Owners of the Motor Tugs “Barbara” and “Steve “B” v M/s Festival Limited & M/s Veba Oil Supply and Trading GMBH of Hamburg, Germany [2015] KEHC 6353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ADMIRALTY CAUSE NO. 2 OF 1998

CLAIMANT             :           MURRI INTERNATIONAL SALVAGE OPERATION

COMPANY LTD

THE OWNERS OF:          THE MOTOR TUGS “BARBARA” AND “STEVE B”

AND THEIR MASTERS

DEFENDANTS      :           1.        M/s FESTIVAL LIMITED

THE OWNERS OF THE MOTOR TANKER

“JOEY” AND ITS MASTER

AND

2.        M/s VEBA OIL SUPPLY AND TRADING GMBH OF HAMBURG, GERMANY THE          OWNERS OF THE CARGO LADEN ABOARD MOTOR TANKER “JOEY”

RULING

1.   Before Court is Claimant’s Notice of Motion dated 23rd March 2012.  By that application Claimant seeks the following orders-

Ø   The Judgment entered against the 2nd Defendant on the 25th October 2001 be set aside;

Ø   Judgment be entered in default of Acknowledgment of Service of Writ for the Claimant for a sum of US$ 492,500. 00 plus interest thereon at 8% above the labor rate p.a. with effect from 5th August 1998 until payment in full or alternatively in such an amount for salvage services rendered by the Claimant to be determined or assessed by this Honourable Court in respect of the Salvage claim plus interest thereon as against the 1st and 2nd Defendants jointly and severally.

BACKGROUND

2.   The 1st Defendant are owners of the motor tanker which I shall hereafter refer to as “Joey”.  The 2nd Defendant was the owner of cargo on board ‘Joey’.  On 22nd June 1998 the Claimant entered into international Towage Agreement with the Claimant for Claimant to provide Towage services to be rendered by tug “Barbara” to “Joey” and her cargo.

3.   It is Claimant’s case that 1st Defendant on 2nd July 1998 unilaterally terminated the Towhire Agreement.  The tug “Barbara” as provided under the Towhire Agreement continued to standby in the high seas after that termination.  On 9th July 1998 Claimant entered into fresh negotiation and agreed to reconnect its tow with the tug “Barbara” and “Steve B”.  “Joey” was successfully towed to Port of Mombasa but there persisted a dispute between the Claimant and the 1st Defendant on remuneration.  On 4th August 1998 the Claimant obtained a writ of Summons and Warrant of Arrest of “Joey” on 26th August 1998 claimant amended the writ of Summons to include the name of the 2nd Defendant.

4.   An order was made for release of “Joey” on 30th September 1998.

5.   1st Defendant unsuccessfully sought to set aside the writ.  1st Defendant filed an appeal against the Court’s refusal to set aside the writ.  That appeal was dismissed on 27th April 2007.

6.   1st Defendant had part paid the towage claim for the period of 23rd to 27th June 1998 for US$25,000. The balance of Claimant’s claim remained unsettled for both tugs “Barbara” and “Steve B”.

7.   In the affidavit in support of Notice of Motion the deponent stated-

Ø   I am advised by the Claimant’s Advocates on record which I verily believe that the 2nd Defendant has been served with a further Amended Writ filed in pursuance of leave granted on the 14th September 1998.  In this connection I also crave leave to refer to the Affidavit of Service sworn by the Process Server Alfred Kingi on 6th May 2011 and filed herein on 5th March 2012.

Ø   I am also advised by the Claimant’s Advocates which I verily believe that upon service of the Further Amended Writ of Summons and a copy of the Chamber Summons Application dated 7th March 2011 the 2nd Defendant’s Advocates on record filed an Acknowledgment of Service on the 19th May 2011 giving notice of the 2nd Defendant’s intention to dispute the jurisdiction of this Honourable Court.  I annex hereto a true copy of the same marked “PT 10”.

Ø   I am advised by the Claimant’s Advocates which I verily believe that after filing the said Acknowledgment of Service the 2nd Defendant has failed to file a subsequent or valid Acknowledgment of Service to date.

Ø   I am also advised by the Claimant’s Advocates which I verily believe that there is no defence to the Claimant’s claim for towage or salvage services which have been rendered to both Defendants herein and that the 1st Defendant has already admitted that towage services have been rendered and are due and payable to the Claimant and that a sum of US$ 80,000. 00 has already been paid towards the Claimant’s claim herein by the 1st Defendant after the filing of these proceedings and before the 1st Defendant had filed its defence herein.

APPLICATIONS

8.    The 2nd Defendant requested the Court, through its Learned Counsel to consider, its pending Application Notice dated 21st February 2012.  I have considered this Application and I am in agreement with Claimant’s Learned Counsel that it has been overtaken by event. It sought to set aside judgment entered against the 2nd Defendant on 25th October 2001.  It is overtaken by events because the Claimant Amended writ of Summons and Learned Counsel

for 2nd Defendant filed acknowledgment of service in that regard on 19th May 2011 as deponed above.  It follows that the three prayers sought by 2nd Defendant that is; setting aside of judgment; the striking of Claimant’s claim; and for extension to file defence, are not available to the 2nd Defendant.  Accordingly the Application Notice dated 21st February 2012 is dismissed with no orders as to costs.

CONCLUSION

9.   In the end I grant the following orders-

(a)Judgment entered against 2nd Defendant on 25th October 2001 is hereby set aside.

(b)Judgment is hereby entered against the 2nd Defendant in default of Acknowledgment of Service of writ for the Claimant for US$ 492,500 plus interest thereon at 8% above Libor with effect from 5th August 1998 until payment in full.

(c)2nd Defendant shall pay costs to Claimant.

DATED  and  DELIVERED  at  MOMBASA   this   26TH   day    of    FEBRUARY,   2015.

MARY KASANGO

JUDGE