeal From High Court Order Setting Aside Arrest
Outcome
Appeal dismissed with costs.
Judges
Scott, Brand, Jafta, Ponnan, Combrinck
Legal Topics
Associated Ship Arrest, Burden of Proof, Foreign Law Evidence, Power to Control, Interpretation of Statute
Admiralty and Maritime Civil Procedure Associated Ship Arrest Burden of Proof Foreign Law Evidence Power to Control Interpretation of Statute

Case Brief

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Parties

International Marine Transport SA

Appellant

MV 'Le Cong'

Respondent

Guangzhou Ocean Shipping Company

Intervening Respondent

Procedural Posture

Admiralty Appeal / Appeal From High Court Order Setting Aside Arrest

Legal Issues

  1. 1 Whether the MV 'Le Cong' is an 'associated ship' of the Gaz Progress under section 3(6) of the Admiralty Jurisdiction Regulation Act 105 of 1983.
  2. 2 Whether both state-owned enterprises are controlled by the same person for the purposes of the Act.
  3. 3 Whether the appellant discharged the onus of proof regarding commonality of control under Chinese law.

Ratio Decidendi

The appellant failed to discharge the onus of proving that the MV 'Le Cong' and the Gaz Progress are associated ships within the meaning of section 3(6) of the Admiralty Jurisdiction Regulation Act 105 of 1983. The evidence established that Guangzhou and Shantou Sez, although both state-owned enterprises, are controlled by different levels of government under Chinese law: Guangzhou by the central government and Shantou Sez by the Shantou City Municipal Government. The constitutional and statutory provisions of the People's Republic of China, as interpreted by Guangzhou's experts, support the conclusion that there is no commonality of control. The appellant's reliance on the concept of...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.