Lloyd's Maritime and Commercial Law Quarterly
South Africa
Craig Forrest*
CASES
271. Aquarius Maritime PTE LTD v MV Agatis 1
Prima facie case for arrest ex parte—BIMCO Shipman 2009 contract
The MV Agatis, lying off Cape Town with a cargo of rice bound for the Ivory Coast, was arrested in an ex parte application pursuant to s.5(3)(a) of the Admiralty Jurisdiction Regulation Act2 at the behest of Aquarius Maritime Pte Ltd (“Aquarius”), a Singaporean company. The claim arose from a contractual dispute with the owner of the MV Agatis, Meranti Maritime PT (“Maritime”), in respect of a BIMCO Standard Ship Management Agreement (Shipman 2009) for the management of the vessel. Aquarius had a similar claim arising out of another BIMCO Shipman 2009 contract for another vessel, the Putih, owner by Maritime, as well as two other BIMCO Shipman 2009 contract claims for two vessels owned by Maritime Bahari PT, another Indonesian company. Furthermore, Aquarius had two claims against Maritime in relation to BIMCO Contract for the Employment of Security Guards on Vessels (Guardcon) contracts for the vessels Kenanga and Mahoni. In respect of the claims against these other five vessels, Aquarius relied on their being associated ships as defined in the Admiralty Jurisdiction Regulation Act, s.3(7)(a).
The negotiation and conclusion of the four BIMCO contracts were complicated by a corporate reorganisation of the ship management entity such that a new entity, Aquarius Shipping Solutions Pte Ltd (“Solutions”), was established. As Aquarius was essentially the practical management entity, it was intended to be a sub-contractual management entity to Solutions. With this reorganisation, some of the relevant BIMCO contracts were intended to replace earlier contracts. With the same person contracting for both Aquarius and Solutions, inconsistencies between the four BIMCO contracts were compounded by a misunderstanding of the BIMCO contracts themselves.
The BIMCO Shipman 2009 contract provides for the contracting parties to be the vessel owner and the vessel manager. It also provides for a possible third party, the Company, being an entity capable of ensuring that the vessel complies with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (“ISM Code”), the International Code for the Security of Ships and Port
* Professor and Director of the Marine and Shipping Law Unit, TC Beirne School of Law, University of Queensland, Australia.
1. (Case No AC14/2015) [2015] ZAWCHC 62 (SA HC (Western Cape)).
2. Act no 105 of 1983.
South Africa
201