Seafarer Porto Emporios Shipping has lost an appeal against a R135 billion claim, plus another R15bn claim in Indian rupees, from Indian Oil Corporation which attached the vessel New Endeavour as additional security to recoup costs of a load of cargo lost at sea between India and Kuwait in 2020.
Porto, which had had the matter dismissed with costs by the Durban High Court on Friday, had brought an appeal that the ownership of the New Endeavour could not be ascribed to it.
Another vessel – New Elly – owned by Elly Maritime SA, was also held as part of the security.
The matter dates back to August 2020 when Indian Oil chartered Porto for the carriage of 277 564 metric tons of crude oil on its vessel, the New Diamond, from Kuwait to India.
However, the ship caught fire en route, forcing the abandonment of the voyage.
Indian Oil transferred its cargo to two other vessels for onward carriage to India, though part of it was lost and Indian Oil incurred losses of about $73 million (R1.3bn), in addition to 701 361 274 Indian rupees together with interest and costs in damages.
Indian Oil is also pursuing a claim for damages against Porto by arbitration proceedings in India.
Indian Oil’s claim has been partially secured by Porto after Indian Oil flagged the arrest of the New Diamond in Panama, with the New Elly put up as additional security after it was detained in September 2021 at the Port of Richards Bay.
An urgent application to release the detained New Elly was dismissed with costs by the high court, with an appeal still pending before the Durban High Court.
Indian Oil brought an urgent ex-parte application before the high court for additional security for the arrest of the New Endeavour as an associated ship of the New Diamond, and was granted the order by Appeals Judge Mbuzeni Mathenjwa.
A subsequent application by New Endeavour for reconsideration of the order for its release was dismissed with costs by Judge Carol Sibiya in December, 2022.
Delivering judgment on Friday, Appeals Judge Yvonne Thokozile Mbatha and Acting Judge of Appeal Rishinand Seegobin were satisfied that Indian Oil had discharged the onus to establish the alleged association between the respective ship-owning companies of the New Endeavour and the New Diamond.
“The question that requires determination is whether the relevant vessels are associated with each other, and who is the controlling force behind the companies that own the vessels,” read the judgment.
Indian Oil provided information obtained from Mark Lloyd, a partner at Kennedys Law Firm in London, along with a report compiled by Gray Page, which established that at the time the maritime claim arose, the vessel was owned by Porto, and that Porto was in turn owned or controlled by New Shipping Limited, which was in turn owned or controlled by Adam Polemis on his own, alternatively Adam Polemis together with his children.
The appeals court said the appellants had failed to provide evidence to dispute Indian Oil’s ownership argument on the ownership of the vessels New Endeavour and New Diamond.
“In the absence of countervailing evidence from the owners of the shares in the ship-owning companies that will usually suffice to discharge the onus of proof on the claimant, even in the face of a bare denial of the fact of association, the single issue that falls to be determined in this appeal is whether Indian Oil discharged the onus of establishing on the balance of probabilities, the alleged association between the respective ship-owning companies of the New Endeavour and the New Diamond in circumstances where, rather than alleging a single source of control, Indian Oil asserted alternative sources of control,” the court said.
“There was no dispute that Indian Oil had established the other requirements for an arrest.”
The court dismissed the appeal with costs, with such costs to include the costs consequent upon the employment of two counsel, the judges said.
BUSINESS REPORT