Page 39 - Insurance Times April 2024

attachment was impermissible because, prior to the grant to oral evidence are a rarity in South African arrest
of the order, or at least prior to the vessel being attached applications and it is significant that in the first round of the
pursuant to that order, the owner had submitted to the hearing the judge found that Kumba's version "could not be
court’s jurisdiction and such submission precluded an described as fanciful or untenable and in fact had persuasive
attachment. It advanced this second contention on three value".
bases.
First it said that there had been an express submission As often happens with bunker arrests, the case turned on
in a letter of undertaking (‘LOU’) relating to potential whether Kumba could prove that Prima owned the bunkers
pollution and wreck claims drafted and agreed between on the strength of the underlying charter arrangements
the owner’s P & I club, Transnet, the South African among the parties in the contractual chain. If not, the arrest
Maritime Safety Association and the Department of would fall to be set aside. Prima was described in the sub-
Environmental Affairs, but never implemented because charterparty as the disponent owner and, taking this to
the need for it fell away. mean that Prima had the ship on demise or time charter,
Second it relied on its having entered appearance to Kumba arrested her bunkers in Saldanha Bay on the grounds
that ownership vested in Prima. The crux of Prima's defence
defend the in rem actions and the procedural steps it
was that it had on the contrary, chartered the ship on a
had taken pursuant thereto.
voyage basis and that the bunkers had been stemmed by
Third it contended that, while the sheriff served the the managers (Polembros) on behalf of Pompey Shipping.
attachment order, he did not attach the vessel, and
there was a clear submission to the jurisdiction The judge observed that the categorisation of the type of
immediately the owner learned of the existence of the charter party between Prima and Pompey was critical to
order. Kumba's case, since the ownership of the bunkers would
generally follow from that categorisation. Against this
The judgment of the Honourable Mr Justice Wallis was background, both parties produced oral evidence before
handed down in the matter of Transnet Ltd versus The Judge Gamble. In Prima's case, the judge took a dim view
Owner of the Alina II on 15 September 2011. On September of testimony given on its behalf by Polembros' in-house
2011, the Supreme Court of Appeal in South Africa delivered counsel and its operations manager. While the witnesses
a judgment in the case of Transnet Ltd v The Owner of the sought to justify the unusual voyage charter arrangements
MV Alina II. This case raised an important question of on the grounds that they had been concluded on a back-to-
admiralty law and practice. The Supreme Court of Appeal back basis for tax purposes, it became apparent during cross-
held that the attachment of the vessel to found and confirm examination that the document presented to the court as
jurisdiction in separate proceedings against the owner was evidence of the Pompey/Prima charter had been created
permissible. The owner’s defense in the in rem action and signed in Polembros' offices only after Kumba's lawyers
unequivocally indicated its willingness to submit to the South had asked for proof of its existence.
African court’s judgment on the issues raised by Transnet.
The appeal was dismissed, and the attachment of the vessel It was conceded in oral testimony that there had never been
was upheld. a contemporaneous written fixture, and that the document
tendered on the affidavit had in fact been backdated and
The vessel's charterer, Prima Shipping Company Limited, was simply a 'cut and paste' from the Kumba charter.
brought an application in the Western Cape High Court to Highlighting the stark contrast between allegations
set aside an arrest of bunkers aboard the vessel in South advanced on paper and oral evidence given in court, the
Africa as security for contemplated London arbitration judge stated:
proceedings by Kumba Shipping Hong Kong Limited, a
subsidiary of Anglo-American plc (one of the world's largest "I consider Mr. Gare's evidence [in-house counsel for
mining companies). Applications of this nature are usually Polembros], firstly, in light of his demeanour in the witness
decided on the basis of affidavits filed by both parties, box. I found him to be a smug witness who was most
followed by argument. It is noteworthy in that the initial economical in the use of language. My overall impression
hearing on the papers led to a referral of the matter to oral was that, as a seasoned maritime lawyer, he was pointedly
evidence in order to determine whether there was sufficient cautious with his answers, so much so that I have to agree
evidence to demonstrate that the arrestor was entitled, on with Mr. Gordon SC's complaint in argument that Mr. Gare
a balance of probabilities, to maintain the arrest. Referrals was singularly lacking in candour.”

36 April 2024 The Insurance Times