The applicant was Borne Logistics CC. It claimed to be the owner of funds in a bank account which had been arrested by the respondent in the institution of an action in rem. It disputed that the claim made by the respondent was a maritime claim as defined in the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act) and sought the setting aside of the arrest.

The respondent was Zvoimpex AS, a company based in Slovakia. It issued an admiralty summons in rem in this Court, exercising its admiralty jurisdiction, in which the applicant was cited as 'The Freight Advanced to Borne Logistics CC and held at First National Bank, 267 Florida Road, Morningside, paid into bank account number 62628861561 …'.

Held: The respondent's claim is not a maritime claim as defined in the Act. The Registrar is directed to allocate a case number to the matter in the ordinary civil jurisdiction of this Court, and the respondent is given leave to amend its summons in accordance with the Uniform Rules. The arrest of the funds in the bank account referred to in the warrant of arrest is set aside.

The claim arose out of three written CIF agreements for the sale of timber logs to the respondent, with delivery to take place in the ports of Shanghai and Nansha in China. All three contracts provided for the payment of a deposit and the balance against the delivery of copies of the shipping documents. The respondent's case is that it has made a number of payments to the appellant in terms of the first two agreements, and that some of the timber was delivered to it in partial fulfilment of the contracts. It says that the appellant, in breach of its obligations, failed to deliver the rest of the timber, in consequence of which it cancelled the contracts and wants the money back in respect of which it has not received timber.

The appellant says that the respondent's claim is for restitution in terms of a contract of sale, which is not a maritime claim. The respondent says a part of what it paid constituted freight, and to that extent its claim is a maritime claim as defined.

If a contract of sale is on so-called CIF terms, the price includes in a lump sum the cost of the goods, the insurance, and the freight to the named destination. The seller is required at its own expense and risk to put the goods into the possession of a carrier at the port for shipment and obtain a negotiable bill of lading covering the entire transportation to the named destination; load the goods and obtain a receipt from the carrier showing that the freight has been paid or provided for; obtain a policy or certificate of insurance; and prepare and forward the documents required to effect shipment and comply with the contract. The contracts relating to carriage, freight, and insurance are concluded between the seller and the carrier and insurer respectively. The buyer is not a party to those contracts.

The payments made by the respondent to the appellant were part payments in respect of the purchase price of the timber. There was no obligation on the respondent to pay for the freight. Nor was there an obligation on it to pay the insurance premium. The fact that the purchase price included the expense that the seller had to incur in respect of the freight and insurance does not change that.

Counsel for the respondent submitted that the claim falls under the definition of maritime claim in s1(1)(h) of the Act, which refers to any claim for, arising out of or relating to the carriage of goods in a ship, or any agreement for or relating to such carriage. There is no merit in this submission. The respondent's claim arises out of and relates to the purchase by it of timber. The carriage of the timber in a ship, and the agreement for such carriage, was a matter between the seller and the carrier. The claim is for restitution under a contract of sale, which is not a marine or maritime matter.