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[2016] ZAKZDHC 23
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MV 'PrivGulf' v ING Bank N.V and Others (A72/2015) [2016] ZAKZDHC 23 (20 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Exercising
its Admiralty Jurisdiction
CASE
NO: A72/2015
DATE:
20 JULY 2016
In
the matter between:
MV
‘PRIVGULF’
......................................................................................................................
Applicant
And
ING
BANK
N.V
.............................................................................................................
First
Respondent
AEGEAN
MARINE
PETROLEUM
.......................................................................
Second
Respondent
S.A.
SINOPEC
ZHEJIANG ZHOUSHAN
PETROLEUM
............................................
Third
Respondent
DEUTSCHE
BANK
AG,
..........................................................................................
Fourth
Respondent
NEW
YORK BRANCH
GREAT
AMERICAN INSURANCE
COMPANY
.....................................................
Fifth
Respondent
Coram:
Koen J
Heard:
20 May 2016
Delivered:
20 July 2016
O
R D E R
The
rule
nisi
issued on 21 September 2015 in the application commenced by the
Notice of Motion dated 16 September 2015 for the joinder of
inter
alia
the Third Respondent (Sinopec),
is discharged in respect of the Third Respondent with costs.
The
rule
nisi
issued
on 12 January 2016 in the application commenced by the Notice of
Motion dated 8 January 2016 for the joinder of the Fifth
Respondent
(Great American Insurance Company) as a party in the action
in
rem
under case no A72/2015 in terms of
s 5(1) of the Admiralty Jurisdiction Regulation Act as amended read
with Admiralty Rule 11,
is confirmed. The costs relating to that
joinder are reserved for determination by the Court hearing the
action
in rem
J
U D G M E N T
KOEN
J:
Introduction
[1]
The Applicant, MV ‘Privgulf’ seeks the joinder of the
Third Respondent, Sinopec Zhejiang Zhoushan Petroleum Company
Limited, (‘Sinopec’) and the Fifth Respondent, the Great
American Insurance Company (‘Great American Insurance’)
in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act 105
of 1983 (‘the Act’), as third parties to an action
in
rem
instituted
by the First Respondent (‘Ing Bank’) against it.
[1]
The
Claim by Ing Bank
[2]
The MV ‘Privgulf’ was arrested at the instance of Ing
Bank
qua
Plaintiff, as the alleged assignee of the claims of O W Bunker Malta
Limited (‘OWBM’) against it,
qua
Defendant.
[2]
[3]
The claims allegedly ceded pursuant to a security agreement concluded
between
inter alia
Ing Bank and OWBM, are formulated as:
(a)
CLAIM 1 – Payment of the sum of US$ 157 428.52 in respect
of marine bunker fuels delivered on board the MV ‘Privgulf’
at Gibraltar on 15 October 2014, together with interest thereon at an
agreed rate of 3% per month compounded monthly from the due
date to
the date of payment, as well as a ‘delayed payment
administration fee’ of US$ 418.54;
(b)
CLAIM 2 - Payment of the sum of US$ 214 189.64 in respect of marine
bunker fuels delivered on board the MV ‘Privmed’
at Shanghai on or about 28 to 31 October 2014, together with interest
thereon at an agreed rate of 3% per month compounded monthly
from the
due date to the date of payment, as well as a ‘delayed payment
administration fee’ of US$ 586.23;
(c)
CLAIM 3 – Payment of the sum of US$ 51 169.28 in respect of
marine bunker fuels delivered on board the MV ‘Privmed’
at Shanghai on or about 31 October to 1 November 2014, together with
interest thereon at an agreed rate of 3% per month, compounded
monthly, from the due date to the date of payment, as well as a
‘delayed payment administration fee’ of US$ 350.
[3]
The
allegation in respect of each claim is that the fuel was ‘caused
to be delivered on board’ by OWBM and hence that
it is the
party entitled to payment. There is no reference in the Particulars
of Claim as to who actually physically delivered
the fuel in each
instance.
The
Documentation
Claim
1:
[4]
The bunker fuel delivered to the MV ‘Privgulf’ at
Gibraltar was physically supplied on board by the Second Respondent,
Aegean Marine Petroleum SA (‘Aegean’).
[5]
The following appears from the relevant documentation:
(a)
On 10 October 2014 a sales order confirmation was issued by OWBM to
Bariba Corp in respect of the bunker fuel to be delivered
to the MV
‘Privgulf’ at Gibraltar with delivery date 14 October
2014, for the account ‘Master and/or owner and/or
Charterers
and/or MV ‘Privgulf’ and/or Bariba Corp’;
(b)
The bunker delivery was received by MV ‘Privgulf’
according to the bunker delivery receipts on 15 October 2014.
A
bunker confirmation was issued on 17 May 2005 by Aegean reflecting
the seller as Aegean to OW bunker Spain SL. The buyer was
reflected
as ‘MV ‘Privgulf’ and ‘jointly and severally
owners/managing owners/operating managers/disposant
owners/charterers
and GW Bunker Spain SL. Near receipt of this confirmation signifies
acceptance of responsibility for payment
of our bunker invoice by
each and all of them’.
(c)
On 15 October 2014 Aegean issued an invoice for US$156 112.30
(page 60) to ‘”Master/owners/managing owners/charterers
of MV ‘Privgulf’ and OW bunker Spain SL…”’.
According to a subscript to this invoice ‘a remittance
must be
free of all charges to:
Beneficiary
name DBAG STEF NY AEGEAN MARINE PATROLEUM SA
Deutshe
Bank Trust Company Americas
…
Ref:
Aegean
Marine Petroleum SA.’
(d)
On 15 October 2014 OWBM issued an invoice to ‘MV Privgulf
and/or owners/charterers’ at Bariba Corp for US$ 157 428.52.
(e)
OWBM was subsequently liquidated.
(f)
On 13 November 2014 PWC ING in a letter addressed to Bariba advised
specifically that with reference to an English omnibus security
agreement dated 19 December 2013 between OW Bunker A/S and
certain of its subsidiaries (as Chargors) and ING Bank MV as security
agent, that invoices or confirmations received by Bariba notifies
that the relevant chargor or chargors had assigned by way of
security
to ING Bank all its rights in respect of all supply contracts
with it (Bariba Corp) as may be constituted or supplemented
by the
OWB general terms and conditions generally and including without
limitations specifically the unpaid invoice under the supply
contracts and document 145 – S 19565 for an amount
US$157 428.52. Para 6 of that letter specifically advised that:
‘
any
payment by you which is not made in full compliance with the payment
instructions in this notice will NOT extinguish the relevant
payment
obligations to the relevant chargor in respect of invoices under the
relevant contract and you will remain fully liable
for all amounts
outstanding.’
(g)
On 29 December 2014, Duane Morris, counsel for Aegean and its
financiers in connection with the captioned Bunker delivery, being
that of 15 October 2014 to ’Privgulf’ in a letter
addressed to Bariba Corp and Privgulf Shipping Limited c/o Bariba
Corp, demanded payment for the bunkers outstanding in the sum of
US$156,112.36 immediately with payment to be made in US dollars
to
’Deutsche Bank Trust Company Americas’. It was especially
recorded that:
‘
Failure
to satisfy the outstanding debt or cause the Aegean interest to take
all necessary steps to collect the sums due, including,
but not
limited to, execution of the lien upon the hull of the vessel for the
unpaid Bunkers, without further notice to you or
to the vessel.
Please note that this letter is a formal demand for payment. The
failure to honour this demand will result in our
exercising all legal
rights and remedies to effectuate payment without further notice.’
(h)
On 18 July 2015 Mr Johnstone of Seadebt International in an email,
acting for the ‘financiers of Aegean Marine Patroleum
SA Bunker
suppliers’ demanded payment of the bunker fuel delivered on 15
October 2014 by Aegean to the MV Privgulf at the
port of Gibraltar.
Again it was recorded that ‘failure to take appropriate steps
to settle the matter may result in the ship
being arrested as
security as per shipping practice’.
(i)
On 8 September 2015 this was followed up a by a further email to the
accounts department at Bariba from Seadebt International
recording
that they had not received a reply and that ‘we are at the
shipping practice placing you on notice that we are
tracking your
ship with a view to arrest for security’.
(j)
On 12 August 2015 in a letter from Aegean to ‘Master/Owners/Managing
owners/Operators of MVN/V PRIVGULF in respect of
the delivery of
bunker fuel for US$156 112.56’, advised that that amount
as headlined ‘Receivables’ had
‘irrevocably sold
and transferred to Deutsche Bank A. G. our ownership interest and all
relevant claims whatsoever in respect
of the headlined Receivables
reflected in the subject invoice.’
(k)
On 27 August 2015 notification was given by Deutsche Bank in
accordance with a ‘bill of sale’ that ‘with effect
from 26 June, 2015’ Deutsche Bank had ‘sold, assigned and
transferred to Great American Insurance Company, absolutely,
full
value received, all of its right, title and interest in, to and under
the following account receivable …’ which
then
specifically referred to invoice 8190 the OW Bunker entry for OW
Bunker Spain SL in the amount of US$156 112.36.’
That bill of sale was dated 27 August 2015.
Claims
2 and 3:
[6]
The bunker fuel supplied forming the subject of claims 2 and 3, was
physically delivered to the MV ‘Privmed’ at
Shanghai by
Sinopec.
[7]
The following appears from the relevant documentation:
(a)
The Sinopec Bunker delivery notes in
respect of the deliveries made on 28 and 31 October 2014 to the MV
‘Privmed’ both
refer to Sinopec’s general terms and
conditions being applicable.
(b)
Sinopec’s ‘General terms and conditions for the sale of
marine fuels (2014)’ defines ‘sellers’
as meaning
‘the party contracting to sell and deliver marine fuels.’
(c)
On 27 October 2014 OWBM issued a ‘sales order confirmation’
to Bariba in respect of the deliveries made to Privmed
between 28
October 2014 and 31 October 2014. The seller was reflected as
OWBM and the account was for ‘Master and/or
owner and/or
Charterers and/or MV “Privmed” and/or Bariba Corp.’
(d)
On 28 October 2014 OWBM issued an invoice number 1245-S19691 to ‘MV
Privmed and/or owners/Charters’ and at Bariba
for the bunkers
supply at Shanghai totalling US$214 189.64.
(e)
On 30 October 2014 OWBM issued a sales order confirmation to Bariba
Corp in respect of deliveries made to ‘Privmed’
at
Shanghai between 31 October 2014 and 1 November 2014 for the account
of Master and/or owner and/or Charters and/or MV ‘Privmed’
and/or Bariba Corp in respect of the fuel delivered.
(f)
On 31 October 2014 OWBM issued an invoice number 145- S19687 to
‘M/V Privmed and /or owners/charterers’ of
Bariba Corp
for the fuel supplied in the sum of US$51 169.28.
(g)
The two claims form part of supply contracts by OW Bunker Trading A/S
and certain of its subsidiaries as referred to in the
letter of 13
November 2014 by PWC ING to Bariba Corp which advised ‘that all
its rights in respect of all supply contracts
…as may be
constituted or supplemented by the OWB general terms and conditions
as provided to you and as amended, restated
or supplemented from time
to time (the contract)’ had been assigned by way of security to
ING Bank N.V.
(h)
In a letter dated 28 January 2015, Clyde & Co. acting for Sinopec
in relation to the unpaid bunkers supplied to the M/V
‘Privmed’
claimed
inter
alia
payment
of the amount of US$212 860.18.
[4]
This letter specifically records:
‘
As
you are aware, OW Bunker China Ltd is related to O.W. Bunker A/S, a
Danish Company that is recently filed for bankruptcy.
Our
client has to date not received any payment for the bunkers.
Without
prejudice to any other claims which our client may have against you,
our client has a claim for conversion and/or in tort
if the Bunkers
have been consumed or are being consumed in a manner inconsistent
with our client’s rights. Further,
as you may be aware,
some jurisdiction recognised that our client can exercise a maritime
alien against the capital vessel for
the unpaid Bunkers.
To
this end, please pay the sum of US$ 212 860.18 to our client within
the next 5 banking days’.
(i)
A similarly worded letter dated 28 January 2015 was also addressed by
Clyde & Co. to the same addressees in respect of the
unpaid
bunker supplied to the MV ‘Privmed’ on 31 October
2014 for US$50 469.70.
The
Defendant’s Plea
[8]
In respect of the first claim the Defendant pleaded as follows:
‘
4.1
Defendant admits the delivery at Gibraltar on 15 October 2014 of the
marine bunker fuels more fully described in paragraphs
8.1, 8.2 and
8.3.
4.2
Defendant avers, however, that the marine bunker fuels in question
were supplied to it for the account of Aegean Marine Petroleum
SA
(“Aegean”) who supplied such bunker fuel
qua
principal
and not as the agent of Plaintiff.
4.3
Aegean has sought payment from the Defendant in respect thereof in
the amount of US$ 157 428.52.
4.4
Save as aforesaid the allegations contained in this paragraph are
denied.’
[9]
The plea to the second and third claims is in similar terms, as
follows:
‘
10.1
Defendant admits that on 28 October 2014 and at Shanghai the Marine
Bunker fuel more fully described in paragraphs 17.1 and
17.2 were
delivered on board the MV ‘Privmed’.
10.2
Defendant avers, however, that the marine bunker fuels in question
were supplied to it by Sinopec Zhejiang Zhousan Petroleum
Co. Limited
(“Sinopec”) who supplied such bunker fuels
qua
principal and not as the agent of Plaintiff.
10.3
Sinopec has sought payment from Defendant in respect thereof in the
amount of US$ 214 189.64.
10.4
Save as aforesaid, Defendant has no knowledge of the remaining
allegations contained in this paragraph, cannot admit them and
they
are accordingly denied.’
Further
it is pleaded that:
‘
16.1
Defendant admits the supply at Shanghai on 15 October 2014 of the
marine bunker fuels more fully described in this paragraph.
16.2
Defendant avers, however, that such bunker fuels were supplied to it
by Sinopec
qua
principal
and not as the agent of Plaintiff.
16.3
Sinopec has sought payment from defendant in respect thereof in the
amount of US$ 51 169.28.
16.4
Save as aforesaid, the allegations contained in this paragraph are
denied.’
The
Case for Joinder
[10]
In the light of the aforesaid, Mr
Fitzgerald
SC for the Applicant submitted that the Applicant is facing competing
claims for payment in respect of the same fuel delivered
to it and
the MV Privmed from ING, Sinopec and Great American Insurance and
that in order to avoid being sued in a multiplicity
of actions in
competing jurisdictions, it is convenient and appropriate for Sinopec
and Great American Insurance to be joined as
third parties in the
action
in rem.
He
argued that an issue or question which will arise is whether the
Applicant is liable to Ing Bank, or whether on receiving the
bunker
fuel it had become indebted to Aegean (now Great American Insurance
as its assignee) and Sinopec. He argued that this issue
should be
determined in a manner binding on all and hence that there was the
need for the joinder of Sinopec and Greater American
Insurance. He
argued further that no prejudice can be occasioned by the joinder in
that ING’s claim is secured and the Applicant
has tendered to
pay the claims of Sinopec and American Insurance if directed to do so
by the Court.
The
Opposition to the Joinder
[11]
American Insurance has not opposed the application for its joinder.
Its joinder has however been opposed by Ing Bank.
[12]
The joinder of Sinopec was opposed by Sinopec and Ing Bank. In its
affidavit in opposition Sinopec, in the words of its attorney
with
reference to the letter of demand, sets out its attitude to the
joinder as follows:
‘
There
is no suggestion that there is any contractual relationship between
the owner of the MV “Privmed” and Sinopec’,
the
claim of Sinopec against the MV “Privgulf” described in
the letters of demand is one ‘for conversion and/or
in tort if
the bunkers have been consumed or are being consumed in a manner
inconsistent with our clients rights’, that a
claim in
conversion of the claim recognised in the English law of tort and
lies when there has been an unauthorised dealing with
a chattel in a
manner which deprives the claimant of the use and possession of the
chattel, which is a claim for damages and not
one for performance of
the contract’, that if Sinopec has a claim for damages arising
from the tort of conversion, this claim
would be separate and
distinct from the claim advanced by Ing Bank for performance of the
agreements of sale. Accordingly he submits
that there are ‘no
questions or issues that have arisen or will arise in the action
advanced by Ing Bank which might arise
in an action that Sinopec
might commence for damages in another jurisdiction which should be
determined so as to bind Sinopec.’
In
reply to this statement, the Applicant accepts that it may well be
liable to pay to Ing Bank the outstanding contract price of
the
bunkers and services supplied to it, but points out that Sinopec:
‘…
however,
notwithstanding it submission that it had a contract of purchase and
sale with OWB has now (sought) to assert a claim against
the
Applicant for the very same amount.’
The
Law
[13]
Section 5(1) of the Act, dealing with ‘Powers of court’,
provides:
‘
(1)
A court may in the exercise of its admiralty jurisdiction permit the
joinder in proceedings in the terms of this Act of any
person against
whom any party to those proceedings has a claim, whether jointly
with, or separately from, any party to those proceedings,
or from
whom any party to those proceedings is entitled to claim a
contribution or an indemnification, or in respect of whom any
question or issue in the action is substantially the same as a
question or issue which has arisen or will arise, between the party
and the person to be joined and which should be determined in such a
manner as to bind that person, whether or not the claim against
the
latter is a maritime claim and notwithstanding the fact that he is
not otherwise amenable to the jurisdiction of the court,
whether by
the reason of the absence of attachment of his property or
otherwise.’
[14]
Section 5(1) is very wide in its application. In
MY
‘
Summit
One’
Farocean
Marine (Pty) Ltd v Malacca Holdings Ltd and another
[5]
paragraph
17 - 18 the following was said:
‘
Two
questions arise. The first is whether the section permits the
joinder of a defendant in the alternative. Merely because
no express
reference is made to a defendant in the alternative does not mean
that the joinder of such a party is precluded.
The language
used, I think, is clearly wide enough to include such a party. The
section permits, for example, the joinder of a
person ‘in
respect of whom any question or issue in the action is substantially
the same as a question or issue which has
arisen or will arise
between the party [seeking the joinder] and the person to be
joined…’. There is furthermore nothing
in this section
to indicate an intention to preclude the joinder of a person on the
ground that to do so may result in a party
over whom the Court would
not otherwise have had jurisdiction possibly being found to be the
only party liable. Given the wide
language used, such a result could
hardly have been beyond the contemplation of the legislature.
In the circumstances, I
can see no reason for construing s 5(1) so as
not to include the joinder of an alternative defendant. … But
the object of
the legislature was clearly to permit all the parties
to a dispute to be joined in an action. The absence of such a
provision
could well be result in the undesirable situation of courts
in different countries having to adjudicate on the same or
substantially
the same issues arising out of the same incident or set
of facts.
[18]
… In my view, the word “may” in s 5(1) is to be
understood in its permissive sense and not in the sense
of serving
what is being described as a “predictive function”…This
much, I think, is apparent from the use of
the word “permit”
in the phrase, the “court may … permit”. The
Court
a quo
accordingly had a discretion to permit or refuse the joinder of
Romans. It did not exercise that discretion and this Court is now
free to do so. It is common cause that the party with whom Farocean
contracted was Romans. Ferocean’s case is that it is
uncertain
whether Romans acted as a principal or as agent for Malacca. It
therefore wishes to have both before the Court. …
In the
circumstances, it is appropriate, in my view, to permit the joinder
of Romans as an alternative defendant in the proceedings.’
[15]
The only jurisdictional prerequisites for a joinder are that there
must be an issue or question which has arisen or which will
arise
between the Applicant and Sinopec and Great American Insurance:
(a)
which is substantially the same as an issue or question in the action
between the Applicant and Ing Bank; and
(b)
which should be determined in such a manner as to bind Sinopec and/or
Great American Insurance.
[16]
The onus to prove these threshold requirements is on the Applicant.
Evaluating
the Opposition to the Joinder
[17]
Mr
Mullins
SC on behalf of Ing Bank referred to
inter
alia
the decisions in
PST
Energy 7 Shipping LLC and Another (Appellants) v OW Bunker Malta Ltd
and another (Respondents)
[6]
and
Precious
Shipping Public Company Ltd and others v O.W. Bunker Far East
(Singapore) Pte Ltd and others and other matters
.
[7]
The essence of Ing Bank’s argument is that the issues or
questions which may arise and require determination in the
in
rem
action
do not arise and will not arise as between MV ‘Privgulf’
and Sinopec and American Insurance, because on the affidavits
neither
of the parties sought to be joined in any way contest that the owners
of the MV ‘Privgulf’ and the MV ‘Privmed’
had
contracted with OWBM for the supply of the bunkers to the vessels,
and that physical delivery was effected by Aegean and Sinopec
pursuant to contracts they had in turn concluded with OW Bunker
entities, so that neither Aegean or Sinopec would be vested with
any
contractual claim against the vessels or the owners thereof.
Specifically as regards Great American Insurance, he emphasized
that
it is an assignee of the contractual claims Aegean, later Deutsche
Bank, has against OW Bunkers Spain SL, and not any claim
against
against MV ‘Privgulf’, so there would be no common
question or issue arising.
[18]
The difficulty with that argument at a factual level is of course
that Great American Insurance has not filed an affidavit
setting out
its attitude to the basis on which the Applicant seeks its joinder;
indeed, it has not participated in the proceedings
at all. Although
the documentation might suggest that Aegean’s claim was against
OWBM, it did also invoice inter alia the
Applicant for the bunker
fuel supplied, and it did subsequently when payment was not
forthcoming, demand payment from inter alia
the Applicant. Whether
all bunker supply invoices are as a matter of course or routine made
out also to the ‘Master/owners/managing
owners/charterers of’
a vessel, the possibility exists such a claim based on some variation
of a contract might be pursued
in due course by the Great American
Insurance as assignee of the claims of Aegean against the Applicant.
There has been no abandonment
by Great American Insurance of any such
claim, or at least an unequivocal statement under oath that it shall
not pursue such a
claim. Where such a claim can in theory exist,
without there being a disavowal of any potential reliance on such a
claim, it seems
to me that a common issue or question which does
arise in the action
in rem
and
which has arisen or may arise between the Applicant and Great
American Insurance is whether the Applicant is liable to the latter
or Ing Bank for the fuel physically supplied to the MV Privgulf in
Gibraltar. That issue should be determined to bind both Ing
Bank and
Great American Insurance.
[19]
Sinopec, represented by Mr
Wragge
SC, expressly recorded in the affidavit filed in opposition to its
joinder, and confirmed in Mr
Wragge’s
address
[8]
from the bar, that it acknowledged the existence and validity of the
contractual claims of Ing Bank. He argued that the existence
of such
a conceded contractual claim was in any event irrelevant to any other
claim which Sinopec may have and may wish to advance
against the MV
‘Privmed’ or its owner in some foreign jurisdiction where
such claims may be recognised. In my view,
that statement is correct.
In so far as the action
in
rem
against
the MV ‘Privgulf’ is in respect of bunkers physically
supplied by Sinopec to another ship, the MV ‘Privmed’,
the action was one against the MV ‘Privgulf’ as an
associated ship, and there is no conceivable explanation why the
MV
‘Privgulf’ or its owner should have any personal
liability to Sinopec, whether for conversion in tort or otherwise
in
respect of the bunkers delivered to the MV ‘Privmed’.
[20]
The demands from Clyde & Co for the unpaid Bunkers delivered to
MV ‘Privmed’ were addressed to Privmed Shipping
Limited,
never to MV ‘Privgulf’, and did not seek to assert a
claim based in contract, but at best possibly some claim
for
conversion and/or in tort which would only arise if the bunkers had
been consumed or were being consumed in a manner inconsistent
with
the rights of Sinopec. These demands were not being made to the MV
‘Privgulf’ or her owner, Privgulf Shipping
Limited. Nor
was the threat of an arrest in respect of the MV ‘Privgulf’,
but only for the possible arrest of the MV
‘Privmed’ as
security for its claim if Privmed Shipping Limited does not pay the
claim.
[21]
I do not believe that any question will arise in the action
in
rem
commenced by Ing Bank against the
MV ‘Privgulf’ in respect of the bunker fuel supplied to
the MV ‘Privmed’.
If the owner of the MV ‘Privmed’
is contractually liable to pay the purchase price of the bunkers
supplied to the MV
‘Privmed’ to Ing Bank as an assignee
of the claim of OWBM, then it will not matter whether Sinopec also
has a claim
enforceable against the owner of the MV ‘Privmed’
or the vessel itself, or not. The MV ‘Privgulf’ will be
obliged to satisfy the claim of Ing Bank as it is not a case of two
parties being liable in the alternative to Ing Bank. Ing Bank
has a
valid claim, enforceable against the MV ‘Privgulf’ in
respect of the indebtedness of MV ‘Privmed’
to OWBM and
is entitled to payment.
[22]
It seems to me that there is no issue or question in the action
in
rem
which will also arise between the MV ‘Privgulf’ and
Sinopec, no issue has as yet arisen in the action
in
rem
between the MV ‘Privgulf’ and Sinopec, and it has not
been shown that any issue in the action
in
rem
will arise as between the MV ‘Privgulf’ and Sinopec.
[9]
[23]
As regards the American Insurance Company, on the documentation
produced the MV ‘Privgulf’ faced competing claims
by Ing
Bank and Aegean. Neither Aegean, nor American Insurance as the
ultimate assignee of its claim, has filed any affidavits
to disavow
reliance on the claim initially asserted by Aegean. As the claim
asserted by Ing Bank as cessionary of the claim by
OWBM relates to
the supply of the same fuel to the MV ‘Privgulf’, the MV
‘Privgulf’ faces the real possibility
of competing
claims. Whether the American Insurance Company (as opposed to Ing
Bank) is ultimately entitled to payment for that
fuel from the MV
‘Privgulf’ raises questions or issues which are
substantially the same as those which will arise in
the action
in
rem
. The capacity in which the
fuel oil was delivered and the identity of the actual creditor in
each case requires determination,
which can best be determined by the
joinder of Great American Insurance.
[24]
Section 5(1) of the Act requires common ‘questions or issues’
and not necessarily causes of action. The joinder
of American
Insurance will enable the Applicant,
qua
Defendant in the action
in
rem
to seek a declaratory, or such
other relief as it may deem expedient, as to whether Ing Bank or
American Insurance is entitled
to payment of the amounts which the
Applicant accepts it is liable to make in respect of the supply of
the bunker fuel physically
delivered by Aegean.
[25]
Ing bank’s opposition to the joinder of the American Insurance
Company is, with respect, taken no further by the two
judgments
referred to in paragraph [17] above. The Singapore judgment
dealt with an inter-pleader situation and is different
to the
considerations which arise in a joinder application. In the case of
an inter-pleader claims are asserted and pursued by
parties possessed
of the required facts to advance their claims in respect of a
particular asset, which claims are necessarily
adverse to each other.
The judgment of Chong J identified the characteristics of an
inter-pleader to include
inter
alia
symmetry etc. He held, correctly in my view, that the
applicants had to satisfy the court that they have a
prima
facie
claim adverse to that of other claimants. On the facts in that
matter he held that the applicants failed
prima
facie
to
establish a possible claim based on conversion to be an adverse claim
or a competing claim. A clear distinction must be
drawn between
an inter-pleader claim and a joinder application. Joinders may
arise in a variety of situations, the only requirement
being a common
question or issue arising. The facts giving rise to a joinder
at a Plaintiff’s election will normally
be within the knowledge
of the Applicant seeking the joinder. But the position will be
different where a Defendant decides
to join a third party to achieve
a decision which decides the issues between them. In these instances
there may be very little
evidence available to an Applicant. Thus in
MT
Tigr
Owners
of the MT
Tigr
and another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and
another intervening)
[10]
it was said that:
‘
The
position of such a defendant is different from that of an applicant
who is a prospective plaintiff seeking an attachment order
or
arrest. In the case of the latter, success in the main action
is dependant solely on the establishment of the cause of
action
against the defendant. In the case of the former, success in
the main action against the third parties is dependent
on it being
established that they are joint wrongdoers together with the
defendant.’
Further
on at page 869J - 870 it was said that:
‘
It
is a common occurrence for a defendant who denies liability to join
as a third party a potential joint wrongdoer from whom it
will seek a
contribution or indemnification in the event of it being found liable
despite its denial. The illogicality and
unfairness referred to
by Comrie J of requiring a defendant in such circumstances to
establish a
prima facie
case
against itself would seem obvious, so does the practical difficulty
of procuring the evidence required…. What the argument
implies
therefore is that a defendant in the position of Portnet who wishes
to defend the plaintiff’s claim against them
but also to join a
third party must either obtain an adduced
prima
facie
evidence against himself or forgo
the security provided by an attachment. To place a defendant in such
a dilemma seems to me to
adopt an approach which is both
over-technical and unrealistic.’
Conclusion
[26]
I am not persuaded that the Applicant has made out a case for the
joinder of Sinopec. In respect of the relief claimed
in the
Notice of Motion dated 16 September 2015, the rule
nisi
issued insofar as it remains extant in respect of Sinopec (the rule
nisi
against Aegean having previously being discharged) falls to be
discharged. There is no reason why Sinopec’s costs relating
to
the unsuccessful attempt to join it should not be paid by the
Applicant.
[27]
I am however satisfied that the Applicant has made out a case for the
joinder of the Fifth Respondent, Great American Insurance
Company. In
the application for the joinder of the Fifth Respondent pursuant to
the Notice of Motion dated 8 January 2016, the
rule
nisi
issued for its joinder as a party in the action
in
rem
in terms of s 5(1) of the Admiralty
Jurisdiction Regulation Act as amended read with Admiralty Rule 11
accordingly falls to be
confirmed. In the exercise of my discretion
on costs, it seems prudent and fair to me that the costs relating to
such joinder be
reserved for determination by the Court hearing the
action
in rem
.
Order
[28]
The following order is accordingly granted:
(a)
The rule
nisi
issued on 21 September 2015 in the application commenced by the
Notice of Motion dated 16 September 2015 for the joinder of
inter
alia
the Third Respondent (Sinopec), is
discharged in respect of the Third Respondent with costs.
(b)
The rule
nisi
issued on 12 January 2016 in the
application commenced by the Notice of Motion dated 8 January 2016
for the joinder of the Fifth
Respondent (Great American Insurance
Company) as a party in the action
in rem
under case no A72/2015 in terms of s 5(1) of the Admiralty
Jurisdiction Regulation Act as amended read with Admiralty Rule 11,
is confirmed. The costs relating to that joinder are reserved for
determination by the Court hearing the action
in
rem
.
KOEN
J
Appearances
For
the Applicant: Adv. M J Fitzgerald SC
Instructed
by: Bowman Gilfillan Inc.
Tel.:
031 265 0651
Ref.:
CNC/NW/6152346/6152348
For
the First Respondent: Adv. S R Mullins SC
Instructed
by: ENS AFRICA
Tel.:
031 301 9340
Ref.:
T Norton
For
the Third Respondent: Adv. M Wragge SC
Instructed
by: Clyde & Co.
c/o
Cox Yeats
Tel.:
031536 8500
Ref.:
M Poseman/CR/06 C527 005
[1]
The various parties are referred to by name rather than as
Applicant, First Respondent and so forth so to avoid any confusion.
There are in fact two joinder applications, the one dated 16
September 2015 seeking the joinder of the Second Respondent in that
application, Aegean Marine Petroleum SA (‘Aegean’) and
Sinopec and the other dated 8 January 2016 seeking the joinder
of
Great American Insurance. The rule
nisi
issued against Aegean for its joinder was subsequently discharged.
The rule
nisi
issued in a separate application seeking the joinder of the
Fourth Respondent, Deutsche Bank AG, New York branch (‘Deutsche
Bank’), was also discharged subsequently.
[2]
Security
was subsequently furnished by the Applicant to release it from the
initial arrest, but it remains under ‘deemed
arrest’ in
terms of s 3(10)(a)(i) of the Act.
[3]
The
claims are
ex
facie
the Particulars of Claim filed by Ing Bank ‘maritime claims’
as defined in section 1(1)(m) of the Act, enforceable
in
rem
:
(a)
in the case of claim 1, against the ‘ship concerned’,
the MV ‘Privgulf’ in terms of the provisions
of s
3(4)(b) and (5)(b) of the Act; and
(b)
in the case of claims 2 and 3, against the MV ‘Privgulf’
instead of the MV ‘Privmed’ in terms of the
provisions
of s 3(6) and (7) of the Act, because the same person who had the
power, directly or indirectly, to control the owner
of the MV
‘Privmed’ when the claims arose controlled the owner of
the MV ‘Privgulf’ at the time when
the action
in
rem
was
commenced.
[4]
Although
the amounts of US$212 860.80 and US$50 469.70 claimed by
Sinopec from the Applicant differ slightly from that
claimed by Ing
Bank in the action
in
rem
they are in respect of the same supplies to the MV ‘Privmed’.
[5]
2005
(1) SA 428
(SCA) at para 17 and 18.
[6]
[2016]
UKSC 23
(11 May 2016).
[7]
[2015]
SGHC 187.
[8]
As
regards any action against the MV ‘Privgulf’ Mr
Wragge
made it clear that Sinopec does not intend to commence any
proceedings in South Africa against the MV ‘Privgulf’
for amounts reflected as due and payable by the Privmed or its
owner, as it has no cause of action against the Mv ‘Privgulf’
or its owner relating to the bunkers supplied to the MV ‘Privmed’
that would be recognised and sustained by a South
African Court.
[9]
Sinopec
has disavowed reliance on any claim for a contract price in respect
of the Bunker supplied. At best it confines
its claim to one
based on conversion. A claim in conversion lies where there
has been an unauthorised dealing with a chattel
in a manner which
deprives the claimant of the use and the possession are the same.
To the extent that all the Bunker fuel
might not have been used
thereby depriving Sinopec of the use and possession of its Bunker
fuel only to the extent used, if the
unused portion was returned,
the Applicant would be entitled to a reduction in the contract price
as against OWMB and ING’s
claim would be reduced accordingly.
Inasmuch as in principle such a situation may arise, it is so
unlikely and improbable
as not to be countenanced as a possible
issue or question which might arise in respect of the action
in
rem
– see
Natal
Fresh Produce Growers’ Association and others v Agroserve
(Pty) Ltd and others
1990
(4) SA 749
(N) (Judgment of Howard JP on exception). As is also
remarked in the context of a claim based on conversion in the
judgment of
Steven Chong J in
Precious
Shipping
,
‘the physical suppliers delivered the Bunkers to the vessels
and must at least be taken to have intended for the bunkers
to be
consumed…This being the case, it is clear that no claim on
conversion may lie.’ Regarding the threat in the
letter from
Clyde & Co. that “some jurisdictions recognise that our
client can exercise a maritime alien against Vessel
for the unpaid
Bunkers”. South African Courts will only recognise liens
recognised by English Law. There might be
some claim Mr
Wragge
accepted for a lien in American Law but even there it attaches to
the contractual supplier and not to any further parties.
[10]
1998
(3) SA 861
(SCA) at 868 J.