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[2016] ZASCA 199
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Windrush Intercontinental SA and Another v UACC Bergshav Tankers AS (556/2015) [2016] ZASCA 199; 2017 (3) SA 1 (SCA) (6 December 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 556/2015
In
the matter between:
WINDRUSH
INTERCONTINENTAL SA
FIRST APPELLANT
MT
“ASPHALT VENTURE”
SECOND APPELLANT
and
UACC
BERGSHAV TANKERS AS
RESPONDENT
N
eutral
citation
:
Windrush
Intercontinental SA v UACC Bergshav Tankers AS
(556/2015)
[2016] ZASCA 199
(6 December 2016)
Coram:
Maya
DP, Shongwe, Wallis, Dambuza JJA and Makgoka AJA
Heard:
8
September 2016
Delivered:
6
December 2016
Summary:
Admiralty
Jurisdiction Regulation Act 105 of 1983
–
action
in
rem
–
maritime lien – application to set aside deemed arrest
in
rem
of
vessel in terms of s 3(4)
(a)
of
the Act to enforce maritime lien for its crew members’
unpaid wages – vessel hijacked by pirates for
ransom but
pirates releasing vessel and not all crew members despite payment of
ransom – pirates’ conduct a supervening
event rendering
fulfilment of hostage crew members’ employment contracts
impossible – hostage crew members’ employment
and
entitlement to wages ended by supervening impossibility or
frustration of performance of employment contracts –
no
claim for unpaid wages giving rise to a maritime lien enforceable by
an action
in
rem
.
ORDER
On
appeal from:
The
KwaZulu-Natal Local Division of the High Court, Durban (Exercising
Admiralty Jurisdiction)(Olsen J sitting as court of first
instance):
judgment reported
sub
nom
Windrush
Intercontinental SA & another v UACC Bergshav Tankers as The
Asphalt Venture
2015 (4) SA 381
(KZD).
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The deemed arrest of the MT “
Asphalt
Venture
”
is hereby set aside.
(b)
The security furnished on behalf of Windrush Intercontinental SA
shall be released to it forthwith.
(c)
UACC Bergshav Tankers AS shall pay the costs of the application,
including
(i)
the costs attendant upon the further argument as a consequence of the
court’s request for responses to queries;
(ii)
the costs of the application for leave to appeal; and
(iii)
the costs of the application to set aside the arrest of the MT
“
Asphalt
Venture
”.’
JUDGMENT
MAYA
DP
(Shongwe,
Wallis and Dambuza JJA and Makgoka AJA concurring):
[1]
This appeal is against the refusal of the KwaZulu-Natal Local
Division of the High Court, Durban (Exercising Admiralty
Jurisdiction)(Olsen
J) to set aside the deemed arrest of the second
appellant, the MT
Asphalt
Venture
,
owned by Bitumen Invest AS (Bitumen), leave to appeal having been
granted by the high court. The first appellant, Windrush
Intercontinental
SA (Windrush), is a company duly registered and
incorporated in accordance with the laws of Panama, carrying on
business in Sharjah
in the United Arab Emirates. The respondent is
UACC Bergshav Tankers AS (Bergshav), a company duly incorporated and
registered
in accordance with the laws of Norway and carrying on
business, inter alia, as the registered owner of the MT
UACC
Eagle
in Dubai in the United Arab Emirates.
[2]
Windrush was the
Asphalt
Venture
’s
bareboat charterer in terms of a bareboat charterparty it concluded
with Bitumen in May 2008 for the period 7 May 2008
to 7 November
2015. The bareboat charterparty was part of an adapted sale and
leaseback arrangement between Concord
Worldwide
Inc (Concord), Bitumen and Windrush, under which Concord, which was
then the vessel’s owners, sold the
Asphalt
Venture
to
Bitumen and Windrush bareboat chartered it from Bitumen. The charter
was on the Barecon 2001 form for seven and a half years,
at the end
of which Windrush was obliged to purchase the vessel.
[1]
Windrush
concluded a sub-bareboat charterparty with Concord for the same
period.
[2]
Between
April and August 2010
Concord,
through its technical manager and crewing agent, OMCI Shipmanagement
(Pvt) Ltd (OMCI), entered into employment contracts
with 15 crew
members, who were citizens of the Republic of India, in order to crew
the
Asphalt
Venture
.
[3]
On 23 September 2010, Somali pirates, demanding ransom money,
hijacked the
Asphalt
Venture
about
100 nautical miles east of Mombasa. Concord duly informed the
relevant insurers of the hijacking, engaged solicitors and retained
security advisers to assist in negotiations with the pirates and
appointed a negotiator. Seven months later, on 15 April 2011,
a
ransom of USD 3.4 million was delivered to the pirates in exchange
for the release of the vessel and her 15 crew members. However,
after
the ransom was delivered, the pirates reneged on their agreement and
refused to release all the crew members. Only eight
crew members were
released with the vessel. Seven (the hostages) were held captive,
apparently to be used in negotiations for the
release of 120 Somali
pirates arrested by the Indian navy who awaited trial in India. On
22 December 2011 the Indian government,
in line with its policy,
formally refused to negotiate with the pirates for their release. It
was only some years later, between
August and December 2014, and
after payment of a further ransom, that the pirates finally released
the hostages.
[4]
On 17 June 2011, Windrush withdrew the
Asphalt
Venture
from the sub-bareboat charterparty with Concord, thereby terminating
the sub-bareboat charterparty. This followed Concord’s
failure
to honour its obligations in terms of the sub-bareboat charterparty,
due to the vessel being held hostage for about seven
months. Concord
nonetheless continued to pay to the hostages’ families’
amounts equivalent to the hostages’ wages
until the end of
October 2011, six months after the payment of the ransom and the
release of the eight crew members.
[5]
During the period in which all the crew members were held hostage,
namely 28 September 2010 to 15 April 2011, Concord had continued
to
make payment to the crew in terms of the crew’s employment
contracts as if they had remained in force. After the eight
crew
members were released, Concord paid for their repatriation costs and
they were discharged from the vessel. Concord contended
that it had
paid the further amounts to the hostages families, although their
contracts had terminated, ‘on a voluntary,
ex
gratia
basis, in sympathy and on humanitarian grounds and without legal
obligation’. But it ceased effecting payments to the hostages’
families when it ran into financial difficulties and no longer had
any substantial assets or income.
[6]
As a result of Concord discontinuing payment of these amounts, the
Indian government and the Norwegian Maritime Officers’
Association demanded that Bitumen, as
Asphalt
Venture
’s
registered owners and, so they claimed, the hostages’ employer,
continue paying the hostages’ wages. This was
based on the
demand by the hostages’ families to Bitumen for the continued
payment of wages beyond October 2011, as the hostages
had not yet
been repatriated. In response to that demand Windrush asserted that
neither it nor Bitumen were liable for any crew
wages or repatriation
costs in respect of the hostages, either before or after October
2011, because neither party had entered
into employment contracts
with them. This was so, it contended, because the crew contracts were
concluded with OMCI, which, as
indicated, was contracted to perform
this function by Concord.
[7]
Thereafter, on 17 January 2012, the
UACC
Eagle
was arrested in Mumbai, India by the hostages’ families,
representing the hostages, as security for their cumulative claim
of
USD 6 787 440. They sought a decree for payment of the
daily wages that the hostages would have earned from November
2011
until they each reached the age of 70 years. It was alleged in the
application papers filed in the High Court of Judicature,
Bombay,
(Admiralty and Vice-Admiralty Jurisdiction) (the Bombay high court),
that the
UACC
Eagle
was arrested because it was in the same beneficial ownership as the
Asphalt
Venture
,
that is, a ‘sister ship’ as a matter of Indian law.
Bergshav successfully contested this allegation. It nevertheless
entered into a settlement agreement with the hostages’
families, which was approved by the Bombay high court on 10 February
2012. It did so for practical reasons, to secure the expeditious
release of the
UACC
Eagle
from arrest and to avoid possible protracted litigation.
[8]
The basis of the settlement agreement was that the hostages had been
employed on the
Asphalt
Venture
over which they claimed a maritime lien for unpaid crew wages
recognised in Indian law.
[3]
To
secure the
UACC
Eagle
’s
release
Bergshav
undertook, inter alia, to pay to into an escrow account (a) the
claims for crew wages for the period 1 November 2011 to
29 February
2012, (b) USD 306 000 (an amount equal to ten months’ future
crew wages to the end of December 2012), (c) crew
wages for the
period 1 January 2013 to 31 December 2013 which would be paid as
quarterly deposits of USD 91 800, subject to
its right to call
for arbitration on whether the hostages’ employment contracts
entitled them to crew wages pending repatriation
for this period, and
(d) fees and legal costs. In consideration of this undertaking,
the hostages’ families unconditionally
and irrevocably assigned
‘any claim and/or maritime lien they have or may have in the
same priority against the
Asphalt
Venture
interests and any other party whatsoever for the Crew Salary up to
the value of the Crew Salary paid and/or secured by this Agreement,
and any security rights they hold or may hold in respect of such
claims for Crew Salary, including but not limited to any maritime
liens against the Asphalt Venture interests’.
[9]
Relying on this assignment, Bergshav commenced an action
in
rem
against the
Asphalt
Venture
in
the KwaZulu-Natal Local Division of the High Court, Durban. On 21
September 2012, the vessel was arrested
in
rem
in the port of Durban. But it was subsequently released against the
provision of security in the form of a letter of undertaking
furnished by its P & I Club on behalf of Windrush, without
admission of liability and without prejudice to the rights and
contentions of the owner or the bareboat charterers of the vessel;
specifically their right to challenge the arrest of the vessel
in
respect of the claim or to bring an action for wrongful arrest.
Bergshav sued as cessionary of the hostages’ claims and
maritime lien and demanded payment of the amounts it had paid to
their families. It also sought an order declaring its entitlement
against the
Asphalt
Venture
to recover any amounts it still had to pay in terms of the settlement
agreement.
[4]
[10]
The summons and particulars of claim alleged that the hostages were
employees of Bitumen, the
Asphalt
Venture
’s
owners, alternatively employees of Concord as the
Asphalt
Venture
’s
sub-bareboat charterer, or further alternatively employees of
Windrush, the bareboat charterer. As such, it was alleged,
they were
and remained entitled to be paid the wages reflected in their
contracts of employment during the currency thereof and
following any
valid termination thereof, until such time as each of them was
repatriated. Crucially it was alleged that any of
their claims for
unpaid wages were maritime claims as defined in the Admiralty
Jurisdiction Regulation Act 105 of 1983 (the Admiralty
Act),
[5]
giving
rise to a maritime lien enforceable by proceedings
in
rem
against
the
Asphalt
Venture
in terms of s 3(4)
(a)
of
the Admiralty Act.
[6]
It was alternatively alleged that Bitumen or Concord or Windrush as
Asphalt Venture’s owner, bareboat charterer and sub-bareboat
charterer, respectively, were in any event liable
in
personam
to the hostages for payment of the wages in terms of s 3(4)
(b)
[7]
read with s 1(3) of the Admiralty Act. The latter basis for the
alleged claims has, however, since been abandoned and nothing more
need be said about it.
[11]
When the
UACC
Eagle
was
arrested in Mumbai it was subject to a demise charter concluded in
December 2010 between Bergshav, as owner and United Arab
Chemical
Carriers Limited (UACC) as charterer. Bergshav launched arbitration
proceedings in London against UACC to recover the
amounts it had paid
in terms of the settlement with the hostages’ families and
obtained an award in its favour.
[8]
At
that stage Bergshav had paid the hostages’ families USD
743 800. The parties thereafter entered into a settlement
agreement (the arbitration agreement) in terms of
which UACC would pay Bergshav the latter sum and any
further sums and
payments made in terms of outstanding undertakings it had made to the
hostages’ families plus interest.
The arbitration agreement
obliged Bergshav to continue with the action
in
rem
in South Africa in its own name. But it would have to transfer
absolutely and unconditionally to UACC any proceeds it recovered
from
the appellants up to the value of the sums and interest thereon that
UACC had paid it, although the arbitration agreement
provided that it
was ‘not intended to cede or assign to UACC, Bergshav’s
claim or right of action in the South African
proceedings’.
[12]
In response to the arrest of the
Asphalt
Venture
and its release against the provision of security the appellants
brought an application to set aside the deemed arrest of the
vessel.
[9]
They
also sought an order for the return of the security which had been
furnished to secure its release. The court a quo (Olsen
J)
dismissed the application with costs. It found that Bergshav ‘ha[d]
established a prima facie case for the proposition
that Concord has
been liable at all material times since October 2011 to pay wages to
the [hostages] … whether by reason
of article19.2 of [their]
conditions of employment, or by reason of the provisions of the
Merchant Shipping Act 44 of 1958 (India)’.
According to the
court a quo, ‘upon a proper construction of the settlement
agreement … the parties [thereto] must
have intended that the
monthly wage claims would pass [to Bergshav] with their associated
liens [to Bergshav] as and when each
was paid by [Bergshav]’.
It held that the maritime lien afforded to the hostages in
respect of their claim for wages,
which they prima facie established,
was ceded or assigned to Bergshav with the leave of the Bombay high
court.
[13]
The court a quo also dismissed the appellants’ alternative
contention that Bergshav had suffered no loss in light of
the
arbitration agreement which, in the court’s view, merely
established where the loss would lie if Bergshav’s action
failed and UACC discharged the obligation under the indemnity it owed
Bergshav. The court a quo held that the agreement did not
determine
which of them was vested with the claims for wages, which were never
transferred to UACC. The court declined to decide
the issue of future
wages ie whether a lien could exist in respect of wages not yet
accrued and whether the tender of security
for the full claim
amounted to a compromise as to whether an action in rem could be
sustained in respect of such wage claims. It
held that this had
not been canvassed in the papers and would have to be raised in the
impending plea in the action.
[14]
It is this judgment that is the subject of this appeal, with the
court a quo’s leave. The crisp issue before us was whether
at
the time of the
Asphalt
Venture
’s
arrest at Bergshav’s instance, there existed a maritime lien
for crew’s wages entitling Bergshav to arrest
the
Asphalt
Venture
by way of an
in
rem
arrest in terms of s 3(4)
(a)
of
the Admiralty Act.
[15]
It was contended on the appellants’ behalf that no such
maritime lien existed because the hostages’ crew contracts
terminated by no later than 15 April 2011 as a matter of Indian law
arising from frustration or supervening impossibility of any
remaining performance of the employment contracts. This was so, it
was argued, because neither Windrush nor Concord could procure
the
hostages’ release or cause them to be repatriated under the
employment contracts, as the hostages’ release had
become a
political issue beyond their reach. Moreover, the hostages performed
no services to or in respect of the
Asphalt
Venture
after 15 April 2011. There were no unpaid wages due to them on that
date and no maritime lien for crews’ wages could arise
thereafter. It was further argued that if any lien did arise,
it was extinguished by Bergshav’s payment to the hostages’
families under the settlement agreement and could not lawfully be
assigned to Bergshav. For Bergshav it was argued that a maritime
lien
arising from the wages’ claims, which had been transferred to
it as sanctioned by the Indian Court and permitted by
s 11(8) of the
Admiralty Act, did exist. This was so, continued the argument,
because the hostages’ employment did not terminate
after the
release of the vessel. And, in any event, their employment contracts
entitled them to repatriation and to payment of
their wages until so
repatriated.
[16]
This court’s admiralty jurisdiction derives from s 2(1) of the
Admiralty Act.
[10]
Section 6 of the Admiralty Act further provides:
‘
(1)
Notwithstanding anything to the contrary in any law or the common law
contained, a Court in the exercise of its admiralty jurisdiction
shall–
(a)
with
regard to any matter in respect of which a Court of admiralty of the
Republic referred to in the Colonial Courts of Admiralty
Act, 1890,
of the United Kingdom, had jurisdiction immediately before the
commencement of this Act, apply the law which the High
Court of
Justice of the United Kingdom in the exercise of its admiralty
jurisdiction would have applied with regard to such a matter
at such
commencement, in so far as that law can be applied;
(b)
with
regard to any other matter, apply the Roman-Dutch law applicable in
the Republic.
(2)
The provisions of subsection (1) shall not derogate from the
provisions of any law of the Republic applicable to any of the
matters contemplated in paragraph
(a)
or
(b)
of that subsection.’
[17]
The enquiry into whether there was an enforceable claim based upon a
maritime lien at the time of the
Asphalt
Venture
’s
arrest is two-pronged. First, it must be determined, on a prima facie
basis, whether Bergshav has established the existence
and nature of
the claims sought to be enforced
in
rem
against the
Asphalt
Venture
.
Secondly, it must be determined whether as a matter of South African
law Bergshav has prima facie established claims which, by
reason of
their nature and character, are protected by a maritime lien in South
African law.
[18]
The term ‘maritime lien’ is not defined in the Admiralty
Act but is mentioned, in addition to s 3(4)
(a)
,
in subsecs 1(1) and 11 thereof.
[11]
In
s 1(1), under the definition of ‘maritime claim’, is
included any claim for, arising out of or relating to ‘any
maritime lien, whether or not falling under any of the preceding
paragraphs’. And s 11
[12]
lists in subsection (4)
(e)
,
‘a claim in respect of any maritime lien on the ship not
mentioned in any of the preceding paragraphs’. Therefore,
a maritime lien is by definition a type of a ‘maritime claim’
and its importance lies in the facts that (a) it constitutes
one of
the bases upon which a claimant may found an action
in
rem
(s 3(4)
(a)
);
and
(b)
it confers a certain preference in the ranking of claims in terms of
s 11.
[13]
The
lex
fori
decides the question as to whether the claim gives rise to a maritime
lien and is therefore enforceable on that basis.
[14]
[19]
The source of the obligation to pay the crews’ wages may be
gleaned from their employment contracts, which were annexed
to
Bergshav’s particulars of claim. Each of these documents
comprised a terse, single page document signed by the relevant
crew
member and on behalf of Concord. They reflected the crew member’s
personal details, rank, period of employment for the
duration of nine
months and the details of his salary. Each commenced on a different
date, depending on the crew member that was
employed, and recorded
that the relevant crew member was employed under ‘the attached
terms and conditions’, in reference
to a collective bargaining
agreement for Indian officers of the International Bargaining Forum
entered into between OMCI and Maritime
Union of India.
[15]
In
terms of the latter agreement the employment contracts were governed
by Indian law.
[16]
The employment contracts also contained two simple terms to the
effect that in the event of the seafarer being stranded or his
death,
Concord undertook to repatriate him or his mortal remains,
respectively, to his port of engagement.
[20]
It was common cause that the relevant provisions of the collective
bargaining agreement for the crews’ wages claims are
in
articles 5, 18 and 19 thereof. Article 5 reads in relevant part:
‘
Duration
of Employment
5.1
An officer shall be engaged for the period specified in Appendix –
1 to this Agreement and such period may be extended
or reduced by the
amount shown in Appendix – 1 for operational convenience. The
employment shall be automatically terminated
upon the terms of this
Agreement at the first arrival of the ship in port after expiration
of that period, unless the Company operates
a permanent employment
system.’
In
terms of article 18.1(a) an officer’s employment ‘shall
be terminated upon the expiry of the agreed period of service
identified in APPENDIX – 1’. Appendix – 1 inter
alia deals with the ‘duration of employment’ and
provides
that ‘[t]he maximum period of engagement referred to in article
5 shall be nine months, which may be extended to
ten months or
reduced to eight months for operational convenience [after which] the
Officer’s engagement shall be automatically
terminated in
accordance with Article 18 of this Agreement.’
[21]
It was not alleged in the papers that Concord operated a permanent
employment system as envisaged in article 5. Neither was
it disputed
that the ‘period specified in Appendix – 1’,
contemplated in that article, in respect of each crew
member, expired
before the
Asphalt
Venture
’s
release by the pirates on 15 April 2011. And as already stated, when
the vessel arrived at the port in Mombasa on 28 April
2011, it was
without the hostages as the pirates had removed them from board. On a
plain reading of the above provisions in the
ordinary course the
hostages’ employment would have terminated upon the
Asphalt
Venture
’s
arrival at the Mombasa port on 28 April 2011.
[17]
The
parties agreed that this was so, because in the founding affidavit it
was alleged that the employment contracts of the hostages
came to an
end by effluxion of time when the time periods in the contracts of
employment expired. In reply it was said that quite
clearly the fixed
term contracts of employment of the hostages had expired. The court a
quo accepted this, but nonetheless concluded
that if the employment
contract provided for a continued obligation to pay wages until
repatriation was effected, it was ultimately
not relevant whether the
employment continued. The central issue was therefore whether
Bergshav established a prima facie case
that this was indeed the
position notwithstanding the fact that the contracts of employment
had expired.
[22]
Bergshav’s contention that the hostages were entitled to
payment of their wages until they were repatriated rested mainly
on
article 19 of the collective bargaining agreement which governed the
repatriation process of ships’ officers. The article
provided:
‘
19.1
Repatriation shall take place in such a manner that it takes into
account the needs and reasonable requirements for comfort
of the
Officer.
19.2
During repatriation for normal reasons, the Company shall be liable
for the following costs:
a.
payment of basic wages between the time of discharge and the arrival
of the officer at their place of original engagement
or home;
b.
the cost of maintaining the Officer ashore until repatriation takes
place;
c.
reasonable personal travel and subsistence costs during the travel
period;
d.
transport of the Officer’s personal effects up to the amount
allowed free of charge by the relevant carrier.
19.3
An Officer shall be entitled to repatriation at the Company’s
expense on termination of employment as per Article 18
except where
such termination arises under Clause 18.2(b) and 18.3(a).’
[23]
Bergshav further relied on the expert opinions of advocates
practising in Mumbai, Mr S Venkiteswaran and, following his untimely
death, Mr SK Mukherji. Neither was very satisfactory in explaining
their view. Mr Venkiteswaran initially said, without reference
to
either, that ‘in accordance with Indian law and the contracts
of employment’ the hostages would be deemed to continue
in
employment until their employment was terminated. In a second
affidavit he referred to two provisions of the Indian Merchant
Shipping Act, 1958. It perhaps suffices to say that neither was
relied upon in argument before us. Both expressed the view that
under
Indian law and the employment contracts the hostages remained in
employment and were therefore entitled to receive their
wages until
their repatriation. They placed reliance on a decision of the Indian
Supreme Court,
O
Konavalov v Commander, Coast Guard Region
,
[18]
and s 141(1) of the Indian Merchant Shipping Act 44 of 1958 (the
Merchant Shipping Act).
[24] Section 141(1)
of the Merchant Shipping Act in relevant part reads:
‘
Where
the service of any seaman engaged under this Act terminates before
the date contemplated in the agreement by reason of the
wreck, loss
or abandonment of the ship or by reason of his being left on shore at
any place outside India under certificate granted
under this Act of
his unfitness or inability to proceed on the voyage, the seaman shall
be entitled to receive –
(a)
In the case of wreck, loss or abandonment of the ship –
(i)
Wages at the rate to which he was entitled at the date of termination
of his service for the period from the date his
service is so
terminated until he is returned to and arrives at a proper return
port’.
[25]
These provisions found application in
O
Konavalov
which
concerned a vessel that had apparently been abandoned by its owners
with crew and cargo on board. The Indian custom officials
found
contraband on board the vessel off the Indian coast. They brought the
vessel to land with its crew where it was subsequently
arrested by
the Madras High Court at the instance of the owners of its cargo. The
master of the vessel committed suicide on that
day and the owners
could not be traced. The crew lodged a wages’ claim out of the
anticipated proceeds of the sale of the
vessel. Thereafter the
customs officials seized the vessel and its cargo. The crew launched
further litigation for payment of their
wages from the proceeds of
the cargo, or an order for the sale of the vessel, so that their
claim could be paid out of those proceeds.
[26]
The court found in the crew’s favour and ordered the coastguard
authorities and the custom officials to pay their wages
and attend to
their repatriation from the proceeds of the sale of the vessel’s
cargo. The customs authority successfully
appealed against this order
in the high court. It also obtained final orders confiscating the
vessel whilst the appeal was still
pending so that the consulate of
the crew, which had remained on the vessel throughout the period of
almost two years for which
they claimed wages, had to repatriate
them. The high court held that the vessel’s confiscation vested
its ownership in the
state thus divesting the crew of its rights
against the vessel.
[27]
The Supreme Court of India reversed this decision on further appeal
to it. It referred to s 141(1) of the Merchant Shipping
Act,
which it held enables a seaman whose service is terminated by reason
of wreck, loss or abandonment of ship, among other reasons,
before
the termination of employment date envisaged in his employment
contract, to payment of ‘certain
wages
and compensation’ until his repatriation.
[19]
The
court gave examples of cases which it considered constituted loss of
a vessel, in which the crew’s right to wages did
not cease with
such loss, such as the destruction of a neutral ship by a belligerent
State or where, unknown to the crew, the vessel
was carrying
contraband of war. On that basis it held that the crew were lawfully
in the employment of the vessel against which
they had a maritime
lien for service (and not against the cargo) until their deportation.
The court further highlighted the special
sanctity attaching to wages
in Admiralty and under the Indian Constitution and the State’s
duty to act fairly and reasonably
in settling the lawful wage claims
of seamen who are at the lowest strata in society and thus suffer
greatly without their wages.
[20]
[28]
Based on this reasoning, Messrs Venkiteswaran and Mukherji opined
that Indian law would regard the
Asphalt
Venture
as having been ‘lost’ in the manner contemplated in s
141(1) thus entitling its crew to their wages until repatriated.
To
counter this view, the appellants tendered an opinion of their own
expert, former Chief Justice of India, Justice VN Khare.
The nub of
his opinion was that although in the ordinary course clauses 5 and 19
of the collective bargaining agreement entitled
seamen to payment of
their wages until their repatriation, the hostages had no viable
claim to wages in this case. As he saw it,
even if the hostages’
contracts of employment remained in force until the return of the
vessel and the remaining hostages,
when the vessel sailed without
them on 15 April 2011, any further obligation by Concord to
repatriate them was rendered impossible
by a supervening event that,
to a reasonable person, was not foreseeable. In his view, it could
not have been contemplated that
even after full ransom was paid the
hostages would continue to be held captive.
[29]
Justice Khare based his view on the decision of the House of Lords in
Horlock
v Beal
.
[21]
There, a British ship, during a voyage for which a British seaman had
signed articles, was detained at a German port on 4 August
1914 after
the declaration of war. On 2 November 1914 the crew, including the
seaman, was removed from the vessel and imprisoned.
The seaman’s
wife launched an action for the allotment of his wages. The House of
Lords held that his contract of employment
had come to an end and
that he ceased to be entitled as soon as the further performance of
his contract became impossible. The
court took the view that if the
crew had been released on 2 November 1914, the common law would not
have treated the employment
contract as terminated. But because they
were imprisoned from that date neither party was any longer bound by
the contract from
that date; otherwise if they were bound it would
mean that wages were to be paid, without any service in return, for
the duration
of the war.
[22]
[30]
The court a quo recognised the conflict between the experts but held
that the opinion expressed by Bergshav’s experts
was tenable,
‘even though Justice Khare may well be right’. In the
court’s view it was ‘arguable that the
vessel was lost to
pirates, albeit temporarily’. The court assumed that the
hostages had been kept on board until shortly
before the vessel
sailed without them after the ransom was paid. It consequently held
that their service terminated upon their
removal from the vessel in
advance of the date of termination of their employment in their
contracts upon the first docking of
the vessel in Mombasa on 28 April
2011. The court considered itself constrained to ‘confine
[itself], at least more or less
to what has been stated by
[Bergshav]’ as it had not been ‘established with
certainty that Indian law would recognise
impossibility of
performance or frustration as having released Concord from its
obligation to pay wages pending repatriation’.
The court
reasoned that foreign law is a question of fact. It accordingly held
that, in the context of establishing a prima facie
case, the
respondent need not show that the court hearing the trial would
necessarily come to the conclusion that the opinion of
the
respondent’s witnesses should be accepted.
[31]
I have difficulty with the court a quo’s reasoning and
findings. It seems to me that its first misstep was in its evaluation
of the expert evidence and in accepting the plausibility of the
opinion of Bergshav’s experts, without analysing that evidence.
Where a court is dealing with the evidence of experts on foreign law
it is entitled to consider it in the same way in which it
considers
the evidence of any other expert. As this court has consistently
said, foreign law is a question of fact and must be
proved.
[23]
This
is achieved by reference to the
evidence
of experts ie lawyers practising in the courts of the country whose
law our courts want to ascertain. But the court is
not bound to
accept the view of the experts and it may, for cogent reasons, accept
the testimony of one as against that of another
where they are at
odds. And, if in their evidence the experts have referred to passages
in the Code of the country whose law is
sought to be ascertained, the
court is at liberty to look at those passages and consider their
proper meaning.
[24]
[32]
This court has recently re-articulated these views, in
MV
Pasquale Della Gatta MV Fillipo Lembo Imperial Marine Co v Deiulemar
Compagnia Di Navigazione
,
[25]
as
follows:
‘
Lastly
on the aspect of proof of a prima facie case, the parties relied on
expert evidence in regard to … the legal position
in terms of
English law, which governs the charterparty. In a trial action it is
fundamental that the opinion of an expert must
be based on facts that
are established by the evidence and the court assesses the opinions
of experts on the basis of ‘whether
and to what extent their
opinions advanced are founded on logical reasoning”. It is for
the court and not the witness to
determine whether the judicial
standard of proof has been met. How, if at all, are these principles
to be applied in the context
of an application where the applicant is
required to show only that it has a prima facie case? There does not
appear to be any
authority dealing with this problem. In my view the
court must first consider whether the underlying facts relied on by
the witness
have been established on a prima facie basis. If not then
the expert’s opinion is worthless because it is purely
hypothetical,
based on facts that cannot be demonstrated even on a
prima facie basis. It can be disregarded. If the relevant facts are
established
on a prima facie basis then the court must consider
whether the expert’s view is one that can reasonably be held on
the basis
of those facts. In other words, it examines the reasoning
of the expert and determines whether it is logical in the light of
those
facts and any others that are undisputed or cannot be disputed.
If it concludes that the opinion is one that can reasonably be held
on the basis of the facts and the chain of reasoning of the expert
the threshold will be satisfied. This is so even though that
is not
the only opinion that can reasonably be expressed on the basis of
those facts. However, if the opinion is far-fetched and
based on
unproven hypotheses then the onus is not discharged. Foreign law is
treated as a fact requiring to be proved by tendering
the evidence of
a witness who can speak to the contents of that law. However, such
evidence is unnecessary where the law in question
can be ascertained
readily and with sufficient certainty without recourse to the
evidence of an expert, because the court is then
entitled to take
judicial notice of such law. In many maritime cases our courts deal
with English admiralty or maritime law. They
are accustomed to
considering questions arising out of bills of lading and
charterparties and the operation of vessels. Since at
least 1797 in
the case of the Cape Colony and 1856 in the case of the Colony of
Natal our courts have in relation to a wide variety
of maritime
matters been required in admiralty cases to apply English admiralty
and maritime law. That law is readily accessible
in law reports and
textbooks that are part of the standard libraries of the courts and
practitioners in this field. In those circumstances
it should
generally speaking be unnecessary for it to be presented through
affidavits from practitioners, who all too frequently
(as in this
case with Deiulemar's expert) are representatives of the parties. The
undesirability of expert evidence from such a
source has been the
subject of previous comment from our courts.’
(Footnotes
omitted.)
[33]
It
is hard to discern why the court a quo rejected Justice Khare’s
opinion.
T
he
doctrine of impossibility or frustration is applicable to contracts
of employment where supervening events rendered the performance
of
the contract impossible
[26]
or radically different from what had been undertaken when the
contract was entered into.
[27]
And whether a contract is frustrated in the particular circumstances
of the case will be a matter of fact and degree.
[28]
In
English law a contract may be frustrated if supervening events
prevent its further performance.
[29]
The principle forms part of the law of contract in India too in terms
of s 56 of The Indian Contract Act 9 of 1872, which
provides
that ‘a contract to do an act, which after the contract is
made, becomes impossible or, by reason of some event
which the
promisor could not prevent, unlawful, becomes void when the act
becomes impossible or unlawful’.
[34]
There is nothing special about the contract of employment that
precludes such a contract from being subject to the ordinary
principles of frustration of contracts. In
Prest
v Petrodel Resources
[2013]
2 AC 415
the Supreme Court in the United Kingdom had to deal with the
relationship between the law on the division of assets on divorce and
the principle of company law that the company and its assets are
distinct from the person and assets of the shareholders.
It
held that the latter principle did not cease to apply in proceedings
in the Family Court and Lord Sumption said:
[30]
‘
Courts
exercising family jurisdiction do not occupy a desert island in which
general legal concepts are suspended or mean something
different.’
No
more are courts dealing with contracts of employment entitled to
disregard the basic principles of contract and treat employment
law
as excluding basic legal principles. Neither expert on behalf of
Bergshav sought to suggest that the doctrine of frustration
of
contracts did not apply to employment contracts or was inapplicable
in India.
[35]
Bergshav’s counsel sought to distinguish
Horlock
v Beal
from the present case with a contention that ‘there is a world
of difference between a world war and pirates making unrealistic
demands’ and that that a lot has changed in relation to the
protection of seafarers and their entitlement to wages since
the war
era. Whilst that may factually be the case, I do not agree that it
alters the legal principle. To my mind it is the underlying
principle
that matters and not the facts of the case. That principle is the
same in both cases – the performance of the employment
contract
was rendered impossible by a supervening event. To continue to pay
and support a crew not on board the vessel and not
rendering service
to the vessel, whose contracts of employment had terminated and who
were held in captivity by intransigent pirates,
who had been
paid a ransom but demanded an exchange
that was not
within Concord’s power,
could hardly have been contemplated by the employment contracts.
[36]
O
Konavalov
clearly
does not support Bergshav’s case as was claimed. It is patently
distinguished by the fact that there the crew was
in the employment
of the vessel and remained on board for the entire duration in
respect of which wages were claimed. As mentioned
above, the hostages
claim wages purportedly accrued after their employment contracts
ended but before their repatriation, for a
period which started seven
months after they were last on board the vessel during which they
were not on board the vessel (for
an unforeseen reason beyond the
employer’s control).
[37]
In that regard, Bergshav’s counsel urged us to give ‘wages’
and, necessarily, the corresponding lien,
[31]
an
expanded meaning to include the wages for which he contended. It is
so that the concept of wages enjoys an extensive and broad
construction so as to include claims incidental to the seaman’s
employment that would not be comprehended under the narrow
meaning of
the word.
[32]
This
is evident from the very wide wording of s 1(1)
(s)
of the Admiralty Act which inter alia defines ‘maritime claim’
to mean ‘any claim for, arising out of or relating
to ... the
employment of any master, officer or seaman of a ship in connection
with or in relation to a ship, including the remuneration
of any such
person, and contributions in respect of any such person to any
pension fund, provident fund, medical aid fund, benefit
fund, similar
fund, association or institution in relation to or for the benefit of
any master, officer or seaman.’
[38]
But the hallmark of a maritime lien in respect of wages is the
benefit to the vessel of the service of the crew without which
no
maritime lien can arise. As Clarke J observed in
The
Ever Success
:
[33]
‘
The
maritime lien is in respect of service to the ship. In the absence of
some very unusual
contractual
provision, that service will ordinarily be measured by reference to
the seaman’s contract of service ... under
which he was hired,
whether by the shipowner, or (as in this case) the putative
shipowner, provided of course that there is a sufficient
connection
between the service and the ship in the sense discussed below. It
follows that I accept [the] submission that it is
never appropriate
for the court to evaluate the services of each seaman on a quantum
meruit basis. The proper approach is to ask
whether in the relevant
period the claimant was rendering a service to the ship as a member
of the crew. If he was, he was entitled
to a maritime lien in respect
of his wages in respect of that period assessed in accordance with
his contract.’
Thus,
even if on some indeterminate basis the hostages were entitled to
recover wages from one of Concord, Bitument or Windrush,
the
entitlement to those amounts would not have arisen from service on or
to the
Asphalt
Venture
and
would not have attracted a maritime lien. And the absence of a
maritime lien was fatal to the entitlement of Bergshav to arrest
the
Asphalt
Venture
.
[39]
The
court a quo’s finding that, if the hostages ‘were engaged
in terms of a contract governed by and subject to Indian
law, which
promised them wages from the date of termination of their employment
to date of repatriation without regard to the duration
of the
delay and without regard to the
fact that the employer giving
the undertaking might not
be at fault with regard to any delay in repatriation’, this
passes the traditional test of recompense
for execution of duty, with
the result that ‘the claim is supported by a maritime lien’,
is in my view wrong.
It, as did Bergshav’s experts,
overlooked the provisions of the collective bargaining agreement,
which underpinned the employment
contracts, especially Appendix –
1 of article 5, which made clear that the hostages’ contracts
of employment had terminated
by 15 April 2011 when the vessel was
released. In any event, the wages contemplated in these
provisions were paid. The judgment
attached no weight to the fact
that the reason for the hostages not being repatriated was the
conduct of the pirates, which was
beyond Concorde’s control. It
also ignored the fact that the hostages did not perform any service
on or to the vessel and
were unable to do so because of their
detention by the pirates.
[40]
The mainstay of Bergshav’s case, article 19.2, expressly
envisages repatriation for ‘normal reasons’, which
could
not be further from the unusual situation in which the hostages found
themselves. These provisions cannot by any stretch
of the imagination
bear relevance here. The employment contracts simply make no
provision for the type of wages claimed. And, in
my view, neither
does the Indian law to which we were referred. I respectfully
disagree with the court a quo’s interpretation
of s 141(1) of
the Merchant Shipping Act that the
Asphalt
Venture
was ‘lost’ to the pirates, for which no substantiation
was given. This construction goes against the plain wording
of the
provisions and common sense. We are after all concerned with the
situation after the
Asphalt
Venture
had
been restored to its owners and had resumed trading. It cannot then
have been ‘lost’ to the pirates.
[41]
There was an attempt on Bergshav’s part to place reliance on ss
141(1)
(b)
and 142 of the Indian Act. Section 141(1)
(b)
entitles
a seaman ‘to receive … in the case of … inability
to proceed on the voyage, wages for the period from
the date his
service is terminated until he is returned to and arrives at a proper
return port’. Section 142 decrees that
wages shall not accrue
to a seaman during absence without leave, refusal to work or
imprisonment. The problem with this late tack
raised for the first
time before us, however, without even engaging the contentions made
by counsel in respect of these provisions,
is that none of the
experts dealt with them at all. The pre-requisite to the invocation
of this provision was a certificate granted
under the Indian Act of
the seaman’s unfitness or inability to continue with the
voyage. There was no such certificate, which
puts an end to this
contention. In the end Bergshav’s counsel was unable to
identify the source of the alleged continued
obligation to pay the
contested wages.
[42]
There was therefore no obligation on Concord to pay crew’s
wages or repatriation costs in respect of the hostages beyond
15
April 2011, despite the fact that it continued making payments until
October 2011. These payments were respectively made
ex
gratia
and in terms of an agreement concluded for expedience as mentioned.
Thus, no maritime lien could have arisen and existed on 2 September
2012 when
Asphalt
Venture
was arrested. For that reason, Bergshav could not invoke the action
in
rem
and
execute the arrest in terms of the Admiralty Act. It is unnecessary,
on these findings, to decide whether the termination of
the
sub-bareboat charterparty with Concord on 17 June 2011, some five
months before the wages clamed allegedly started accruing,
also
constituted a supervening event rendering the performance of the
employment contract impossible as it no longer had any interest
in
the vessel. It is also unnecessary to deal with the question whether
the lien could be assigned effectively to Bergshav.
[43]
For all these reasons, I am not satisfied that Bergshav established a
prima facie case for the existence of the wages claim
it pursues
against Asphalt Venture. Its case does not pass the first leg of the
enquiry described above.
[44] In the result
the following order is made:
1
The appeal is upheld with costs.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The deemed arrest of MT “
Asphalt
Venture
”
is hereby set aside.
(b)
The security furnished on behalf of Windrush Intercontinental SA
shall be released to it forthwith.
(c)
UACC Bergshav Tankers AS shall pay the costs of the application,
including
(i)
the costs attendant upon the further argument as a consequence of the
court’s request for responses to queries;
(ii)
the costs of the application for leave to appeal; and
(iii)
the costs of the application to set aside the arrest of MT “
Asphalt
Venture
”.’
__________________________
MML MAYA
Deputy President of the Supreme Court
of Appeal
APPEARANCES
For
the Appellant: M J Fitzgerald SC (Heads of Argument prepared by DA
Gordon SC)
Instructed by:
Cox Yeats Attorneys, Durban
McIntyre & Van Der Post,
Bloemfontein
For the
Respondent: S R Mullins SC
Instructed by:
Shepstone & Wylie Attorneys,
Durban
Matsepes Inc., Bloemfontein
[1]
The
application papers were drafted while the bareboat charter remained
extant. We have no information as to what happened after
the
bareboat charter expired.
[2]
In
March 2008 Concord had entered into a time charterparty with Colas
SA in terms of which the
Asphalt
Venture
was time chartered to Colas SA for a period of five years, from 19
March 2008 to 19 March 2013. The reason for the sub-bareboat
charter
between Windrush and Concord was to enable the latter to fulfil its
commitments to Colas SA in terms of the time charter.
[3]
The
claims were maritime claims in terms of the 1952 International
Convention for the Unification of Certain Rules Relating to
the
Arrest of Sea-going ships (Brussels, 10 May 1952) and the
International Convention on the Arrest of Ships (Geneva, 12 March
1999).
[4]
The
claim was itemised as follows:
‘
(a)
payment of the sum of USD 122 400, being accrued crew wages
from 1 November 2011 to 29 February 2012;
(b)
payment of the sum of USD 214 000, being crew wages for the
seven months from March to September 2012;
(c)
an order declaring that the Plaintiff is entitled to payment as
against the Defendant in respect of the sum of USD 30,600
per month
or any part thereof, being crew wages for the months of October 2012
to and including December 2013 as are paid pursuant
to the
settlement agreement, subject to a maximum amount of USD 459 000
together with interest from the date of payment to the
date of
reimbursement at the prescribed rate of 15,5% per annum,
alternatively an indemnity in respect of such amounts as they
fall
due and are released for payment to or on behalf of the crew’
and ancillary relief.’
[5]
A maritime
claim is defined for present purposes in s 1(1) as ‘any claim
for, arising out of or relating to–
(y)
any
maritime lien, whether or not falling under any of the preceding
paragraphs.
(z)
(e
e
)
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;
…
(
ff
)
any contribution, indemnity or damages with regard to or arising out
of any claim in respect of any matter mentioned above or
any matter
ancillary thereto, including the attachment of property to found or
confirm jurisdiction, the giving or release of
any security, and the
payment of interest’.
[6]
In terms of
this provision ‘[w]ithout prejudice to any other remedy that
may be available to a claimant or to the rules
relating to the
joinder of causes of action a maritime claim may be enforced by an
action
in
rem
… if the claimant has a maritime lien over the property to be
arrested’.
[7]
This section
provides ‘[w]ithout prejudice to any other remedy that may be
available to a claimant or to the rules relating
to the joinder of
causes of action a maritime claim may be enforced by an action
in
rem …
if
the owner of the property to be arrested would be liable to the
claimant in an action
in
personam
in respect of the cause of action concerned.
[8]
We were
not furnished with a copy of the award and so are unaware of the
basis upon which UACC was held liable to compensate Bergshav
for
these amounts.
[9]
In terms of s
3(10)
(a)
(i)
of the Admiralty Act ‘[p]roperty shall be deemed to have been
arrested or attached and to be under arrest or attachment
at the
instance of a person if at any time, whether before or after the
arrest attachment, security or an undertaking has been
given to him
to prevent the arrest or attachment of the property or to obtain the
release thereof from arrest or attachment.’
[10]
These
provisions read: ‘Subject to the provisions of this Act each
Provincial and Local Division, including a circuit Local
Division,
of the Supreme Court of South Africa shall have jurisdiction
(hereinafter referred to as admiralty jurisdiction) to
hear and
determine any maritime claim (including, in the case of salvage,
claims in respect of ships, cargo or goods found on
land)
irrespective of the place where it arose, of the place of
registration of the ship concerned or of the residence, domicile
or
nationality of its owner.’
[11]
According to
The
Father Thames
[1979] 2 Lloyd‟s Rep 364 at 368, the maritime lien is more
easily recognised than defined, and most jurisdictions have
avoided
defining it. In
Oriental
Commercial and Shipping Co Ltd v MV Fidias
1986 (1) SA 714
(D), at 717I-J, the court mentioned that ‘[t]he
Legislature, for some reason or another, deliberately chose not to
define
the term "maritime lien". That can only mean that
the Legislature was content to leave it to the English law to fix
the limits and the contents of this legal phenomenon’. It is
suggested that it is perhaps fortunate that the Legislature
has
refrained from attempting to deal with the onerous subject of
defining the maritime lien. See in this regard D J Shaw
Admiralty
Jurisdiction and Practice in South Africa
(1987) at 86.
[12]
This
section deals with the ranking of claims in regard to a ‘fund
in a Court’ resulting from the sale of arrested
property in
terms of s 9 or in regard to the proceeds of property sold pursuant
to an order or in the execution of a judgment
of a Court in terms of
the Act.
[13]
Transol
Bunker BV v MV Andrico Unity & others; Grecian-Mar SRL v MV
Andrico Unity & others
1989
(4) SA 325
(A) at 331D.
[14]
See s 6 of
the Admiralty Act. See also
Transol
Bunker BV v MV Andrico Unity
ibid
at 338A.
[15]
Clause 1.2 of
the collective agreement deems the agreement as ‘incorporated
into and contain[ing] the terms and conditions
of employment’
of the crew members’.
[16]
Article 34
thereof.
.
[17]
In other words, the contracts mean what they say. See
Phillips
v SA Reserve Band & others
[2012] ZASCA 38
;
2013 (6) SA 450
(SCA) para 64. See also
Van der Merwe v Road Accident Fund &
another (Women’s Legal Centre Trust as Amicus Curiae)
[2006] ZACC 4
;
2006
(4) SA 230
(CC) para 43.
[18]
O
Konavalov v Commander, Coast Guard Region
(2006)
4 SCC 620.
[19]
Para
29.
[20]
Para 45.
[21]
Horlock v
Beal
[1916]
1 AC 486.
[22]
Ibid,
at 494.
[23]
Schlesinger
v Commissioner for Inland Revenue
1964
(3) SA 389
(A) at 396G.
[24]
See
Atlantic
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GMBH of Bremen
1986 (4) SA 865
(C) at 874E-G.
[25]
MV
Pasquale Della Gatta MV Filippo Lembo Imperial Marine Co v Deiulemar
Compagnia Di Navigazione SPA
[2011]
ZASCA 131
;
2012 (1) SA 58
(SCA) paras 25-27.
[26]
Horlock v
Beal
,
at 492.
[27]
In
Karelrybflot
v Udovenko
[2000]
2 NZLR 24
(CA) paras 36- 37 the New Zealand Court of Appeal accepted
that contracts of employment could be frustrated and mentioned
without
confining itself to those instances the imprisonment or
internment of the seaman. What happened here seems very close to
those
examples.
[28]
Ibid.
[29]
The
classic statement is that of Lord Radcliffe in
Davis
Contractors Ltd v Fareham UDC
[1956)
AC 696 where he said: ‘
Frustration
occurs whenever the law recognises that without default of either
party a contractual obligation has become incapable
of being
performed because the circumstances in which performance is called
for would render it a thing radically different from
that which was
undertaken by the contract
.’
Chitty
on Contracts (29 ed) para 23-001 expresses it thus:
‘
a
contract may be discharged on the ground of frustration when
something occurs after the formation of the contract which renders
it physically or commercially impossible to fulfil the contract or
transforms the obligation to perform into a radically different
obligation from that undertaken at the moment of the entry into the
contract.’
[30]
At para 37.
[31]
In line
with
The
Tacoma City
[1991]
1 Lloyd’s Rep 330 CA,
which
said ‘[a]s with the case arising from the statutory expansion
of the court’s jurisdiction so also the judicial
expansion of
a substantive concept of a wage has been accompanied by
corresponding expansion in the maritime lien. To the extent
that a
claim is in the nature of a “wage” it is accompanied by
a maritime lien.’ See also
The
Halcyon Skies
[1976]
1 Lloyd’s Rep 461 (QB); D R Thomas
British
Shipping Laws Maritime Liens
(1980) vol 14 para 313.
[32]
See, for
example,
Continental
Illinois National and Trust Co of Chicago Bank v Greek Seamen’s
Pension Fund
1989
(2) SA 515
(D) at 530I-533E;
The
Tacoma City
fn
31 above
;
The
Arosa Star
[1959]
2 Lloyd’s Rep 396 at 402;
The
Westport (No 4)
[1968] 2 Lloyd’s Rep 559;
The
Halcyon Skies
fn 30 above.
[33]
The Ever
Success
[1999]
1 Lloyd’s Rep 824 at 831;
The
Halcyon Skies
above.
This approach can be traced to Lord Watson’s statement in
The
Castlegate
[1893]
AC 38
at 52 that the sole condition for the existence of the lien is
that such
wages
have been earned on board the ship.