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[1995] ZASCA 101
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Cobam NV v Aegean Petroleum (UK) Ltd and Another (29/94) [1995] ZASCA 101 (19 September 1995)
Case No 29/94
/mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
COBAM NV
APPELLANT
and
AEGEAN PETROLEUM (UK) LTD
FIRST RESPONDENT
and
PAN BULK SHIPPING LIMITED
SECOND RESPONDENT
NAME OF SHIP : M.V. "PROSPEROUS"
CORAM
: CORBETT CJ, HEFER, NESTADT, OLIVIER JJA et
SCOTT AJA
HEARD
: 22 AUGUST 1995
DELIVERED
: 19 SEPTEMBER 1995
JUDGMENT
SCOTT AJA/
2
SCOTT AJA
:
This is an appeal against an order granted
in the Durban and Coast Local Division in the exercise of its admiralty
jurisdiction authorising
the attachment of bunkers on board the motor vessel
"Prosperous" at Richards Bay. The order was sought at the instance of the first
respondent, Aegean Petroleum (UK) Limited ("Aegean Petroleum") to found or
confirm the jurisdiction of the Court in an action which
Aegean Petroleum
proposed instituting against the second respondent, Pan Bulk Shipping Limited
("the charterers") of Bermuda, for
payment in respect of bunkers supplied to
another vessel which was also operated by the charterers. Aegean Petroleum is a
London
based company which carries on business inter alia as a supplier of
bunkers and other petroleum fuels. Neither the initial order
granted on 24
October, 1992, nor its confirmation on the subsequent return day was opposed by
the charterers. The confirmation of
the order was,
3
however, opposed by the appellant, Cobam NV ("Cobam"), a company
of
Antwerp, Belgium, which intervened for this purpose. It contended
that although the bunkers on board the "Prosperous" had been acquired
by the
charterers during the subsistence of the charter, the contract of charter had
been terminated prior to 24 October, 1992, and
that by this time the ownership
in the bunkers had passed to it as disponent owner of the vessel. Cobam's
opposition was unsuccessful,
as was its subsequent application for leave to
appeal. The judgment of Levinsohn J confirming the attachment has since been
reported
(see
The MV Prosperous: Aegean Petroleum (UK) Ltd v Pan Bulk
Shipping Ltd (Cobam NV Intervening
);
Cobam NV v Pacific Northern Oil
Corporation and Others
1995 (3) SA 595
(D)). Cobam now appeals with leave
granted pursuant to a petition to the Chief Justice. The sole question in issue,
as in the Court
below, is whether at the time of their attachment, the bunkers
were the property of the charterers or
4
the property of Cobam.
Before referring to the various
contentions advanced by counsel it is necessary to set out briefly the principal
events preceding
the attachment of the vessel's bunkers which was effected on 24
October, 1992.
It is common cause that on 5 March, 1990, Cobam,
as
disponent owner, let the "Prosperous" to
the charterers for a period of about
3 years under a time charter in the New York Produce Exchange
(NYPE)
form with various additions and alterations ("the charter-party").
There
were also two sub-charters but these play no role in the dispute and may
be
ignored. The relevant provisions of the charter-party are the
following.
Clause 2 provides:
"That whilst on hire the Charterers shall provide and pay for all the
fuel except as otherwise agreed ...."
Clause 3 was deleted and replaced by clause 32 which reads:
5
"
Bunker Price and Quantity
32. Vessel to be delivered with about 400/800 metric tons IFO and about
30/60 metric tons MDO. Vessel to be redelivered with about
the same quantities
as actually on delivery.
Bunkers price on delivery/redelivery to be as per mean Platts price on day
of delivery respectively redelivery for bunkers and MDO
at port of delivery
respectively redelivery."
(The letters IFO
refer to intermediate fuel oil and the letters MDO to medium diesel
oil).
Clause 4 deals with the payment of hire and the redelivery of the
vessel.
It reads:
"4. That the Charterers shall pay for the use and hire of the said Vessel
at the rate of - see clause 80 -, commencing on and from
the day of her
delivery, as aforesaid, and at and after the same rate for any part of a month;
hire to continue until the hour of
the day of her re-delivery in like good order
and condition, ordinary wear and tear excepted, to the Owners (unless lost) on
dropping
last outward seapilot safe port in Charterer's option Skaw/Cape
Passero, including United Kingdom or passing either point westbound
or in
Charterer's option Singapore/Japan range including Taiwan, People's
6
Republic of China, Philippines, South Korea, unless otherwise mutually
agreed. Charterers are to give Owners not less than 30/15/7
days notice of
vessel's expected date of re-delivery, and probable
port."
Clause 5 contains further provisions
dealing with the payment of hire. Of
relevance is the provision that
".... failing the punctual and regular payment of the hire, or bank
guarantee, or on any breach of this Charter Party, the Owners
shall be at
liberty to withdraw the vessel from the service of the Charterers, without
prejudice to any claim they (the Owners) may
otherwise have on the
Charterers".
Clause 17 makes provision for arbitration
in London and it was common
cause that the proper law of the charter-party is English law.
The hire payments falling due on 29 September, 1992, and
14
October, 1992, respectively, were not paid by the charterers. On
15
October, 1992, Cobam was advised by the charterers that they had
decided
that they were no longer able to trade and that they would go
into
liquidation. The following day, that is to say, 16 October, 1992, a
telex
7
was sent to the charterers by Cobam in which the latter exercised its
right
under clause 5 of the charter-party to withdraw the vessel
from the service
of the charterers. The ultimate paragraph of the
telex dealt specifically with
the question of the bunkers on board.
It reads:
"We acknowledge that under the charterparty you have the property of the
bunkers presently on board the vessel. However in view of
the above we will take
over those bunkers and the property in them shall vest in us against our
crediting you with their value. Such
credit will be set against the sums now
owing to us. We will advise you of the balance due to us in due
course."
At the time, the vessel was in
ballast off the West-African
coast (but not within the territorial waters of any country) and en
route
from Spain to Richards Bay pursuant to the charterers' instructions.
During
the subsistence of the charter the Master and crew acted as the servants
of
Cobam but subject, of course, to the charterers' instructions. Following
the
withdrawal of the vessel, Cobam elected to have the vessel proceed
to
Richards Bay to take on a cargo of coal for its own benefit and
presumably
8
instructed the Master accordingly. On 23 October, 1992, Cobam addressed a
further telex to the charterers setting out the balance
owing to Cobam after
crediting the charterers with the bunkers on board as at noon on 16 October,
1992. The following day and after
the vessel had arrived at Richards Bay, her
bunkers were attached as previously mentioned.
Mr Mamewick
, who appeared for Cobam both in this Court and in the
Court below, advanced three grounds in support of his contention that the
property
in the bunkers had passed to Cobam prior to the attachment on 24
October 1992. They were: first, that the transfer and accounting
provisions
contained in clause 32 were applicable not only upon redelivery of the vessel at
the termination of the charter-party
by effluxion of time but also in a case
such as the present, where redelivery occurs at an earlier stage by reason of a
breach of
the charter-party; second, that if the property in the bunkers did not
vest in Cobam by virtue
9
of the express provisions of clause 32 then they did so in terms of an
implied term which had a similar effect; and third, in the
event of neither of
the above being correct, that the conduct of Cobam and the charterers prior to
the attachment was such as to
give rise to a tacit agreement between them for
the sale of the bunkers. The argument assumed that in terms of the English Sale
of
Goods Act of 1979 the property in the bunkers in the case of grounds one and
two would pass to Cobam upon termination of the charter-party
and in the case of
ground three, upon conclusion of the so-called tacit sale.
Grounds one and two were the same as, or similar to, contentions advanced
unsuccessfully in the House of Lords in the case of
The Span Terza
[1984]
1 Lloyd's Law Rep. 119 where the charter-party was similarly in the NYPE form,
and much of the argument in the present case
was directed at either
distinguishing
The Span Terza
or showing that it was
10
in point. Before dealing with
Mr Marnewick
's various submissions,
it is convenient, therefore, to set out, as briefly as the circumstances permit,
the facts of
The Span Terza
and the conclusions that were
reached.
The question in issue was whether the bunkers on board the vessel vested
in the mortgagees (who stood in the shoes of the shipowners)
or the charterers.
The vessel was arrested in the port of Liverpool, which fortuitously happened to
be within the redelivery range,
and was ordered to be sold. Before she was sold
together with the bunkers on board, the charterers gave the shipowners notice
cancelling
the charter-party by reason of the vessel having remained off hire
continuously for longer than 25 days. In the Admiralty Court,
(see [1982] 2
Lloyd's Rep. 72) Mr Justice Sheen found that the property in the bunkers vested
in the owners by virtue of the express
provisions of clause 3 of the
charter-party. Clause 3 (being the equivalent of clause 32 in the present case)
read:
11
"3. That the Charterers, at the port of delivery, and the owners, at the
port of redelivery, shall take over and pay for all fuel
remaining on board the
vessel, the vessel to be delivered with not less than 125 tons and not more than
175 tons IFO plus 30 tons
min/50 tons max DO and to be redelivered with not less
than 350 and not more than 400 tons IFO and 50 tons min/70 tons max DO. Prices:
current price at port of delivery, on redelivery same prices for the quantity as
on delivery market price for
balance."
Clause 4, as in the
charter-party in the present case, dealt with
the payment of hire and the redelivery of the vessel. The redelivery was
to
take place,
" ... (unless lost) at dropping outward seapilot one port Gib./Skaw range
including UK. ... Charterers are to give owners not less
than 20 days
approximate notice of vessels expected date and range of redelivery 7 days
notice of expected port, and 4 days notice
of final
port."
On appeal both to the Court of Appeal (see [1983]
1 Lloyd's Rep. 441) and
to the House of Lords the construction placed on clause 3 by Sheen J
was
found to be incorrect. Lord Diplock approved the reasoning of Lord
Justice
12
Kerr in the Court below that clause 3 dealt with what was to happen to
the bunkers aboard the vessel at the time of the redelivery
contemplated in
clause 4, that is to say, on the termination of the charter-party by effluxion
of time and not on termination by
a valid notice of cancellation. He observed
that the provisions of clause 3 dealing with the quantities of bunkers that were
to be
on board upon redelivery were inconsistent with a construction that the
clause was to apply in the case of a prior cancellation as
in such an event the
quantity of bunkers on board when the right to cancel arose "would be a matter
of chance and would be unlikely
to be within the low limits for which clause 3
provides".
The Court of Appeal, after disagreeing with the reasoning of Sheen J as
mentioned above, nonetheless, concluded that on cancellation
of the
charter-party, the property in the bunkers vested in the owners by virtue of an
implied term having an effect similar to clause
3. This, of course,
13
is the second ground advanced on behalf of Cobam in the present case. On
appeal, however, the House of Lords found that there was
no need on the facts of
the case for the implication of any additional term. Lord Diplock observed that
while the owners' right to
use and consume the bunkers in terms of the
charter-party terminated upon its cancellation, they, nonetheless, remained
bailees of
the charterers and, as the vessel was within the redelivery range at
the moment of cancellation, no problems arose that called for
the implication of
any terms as to the right of the owners to continue to use the fuel on board. It
was accordingly held that the
property in the bunkers remained vested in the
charterers.
The charter-party in the present case and in
The Span Terza
refer
to the "delivery" and "redelivery" of the vessel. A brief explanation is
required. In the case of a time charter, unlike a demise
charter, there is, of
course, no delivery or redelivery of the vessel in the physical sense.
The
14
vessel remains in the possession of the owners throughout the period of
the charter and, generally speaking, the term "delivery" is
used to signify no
more than the stage at which the vessel, together with the master and crew, are
placed at the disposal of the
charterers, and the term "redelivery", the stage
at which the master ceases to be under the charterers' orders. (See
Italian
State Railways v Mavrosordatos and Another
[1919] 2 K B 305
CA at
311-312.)
In support of his first ground,
Mr Marnewick
pointed out that the
facts in
The Span Terza
were distinguishable in that clauses 3 and 4 of
the charter-party in that case contemplated a redelivery taking place only in
port,
whereas it is clear from the provisions of clause 4 of the charter-party
in the present case that there could be a redelivery at
sea (see the phrase, "or
passing either point westbound" in clause 4). He submitted that as it was
contemplated that a redelivery
could take place at sea, it
15
necessarily followed that the reference in clause 32 to the port of
redelivery had to be construed as a reference to the nearest port
where fuel was
available. He submitted, further, that having regard to the true meaning of
"redelivery" in the context of a time
charter, as discussed above, there could
be no justification for limiting the meaning of that term in clause 32 to the
redelivery
which occurred upon termination of the charter-party by effluxion of
time. He submitted, accordingly, that on 16 October 1992 when
Cobam withdrew the
ship from the service of the charterers, there had in effect been a sale and
take-over of the bunkers in terms
of clause 32.
The argument, I think, is unsound. The mere fact that in the present case
there may be a redelivery at sea in terms of clause 4 of
the charter-party does
not preclude clause 32 from being read together with the latter half of clause 4
so that the redelivery referred
to in clause 32 is to be construed as a
reference to the redelivery upon termination of the charter-
16
party by effluxion of time. If for no other reason, this is
clear, I think,
from the limited quantities of bunkers referred to
in clause 32. Reference
has previously been made to the remarks of
Lord Diplock in
The Span
Terza
as to the significance
of these limited quantities and the unlikelihood
of the bunkers
being within the low limits specified when the right to
cancel
arose. The right of charterers to be able to reduce the bunkers to
the
limited quantities specified before redelivery is one which
cannot simply be
ignored. This is well illustrated in the case of
The Eurostar
[1993] 1
Lloyd's Rep. 106 (QB (Adm Ct)) in which
it was held that the shipowners
on the termination of the
charter-party by effluxion of time were not
entitled to acquire the
property in the bunkers on board in terms of a clause
similar to
clause 32 because the charterers, by reason of the vessel
having
been off hire for several months, "had been deprived of the
right to plan the
use of the ship so that the amount of fuel
remaining in the bunkers on
17
redelivery would be an amount which they regarded as appropriate" (per
Sheen J at 110).
It is perhaps worthy of note that in the present case there appears to
have been 1399,5 metric tons of intermediate fuel oil (IFO)
on board the
"Prosperous" when she was withdrawn from the service of the charterers; in other
words an amount significantly in excess
of the maximum quantity referred to in
clause 32.
The reasoning of Lord Diplock in
The Span Terza
with regard to the
limited quantities of bunkers specified in clause 3 is, in my view, equally
applicable in the present case. There
are certain differences in the wording of
the relevant clauses but these differences, including the fact that in the
present case
redelivery could take place at sea, are not such as to render the
decision of the House of Lords distinguishable. It follows that
Mr
Marnewick
's first ground must fail.
18
I turn now to the second question in issue, ie whether an implied term is
to be imported into the charter-party having effect similar
to clause 32 but
applying to a termination other than by effluxion of time. There are undoubtedly
important distinctions of fact
between the present case and
The Span
Terza
in so far as this question is concerned. In the latter case, the
cancellation took place while the vessel was in port and after she
had been
arrested at the instance of other creditors. Eventually, both the vessel and the
bunkers on board were sold and there was
no question of the vessel having to
make for port after the cancellation or the owners being in a position to give
directions for
the vessel to proceed on her voyage. A further distinction, of
course, is that in
The Span Terza
the cancellation had been effected at
the instance, not of the owners but of the charterers and at a time when the
vessel was under
arrest.
Mr Marnewick
emphasised the need for the vessel
to continue using the bunkers after the
19
cancellation of the charter-party at sea and the problems that could
arise if
the owners were required to have the charterers' bunkers
pumped out of the
vessel after reaching port. In this regard he
placed much store on the
following dictum of Lord Diplock in
The Span Terza
at
122,
"My Lords, it may well be that there will be cases where cancellation takes
effect elsewhere than in a port and in circumstances in
which it will be
necessary to imply some terms as to what are to be (the) rights and liabilities
of shipowners and charterers in
respect of the bunkers and their consumption
after cancellation of the charter;"
and submitted that
in all the circumstances an appropriate term had to be
implied in order to give efficacy to the charter-party.
The law in England relating to implied terms is to be found
in
such well known cases as
The Moorcock
(1889) 14 PD 64
(CA) at
68;
Reigate v Union Manufacturing Co (Ramsbottom) Ltd and Another
[1918]
1 KB 592
at 605;
Comptoir Commercial Anversois v Power. Son
and
Company
[1920] 1 KB 868
at 899;
Shirlaw v Southern Foundries
(1926)
20
Ltd
[1939] 2 KB 206
at 227;
Romford Ice & Cold Storage
Company Ltd v Lister
[1956] 2 Lloyd's Rep. 505 (HL) at 515, and more
recently,
Ashmore & Others v Corporation of Lloyd's
(No 2) [1992] 2
Lloyd's Rep. 620 (QB) at 626 - 631, being a case to which both counsel referred
in their heads of argument. It is
unnecessary to consider these cases in any
detail. The earlier cases, in particular, have been quoted both in England and
South Africa
time without measure. What is perhaps worthy of mention is that in
England a distinction has sometimes been drawn between what have
been called
"implications of fact" on the one hand, which are based on the presumed joint
intention of the parties, and terms "implied
by law" on the other. See
Ashmore & Others v Corporation of Lloyds
(No 2), supra, at 626. The
distinction corresponds to the one which is drawn in South Africa between
"tacit" and "implied" terms.
(Cf
Alfred McAlpine& Son (Pty) Ltd v
Transvaal Provincial Administration
1974 (3) SA 506
(A) at 532C -
21
533C). The term which Cobam seeks to import into the charter-party in the
present case falls into the former category, that is to
say, what in South
Africa would be called a "tacit" term. The test to be applied for the
implication of such a term has been formulated
in various ways, but the
principles relevant in the context of a contract such as a charter-party, which
emerge from the cases can,
I think, conveniently be summed up as follows: (i) it
is not sufficient to show that the term sought to be introduced would be
reasonable,
as it is not for the court to make a contract for the parties; (ii)
the implication must be made as a matter of necessity and be
founded on the
presumed intention of the parties; and (iii) the term must be obvious and
capable of precise formulation.
At first blush there may seem something to be said for the implication of
a term along the lines contended for by Cobam. But upon
reflection, I am
unpersuaded that such a term can properly be regarded as
22
necessary in the sense referred to above. There are also other problems
associated with its implication, both as to content and formulation.
Mr
Wallis
, who appeared for Aegean Petroleum, pointed out that the effect of
the term sought to be implied would be that in the event of a
breach by a
charterer who was insolvent, such as would seem to be the situation in the
present case, the charterer's creditors would
immediately be deprived of the
right to participate in certain of the charterer's assets, ie the bunkers. In
short, where the charterer
was indebted to the shipowner for, say, nonpayment of
hire and as in the present case it was sought to set off the cost of the bunkers
against the outstanding hire, the consequence of the implication could be to
confer on the shipowner what in effect would be a preference,
to the detriment
of other creditors. Needless to say, a term having such a consequence will not
readily be implied.
If an attempt is made to formulate the implied term so as
to
23
include the case of a cancellation by the charterers, as well as by the
owners, the matter becomes even more complex. Should the charterers
then cancel
the charter-party after the vessel had been arrested or at a time when she was
about to be arrested and the claims of
creditors exceeded the value of the
vessel, the effect of the term sought to be introduced would be that the
property in the bunkers
would immediately pass from the charterers to the
shipowners leaving the charterers with a claim for payment in respect of the
bunkers
which may possibly be wholly unsecured. Such a term could hardly be
consistent with the presumed intention of the charterers and
Mr Marnewick
found himself obliged to concede that the term which he sought to introduce
would have to be one-sided in the sense of dealing only
with the situation where
the cancellation was at the instance of the shipowner and not where it was at
the instance of either party.
It is, of course, so that in terms of s 8 of the
English Sale of Goods Act of 1979 the
24
question of the price of goods may be left over for later determination
on
the basis of what is reasonable in the circumstances. This
resolves any
difficulty that may otherwise have arisen in relation
to the price. But it
does not resolve the difficulty of formulation
associated with an attempt to
ascribe to the parties an intention which may well be dependent on
such
unknown factors as when or where or under what circumstances the
cancellation takes place or the quantity of bunkers on board.
In the course of the hearing in the Court below counsel
for
Cobam suggested the following formulation of the term which he
submitted
had to be implied:
"In the event of the charter-party terminating in consequence of a breach
or a repudiation by the charterer while the vessel is on
the high seas, the
ownership in the bunkers on board the vessel shall
ipso facto
be deemed
to have passed from the charterer to the owner subject, however, to the owner
being under an obligation to pay to the charterer
the price of the bunkers on
board."
25
In this Court
Mr Marnewick
found it necessary to revise this
formulation on more than one occasion in an endeavour to meet some of the
difficulties with it
that were raised in argument. It is unnecessary to consider
these further formulations or all the problems associated with them.
A typical
example that comes to mind is the question whether it can be said to have been
the presumed intention of the parties, and
in particular that of the shipowners,
that the latter would pay for the bunkers necessary for the vessel to reach port
regardless
of where on the high seas the vessel may be at the time of the
cancellation of the charter-party.
The main thrust of
Mr Marnewick
's argument, however, was that
considerations of practicality and necessity were such that an implied term
having the effect of clause
32 had to be imported into the contract and the
problems referred to above overcome. He stressed, in particular, that in the
absence
of an implied term the vessel would have been left stranded
26
at sea. This argument, I think, overlooks the real issue in the present
case. There can be no doubt that following the withdrawal
of the vessel from the
service of the charterers, Cobam was entitled to use the charterers' bunkers on
board the vessel to proceed
to the nearest safe port, or, perhaps, even to some
other more convenient port. But it is unnecessary to have to determine the
precise
nature of this right. Nor is there any need to consider whether Cobam is
obliged to compensate the charterers for the bunkers used
and, if so, to what
extent. Considerations relating to expenditure necessarily incurred in
consequence of the breach may well be
relevant. But the bunkers used by Cobam in
proceeding to Richards Bay are not in issue. What is in issue is the ownership
of the
bunkers still on board the vessel upon her arrival at the port of
Richards Bay. These were the only bunkers that were attached. To
this extent,
therefore, the circumstances relating to the bunkers in issue in the present
case are little different from
27
those relating to the bunkers forming the subject matter of the dispute
in
The Span Terza
. In that case the port in question fortuitously
happened to be within the delivery range. But this distinction is of little
consequence
in so far as the implication of the term in question is
concerned.
Applying the ordinary principles referred to above, I am unpersuaded that
there is any proper basis for the implication of a term
relating to the purchase
of the bunkers that were subsequently attached. The earlier termination of the
charter-party in consequence
of a breach would not have been beyond the
contemplation of the parties to the contract. Had they wished to provide for
such a contingency
in so far as the bunkers in question are concerned, they no
doubt could have done so. (Cf
The Saetta
[1993] 2 Lloyd's Rep. 268 [QB
(Adm Ct) at 270.) But having not done so, perhaps deliberately, I can see no
basis for importing such
a term into their contract. Quite apart from any other
consideration,
28
the implication cannot be justified on the ground of necessity.
Mr
Marnewick
submitted that in the absence of an implied term a shipowner may
find himself having to pump the charterers' bunkers out of his vessel.
Such a
possibility seems to me to be remote. Where the vessel is in a position to
continue with her voyage or otherwise put to sea
the shipowner would ordinarily
purchase the bunkers on board, but from whom and at what stage would depend in
each case upon the
circumstances. One possibility, again depending upon the
circumstances, would be for the parties to enter into an agreement of sale
after
the termination of the charter-party. Indeed, Cobam contends in the alternative
that this is what happened in the present case,
albeit that the agreement was
tacit.
It follows that in my view the second ground advanced by
Mr
Marnewick
must similarly fail.
I turn to the final question in issue and that is, as I
have just
29
mentioned, whether a tacit agreement of sale was concluded between Cobam
and the charterers subsequent to the termination of the charter-party
resulting
in the transfer of the property in the bunkers to Cobam. In arguing this point
counsel on both sides proceeded on the basis
that the law to be applied was
English law. I shall assume this to be the case.
The argument advanced by counsel for Cobam amounted in essence to a
contention that the charterers' apparent failure to respond to
Cobam's telexes
of 16 and 23rd October 1992 referred to above, constituted, in all
circumstances, an acceptance by silence of the
terms proposed in those telexes.
In English law, as in our law, acceptance of an offer will not normally be
inferred from silence,
save in the most exceptional circumstances (see
Chitty
on Contracts
vol 1 ed 26 at para 81). There is a further difficulty with the
argument. The papers are silent on the question as to whether or
not there was
any response from the charterers
30
after 23 October 1992. Counsel for Cobam accordingly, found himself
obliged to contend that on the probabilities there was no response.
In my view
there is insufficient evidence on the papers to establish an acceptance by the
charterers prior to the attachment on 24
October 1992. It follows that the third
ground relied upon by the Cobam must also fail. In the result the appeal is
dismissed with
costs.
D G SCOTT
CORBETT CJ)
HEFER JA) - Concur
NESTADT JA)
OLIVIER JA)