Capewinds Trading 33 CC (respondent) entered into a contract for the carriage of four reefer containers of apples from Cape Town to Douala, Cameroon, but the cargo of apples was found damaged on arrival to the extent that it could not be sold or salvaged. The respondent claimed for damages in the amount of EUR 238,354.33.

The respondent solicited security for the claim, failing which it would proceed to arrest any of Pacific International Lines (PTE) Ltd (appellant)’s vessels (apparently MV Kota Jaya). A letter of undertaking (LOU) was furnished by the Standard Steamship Owner’s Protection and Indemnity Association (Asia) Ltd (the appellant’s P&I club), but this LOU was found to be unacceptable to the respondent and an action in personam was brought against the appellant for damages for the alleged breach of contract. The appellant did not submit to the jurisdiction of this court.

The appellant made several applications:

• A declaration that the action in personam was null and void or that the court should decline to exercise its jurisdiction or stay proceedings pending a determination by a court in Singapore;
• A declaration that the deemed arrest of the MV Kota Jaya and the LOU be set aside; and
• An order to return the original LOU to the appellant.

The respondent opposed the appellant’s application and applied for orders to join the MV Kota Bunga as a second defendant in the action and to amend the summons in the action consequent upon such joinder.

The relevant bill of lading contained a Singapore choice of law and exclusive jurisdiction clause. In terms of Singapore law, the respondent's claim would be time-barred by the one-year limit in art 3.6 of the Hague-Visby Rules.

Held: Although the respondent was entitled to institute an action in personam against the appellant, the judge declined to exercise the court's admiralty jurisdiction in the action in personam instituted by the respondent as it had not shown a strong cause why the action should proceed in Durban rather than in Singapore. There was no explanation as to why the respondent had not issued a protective writ in SIngapore before the one-year limit.

It was also clear that the appellant reserved the right to challenge the jurisdiction of the Kwa-Zulu Natal High Court to determine the action and that the appellant had neither consented nor submitted to the jurisdiction by delivering the LOU.

The judge ordered the original LOU to be returned to the appellant. Additionally, the judge declined to make orders that the appellant tender security equivalent to an LOU for potential proceedings in Singapore, for costs in this application and in the application for joinder.