In the matter between:

and

TRANSNET NATIONAL PORTS AUTHORITY, 

THE UNDERWRITERS OF THE CARGO LADEN

JUDGMENT

DAVIS. J:

In paragraph 4, the words "any lawful direction" in the second line should be qualified with the further phrase, "as to the manner of transhipment". Finally I propose to insert clause 9 of the harbour authorities clause, as opposed to the existing clause 11 of the draft.

Admiralty Jurisdiction Act in support for the finding that a Court, in the exercise of its admiralty jurisdiction (I add that that is the jurisdiction under which this Court now operates) is empowered in its discretion, to order the furnishing of security or the liability for costs expenses, loss or damage caused or likely to be caused. Furthermore, in that case, the Court accepted that the relevant party could approach the Court at the time of the hearing for an exercise of its discretion, notwithstanding, that it was based upon an argument which had not been foreshadowed in the papers.

In my view, given the discretion which is available to this Court, it would constitute an injustice for an innocent cargo owner to have security imposed upon it in the circumstances of this particular case, where its sole concern is the preservation of the integrity of that which it owns. It is not its fault, nor has it been suggested that it could be that its cargo is housed in a vessel which has allegedly caused the difficulties which have given rise to this application.

The final question relates to costs. In my view, insofar as the sixth, seventh and ninth respondents are concerned, there is no basis to order the applicants to pay their costs. I so conclude for at least two reasons. The one is the papers indicate that meetings took place prior to this application being launched. If meetings took place prior to this application being launched, it appears particularly in the light of the negotiations that in effect took place both within and outside the courtroom on this day, that the sixth and seventh respondent could have crafted the response which may have obviated some of the difficulties with which this Court is confronted and, therefore, the   nature   of  the   application   that  was   brought   by  the applicants.