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[2016] ZAWCHC 17
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Jacobs v Blue Water and Others (11755/2005) [2016] ZAWCHC 17 (1 March 2016)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 11755/2005
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
29 February 2016
Judgment
delivered: 1 March 2016
In
the matter between:
GILIAM
JOHANNES
JACOBS
.................................................................................................
Plaintiff
And
BLUE
WATER
.................................................................................................................
First
Defendant
SA
FIVE ENGINEERING (PTY)
LTD
.....................................................................
Second
Defendant
ARTISAN
SERVICES
&ENGINEERING
.................................................................
Third
Defendant
JUDGMENT
BINNS-WARD
J:
[1]
The plaintiff instituted an action in this
court in which he claimed compensation in damages in delict for
injuries allegedly sustained
while he was descending a gangplank from
the
Glasdowr
to go ashore.  The
Glasdowr
is a ‘ship’, as defined in s 1(1) of the Admiralty
Jurisdiction Regulation Act 105 of 1983 (‘the Act’).
[2]
The
plaintiff, who is a boilermaker/welder, had been carrying out
‘fitment work’ on the vessel.  It is alleged
that
the slope of the gangplank was hazardously precipitous at the time as
a consequence of the vessel having been inappropriately
ballasted.
[1]
The
relevant allegations in the particulars of claim were summarised in
the stated case (at para 13) as follows:
The
plaintiff avers the incident was caused by the causal negligence,
alternatively
the breach of duty of care, of the First
Defendant,
alternatively
, the Second Defendant
further
alternatively
the Third Defendant
further alternatively
the three Defendants jointly, in that they:
1.
Deballasted the Glasdowr excessively,
alternatively
deballasted the Glasdowr inappropriately given the prevailing
circumstances.
2.
Failed to warn, adequately or at all, the
Plaintiff and other persons working on the Glasdowr of the extent to
which the Glasdowr
had been deballasted.
3.
Failed to warn, adequately or at all, the
Plaintiff and other persons working on the Glasdowr that the
gangplank was very steep
due to the extent to which the Glasdowr had
been deballasted.
4.
Failed to erect signs warning,
alternatively
adequately warning, the Plaintiff and other persons working on the
Glasdowr that the gangplank was very steep due to the extent
to which
the Glasdowr had been deballasted.
5.
Failed to ensure the safety of any person
disembarking from the Glasdowr by way of the gangplank.
6.
Failed to take all necessary steps to avoid
the incident.
7.
Failed to ensure that any person or entity
employed,
alternatively
contracted, to carry out any of the steps or duties referred to
hereinbefore, would do so speedily, properly and effectively.
[3]
The plaintiff has brought his claim in
terms of the procedures directed at obtaining its adjudication by the
court in the exercise
of its ordinary civil jurisdiction.  The
third defendant has pleaded that the plaintiff’s claim
qualifies as a ‘maritime
claim’ as defined in s 1(1)
of the Act and falls to be proceeded with in terms of the court’s
admiralty jurisdiction.
The point taken by the third defendant
implicates s 7(2) of the Act.
[4]
Section 7(2) of the Act provides:
(2)
When in any proceedings before a provincial or local division,
including a circuit local division, of the [High] Court of South

Africa the question arises as to whether a matter pending or
proceeding before that court is one relating to a maritime claim,
the
court shall forthwith decide that question, and if the court decides
that-
(a)
the matter is one relating to a maritime claim, it shall be proceeded
with in a court competent to exercise its admiralty jurisdiction,
and
any property attached to found jurisdiction shall be deemed to have
been attached in terms of this Act;
(b)
the matter is not one relating to a maritime claim, the action shall
proceed in the division having jurisdiction in respect
of the matter:
Provided that if jurisdiction was conferred by the attachment of
property by a person other than an
incola
of the court, the
court may order the action to proceed as if the property had been
attached by an
incola
, or may make such other order, including
an order dismissing the action for want of jurisdiction, as to it
appears just.
[5]
The
rationale for s 7(2) of the Act was explained in
The
Wave Dancer
1996 (4) SA 1167 (SCA).  It was held that the provision was
directed, at least in part, at avoiding the complications
that used
to arise, particularly when it came to the ranking of claims for
payment purposes, when, prior to the enactment of the
Act, there was
an overlap between the (then) Supreme Court’s parochial civil
jurisdiction and the jurisdiction its provincial
and local divisions
exercised when constituted as Colonial Courts of Admiralty.
Characterising a claim as a ‘maritime
claim’ may also
affect whether it falls to be decided according to English or
Roman-Dutch law.
[2]
Scott JA set out the position as follows (at p.1076-1077A):
Prior to the
coming into operation of the Act on 1 November 1983 the various
Divisions of the Supreme Court, sitting as Colonial
Courts of
Admiralty, exercised the admiralty jurisdiction of the English High
Court as that jurisdiction existed in 1891 when the
Colonial Courts
of Admiralty Act 1890 came into operation. The ordinary parochial
jurisdiction of the Supreme Court and its jurisdiction
as a Colonial
Court of Admiralty overlapped to a certain extent. The result was
that in such an event, whether the dispute between
the parties was
determined in accordance with Roman-Dutch or English law depended
upon the Court in which the plaintiff decided
to bring his action. In
practice, however, problems associated with this concurrent
jurisdiction arose most frequently in connection
with the ranking of
competing claims. One of the objects of s 7(2) was no doubt to remove
this undesirable state of affairs.
The Act
considerably increased the jurisdiction of the Admiralty Court. In
terms of s 6(1) Roman-Dutch law is to be applied with
regard to what
may conveniently be called the 'new maritime claims' while English
admiralty law, as it was on 1 November 1983,
is to be applied to any
matter in respect of which a pre-1983 South African Court of
Admiralty had jurisdiction prior to that date.
(Compare
Transol
Bunker BV v MV
Andrico Unity
and Others; Grecian-Mar
SRL v MV
Andrico Unity
and Others
1989 (4) SA
325
(A) at 334H-J.) Section 7(2) does not, however, seek to draw a
distinction between the old and the new maritime claims, although
in
the case of the latter, Roman-Dutch law would be applied regardless
of whether a Court were to exercise its admiralty jurisdiction
or its
ordinary civil jurisdiction. Nonetheless, the Admiralty Court has
different rules and procedures as well as special powers
conferred in
terms of the Act and the existence of concurrent jurisdictions even
in relation to the new maritime claims could have
unsatisfactory
consequences.
The Act does not
expressly exclude maritime claims from the ordinary jurisdiction of
the Supreme Court. But, if a maritime claim
is instituted in a
Provincial or Local Division (including a Circuit Local Division)
exercising its ordinary civil jurisdiction,
the question will
ordinarily arise whether the claim is a maritime claim or not. The
question may be raised by one or other of
the parties or by the Court
mero motu
. Once the Court decides that it is a maritime claim,
s 7(2) requires that the matter ‘shall be proceeded with in a
Court
competent to exercise its admiralty jurisdiction’. To
this extent, and subject to the discretion of a Court to decline to

exercise its admiralty jurisdiction in terms of s 7(1)
(a)
, the
intention underlying s 7(2) is undoubtedly that maritime claims
are to be heard by the Court exercising admiralty jurisdiction
and by
no other Court. (See Shaw
Admiralty Jurisdiction and Practice in
South Africa
.) It has been suggested that because of the
peremptory nature of s 7(2) the Admiralty Court has exclusive
jurisdiction to hear
maritime claims. (See Staniland '
Admiralty
Jurisdiction over Wrecks'
(1991) 108
SALJ
594 at 596;
Annual Survey of SA Law
1993 at 723; Joubert (ed)
The Law
of South Africa
vol 25 para 172; see also Pistorius
Pollak on
Jurisdiction
2nd ed (1993) at 15;
Peros v Rose
1990
(1) SA 420
(N) at 424D.) But the peremptory provisions of s 7(2)
become applicable only once the Court decides that the claim is a
maritime
claim. It is the decision which has the effect of depriving
the Court of its ordinary civil jurisdiction to hear the matter.
[6]
This
court is thus called upon to determine whether the third defendant’s
contention is well founded or not.  If it is,
the matter must be
proceeded with in a court exercising its admiralty jurisdiction.
The court’s determination of the
question is final, and not
appealable.
[3]
[7]
Ordinarily, the question would fall to be
determined on the basis of the court’s characterisation of the
claim as it appears
from the pleadings, but the parties have chosen
to state a case in terms of rule 33.  The stated case was in
essence, insofar
as the description of the claim is concerned, a
restatement of the content of the pleadings.  The third
defendant’s
position on the characterisation of the claim was,
however, more precisely formulated in its plea than in the stated
case.
In paragraphs 2 and 3 of its ‘special plea
regarding jurisdiction’, the third defendant alleged that –
2.
Plaintiff’s claim is a maritime claim as meant in Section 1 of
[the Act] as amended.
3.
Third Defendant,
inter alia
, relies on sub-sections (
sic
)
(e), (f), (m) and (q) of section 1 (
sic
) of the said Act.
The paragraphs of
the definition of ‘maritime claim’ in s 1(1) of the
Act upon which the third defendant relies
for its characterisation of
the claim were not, however, identified in the stated case, or in its
counsel’s heads of argument.
When I enquired at the
hearing as to which paragraphs of the definition it relied on, the
third defendant’s counsel identified
paragraphs (f) and (ee).
The plaintiff’s counsel agreed that these were the only
paragraphs that could arguably be
pertinent.
[8]
Paragraph (f) of the definition provides:
‘
maritime
claim
’ means any claim for,
arising out of or relating to-
(f)
loss of life or personal injury caused by a ship or any defect in a
ship or occurring in connection with the employment of a ship,
and
paragraph (ee) reads:
any
other matter which by virtue of its nature or subject matter is a
marine or maritime matter, the meaning of the expression marine
or
maritime matter not being limited by reason of the matters set forth
in the preceding paragraphs
[9]
It is plain in my view that the plaintiff’s
claim does not arise out of or relate to personal injury caused by
the ship or
any defect in the ship.  As far as paragraph (f) is
concerned, the question is therefore did the plaintiff’s
alleged
personal injury occur ‘
in connection with the
employment of the ship’?
[10]
The word ‘
employment
’ is not defined in the
statute and thus falls to be interpreted according to its ordinary
meaning, determined with due regard
to the context in which it has
been deployed.  The
Oxford Dictionary of English
gives
the relevant meaning of the word as ‘
the utilization of
something
’.  The Afrikaans  version of the Act,
which is the signed text, uses the expression ‘
in verband
met die
gebruik
’ as the equivalent of ‘
in
connection with the employment
’.  I would translate
the Afrikaans phrase as ‘
in connection with the use
’.
It follows that the relevant question may perhaps be more clearly
stated as ‘
did the plaintiff’s alleged
personal injury occur
in connection with
the use
of the
ship’.
[11]
Deballasting
is plainly something connected with the use of a vessel.  But
despite the wording of paragraph 13.1 of the stated
case, quoted
above,
[4]
it seems to me on a
proper reading of the allegations concerning the circumstances of the
occurrence of the plaintiff’s injuries
that their essential
import is that the defendants are alleged to be liable for having
caused the means of disembarkation from
the ship (the gangplank) to
be in a hazardous condition and also for having unreasonably failed
to warn users of the danger.
It was the dangerous state of the
gangplank, rather than the alleged reason for it having been
hazardously precipitous (‘inappropriate
deballasting’),
that is the basis of the claim.  The plaintiff has in essence
alleged that the defendants acted negligently
and wrongfully in
causing the gangplank to be in a dangerous condition and for failing
to warn users of the danger.  It is
clear that the injuries
allegedly sustained by the plaintiff were incurred while using the
gangplank to disembark from the ship.
[12]
In my judgment the provision of a means of disembarkation from
a ship and the utilisation of such means for that purpose by persons

aboard are ordinary incidences of the use of a ship.  It follows
that an injury sustained while the injured party is disembarking
from
a ship as a consequence of a problem with the slope of the gangplank
would qualify as an occurrence that happened in connection
with ‘the
employment of [the] ship’ within the meaning of that phrase in
paragraph (f) of the statutory definition.
[13]
I
am fortified in that view when I have regard to what is accepted to
have been the historical basis for the formulation of the
statutory
definition.  It is noted in Shaw,
Admiralty
Jurisdiction and Practice in South Africa
,
at p. 8, that ‘[t]he origins of the heads of maritime claim
stated in the definition of maritime claim in s 1(1) are
to be
found largely in the International Convention for the Unification of
Certain Rules Relating to Seagoing Ships[
[5]
]
signed at Brussels in 1952…, the heads of admiralty
jurisdiction as set out in s 20(2) of the United Kingdom Supreme

Court Act 1981,[
[6]
] and of the
similar provisions with regard to Scotland contained in s 47 of
the Administration of Justice Act 1956 of the
United Kingdom’.
Advocate Shaw QC, who is widely acknowledged to have played an
important role in drafting the South
African Act, proceeded (ibid.)
to explain that ‘[t]he justification for adopting this method
of defining admiralty jurisdiction,
rather than a more general method
such as the one applying, for instance, in the United States of
America, appears to be that,
as the overwhelming majority of shipping
cases have an international flavor, it is desirable to adopt as a
basis, a Convention
which has international approval’.
[14]
The correspondence between the relevant provisions of the
International Convention and the United Kingdom statutes identified
by
Shaw and the majority of the several paragraphs of the definition
of ‘maritime claim’ in the Act is striking.
It
seems probable that the United Kingdom legislation was also informed
in the relevant respects by the International Convention,
as, no
doubt, was the content of the International Convention influenced by
the pre-existing legislation of the covenantors, which
included the
United Kingdom.  And it does indeed seem desirable, for the
reason given by the author, to construe the definition,
to the extent
that its language permits, in a way that would lend congruity to its
provisions with its international equivalents.
This is
consonant with the view expressed by Thirion J in
Continental
Illinois National Bank and Trust Co of Chicago v Greek Seamen's
Pension Fund
1989 (2) SA 515
(D), at 525G, that ‘[t]here is
such a close correlation between the definition of “maritime
claims” in s 1(1)(ii)
and the “claims”, “questions”
and “proceedings” in respect of which the High Court
exercises
its Admiralty jurisdiction that it would be permissible to
refer to the English Supreme Court Act in interpreting “maritime

claims” in s 1(1)(ii) of our Act’.
[15]
The equivalent of para (f) of the
definition in the Act is found in paragraphs (e) and (f) of
s 20(2) of the United
Kingdom Senior Courts Act 1981, which
provide as follows:
The
… claims … are -
(e)
any claim for damage done by a ship;
(f)
any claim for loss of life or personal injury sustained in
consequence of any defect in a ship or in her apparel or equipment,

or in consequence of the wrongful act, neglect or default of—
(i)
the owners, charterers or persons in possession or control of a ship;
or
(ii)
the master or crew of a ship, or any other person for whose wrongful
acts, neglects or defaults the owners, charterers or persons
in
possession or control of a ship are responsible,
being
an act, neglect or default in the navigation or management of the
ship, in the loading, carriage or discharge of goods on,
in or from
the ship, or in the embarkation, carriage or disembarkation of
persons on, in or from the ship
Section
47(2)(b) of the
Administration of Justice Act 1956, which
regulates the admiralty jurisdiction of the Scottish courts,
provides:
This
section applies to any claim arising out of one or more of the
following, that is to say –
(b)
loss of life or personal injury sustained in consequence of any
defect in a ship or in her apparel or equipment, or of the wrongful

act, neglect or default of the owners, charterers or persons in
possession or control of a ship or of the master or crew thereof
or
of any other person for whose wrongful acts, neglects or defaults the
owners, charterers or persons in possession or control
of a ship are
responsible, being an act, neglect or default in the navigation or
management of the ship, in the loading, unloading
or discharge of
goods on, in or from the ship or in the embarkation, carriage or
disembarkation of persons on, in or from the ship
Article 1(1) of the
International Convention provides as follows in the relevant respect:
“
Maritime
Claim” means a claim arising out of one or more of the
following:
(b)
loss of life or personal injury caused by any ship or occurring in
connexion with the operation of any ship
[16]
It seems to me that the difference between
the relevant definitions in the United Kingdom legislation, on the
one hand, and those
in the Act and the International Convention, on
the other, is an economy of language in the latter.  The United
Kingdom legislation
details the various uses of the ship in
consequence of which a maritime claim for personal injury will lie,
whereas the International
Convention and the Act do not.  I
agree with the observations by Shaw, op. cit. at p. 12, that the
phrases ‘
the employment of a ship
’
used in the Act and ‘
in connexion
with the operation of any ship
’
used in the International Convention are essentially synonymous, and
also that they both ‘cover substantially the
same ground as
that covered by the more detailed provisions relating to England and
Scotland’.  It is therefore significant
that the latter
provisions, consistently with the conclusion stated by me in
paragraph [12], above, expressly include ‘
any
claim for loss of life or personal injury…sustained…
in consequence of the wrongful act, neglect or
default of…
[various categories
of parties who may be liable are specified]
being
an act, neglect or default…
in
the embarkation, carriage or disembarkation of persons on, in or from
the ship
’
.
[17]
For these reasons I have concluded that the
plaintiff’s action does indeed concern a matter
relating
to a maritime claim as defined in paragraph (f) of the definition of
the term in the Act.  The conclusion that the
claim is one
falling under paragraph (f), excludes any finding that it might
resort under paragraph (ee).  That follows necessarily
from the
qualifying effect of the phrase ‘
any other matter
’
at the beginning of paragraph (ee).
[18]
The claim must accordingly be proceeded with in a court
competent to exercise its admiralty jurisdiction.
[19]
In the result the following orders are made:
1.
It is declared that the action instituted by the plaintiff
under case number
11755/2005 concerns a
claim
as defined in paragraph (f) of the definition of ‘maritime
claim’ in s 1(1) of the
Admiralty
Jurisdiction Regulation Act, Act 105 of 1983 (‘the Act’).
2.
Consequent upon the effect of the
declaration in terms of paragraph 1, and pursuant to the provisions
of s 7(2)(a) of the Act,
the matter
shall be proceeded
with in a court competent to exercise its admiralty jurisdiction.
3.
The plaintiff shall pay the third defendant’s costs of
suit in respect of the case stated for determination in respect of
the question that arose in terms of s 7(2) of the Act.
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiff’s
counsel: Anton Laubscher
Plaintiff’s
attorneys: DSC Attorneys
Cape
Town
Third
Defendant’s counsel: H.M. Raubenheimer SC
Third
Defendant’s attorneys: Willem Jacobs & Associates
Somerset
West
Bagraims
Attorneys
Cape
Town
[1]
The stated case speaks of the vessel having been ‘excessively’,
alternatively, ‘inappropriately deballasted’.
[2]
See s 6(1) of the Act.  In the current case it may be that
the claim, if it falls within paragraph (f) of the definition
of
‘maritime claim’, has to be decided in terms of English
Law, on the basis that paragraph (f) is arguably
an extension
of the claim for ‘damage done by any ship’ within the
meaning of s 7 of the Admiralty Court Act,
1861.  (The
latter provision falls, for jurisdictional purposes, to be read with
s 2 of the Colonial Courts of Admiralty
Act, 1890.)
[3]
In terms of s 7(4) of Act 105 of 1983.
[4]
At para [2].
[5]
International
Convention Relating to the Arrest of Sea-Going Ships
(Brussels,
May 10, 1952).
[6]
Since renamed as ‘
The
Senior Courts Act 1981
’,
in terms of Schedule 11 to the Constitutional Reform Act 2005.