OWNERS OF THE MOTOR VESSEL “LILLIAN S” V CALTEX OIL
Court of Appeal, at Mombasa
November 17, 1989
Nyarangi, Masime & Kwach JJ A
Civil Appeal No 50 of 1989
(Appeal from an order of the High Court at Mombasa, Bosire J, in
Admiralty Cause No 29 of 1988 dated 28th February, 1989)
Admiralty Law – admirality
jurisdiction of the High Court Kenya – circumstances in which the
jurisdiction can be invoked – Judicature Act (Cap 8), section 4 – Supreme Court
Act, 1981 sections 20, 21.
Admiralty Law – goods
supplied to a third party stored in a vessel – whether vessel owner
incurs liability for the price of the goods – Supreme Court
Act, 1981 sections 20, 21.
Injunction – ex-parte
injunction – duty of applicant to make full and frank disclosure of
material facts – consequence of non-disclosure of facts.
Caltex Oil, the respondent to this appeal, issued a writ in
rem against the motor vessel Lilian S endorsed with a claim for Kshs
6,110,434/55 alleged to be due and owing from the owners of the motor vessel
(the appellants). The claim allegedly arose on account of a quantity of gas
oil, fuel and bunkers supplied by Caltex. The writ was accompanied by a
statement of claim and an affidavit to lead a warrant for the arrest of the
vessel.
In the Bunker Delivery Report (BDR) a company called Southern Oil Supply
Company (SOSCO) was named as the local agents for the owners of the ship
and a copy of an invoice was directed to SOSCO and duly acknowledged by them as
customers.
There was a contract whereby the respondent agreed to supply and
SOSCO agreed to buy 550 metric tones of fuel oil and pursuant
to that contract the respondent delivered 5, 478.55 metric tones of fuel
oil on board the Lilian S as requested by SOSCO as a base for storing the fuel
pending the sale and supply to other vessels. On the basis of these
facts the ship was on the ex-parte application of Caltex ordered to be
arrested.
The appellants being aggrieved applied for the setting aside of
the ex-parte order. They contended that the owners of the motor vessel
Lilian S, namely sea Guardian Company S.A of Panama, were not persons
liable....
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