Associated ship arrested to provide additional security – onus on applicant to prove reasonable and genuine need on a balance of probabilities
The facts
Bocimar NV, a Belgian corporation, concluded a contract with the International Colombia Resources Corporation of Colombia, a seller and shipper of coal, in terms of which Bocimar undertook to carry a cargo of between 60 000 and 64 000 metric tons of coal from Puerto Bolivar, Colombia, to Rotterdam in the Netherlands.
Bocimar chartered the Crna Gora to perform the contract of carriage.
She was owned and controlled by Zeta Ocean Shipping Ltd which was owned by Boka Ocean Shipping Corporation. Boka also owned Kotor which owned the MV Kordun.
The vessel was refused entry to the port of Rotterdam by reason of economic sanctions imposed by the Security Council of the United Nations Organization in respect of the Federal Republic of Yugoslavia (Serbia and Montenegro) and reinforced by a resolution of the European Community.
Application was made on behalf of Bocimar and Enerco BV of Holland, one of the consignees of the cargo of coal, to the District Court of Rotterdam for an order directing the State of the Netherlands to permit the Crna Gora to enter the port of Rotterdam and to discharge her cargo. The Court refused to grant the order sought.
The Dutch authorities were eventually persuaded that if the cargo was not discharged there was a serious danger that the coal would ignite spontaneously and cause damage to the vessel, ships in the vicinity and harbour installations. Later, on the application of Zeta the President of the District Court in Rotterdam ordered the release of the cargo.
Intercor held Bocimar responsible for losses caused by the delay. Bocimar, in turn sought an indemnity from Zeta.
Bocimar arrested the Crna Gora in Rotterdam in order to secure its claim against Zeta. At the same time arrests of the vessel were also effected by three banks, mortgagees of the vessel, in order to secure their interest in the vessel.
In addition, Bocimar made application ex parte to the Cape of Good Hope Provincial Division, exercising its Admiralty Jurisdiction in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983, for an order under s 5(3) of the Act for the arrest of the MV Kordun, then at berth in the port of Saldanha Bay, for the purpose of providing further security for Bocimar’s claim.
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