TMT Bulk Co Ltd v Bukers Laden Abroad (AC 26/2009) [2009] ZAWCHC 158; 2010 (3) SA 138 (WCC) (28 October 2009)

TMT Bulk Co Ltd v Bukers Laden Abroad (AC 26/2009) [2009] ZAWCHC 158; 2010 (3) SA 138 (WCC) (28 October 2009)

The court found that the charterparty between Transfeld and BG, specifically clauses 33(d) and 37, constituted a contract of sale of the bunkers on board the MV Vogerunner at delivery and redelivery. The essential elements of a sale were present: identification of the bunkers, a stipulated price, and an undertaking to deliver. The deletion of the standard clause 3 was not material to the construction of the contract, as per the principle in Koulis. The court rejected TMT's argument that the use of 'value' rather than 'price' negated the existence of a sale. Commercial sense supported BG's contention, as joint ownership of bunkers would expose both parties to unnecessary risk. The court...

Citation
[2009] ZAWCHC 158
Parties
Applicant: TMT Bulk Co Ltd; Respondent: Bunkers Laden Aboard the MV Vogerunner; Respondent: Transfeld ER Cape Ltd; Intervening Party: Billion Gain Enterprise Co (HK) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 October 2009
Case Number
AC 26/2009
Procedural Posture
Admiralty Application / Final Judgment
Outcome
BG's application to set aside the arrest was granted; the application for counter-security was dismissed as moot.
Judges
Binns-Ward
Legal Topics
Arrest of Bunkers, Ownership of Bunkers, Contract of Sale, Counter Security, Charterparty Interpretation
Admiralty and Maritime Arrest of Bunkers Ownership of Bunkers Contract of Sale Counter Security Charterparty Interpretation

Case Brief

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Parties

TMT Bulk Co Ltd

Applicant

Bunkers Laden Aboard the MV Vogerunner

Respondent

Transfeld ER Cape Ltd

Respondent

Billion Gain Enterprise Co (HK) Ltd

Intervening Party

Procedural Posture

Admiralty Application / Final Judgment

Legal Issues

  1. 1 Whether the bunkers on board the MV Vogerunner at the time of arrest were owned by Transfeld ER Cape Ltd or Billion Gain Enterprise Co (HK) Ltd.
  2. 2 Whether BG was entitled to have the arrest set aside and the security released.
  3. 3 Whether BG was entitled to counter-security from TMT for damages arising from the arrest.

Ratio Decidendi

The court found that the charterparty between Transfeld and BG, specifically clauses 33(d) and 37, constituted a contract of sale of the bunkers on board the MV Vogerunner at delivery and redelivery. The essential elements of a sale were present: identification of the bunkers, a stipulated price, and an undertaking to deliver. The deletion of the standard clause 3 was not material to the construction of the contract, as per the principle in Koulis. The court rejected TMT's argument that the use of 'value' rather than 'price' negated the existence of a sale. Commercial sense supported BG's contention, as joint ownership of bunkers would expose both parties to unnecessary risk. The court...

Court Disposition

BG's application to set aside the arrest was granted; the application for counter-security was dismissed as moot.

Orders

  • The order authorising the arrest of the bunkers aboard the MV Vogerunner is set aside to the extent necessary.
  • The applicant is ordered to pay the intervening party's costs of suit in the application for leave to intervene and for setting aside the arrest order, including costs of two counsel, reserved costs from previous orders, and costs of the hearing on 21 October 2009.