Transnet Ltd v The Owner of the mv "Alina II" - High Court of South Africa (Western Cape High Court, Cape Town)(Griesel J) - 20 October 2010

(2011) 819 LMLN 3

Admiralty practice - Claimant port operator alleging that vessel's unseaworthiness caused delays and resulted in claimant losing business - Claimant bringing in rem proceedings and arresting vessel - Claimant subsequently wishing to bring in personam proceedings based on same causes of action - Claimant arresting vessel to confirm or found jurisdiction for in personam proceedings - Whether arrest an abuse of process -Whether arrest should be set aside

In October 2009 the Alina II 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. The loading operation was completed on 31 October when it was noticed that the vessel had taken on a port list and her draught/trim had changed by 50cm by the head. Subsequent investigations revealed that her hull had pre-existing damage and that there had been an 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. The vessel ultimately only left the berth and sailed from Saldanha Bay on 27 March 2010, some five months later.