The Alina II judgment handed down by the Western Cape High Court
under case number AC47/2010 in January 2013 is important as it
highlights the robust approach taken by our courts with regard to
evidence of ownership when it comes to arrests.
Notably, the judgment extensively explored the conclusions that
can be drawn from a charterer describing itself as disponent owner.
Kumba Shipping Kong Hong ("Kumba") arrested the bunkers
of Prima Shipping Company Limited ("Prima") on board the
Alina II for security for a London arbitration. In Prima's
application to set aside the arrest, it was alleged that Prima had
voyage chartered the vessel and the bunkers were accordingly owned
by Pompey Shipping ("Pompey").
The judge, Gamble J, at the outset, notes that the Prima/Kumba
charter party did not contain an express term that Prima was liable
to pay for the bunkers on board the vessel, furthermore, that the
type of charter party (voyage/time/bareboat) was not apparent
ex facie the document and, lastly, that Prima was
described therein as "disponent owner". The type of
charter party under which Prima had chartered in the vessel from
Pompey, prior to then chartering the vessel out to Kumba, was
critical to determining the ownership of the bunkers. Charterers
under a time charter normally are obliged to supply and therefore
usually own the bunkers, whereas charterers under a voyage charter
do not (bunkers being owned by the "owner" under their
It was alleged by Andrew Pike, representing
Kumba, that the referral to Prima as 'disponent
owner' would normally indicate that Prima was either a
time or demise charterer under its head charter
with Pompey and, secondly, that both time and demise charter
parties normally place the obligation of supplying (and therefore
owning) bunkers on the charterer (Prima), who was in this case in
turn the disponent owner under the sub (voyage) charter entered
into with Kumba. The court held this be a reasonable ground on
which to infer ownership by Prima:
In myview Mr. Pike's allegation in the
founding affidavit of ownership ofthe bunkers vesting in
Prima in the light of the fact that the contractbetween
it and Kumba was a voyage charter party was entirelyreasonable in the circumstances. He was not privy to the legal
orfactual basis upon which Prima had been designated
"disponent owner", and he assumed that the customary
import of the use ofthat term applied. Indeed, it was of
little consequence whetherPrima had taken the vessel on a
time or demise charter, sinceeither would ordinarily have
obligated it to bunker the vessel.
In rebuttal of this Prima relied heavily on the Prima/Pompey
charter party, which it alleged was a voyage charter party on back
to back terms with the Prima/Kumba charter party (as opposed to a
time charter party). The witness for Prima admitted under
cross-examination that the Prima/Pompey charter party was only
created after the arrest, due to a request for proof of such
charter party from Prima's legal representatives – up
until that point, said the witness, the agreement had been merely
an oral one. He also admitted that he had never told anyone
(including their legal representatives) of this late creation of
the charter party and that it was probably misleading to have done
so. For this reason, among others, the court concluded that the
witness' evidence should be treated with "utmost
caution" and further stated that the creation of such
document, and 'back-dating' it as if it had been so agreed
upon on an earlier date, amounts to nothing but fraud.
As to the veracity of there ever being an oral agreement, as
alleged by the Prima witness, the court found:
To suggest that a contract as important as a charter party
(the very life blood of such an enterprise) is concluded orally and
is only reduced to writing when called for by lawyers in a distant
jurisdiction, beggars belief. Were this is a case involving a local
long line fishing vessel operating out of one of many of the small
harbours that dot our coast-line, the argument may begin to make
sense.But to suggest that thePolemis family went about business in a
similarfashion borders on
Originally published in July 2013
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Attractive new shipping provisions in South Africa’s new Taxation Laws Amendment bill go some way in showing that the government is serious about taking steps to revive South Africa’s rather sleepy international shipping sector.
This paper considers the recent developments in Nigerian Ship
Arrest Law – the Admiralty Jurisdiction Procedure Rules
(AJPR) 2011 for the Federal High Court of Nigeria (FHC), and its
effect on ship arrest practice.
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