RE: Notice of bar and application to set aside an arrest

Aug 21, 2003
Author: Adams & Adams attorneys

ADAMS & ADAMS

Durban office Tel. +27 31 566 1259. Fax +27 31 566 1267



On 12 August 2003 the High Court of South Africa, Durban and Coast Local Division, handed down judgment refusing to set aside a notice of bar.

FACTS: In March 2003 the Ukrainian ship mv "Sumy" was arrested in Durban, as an alleged associated ship of 3 other "guilty" ships, by a bunker supplier for unpaid bunker deliveries.

In June 2003 the bunker supplier served its particulars of claim on the party defending the matter (a charterer) (the defendant). The defendant did not file its plea within the required time. The bunker supplier then served a notice of bar requiring the defendant to file its plea within 5 days.

The defendant had been threatening to apply to court to set aside the arrest of the ship on the basis that it was not associated with the 3 "guilty" ships. However, they needed more time to prepare such an application due to translation problems and the like. The defendant was concerned that filing its plea would be regarded as a waiver of its right to later apply to set aside the arrest.

With one day left before being barred the defendant urgently applied to court for an order that the notice of bar be set aside and that the defendant be given 2 months within which to launch its application to set the arrest aside. The opposed application was argued on an urgent basis a few days later.

HELD: The court found in favour of the bunker supplier and dismissed the defendant's application with costs. The notice of bar was not lifted and the defendant was required to file its plea within 24 hours.

The court held that it had a discretion whether to grant the defendant the relief sought. In exercising its discretion the court weighed up the interests of the parties. The court found that the prejudice to the bunker supplier should the application be granted heavily outweighed any prejudice to the defendant. An application to set aside would probably be opposed and that process would excessively delay the trial on the merits.

The court mentioned in passing on the issue of waiver that to waive a right one must prove that the party decided to abandon a right with full knowledge of the right and did so either expressly or by conduct plainly inconsistent with an intention to enforce it.

COMMENT

The importance of this decision is that a defendant can be compelled to file its plea within the time limits (10 court days) notwithstanding the fact that it intends to launch an application to set aside the arrest in rem. When doing so, the defendant must make it quite clear that it is not waiving its right to apply to set aside the arrest. At worst for the defendant it will have to contest the association at the trial if it is not possible to bring the application before then. The presiding
Judge expressed the view that it would be preferable to have this type of issue determined at a trial as opposed to on affidavit.