Reportable
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN) 
(exercising its Admiralty Jurisdiction in terms of Act 105 of 1983)

Case No: AC40/10

In the matter between:

and

THE DEMISE CHARTERERS OF

GRIESEL J:

Factual background
[3] At the time the order was granted, the vessel - a bulk carrier -was berthed at the Langebaan Iron Ore Terminal in the port of Saldanha Bay. The vessel berthed and commenced loading a cargo of Sishen iron ore on 29 October 2009. The loading operation was completed on 31 October 2009, when it was noticed that the vessel had taken on a port list and her draught/trim had changed by approximately 50cm by the head. Subsequent investigations revealed that the vessel's hull had pre-existing damage and that there had been ingress of water into one of the ballast tanks, caused by a fracture in the hull. As a result of the damage and the fracture, the vessel could not safely depart from the terminal as the damage rendered her unseaworthy. In the result, the cargo had to be discharged to other smaller vessels, which entailed a difficult and time consuming operation. The vessel ultimately only left the berth and sailed from Saldanha Bay on 27 March 2010, ie some five months later.

[7] Copies of the attachment order were duly served by the sheriff, as directed by the order. Thereafter, on 27 March, the respondent's Protection & Indemnity Club furnished Transnet with security for its claim in the form of a letter of undertaking. The vessel was thereupon released from attachment and sailed from the port of Saldanha Bay on the same day, as mentioned earlier.

Abuse of court process

'Property shall not be arrested and security therefor shall not be given more than once in respect of the same maritime claim by the same claimant.'

'If the "belt and braces" approach of bringing both actions together is used, however, clearly only one lodgement of security would be required and this should be at the higher limit, ie the full value of the claim."

'It seems to me that it is clear that there should not be more than one attachment in respect of the same maritime claim which would result in an arrest and the provision of extra security.'

Consent or submission to jurisdiction
[21] Even if I were to err in coming to the aforesaid conclusion, there is, in my view, a further reason why the attachment should be set aside. It has been submitted that prior to the attachment the respondent had consented or submitted to the jurisdiction of this court, as contemplated by s 3(2)(c) of the Act. If this is indeed so, then it would follow that the respondent was already amenable to this court's jurisdiction when the attachment order was issued, with the result that the attachment order issued in these proceedings was neither necessary nor permissible.

[23] There was no dispute between the parties regarding these legal principles. What was hotly contested, however, was the application of these principles to the facts of this case. In this regard, the respondent relied primarily on the terms of a letter of undertaking ('the LOU') issued on behalf of the respondent by the American Steamship Owners Mutual Protection and Indemnity Association Inc ('the American Club') during March 2010.

"Nothing contained in this order should be construed so as to derogate from the rights of any party to these proceedings to advance any claim against any one or more of the other parties, arising from or related to the continued and past presence of the vessel at the berth and/or within the port limits, including but not limited to any right to obtain and/or apply to increase any security already obtained for a claim advanced or to be advanced against any party and/or any right to arrest and/or attach any property of any such party/ies."

[26] These provisions are relied on by the respondent as constituting an express submission and consent to the jurisdiction of this court.

Applicant's argument

"... and further to agree that all possible wreck removal and/or pollution abatement or pollution clean-up costs of each party against the other, including the Claims, and any and all disputes between the parties arising from the Claims, and/or this undertaking shall be exclusively determined by the Court.'

[30] It was further pointed out that the final signed LOU was never actually furnished to the applicant, with the result that no submission to the jurisdiction of the court pursuant to the LOU could have taken place in terms thereof. Moreover, in terms of clause 3 of the LOU, the undertaking would be of force and have effect only so long as the vessel remained at her present position alongside the berth:

"Should the vessel for whatever reason be moved from her present position this undertaking shall lapse and shall be null and void, save in circumstances where the vessel is required to be moved off the berth in an emergency.'
As the vessel had eventually safely departed from the terminal without being wrecked or causing any pollution, the LOU (if it ever came into existence) lapsed, according to the applicant.

Discussion

[33] The argument based on the fact that the signed LOU was never physically delivered to the applicant is neither here nor there. Delivery of the instrument containing the submission to jurisdiction is not a prerequisite for its validity.

[34] As for the argument that the letter of undertaking (in clause 3 thereof) contained within itself the seed of its own destruction, the short answer is that, once a litigant has submitted to the jurisdiction of the court, its submission remains in place and cannot later be withdrawn.

[38] For the reasons stated above, it follows that the attachment falls to be set aside. In the light of this conclusion, it is not necessary to consider any of the other defences raised on behalf of the respondent.

Order

[39]    In the result, the following order is issued:

The attachment order granted by this court on 23 March 2010 under the above case number is set aside with costs, including the costs of two counsel.

							Judge of the High Court

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN) 
(exercising its Admiralty Jurisdiction in terms of Act 105 of 1983)

Case No: AC40/10

In the matter between:

and