United Enterprises Corporation and Another v STX Pan Ocean Company Limited (AC131/2006 , AC111/2006) [2007] ZAWCHC 12; 2008 (1) SA 665 (C); [2007] 3 All SA 87 (C) (1 March 2007)

United Enterprises Corporation and Another v STX Pan Ocean Company Limited (AC131/2006 , AC111/2006) [2007] ZAWCHC 12; 2008 (1) SA 665 (C); [2007] 3 All SA 87 (C) (1 March 2007)

The court found that the Italian judgment did not constitute res judicata, as it merely set aside a provisional arrest order without determining the substantive merits of the dispute between UEC and STX. The South African law, as lex fori, applies, and under local admiralty principles, the setting aside of an arrest for lack of a prima facie case does not bar a subsequent arrest if new facts or arguments are presented. The founding and answering affidavits, together with arbitration submissions, were sufficient to establish a prima facie case for arrest. The court further held that there was no material non-disclosure or breach of uberrima fides that would justify rescission of the arrest...

Citation
[2007] ZAWCHC 12
Parties
Applicant: United Enterprises Corporation; Applicant: MV "Wisdom C"; Respondent: STX Pan Ocean Company Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 March 2007
Case Number
AC131/2006 , AC111/2006
Procedural Posture
Admiralty and Maritime Application / Application to Set Aside Deemed Arrest and for Counter Security
Outcome
Application to set aside the arrest dismissed; counter-application for security dismissed; costs awarded to respondent.
Judges
R B Cleaver
Legal Topics
Arrest of Ship, Counter Security, Prima Facie Case, Res Judicata, Uberrima Fides, Charterparty Dispute
Admiralty and Maritime Arrest of Ship Counter Security Prima Facie Case Res Judicata Uberrima Fides Charterparty Dispute

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Parties

United Enterprises Corporation

Applicant

MV "Wisdom C"

Applicant

STX Pan Ocean Company Limited

Respondent

Procedural Posture

Admiralty and Maritime Application / Application to Set Aside Deemed Arrest and for Counter Security

Legal Issues

  1. 1 Whether the Italian court's judgment constitutes res judicata, barring the arrest in South Africa.
  2. 2 Whether the founding affidavit in the arrest application disclosed a prima facie case.
  3. 3 Whether there was material non-disclosure breaching the duty of uberrima fides in ex parte proceedings.

Ratio Decidendi

The court found that the Italian judgment did not constitute res judicata, as it merely set aside a provisional arrest order without determining the substantive merits of the dispute between UEC and STX. The South African law, as lex fori, applies, and under local admiralty principles, the setting aside of an arrest for lack of a prima facie case does not bar a subsequent arrest if new facts or arguments are presented. The founding and answering affidavits, together with arbitration submissions, were sufficient to establish a prima facie case for arrest. The court further held that there was no material non-disclosure or breach of uberrima fides that would justify rescission of the arrest...

Court Disposition

Application to set aside the arrest dismissed; counter-application for security dismissed; costs awarded to respondent.

Orders

  • The application to set aside the arrest of the MV "Wisdom C" is dismissed.
  • The applicant's counter-application for security for its claim in the London arbitration proceedings is dismissed.