About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 503
|
|
Transnet Ltd v The Owner of the MV Alina II and Another (AC40/10) [2010] ZAWCHC 503; 2011 (6) SA 40 (WCC) (20 October 2010)
Reportable
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
(exercising
its Admiralty Jurisdiction in terms of Act 105 of 1983)
Case No: AC40/10
Name of
Ship:
MV
ALINA
II
In
the matter between:
TRANSNET
LIMITED
….................................................................
Applicant
and
THE
OWNER OF THE MV
ALINA
II
…..............................
First
Respondent
THE
DEMISE CHARTERERS OF
THE
MV
ALINA
II
…..........................................................
Second
Respondent
Court:
GRIESEL
J
Heard:
14
September 2010
Delivered:
20
October 2010
JUDGMENT
GRIESEL
J:
[1] This is
the extended return day of a rule
nisi
granted
ex
parte
by
Baartman J on 23 March 2010. In terms of the order, the sheriff for
the district of Vredenburg was authorised and directed to
attach 'the
first and second respondent's right, title and interest in the MV
Alina
II
and
her bunkers ("the vessel")'. The application was brought
for purposes of 'founding and/or confirming the jurisdiction
of this
court' for a claim
in
personam
that
the applicant, Transnet Limited (Transnet), intends instituting
against the respondents for payment of some R45 million, together
with interest and costs.
[2] The owner
of the vessel, a
peregrinus
in
this court,
1
has been cited as the first respondent, with the demise charterers of
the vessel being joined as the second respondent. However,
it became
common cause (for purposes of the present application at least) that
there are no demise charterers in relation to the
vessel, with the
result that the second respondent as cited has fallen out of the
picture. I accordingly refer to the owner of
the vessel herein simply
as 'the respondent'.
Factual background
[3] At the time the order was
granted, the vessel - a bulk carrier -was berthed at the Langebaan
Iron Ore Terminal in the port of
Saldanha Bay. The vessel berthed and
commenced loading a cargo of Sishen iron ore on 29 October 2009. The
loading operation was
completed on 31 October 2009, when it was
noticed that the vessel had taken on a port list and her draught/trim
had changed by
approximately 50cm by the head. Subsequent
investigations revealed that the vessel's hull had pre-existing
damage and that there
had been ingress of water into one of the
ballast tanks, caused by a fracture in the hull. As a result of the
damage and the fracture,
the vessel could not safely depart from the
terminal as the damage rendered her unseaworthy. In the result, the
cargo had to be
discharged to other smaller vessels, which
entailed a difficult and time consuming operation. The vessel
ultimately only left
the berth and sailed from Saldanha Bay on 27
March 2010, ie some five months later.
[4] The port
of Saldanha Bay is operated by Transnet. Its port operations are
divided into two divisions: Transnet National
Ports Authority (TNPA),
which
inter
alia
manages
the marine operations of the port, and Transnet Port Terminals (TPT),
which manages the cargo handling operations. The particular
terminal
at the Saldanha Bay harbour consists of two berths. As a consequence
of the vessel's continued occupation of the one berth,
only one berth
was available for Transnet to conduct its other business during the
period in question.
[5] Arising
from these facts, Transnet claims to have suffered damages, which it
is seeking to recover from the vessel by way of
two separate actions
in
rem.
On
13 January 2010 it accordingly caused the arrest of the vessel in
terms of s 3(5) of the Admiralty Jurisdiction Regulation Act
105 of
1983 (the Act). In case number AC 104/09 Transnet claims damages
amounting to R34,8 million sustained by TPT, and in case
number
AC3/10 it claims that the damages sustained by TNPA amount to some
R10,3 million. In both actions, Transnet's causes of
action - save
for the quantification of damages - are pleaded in identical terms:
first, Transnet relies on a contractual claim,
alleging that the
owner of the vessel breached a term of a contract between the parties
that the vessel would be in a seaworthy
and structurally sound
condition upon her entry into port and maintained in such a condition
while in port. In the alternative,
Transnet relies on a delictual
claim in which it is alleged that the owner of the vessel, either
directly or vicariously through
its employment of the crew of the
vessel, negligently breached a legal duty that it had to ensure that
the vessel was in a seaworthy
and structurally sound condition when
she entered port and while she remained there.
[6] After the
actions
in
rem
had
been instituted and security for the release of the arrest had been
provided, Transnet formed the view that its security for
the
in
rem
actions
would be 'wholly insufficient' to satisfy its claims in full, regard
being had to the value of the vessel and claims instituted
against
her by other creditors. Transnet accordingly decided to institute an
action
in
personam
against
the respondent, in addition to and based on the exact same causes of
action as the two pending actions
in
rem.
As
a precursor to the proposed action
in
personam,
the
present application for attachment was launched, which forms the
subject of the present application.
[7] Copies of the attachment
order were duly served by the sheriff, as directed by the order.
Thereafter, on 27 March, the respondent's
Protection & Indemnity
Club furnished Transnet with security for its claim in the form of a
letter of undertaking. The vessel
was thereupon released from
attachment and sailed from the port of Saldanha Bay on the same day,
as mentioned earlier.
[8] In due
course, the respondent delivered an answering affidavit in the
present application, in which it opposes the confirmation
of the rule
nisi
on
several different grounds, not all of which need to be considered for
purposes hereof.
Abuse of court process
[9] The
respondent's main defence to the application was that the attachment
is 'improper, an abuse of process [and] prohibited
by
lis
pendens'.
In
amplification, the respondent contended that the contemplated
action
in
personam
is
'in effect a duplication' of the
in
rem
actions
that had already been commenced against the vessel. This is so,
according to the respondent, because the actions
in
rem
and
in
personam
are
based on the same underlying cause of action and arise from the same
in
personam
liability.
In fact, the alleged
in
personam
liability
of the owner of the vessel forms the very foundation to and underpins
the actions
in
rem
by
virtue of the provisions of s 3(4)(b) of the Act.
2
Having elected to pursue its claims by way of proceedings
in
rem,
so
the respondent argued, the applicant cannot now seek to pursue the
same claim in a separate action
in
personam.
If
this were to be allowed, so it was argued, it would in effect mean
that there would be
three
separate
actions pending in the same court between the same parties and
founded upon the same causes of action, which would offend
against
the principle of
lis
alibi pendens
and
thus amount to an abuse of the court's process.
[10]
Secondly, in view of the preceding arrests of the vessel by the
applicant
in
rem,
the
applicant's claims were 'properly and sufficiently secured'. In these
circumstances, the applicant is not entitled to bring
the attachment
application for the purpose 'of obtaining additional security over
and above the value of the vessel in circumstances
where the same
claims were well secured by the arrest of the vessel and its bunkers
in the
in
rem
proceedings'.
[11] The
applicant countered by relying on the provisions of the Act as well
as the Admiralty rules, pointing out that the action
in
rem
is
in substance, and not only in form, a separate proceeding with a
different defendant to an action
in
personam.
Thus,
the property arrested
in
rem
must
be named as the defendant
3
and the summons must be served on the property itself.
4
Proceedings
in
personam,
on
the other hand, carry with them important advantages. In particular,
the judgment is granted against the owner of the property,
not the
res,
and
the judgment is not limited to the value of the
res.
Thus,
in an action
in
personam
execution
can be levied against any property belonging to the owner and is not
limited to the property arrested. The corollary is
that, if a
claimant in an action
in
rem
were
not to obtain satisfaction from the proceeds of the
res,
it
would be entitled to sue the owner
in
personam
for
the balance.
5
It follows further, according to the applicant, that
lis
alibi pendens
does
not arise because the
in
rem
and
in
personam
proceedings
are entirely distinct. In these circumstances, so the applicant
argued, there is nothing precludingit from proceeding
simultaneously
both by way of an action
in
personam
and
an action
in
rem
-
even though the underlying causes of action may be the same. Counsel
referred in this regard to s 3(1) of the Act which expressly
states
that, subject to the provisions of the Act, 'any maritime claim may
be enforced by an action
in
personam'.
Moreover,
s 3(4) permits a claim to be enforced by an action
in
rem
'(w)ithout
prejudice to any other remedy that may be available to the
claimant... '. These provisions, according to the applicant,
entitle
a claimant to bring an action simultaneously
in
rem
and
in
personam
in
the same or separate proceedings.
6
Reliance is placed in this regard on the provisions of Admiralty rule
22(5),
7
and Form 1 of the First Schedule to the rules.
[12] These
arguments and counter-arguments raise fundamental questions as to the
nature of the action
in
rem,
the
origin of which, according to one of the authors, 'appears to be
shrouded in mystery'.
8
As was pointed out in
The
Lady Rose,
9
the
question whether the true nature of the action
in
rem
is
an action lying against a thing or against a person or persons having
an interest in the thing has been 'the subject of much
debate.' This
debate has continued unabated in recent years in textbookson maritime
law in this country.
10
Wallis, in his doctoral thesis,
11
also dealt with the topic in considerable detail.
[13] It would
be supererogatory for me to attempt to add to the accumulated
learning on the subject. In the view that I take of
the matter, it is
in any event unnecessary for purposes of this judgment to make any
firm findings regarding the true nature of
the action
in
rem
in
modern South African law. In many of the foreign jurisdictions that
are of significance to our maritime law - eg England, Australia,
New
Zealand, Singapore - it is recognised that in actions
in
rem,
once
appearance has been entered (if not earlier), the owner is in
substance the defendant.
12
In our law, even though the separate identity of the thing is still
strongly emphasised, there is a growing recognition that in
reality
the action
in
rem
has
a 'curious hybrid nature'.
13
Thus, where an action
in
rem
is
instituted based on the liability
in
personam
of
the owner, 'the action cannot be regarded as simply an action against
a
res
without
reference to the owner or person having an interest therein'.
14
This is particularly so where, as in the present case, the action is
dependent upon the existence of a claim
in
personam
against
the owner. The conclusion is inevitable, as pointed out by Hofmeyr,
15
that once the owner has intervened 'itwould be artificial not to
treat the owner as a party, at least for certain purposes'.
16
[14] As
pointed out above, it is apparent that the damages to be claimed by
the applicant in the proposed action
in
personam
are
the very same damages being claimed in the pending actions
in
rem.
Not
only do the various actions thus arise out of the same facts and give
rise to the same causes of action, but the effective defendant
in
each - and the party potentially liable to pay - is the owner of the
vessel.
[15] There
are powerful policy considerations militating against a multiplicity
of actions.
17
Wallis
18
suggests that the problem of a multiplicity of actions between
the same parties 'could presumably be circumvented by the expedient
of both arresting the vessel
in
rem
and
attaching it
ad
fundandam et confirmandam jurisdictionem
at
the same time so that the action could proceed as a hybrid action,
both
in
rem
and
in
personam
at
the same time'. However, as pointed out by the learned author, 'that
seems to be an unnecessary and utterly wasteful exercise
in
litigation gymnastics, when the whole basis for the litigation is
that the owner is personally liable and the owner has resisted
that
conclusion and lost'.
19
[16] I
respectfully agree with these sentiments. The present situation is an
a
fortiori
case:
if it would be a 'wasteful exercise' to pursue an action
in
rem
as
well as
in
personam
at
the same time in the
same
action,
one may well ask rhetorically how much more wasteful it would be to
pursue the same claim concurrently in
three
separate
actions?
[17] But even
if the applicant were to be permitted to prosecute its separate
actions based on the same cause of action concurrently,
it does not
follow that it should be allowed to attach the ship (or the right,
title and interest in it, as here)
ad
confirmandam jurisdictionem
where
that same ship has already been arrested in the pending actions
in
rem.
I
have not been referred to any authority sanctioning such a course of
conduct and I am aware of none. However, the provisions of
s 3(8) of
the Act are not without significance in the present context. They
read as follows:
'Property shall not be arrested
and security therefor shall not be given more than once in respect of
the same maritime claim by
the same claimant.'
[18] The
situation in this case is that the applicant has already arrested the
vessel and the respondent has given security therefor
in respect of
the applicant's maritime claim for damages. Sub-section 3(8) makes it
clear that the applicant is not permitted,
in these circumstances, to
obtain a further arrest of the vessel. Can it, however, obtain an
attachment as a precursor to its maritime
claim
in
personam!
Hare
appears to recognise that such a course would not be permissible
where he says:
'If the "belt and braces"
approach of bringing both actions together is used, however, clearly
only one lodgement of security
would be required and this should be
at the higher limit, ie the full value of the claim."
20
[19] To the
same effect is the
dictum
by
Shearer J in
West
of England Ship Owners Mutual Insurance Association (Luxemborg) v MV
Rose,
21
where he said:
'It seems to me that it is clear
that there should not be more than one attachment in respect of the
same maritime claim which would
result in an arrest and the provision
of extra security.'
[20] Hare
points out, further, that '[t]he decision of whether to proceed by
way of an arrest with an action
in
rem
or
by an attachment with an action
in
personam
is
often a difficult one'.
22
In this case, the applicant has made its election - not just once,
but twice - to proceed
in
rem
and
to arrest the vessel. In the light of the foregoing analysis, I am
driven to the conclusion that the contemplated action
in
personam
would
seek to enforce the same maritime claim and be based on the same
cause of action as the actions
in
rem,
in
respect of which the applicant has already secured an arrest of the
vessel. In the circumstances, it would, in my view, amount
to an
abuse of the process to permit the applicant to obtain an attachment
order to confirm jurisdiction.
Consent or submission to
jurisdiction
[21] Even if I were to err in
coming to the aforesaid conclusion, there is, in my view, a further
reason why the attachment should
be set aside. It has been submitted
that prior to the attachment the respondent had consented or
submitted to the jurisdiction
of this court, as contemplated by s
3(2)(c) of the Act.
23
If this is indeed so, then it would follow that the respondent was
already amenable to this court's jurisdiction when the attachment
order was issued, with the result that the attachment order issued in
these proceedings was neither necessary nor permissible.
24
[22] It is
clear from the authorities that consent or submission to
jurisdiction
(prorogatio
fori
or
prorogation of jurisdiction) is a wide concept, which does not have
to take any particular form. It does not have to be in writing
and it
can be express or implied. Whilst submission to jurisdiction can
be a bilateral act, such as a formal agreement to
submit a particular
dispute between the parties to a particular forum ('submission by
consent'), it can also be unilateral (termed
'submission by
conduct').
25
What counts is an objective assessment of the conduct of the
respondent (or defendant) in order to assess whether it constitutes
a
submission. The test is whether the conduct of the party is
inconsistent with an intention to challenge or not to accept the
jurisdiction of the court. In the finalanalysis, the question whether
or not a defendant (or respondent) has submitted to the jurisdiction
depends on whether or not the cumulative effect of the proved facts
establishes submission on a balance of probabilities.
26
[23] There was no dispute
between the parties regarding these legal principles. What was hotly
contested, however, was the application
of these principles to the
facts of this case. In this regard, the respondent relied primarily
on the terms of a letter of undertaking
('the LOU') issued on behalf
of the respondent by the American Steamship Owners Mutual Protection
and Indemnity Association Inc
('the American Club') during March
2010.
[24] The
background to the furnishing of the LOU is important. It arose from
an order granted on 22 January 2010 by Davis J in this
court,
exercising its admiralty jurisdiction, in a matter between
Anyang
Steel International Trading Co Limited
and
the present respondent, together with nine other respondents.
27
Transnet was cited as the sixth respondent in that case. In terms of
the order, the respondent together with its agents and the
crew of
the vessel were interdicted from removing the vessel from alongside
at the iron ore berth in the port of Saldanha Bay save
in accordance
with any lawful directions from the relevant authorities, including
Transnet. Certain directions were also issued
relating to the
transhipment of the cargo of iron ore from the vessel. Paragraph 11
of the order provides as follows:
"Nothing contained in this
order should be construed so as to derogate from the rights of any
party to these proceedings to
advance any claim against any one or
more of the other parties, arising from or related to the continued
and past presence of the
vessel at the berth and/or within the port
limits, including but not limited to any right to obtain and/or apply
to increase any
security already obtained for a claim advanced or to
be advanced against any party and/or any right to arrest and/or
attach any
property of any such party/ies."
[25] Pursuant
to this order and before the commencement of transhipment of the
cargo, Transnet demanded security from the respondent
for possible
costs of wreck removal and oil pollution clean-up (individually and
collectively referred to in the eventual LOU as
'the Claims'). This
demand gave rise to protracted negotiations between the attorneys for
the respondent, Shepstone & Wylie,
and the attorneys representing
Transnet in the
Anyang
matter,
Webber Wentzel. The wording of the proposed LOU underwent numerous
changes, but the final version was eventually agreed
on 9 March 2010.
Clause 4 thereof reads as follows:
'We [ie the
American Club] hereby appoint Shepstone & Wylie attorneys [at
their Cape Town offices] to accept service of: Any
demand under this
undertaking; any legal proceedings commenced in respect of this
undertaking; and any legal proceedings issued
on your behalf in
connection with the Claims, and we hereby confirm that we have
irrevocable instructions and authority from the
vessel owner to do
so. and further to agree that
any
claim of each parly against the other,
including
the Claims, and any and all disputes between the parties arising from
the Claims, and/or this undertaking shall be exclusively
determined
by the Court.'
28
(Emphasis added.)
[26] These provisions are relied
on by the respondent as constituting an express submission and
consent to the jurisdiction of this
court.
Applicant's
argument
[27] The
applicant disputed the validity of the purported submission to
jurisdiction. Counsel argued, firstly, that the LOU was
intended to
deal solely with potential wreck removal, pollution and related
issues, and not with the applicant's
in
personam
damages
claims. Interpreting the above provisions in the context of the LOU
as a whole and within the factual matrix in which the
parties
operated,
29
so it was argued, the respondent did not in terms thereof submit to
the jurisdiction of the court to adjudicate the applicant's
in
personam
damages
claims.
[28] In
support of this argument, counsel also referred to what passed
between the parties' representatives on the subject of the
LOU.
According to Mr Fitzmaurice, who negotiated the terms of the LOU
on behalf of Transnet, the LOU was never intended to
relate to
anything other than the wreck and pollution claims referred to
therein, or claims arising from wreck and pollution claims.
In an
e-mail message of 16 February 2010, Mr Fitzmaurice impressed on Mr
Greiner of Shepstone & Wylie that the pollution LOU
would
not
pertain
to the 'recovery actions', which were being handled by Transnet's
attorneys of record herein, Bowman Gilfillan. He accordingly
stated
that the reference in the earlier draft in question to 'any and all
disputes between the parties arising from the incident
is therefore
too wide'.
[29] An
alternative argument advanced on behalf of the applicant was that, if
the court should conclude that the wording of clause
4 of the LOU did
constitute a submission to the jurisdiction of the court to hear the
in
personam
claims,
then the LOU does not correctly reflect the intention of the parties
and falls to be rectified by the replacement of the
last portion of
paragraph 4 thereof with the following words:
"... and further to agree
that all possible wreck removal and/or pollution abatement or
pollution clean-up costs of each party
against the other, including
the Claims, and any and all disputes between the parties arising from
the Claims, and/or this undertaking
shall be exclusively determined
by the Court.'
If the LOU is
rectified as set out above, so the argument went, then it is clear
that it does not constitute a submission to jurisdiction
in relation
to the
in
personam
claims,
being precisely what the parties intended at the time.
[30] It was further pointed out
that the final signed LOU was never actually furnished to the
applicant, with the result that no
submission to the jurisdiction of
the court pursuant to the LOU could have taken place in terms
thereof. Moreover, in terms of
clause 3 of the LOU, the undertaking
would be of force and have effect only so long as the vessel remained
at her present position
alongside the berth:
"Should the vessel for
whatever reason be moved from her present position this undertaking
shall lapse and shall be null and
void, save in circumstances where
the vessel is required to be moved off the berth in an emergency.'
As the vessel had eventually
safely departed from the terminal without being wrecked or causing
any pollution, the LOU (if it ever
came into existence) lapsed,
according to the applicant.
Discussion
[31] In my
view, the applicant's arguments are based on an overly narrow
interpretation of the LOU. The answer to a large part of
the argument
is that the LOU, read as a whole, deals with two aspects: first, it
furnishes security for 'the Claims', ie the potential
pollution and
salvage claims (if any). At the same time, however, it also
constitutes an express submission to the jurisdiction
of this court
on the part of the respondent. Whereas counsel is correct insofar as
the undertaking
stricto
sensu
deals
only with 'the Claims', the submission to the jurisdiction -as
expressed in clause 4 of the LOU - is significantly wider in
ambit:
it encompasses 'any claim of each party against the other,
including
the Claims.
.
. '. Clause 4 thus distinguishes between 'the Claims' (ie the
pollution claims), on the one hand, and other claims that the parties
may have against one another, which would include the proposed
in
personam
claim,
on the other hand. Notwithstanding this distinction between different
categories of claims, the submission to jurisdiction
contained in
clause 4 unambiguously relates to both categories. In this regard,
the evidence of Mr Fitzmaurice
30
actually fortifies the respondent's case. As mentioned above, Mr
Fitzmaurice complained at one stage that the reference in an earlier
draft to 'any and all disputes between the parties arising from the
incident' was too wide. However,the final version was even
wider: it
now refers to 'any claim of each party against the other, including
the Claims'.
[32] A
further difficulty with the applicant's argument is that it tends to
overlook the fact that submission to jurisdiction may
be unilateral;
the consent of the applicant is not required, nor can the applicant
object to the submission thereto or refuse to
accept it.
31
In my view, this is what happened in this instance: whereas the terms
of the LOU insofar as it related to the undertaking as such
were
obviously the subject of extensive negotiations, for which
consensus
was
required, the submission by the respondent contained in clause 4 was
unilateral and did not require the applicant's consent.
A defence of
rectification therefore does not find application; it is the
intention of the respondent alone which is decisive.
In this regard
it may be accepted, in my view, that the existence of other claims
between the parties would have been clearly present
to the mind of
the respondent when furnishing the undertaking, given the fact that
two actions
in
rem
that
had already been instituted by the applicant by the time the
undertaking was finalised. Moreover, both actions depend for their
validity on the
in
personam
liability
of the respondent vis-a-vis the applicant.
[33] The argument based on the
fact that the signed LOU was never physically delivered to the
applicant is neither here nor there.
Delivery of the instrument
containing the submission to jurisdiction is not a prerequisite for
its validity.
[34]
As for the argument that the letter of undertaking (in clause 3
thereof) contained within itself the seed of its own destruction,
32
the short answer is that, once a litigant has submitted to the
jurisdiction of the court, its submission remains in place and cannot
later be withdrawn.
33
[35] The
applicant's argument can be tested by postulating the boot on the
other foot in the proposed action
in
personam:
suppose
that in that case the respondent (defendant) were to raise a special
plea that the court does not have jurisdiction to hear
the matter.
Surely a replication relying on the submission to jurisdiction
contained in clause 4 of the LOU is bound to be upheld.
In fact, I
would venture to suggest that such a special plea could justifiably
be criticised by the court as disingenuous.
[36] The
applicant has been unable to point to any conduct on the part of the
respondent which is inconsistent with an intention
to submit to the
jurisdiction of this court. Even if the contents of clause 4 may be
regarded as ambiguous, there is subsequent
conduct on the part of the
respondent tending to support the respondent's construction.
34
In this regard, the proof of the pudding lies in the respondent's
pleas to the actions
in
rem
(coincidentally
delivered approximately half-an-hour after service of the attachment
order herein), in which the respondent does
not challenge the
jurisdiction of this court.
[37] I
conclude therefore that the respondent had already consented or
submitted to the jurisdiction of this court in respect of
Transnet's
proposed action
in
personam
before
the attachment order had been executed.
[38] For the reasons stated
above, it follows that the attachment falls to be set aside. In the
light of this conclusion, it is
not necessary to consider any of the
other defences raised on behalf of the respondent.
Order
[39] In the result, the
following order is issued:
The attachment order granted
by this court on 23 March 2010 under the above case number is set
aside with costs, including the costs
of two counsel.
B M
GRIESEL
Judge
of the High Court
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
(exercising its Admiralty
Jurisdiction in terms of Act 105 of 1983)
Case No: AC40/10
Name of Ship:
MV
ALINA
II
In the matter between:
TRANSNET
LIMITED
Applicant
and
THE
OWNER OF THE
MV
ALINA II
First
Respondent
THE
DEMISE CHARTERERS OF THE
MV
ALINA II
Second
Respondent
Court:
GRIESEL
J
Heard:
14
September 2010
Delivered:
20
October 2010
ADV.
FOR APPLICANT:
Adv
R W F MacWilliam, SC et Adv D J Cooke
INSTRUCTED
BY:
Bowman
Gilfillan (Craig Cunningham)
ADV.
FOR FIRST RESPONDENT:
Adv
A M Stewart. SC et Adv M Steenkamp
INSTRUCTED
BY:
Shepstone
& Wylie (Anneke Viljoen)
1
Pompey
Shipping Corporation of Monrovia. Liberia.
2
Section
3(4)(b). as far as is relevant, provides that \ . . a maritime claim
may be enforced by an action
in
rem
-
... (b) if the owner of the property would be liable to the claimant
in an action
in
personam
in
respect of the cause of action concerned'.
3
Admiralty
rule 2(4).
4
Admiralty
rule 6(2) and (3).
5
Bouygues
Offshore & another
v
Owner
of the Mt
Tigr
&
another
1995
(4) SA 49
(C) at 67H; Gys Hofmeyr
Admiralty
Jurisdiction Law and Practice in South Africa
(2006)
p 53.
6
Hofmeyr
op
cit
pp
48-49 and p 55 n 52. See also John Hare
Shipping
Law & Admiralty Jurisdiction in South Africa
(2nd
ed, 2009) p 92.
7
'The
title of the proceedings shall consist of a heading indicating the
nature of the document, the name of the division of the
Supreme
Court of South Africa concerned, the number assigned thereto by the
registrar, the name of the ship and the names of
the parties and. if
the proceedings are or are in connection with any action, stating
whether the action is an action
in
rem
or
in
personam
or
in
rem
and
in
personam
.'
(Emphasis
added.)
8
Wiswall
The
Development of Admiralty Jurisdiction and Practice since 1800
165-6,
quoted by Hofmeyr
op
cit
p
47.
9
SA
Boatyards CC
v
The
Lady
Rose
1991 (3) SA 711
(C) at 7151 per Scott J (with KuhnJ
concurring).
10
See
eg Hofmeyr
op
cit
pp
47-89; Hare
op
cit
pp
33-35, 80-103: H Staniland in 25(2)
LawSA
(1st
reissue, 2006)
sv
Shipping
paras
166-172.
11
M
J D Wall is
The
Associated Ship and South African Admiralty Jurisdiction,
unpublished
PhD thesis, UKZN (2010), Chapters 11 and 12, pp 431-511.
12
Wallis,
op
cit,
446-447.
13
"
Jackson
Enforcement
of Maritime Claims
p
85, quoted with approval in
The
Lady Rose, supra,
at
716B.
14
The
Lady Rose, supra,
at
716B-C.
15
Op
cit
p
54.
16
See
also
Wallis
.
op
cit,
p
488. who states that "to ignore an owner which is defending
proceedings
in
rem
is
impractical and unrealistic'.
17
See
eg
Symington
& others
v
Pretoria-Oos
Privaat Hospilaal Bedrvfs (Ply) Ltd
2005
(5) SA 550
(SCA) para 26.
18
Op
cit
p
480-481.
19
Id
20
Op
cit
p
92. Wallis.
op
cit
p
436. points out that the roots of the attachment
ad
fundandam el confirmandam jurisdiciionem
'are
essentially the same as those of the action
in
rem*
21
Shipping
Cases of SA (SCOSA) B47 (D) 8 May 1996 at B48. See also LawSA,
op
cit.
para
169.
22
Op
cit p91
23
ec
3(2) provides, as far as relevant, that an action
in
personam
may
only be instituted "against a person - (a)... : (b) whose
property within the courts area of jurisdiction has been attached
by
the plaintiff or applicant, to found or confirm jurisdiction; (c)
who has consented or submitted to the jurisdiction
of the
court.
24
Jamieson
v Sabingo
2002
(4) SA 49
(SCA) paras 24-26;
Naylor
& another
v
Jansen
2006
(3) SA 546
(SCA) para 27;
Tsung
v
IDC
ofSA Ltd
[2006] ZASCA 28
;
2006
(4) SA 177
(SCA) para 6.
25
Forsyth
Private
International Law
(4
lh
ed.
2003) p 203. An argument that unilateral submission to jurisdiction
was not possible was expressly rejected by the SCA in
Jamieson
v
Sabingo.
supra,
paras
15-27. See also
Mediterranean
Shipping Co v Speedwell Shipping Co Ltd & another
1986
(4) SA 329
(D) at 333E-G. quoted with approval in
Purser
v Sales
[2000] ZASCA 135
;
2001
(3) SA 445
(SCA) para 13.
26
Hay
Management Consultants (Pty) Ltd
v
Pi
Management Consultants (PtyJ Ltd
2005
(2) SA 522 (SCA)para 13.
27
Case
No AC 107/10.
28
'The
Court' is defined in clause 2 as "the High Court of South
Africa, Western Cape High Court, Cape Town in the exercise
of its
Admiralty Jurisdiction'.
29
See
Ekurhuleni
Metropolitan Municipality v Germiston Municipal Retirement Fund
2010
(2) SA 498
(SCA) para 13 and the cases referred to therein.
30
Para
[28] above.
31
"
See the authorities referred to in n 20 above.
32
-
Para [30] above.
33
'
Voet
Pandeclas
2
1
26:
Centner
NO
v
Griffin
NO
1960
(4) SA 798
(W) at 799D-F; Forsyth
op
cit
)
205 n 381.
34
Cf
R H Christie
The
Law of Contract in South Africa
5ed
(2006) p 218.