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[2011] ZASCA 129
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Transnet Ltd v The Owner of the Alina II (898/10) [2011] ZASCA 129; 2011 (6) SA 206 (SCA); [2011] 4 All SA 350 (SCA) (15 September 2011)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 898/10
In the matter between:
TRANSNET LTD
…............................................................................
Appellant
and
THE OWNER OF THE MV ‘ALINA II’
…..................................
Respondent
Neutral citation:
Transnet Ltd v The Owner of
the Alina II
(898/10)
[2011] ZASCA 129
(15 September 2011)
Coram:
BRAND, PONNAN, MALAN, THERON and WALLIS
JJA.
Heard
:
29 August 2011
Delivered
:
15 September 2011
Summary: Vessel arrested in actions in rem
–
thereafter plaintiff seeking an attachment
ad fundandam
et confirmandam jurisdictionem
of vessel in respect of
same claims
–
whether permissible – whether owner
of vessel had submitted to jurisdiction of the South African court
for purposes of an
action in personam
in respect of
claims.
ORDER
On appeal from:
Western Cape High Court, Cape
Town (Griesel J sitting as court of first instance in the exercise of
the court’s admiralty
jurisdiction) it is ordered that:
The appeal is dismissed with costs.
JUDGMENT
WALLIS JA (BRAND, PONNAN, MALAN AND THERON JJA
CONCURRING)
[1] This appeal raises a short but important question of
admiralty law and practice. A plaintiff commences an action in rem

by way of the arrest of a vessel on the basis of the owner’s
personal liability for the claim. The owner of the vessel delivers

notice of intention to defend the action in order to contest its
liability for that claim. Can the plaintiff then obtain the
attachment
of the vessel to found and confirm jurisdiction
1
in separate proceedings in personam
against
the owner in respect of the same claims? The appellant, Transnet Ltd,
says that it can, but the respondent, the owner of
the
Alina
II
, disputes this. The question arises in the
following circumstances.
[2] Transnet is the port authority at Saldanha Bay and
trades as Transnet Port Terminals and Transnet National Port
Authority. It
is responsible for the operation of the Langebaan Iron
Ore Terminal at Saldanha Bay. On 29 October 2009 the
Alina
II
, a bulk carrier, berthed at one of the two
berths at the terminal and commenced loading a cargo of about
175 902 mt of
Sishen iron ore fines. The vessel completed
loading on 31 October 2009. It was then observed that it
had taken on a port
list and it was down by the head by about 50cm.
Investigations revealed that this was due to the ingress of water
into the No 2
Double Bottom port ballast tank caused by a fracture at
frames 227-228.
[3] After this discovery the vessel remained at the
berth until her cargo had been transhipped. This took time and it
only left
Saldanha Bay on 27 March 2010. Transnet contends
that it has suffered damages in consequence of the vessel’s
occupation
of the berth during this period. On 13 January 2010
Transnet caused the
Alina II
to
be arrested in two actions in rem with a view to recovering
those damages. There is no significant difference between the
two and
henceforth I will treat them as a single action. The owner of the
vessel caused a notice of intention to defend to be delivered
on
27 January 2010 and on 19 February 2010 Transnet
delivered its particulars of claim. It suffices for present
purposes
to note that it advances claims in both contract and delict. The
contractual claim is said to arise from a contract between
Transnet
and the owner of the vessel. The delictual claim is based on a legal
duty allegedly owed by the owner to Transnet and
a negligent breach
of that duty by the owner, either personally or acting through the
master and crew for whom the owner is said
to be vicariously liable.
Accordingly Transnet’s claims are squarely based on the
personal liability of the owner and are
pursued in rem
by
virtue of the provisions of s 3(4)(b) of the Admiralty
Jurisdiction Regulation Act 105 of 1983 (the Act).
[4] On 19 March 2010 the vessel was again
arrested in an action by four companies in the Kumba Mining group
advancing
claims of nearly $275 million. This prompted the
attorney acting for the owner
2
to send an e-mail to all the other parties having actual
or potential claims against the vessel saying:
‘
Please be advised that:
Any security which the owners may put up should be limited to the
value of vessels;
Let us know what you need in order to make a valuation of the vessel
before she departs;
Be informed that any security which we provide to enable the vessel
to depart is without prejudice to our rights to apply in
due course
to (1) reduce the security and/or (2) substitute it for security to
cover all the claims against the vessel.’
This stance precipitated the application by Transnet for
an attachment of the vessel
ad fundandam et
confirmandam jurisdictionem
. The reason, as
explained by Transnet’s attorney in the founding affidavit, was
that it believed that if it attached the
vessel to commence an action
in personam against its owner the vessel could only be released
against the provision of security
for the full amount of Transnet’s
claims.
3
The application was brought
ex
parte
and without notice to the owner or its
attorney in order to forestall a submission to the jurisdiction. The
attachment order was
made on 23 March 2010 and served on
the master of the vessel the same day, the sheriff recording in his
return of service
that he explained ‘the contents, nature and
exigency thereof’ to the master. He also affixed a copy to the
windscreen
of the superstructure of the vessel.
[5] On 26 March 2010 the vessel’s P &
I club provided a letter of undertaking in respect of the full amount
of Transnet’s claims and in respect of both the in rem and
the in personam actions. This allowed the vessel to sail.

Thereafter the owner opposed the confirmation of the attachment
order. It did so on essentially two grounds. The first was that
the
attachment constituted an abuse of the process of the court. The
second was that such an attachment was impermissible because,
prior
to the grant of the order or at least prior to the vessel being
attached pursuant to that order, the owner had submitted
to the
court’s jurisdiction and such submission precluded an
attachment
ad fundandam et confirmandam
jurisdictionem
.
4
It advanced this second contention on three bases. First
it said that there had been an express submission in a letter of
undertaking
(‘LOU’) relating to potential pollution and
wreck claims drafted and agreed between the owner’s P & I
club,
Transnet, the South African Maritime Safety Association and the
Department of Environmental Affairs, but never implemented because

the need for it fell away. Second it relied on its having entered
appearance to defend the in rem
actions and
the procedural steps it had taken pursuant thereto. Third it
contended that, whilst the sheriff served the attachment
order, he
did not attach the vessel and there was a clear submission to the
jurisdiction immediately the owner learned of the existence
of the
order.
[6] In the high court Griesel J upheld both the abuse of
process and submission to the jurisdiction arguments, the latter on
the
footing that the submission was embodied in the LOU. Transnet
appeals with his leave. It contends that the Act specifically
contemplates
and countenances a plaintiff pursuing its claims both by
an action in rem
and by an action
in personam. These are said to be two totally distinct forms of
proceedings so that the actions of the owner
in relation to the
in rem
actions cannot amount to a submission
to the jurisdiction in relation to the in personam claims
against it. In advancing this
argument submissions were made in
regard to the nature of the action in rem
and
the effect of admiralty rule 8(3). In regard to the service
of the attachment order it was said that the owner was
incorrect in
contending that in addition to service of the order it was necessary
for the sheriff to serve a writ of attachment
and accordingly service
of the order sufficed to effect the attachment.
[7] In his heads of argument, counsel for the owner
dealt with the effect of the owner defending the in rem actions
under the
rubric ‘abuse of process/
lis
pendens
’
. The argument was that by
defending those actions the owner had submitted to the jurisdiction
of the court and in substance had
become the defendant. Accordingly
it was contended that, as there were already in existence actions
against the owner to recover
the same claims as were being pursued in
the in personam action, the commencement of the latter action by
way of the attachment
was an abuse of process. It was a situation
where there was a pending action involving the same parties, the same
subject matter
and the same causes of action (
lis
pendens
) and this provided a proper basis for
concluding that to permit a further action was an abuse of process.
5
[8] These conflicting approaches resulted in a
considerable debate in the heads of argument and before us about the
true nature
of the action in rem
in South
African admiralty procedure; the application in this country of what
was said to be the principle laid down in
The
Dictator
;
6
and the impact of admiralty rule 8(3) on that
decision, so far as our admiralty law is concerned. Interesting
though these
issues are, the dispute between the parties is capable
of being resolved on a narrow footing, without resolving all of them,
and
it is preferable to do so and to leave the remaining questions to
be dealt with when they more pertinently arise.
[9] It is generally accepted that a claimant whose claim
has not been satisfied after proceeding in rem
is
entitled thereafter to pursue a claim in personam for the
balance. (This is of course only so if the owner is personally
liable
on the claim.) Put differently the judgment in rem does not
merge in a judgment in personam.
7
This illustrates the point that it is possible to
conceive of circumstances in which resort may be had to both forms of
action,
without oppression or abuse and for entirely legitimate
reasons. Thus, for example, if the owner as the person liable
in personam
on the claim does not defend the
action in rem
and it is perfectly clear that
the claim will not be satisfied in full, because it exceeds the value
of the vessel (or the fund
arising from its sale), the claimant may
wish to pursue the claim in personam
against
the owner and to that end attach an asset to found the jurisdiction
of the court. I am not satisfied that the Act precludes
the claimant
from doing that.
8
Certainly it seems an odd result to say that the
in personam action can be pursued once the in rem
action is complete, as is undoubtedly the case, but
cannot run simultaneously. Accordingly for present purposes, I assume
without
deciding, that Transnet is correct in saying that the Act
recognises two forms of procedure, namely the action in rem and
the action in personam, and contains no prohibition on a person
having resort to both in order to recover its claims.
[10] The mere fact that the Act does not prohibit a
party from pursuing its claims by both forms of procedure is not
decisive of
the question of abuse of process. However, the power of
the court to prevent a party from pursuing an otherwise legitimate
course
on the grounds of abuse of process is one to be exercised with
caution.
9
That being so, it is preferable in the first instance to
consider the arguments based on submission to the jurisdiction,
because
if there was such a submission in respect of these claims
prior to the attachment being effected then the attachment order was
correctly set aside. That is accepted by both parties.
10
[11] Transnet’s action in rem
commenced with the arrest of the
Alina
II
on 13 January 2010. On
27 January 2010 notice of intention to defend was
delivered. The notice reflects that
‘the Defendant’ –
ostensibly the ship – ‘hereby gives notice of its
intention to defend’ and
the attorneys described themselves as
‘Defendant’s attorneys’. However, that nomenclature
arises from the manner
in which the defendant in an action in rem
is cited under admiralty rule 2(4). The instructions to
give this notice could only have come from a natural or juristic
person.
In this case they came from the owner of the vessel. Had
there been any confusion over this – and there is none, the
allegation
that the instructions came from the owner being admitted –
it was open to Transnet to clarify this by invoking admiralty
rule 22(4)(b)(i) in order to ascertain the identity of the party
giving the notice of intention to defend. Although there was
a
submission that in this form it was unclear who had given the notice
it is plain on the facts of this case that there was no
confusion and
Transnet was well aware that the notice was given on behalf of the
owner of the vessel.
[12] By giving notice of intention to defend the action
the owner of the
Alina II
came
to the South African court to resist allegations that it was in
breach of contractual obligations or alternatively guilty,
directly
or vicariously, of negligence for which it was liable in delict. The
issues to be determined in the action were issues
concerning the
liability of the owner. The notice of intention to defend was given
because the owner intended to defend itself
against those allegations
and to resist the claim that it was legally liable to compensate
Transnet for the damages that it alleges
it suffered in consequence
of the
Alina II
being
delayed in Saldanha Bay.
[13] It is of fundamental importance to the proper
resolution of this case to recognise that the issue is whether the
owner of the
Alina II
submitted
itself to the jurisdiction of the South African court in respect of
these claims and that such a submission may occur
without any
proceedings yet having been brought against the owner. That is an
entirely different question from whether the entry
of appearance to
defend entitles the owner to challenge the jurisdiction of the court
in the action in rem
.
Thus
the plea in the action in rem places in issue whether the claims
advanced by Transnet are maritime claims. The consequences
of that
point being upheld depend upon matters such as the proper
interpretation of s 7(2) of the Act. It is unnecessary for
those
matters to be considered here, because we are not concerned with
whether a judgment in rem
can be granted
against the
Alina II
or
even with whether the court has jurisdiction in the in rem
actions. All we are concerned with is whether the owners
have submitted to being sued in personam in South Africa.
[14] In
Mediterranean Shipping Co
v Speedwell Shipping Co Ltd & another
11
Van Heerden J said:
‘
Submission to the jurisdiction of a court
is a wide concept and may be expressed in words or come about by
agreement between the
parties.
Voet
2.1.18. It may arise through unilateral conduct following upon
citation before a court which would ordinarily not be competent
to
give judgment against that particular defendant.
Voet
2.1.20.
Thus where a person not otherwise subject to the jurisdiction of a
court submits himself by positive act or negatively by
not objecting
to the judgment of that court, he may, in cases such as actions
sounding in money, confer jurisdiction on that court.
Herbstein and
Van Winsen
The Civil Practice of the
Superior Courts in South Africa
3rd ed
at 30; Pollak
The South African Law of
Jurisdiction
at 84
et
seq.
’
It follows that the question of submission depends on
the facts. It may be constituted by the terms of an agreement prior
to litigation
commencing. Thus, nominating a South African
domicilium
citandi et executandi
in a contract, in
conjunction with a choice of South African law, was held to
constitute a submission to the jurisdiction in respect
of any claims
flowing from that contract.
12
Submission may arise from conduct in litigation
commenced against a person before a court that lacks jurisdiction in
respect of
that person or that claim.
13
In the
Mediterranean Shipping
case it was said that:
‘
Anyone who invokes the jurisdiction of this
Court for relief under the Act must be taken – and can hardly
be heard to contend
otherwise – to have submitted to that
jurisdiction …’
14
There it was held that the attachment of a ship
constituted a submission by the attaching party to the court’s
jurisdiction
in respect of a claim for damages flowing from that
attachment.
[15] The conduct of the owners in entering appearance to
defend the in rem
action unequivocally
proclaimed their willingness to submit to the judgment of the South
African court on the claims raised by Transnet.
Their entry of
appearance was not qualified or limited in any way. There is nothing
in it to suggest that they were entering appearance
for any purpose
other than disputing the claims on their merits and that, as already
noted, meant that they were entering into
the question of their own
liability to Transnet in respect of those claims. Thereafter (and
before the application for attachment)
they insisted on strict
compliance with the time limits in respect of the filing of the
particulars of claim; gave an undertaking
to preserve documents;
asked what security Transnet required in order to secure the release
of the vessel; gave a notice under
the rules requiring the production
of documents; and, when this was not complied with, gave notice of
their intention to apply
to compel delivery, alternatively to strike
out Transnet’s claim. On the ordinary principles applied by our
courts in regard
to submission to jurisdiction the owners submitted
themselves to the jurisdiction of the South African court in relation
to these
claims.
[16] What is said to make a difference is that all this
occurred in proceedings in rem
against the
Alina II
where,
according to the contention on behalf of Transnet, the ordinary
principles are inapplicable, because of the special character
of such
an action. This proposition encounters an immediate difficulty in
that in English admiralty law, from which South Africa
first acquired
the action in rem, it was held in 1892 in
The Dictator
15
that the effect of the owner of a ship entering
appearance to defend an action in rem, where the owner is
personally liable
on the claim, is that the owner submits to the
jurisdiction of the court in respect of that claim and any judgment
given thereafter
is capable of being executed against the owner
personally. The plaintiff is not confined to the ship or execution
against the bail
given to secure the release of the vessel. Cognisant
of this difficulty it was submitted in heads of argument on behalf of
Transnet
that the:
‘…
purpose of Admiralty Rule 8(3)
was to reverse in its entirety the English rule originally formulated
in
The Dictator
that
once a defendant in an admiralty action in rem has entered an
appearance in such action, he has submitted himself personally
to the
jurisdiction of the English Admiralty Court and the result is that
the action thereafter continues against him not only
as an action
in rem, but also as an action in personam’.
[17] In order to consider this submission it is
necessary to have regard to what was decided in
The
Dictator.
It was a case concerning a claim
for salvage. The owners of the ship and its cargo put in an
appearance to defend the action and
put up bail for £5 000,
which was the full amount of the claim. Thereafter judgment was
granted in an amount of £7 500.
The issue was whether the
plaintiff could simply proceed to execution against the owners on
this judgment or whether they were
restricted to executing against
the bail for £5 000 and proceeding in a fresh action
against the owners for the balance.
The argument for the owners was
that in an action in rem judgment could not be given for more
than the value of the vessel.
At the outset Sir Francis Jeune said
that:
‘
It is necessary to consider whether in an
action in rem,
where a personal
action would lie against the owners
,
judgment can be enforced for more than the value of the res; because,
if it can, no doubt it can be enforced for more than the
amount of
the bail.’
16
(Emphasis added.)
The stress on the existing personal liability of the
owner is repeated throughout the judgment, which concerns only the
effect of
an appearance to defend being given by such an owner. The
argument that the judgment could not be executed against the owner
and
that the balance of the claim should be pursued by a separate
action in personam
against the owners was
based solely on the alleged admiralty practice. That practice, so it
was said, precluded the engrafting of
an action in personam on
to an action in rem
.
Jeune J
responded to this suggestion by saying:
‘
I cannot help thinking that the fallacy
lies in considering that to enforce a judgement beyond the value of
the res against owners
who have appeared
and
against whom a personal liability enforceable by Admiralty process
exists,
is the grafting of one form of
action on to another. The change, if it be a change, in the action is
effected at an earlier stage,
namely, when the defendant by appearing
personally, introduces his personal liability.’
17
(Emphasis added.)
The conclusion he reached was that when owners defend an
action in rem,
in circumstances where they
are personally liable on the claim, the judgment is one that can be
enforced against the owners personally.
That was based on the owner’s
existing personal liability and the submission to the jurisdiction of
the court involved in
entering appearance to defend the action, as
well as on the form of process then applicable in admiralty
proceedings, which cited
the vessel and all parties interested
therein.
[18] The decision by Jeune J was challenged in the
Court of Appeal in
The Gemma.
18
That was a case of a claim for damages arising from a
collision. After the vessel was arrested the owners entered
appearance to
defend and in due course put in a defence and a
counterclaim. Smith LJ said of this:
‘
That the defendants then submitted to the
jurisdiction of the Court I cannot doubt …’
19
It is plain from a later reference to persons, whose
ship has been arrested, appearing to fight out ‘their
liability’
20
that the court was concerned only with the position of
the owner who was personally liable on the claim and who entered
appearance
to defend it. On that basis the court held that the
judgment in the action could be enforced against the owners directly.
In doing
so it expressly approved the decision in
The
Dictator.
[19] These two cases were decided on the basis that the
owners were personally liable on the claim. Their entry of appearance
was
taken as a submission to the court’s jurisdiction. From
that submission, and the mode of citation in admiralty, flowed the

consequence that the judgment was against them personally and could
be enforced to its full extent against all their property.
There is
no suggestion in either judgment that a party who entered appearance
for the purpose of defending their interest in the
vessel, but who
was not personally liable in respect of the claim, thereby undertook
liability for anything beyond the costs of
the litigation. In other
words it was not suggested that entering appearance created a
liability for the claim that did not otherwise
exist.
[20] Whilst these decisions were subjected to criticism
in
Williams and Bruce’s Admiralty
Practice
21
they have been uniformly followed in England.
22
Nearly 100 years later Lord Brandon of Oakbrook said
that:
‘
By the law of England, once a defendant in
an Admiralty action in rem has entered an appearance in such
action,
he has submitted himself
personally to the jurisdiction of the English Admiralty Court
,
and the result of that is that, from then on, the action continues
against him not only as an action in rem but also as an
action
in personam …’
23
(Emphasis added.)
[21] In English admiralty law therefore, after entry of
appearance to defend an action in rem,
the
action proceeds as both an action in rem
and
as an action in personam
against the party
giving the notice. Fletcher-Moulton LJ said that the decisions
in
The Dictator
and
The Gemma
treat the
entry of appearance as introducing the characteristics of an action
in personam
and described the position of
the owner entering appearance in the following terms:
‘
It is an action in which the owners may
take part, if they think proper, in defence of their property, but
whether or not they will
do so is for them to decide, and if they do
not decide to make themselves parties to the suit in order to defend
their property,
no personal liability can be established against them
in that action.’
24
[22] In a later case it was said that, when the owner
who is personally liable enters an appearance, the action in England
has a
hybrid form, both in rem and, as against the owner,
in personam.
25
It is important to note that in part at least this
conclusion flowed from the form of the writ under which actions
in rem
were and still are instituted in that
jurisdiction. The writ was addressed to the vessel and ‘all
persons claiming an interest
in’ the vessel. Accordingly when a
person claiming such an interest entered appearance to defend they
submitted to the jurisdiction
in relation to a writ in which they
were already cited. As Lord Wright put matters in
The
Cristina
:
26
‘…
under the modern and statutory
form of a writ in rem, a defendant who appears becomes subject
to the liability in personam.
Thus the writ in rem becomes
in effect also a writ in personam.’
[23] Lastly in this review of the English position,
Hobhouse J in
The Nordglimt
27
dealt with the position in the following terms:
‘
Unless and until anyone appears to defend
an action in rem, the action proceeds solely as an action in rem
and any judgment
given is solely given against the res … An
action in rem may be defended by anyone who has a legitimate
interest in
resisting the plaintiff’s claim on the res. Such a
person may be the owner of the res but equally it may be someone who
has
a different interest in the res which does not amount to
ownership, or again it may be simply someone who also has a claim
in rem
against the res and is competing with the plaintiff for a
right to the security of a res of inadequate value to satisfy all the

claims that are being made on it. It will also be understood from
what I have said and from a general understanding of the law
of
maritime liens that the owner or other person defending the action
may be under no personal liability to the plaintiff.
…
Unless and until a person liable
in personam chooses to defend an action in rem, the action
in rem will not give
rise to any determination as against such a
person of any personal liability on his part, nor will it give rise
to any judgment
which is enforceable in personam against any
such person.’
[24] There is thus a consistent stream of authority in
English admiralty law, commencing with
The
Dictator
, that holds that the entry of
appearance to defend an action in rem
is a
submission to the jurisdiction of the court and that thereafter any
judgment given is one both against the res and in personam
against the person entering appearance, where that party
is personally liable for the claim. That authority was undoubtedly
binding
on South African courts sitting as Colonial Courts of
Admiralty prior to 1 November 1983, where they were
required to
apply the law as applied by the High Court of Justice of
the United Kingdom in the exercise of its admiralty jurisdiction. Had
any such issue arisen,
28
they would have been bound to apply the decision in
The
Dictator.
Transnet’s case is, however,
that this is no longer so.
[25] The first stage at which South African admiralty
law could have departed from the position in England and
The
Dictator
was when the Act was passed. Whether
that occurred would depend upon the terms of the Act itself. The
question can be disposed of
shortly as it is not a contention that
Transnet advanced. When the Act was passed the action in rem
was maintained because it was internationally recognised
as a mode of bringing proceedings in maritime cases. Other than the
introduction
of the associated ship there is nothing to suggest that
the Act was intended to bring about a fundamental alteration in the
nature
and effect of the action in rem
.
Nor is there anything in the language of the Act itself
to indicate that this was its purpose. As one commentator pointed out
it
would have been impractical to abandon the jurisprudence that
created the concept of the action in rem
whilst
retaining the action.
29
That is plainly correct.
[26] Transnet’s argument is that the departure
from
The Dictator
arises
from the provisions of admiralty rule 8(3), as it now is,
formerly admiralty rule 6(3).
30
The case was presented on the footing that this change
occurred when the Act came into operation on 1 November 1983,
but
that overlooked the fact that for the first three years of the
Act’s operation, up until 1 December 1986, the rules

applicable to admiralty proceedings were the Rules of the
Vice-Admiralty Courts,
31
which applied also to the Colonial Courts of Admiralty.
Those rules followed the rules and forms applicable in admiralty
proceedings
in England in the High Court of Justice sitting in the
exercise of its admiralty jurisdiction. A writ of summons
32
was addressed:
‘
To the owner and all others interested in
the ship [her cargo and freight &c.,
or
as the case may be
].’
Under rule 19 a party entering appearance would file the
appearance at the place directed in the writ. The appearance had to
be
signed by the party appearing and state his name and address and
an address for service.
33
If the party appearing had a set-off or counterclaim
against the plaintiff he was entitled to endorse on the appearance a
statement
of the nature thereof and of the relief or remedy required,
and of the amount if any of the set-off or counterclaim.
34
It is plain from the rules dealing with parties
35
that the ‘party’ referred to in these rules
is not the ship but the person, such as the owner, charterer,
mortgagee
and insurer, who had entered appearance to defend an
action.
[27] Bail for the release of the vessel was to be given
by sureties.
36
Under rule 55 actions would ordinarily be heard without
pleadings
37
but if pleadings were required the plaintiff and the
party defending the action, who was referred to in the rule as the
defendant,
filed them. All the rules dealing with the conduct of
proceedings refer to a ‘party’ and this is always a
reference
to the plaintiff or the party defending the action, not the
vessel. In other words, the rules in force under the Act, from the
date it came into force on 1 November 1983, were entirely
consistent with the continued application in South Africa of
the
approach adopted in
The Dictator
that
the entry of appearance to defend by an owner personally liable for a
claim amounted to a submission to the jurisdiction and
the action
would thereafter continue as both an action in rem
and
an action in personam against the owner.
[28] The argument that when rule 6(3) came into force on
1 December 1986 it altered the position, raises certain
major
difficulties. It is however unnecessary to address these as I
am satisfied that on a proper construction of rule 8(3)
38
it does not have the suggested effect. The rule reads:
‘
A person giving notice of intention to
defend an action in rem shall not merely by reason thereof incur
any liability and shall,
in particular, not become liable
in personam, save as to costs, merely by reason of having given
such notice and having defended
the action in rem
.
’
On its plain language the rule is concerned only with
whether the effect of entering an appearance to defend and defending
an action
in rem
is to attract liability in
respect of the claim. It provides that such liability will not arise
‘merely’ in consequence
of the entry of appearance to
defend. It says nothing about the position of the person whose
liability in respect of the claim
arose before the commencement of
the action out of the circumstances giving rise to the claim. That
was the view of Douglas Shaw
QC, who wrote about the rule that:
‘
This rule does not affect any liability
which might otherwise exist, a subject which has been dealt with. It
merely provides that
the procedural step of giving notice of
intention to defend and defending the action is not to subject anyone
to the greater liability.’
39
[29] The reference in that passage to the question of
liability is a reference to an earlier statement by Shaw that the
entry of
appearance to defend is ‘a submission to the
jurisdiction, not an acceptance of liability’.
40
That statement gives a clue to the problem that the rule
addresses. It is the perception – I believe an erroneous
perception
– that the judgment in
The
Dictator
held that a person who enters
appearance in an action in rem
thereby, and
without more, attracts personal liability for the claim.
41
It is true that in a number of cases in England and
elsewhere there are statements that, by entering appearance to
defend, the owner
introduces its personal liability, or statements to
similar effect. In my view those statements are misleading insofar as
they
are taken to suggest that this is a liability arising from the
fact of entering appearance to defend, as opposed to a pre-existing

liability that can be enforced against the owner in those
proceedings, by virtue of the owner’s submission to the
jurisdiction.
In my view
The Dictator
is authority for only two propositions. The first is
that, as Shaw says, entering appearance to defend (and, I would add,
thereafter
defending) an action in rem
is a
submission to the jurisdiction of the court. The second is that where
the person entering appearance to defend is personally
liable on the
claim, under the forms of procedure then applicable in the English
courts exercising admiralty jurisdiction, that
person has been cited
and submitted to the court’s jurisdiction, and any judgment
thereafter will be enforceable as a judgment
in personam against
that person.
[30] Under the present admiralty rules in South Africa
the second of these consequences would not flow from the entry of
appearance
to defend and the defence of the in rem
action. The reason is that in terms of
admiralty rule 2(4), read with form 1 to the admiralty
rules, the summons
in rem is not addressed to and does not cite
the owner or other persons having an interest in the vessel or other
res arrested
in order to commence the action. In this our rules have
departed from the forms that applied in England, as referred to by
Lord
Wright in
The Cristina
,
supra, and the forms previously applicable in South Africa, both when
our courts sat as Colonial Courts of Admiralty and in the
first three
years of operation of the Act.
42
One may therefore have a submission to the court’s
jurisdiction by a person not cited as a party.
43
However the problem, if it be one, is readily overcome
by amending the summons to join that person and to reflect, as rule
22(5)
contemplates, that the action will proceed as an action both
in rem
against the vessel and in personam
against that person, with such consequential amendments as the
circumstances may require.
Alternatively a separate action
in personam can be commenced on the basis of the submission to
the court’s jurisdiction.
Some such
procedural step seems to be necessary in this country in order that
the action (and ultimately any judgment) reflects
the party entering
appearance as a party to the judgment. However, that is immaterial to
the outcome of this case, where the only
issue is whether the owners
of the
Alina II
submitted
to the jurisdiction of the South African court before the attachment
order was granted.
[31] If, which I don’t think is the case,
The
Dictator
is authority for the
further proposition that a person entering appearance in an action
in rem thereby incurs personal liability
on the underlying
claim, irrespective of whether it is otherwise personally liable on
that claim, that would not affect the understanding
of rule 8(3). The
only difference would be that it would then be addressed to a real
rather than a perceived issue arising from
that judgment. Whether the
rule could validly have the effect of reversing this would then
arise. That is no reason for treating
the rule as affecting the
question of submission to the jurisdiction.
[32] We were referred to three judgments in support of
the contention that rule 8(3) reversed the decision in
The Dictator
in its entirety and is not limited to making it clear
that entering appearance to defend and defending an in rem
action does
not create or impose a liability on the person entering
the appearance. The first in point of time is that in
SA Boatyards
CC (t/a Hout Bay Boatyard) v The Lady Rose (formerly known as the
Shiza
44
and reliance is placed upon a comment by Scott J that:
‘
The effect of the Rule would seem to be to
re-establish the position which prevailed in England prior to
The
Dictator
(cf Thomas
Maritime
Liens
para 92) and the rule is probably
the result of criticism levelled at the extension of the owner’s
liability which has occurred
since the last decade of the previous
century (cf Jackson
Enforcement of
Maritime Claims
at 59;
45
Shaw
(
op
cit
at 31))’
46
However that overlooks the next sentence where the
learned judge said:
‘
It does not follow, however, that merely
because the owner defending an action in rem does not incur
personal liability (save
for costs) he is necessarily to be regarded
as a stranger to the suit and not entitled to counterclaim.’
The issue in that case was whether an owner defending an
action in rem was entitled to raise a counterclaim. Scott J held
that
he could, thereby recognising that the effect of entering
appearance to defend is to bring before the court the party entering
appearance.
47
The tentative comment that prefaced this lends no
support to Transnet’s contentions.
[33] The most pertinent judgment is that of Farlam J in
Bouyges Offshore & another v Owner of the
MT Tigr & another.
48
The issue in that case was the same as that in this
case, namely whether an attachment to found and confirm jurisdiction
should
be confirmed in a case where there was already an action
in rem
against the
Tigr
that was being defended by its owners. Confirmation of
the attachment was opposed on the grounds that the owner was liable
in rem
because its asset would be sold in
order to satisfy any judgment and that English law as expressed in
The August 8
, supra,
applied, so that after entering appearance to defend the action
in rem
proceeded also as an action
in personam.
49
Having rejected an argument that the rule is invalid,
the key to Farlam J’s decision lies in the following passage:
‘
By our procedure, as set forth in the Rule,
such an owner is not regarded as having submitted to the in personam
jurisdiction
of the Court. It follows further that first respondent
did not, by taking the steps to which I have referred, submit to this
Court’s
in personam jurisdiction.’
50
[34] With great respect I cannot accept this as a
correct statement of the law. First the rule does not say anything
about the question
of submission to the jurisdiction or about
procedure. Its focus is solely and expressly on the liability of the
person who enters
appearance to defend and defends an action. That is
an entirely separate issue from any question of submission to the
jurisdiction.
Second the distinction drawn between the in rem
and the in personam
jurisdiction
of the court is fallacious. The jurisdiction conferred on our courts
under the Act is set out in s 2 of the Act
and is a jurisdiction
to hear and determine maritime claims as defined in s 1 of the
Act. The action in personam and
the action in rem
are dealt with in s 3 of the Act under the heading
‘Form of proceedings’. They are the modes by which
maritime
claims can be enforced before a court having jurisdiction
but it is erroneous to treat the court as exercising two separate and

distinct jurisdictions, one in personam
and
the other in rem. The question is simply whether there has been
a submission to the jurisdiction of the court in respect
of those
claims. That question is to be addressed in accordance with ordinary
principles governing submission to the jurisdiction
of the courts. In
this case there clearly was such a submission.
[35] The third judgment is
MT
Argun: MT Argun v Master and Crew of the MT Argun & others
.
51
That dealt with the effect of the lapsing of an arrest.
After quoting the passage from
The August 8
cited in para 20, Farlam JA said:
‘
If the present case had been heard in
England, therefore, on the lapsing of the arrest of the vessel the
actions would at the very
least have continued as actions in personam
against the vessel's owner. That that is not our law is clear from
Rule 8(3),
the material provisions of which are quoted in para [20]
of this judgment.’
52
Our law on this differs from English law because in
English law the form of citation in an action in rem
requires the identification and citation of the
defendant, so that procedurally, once there is a submission to the
jurisdiction
by the defendant, that person is fully before the court.
In our procedure only the vessel is cited so that, until there is an
amendment
of the summons, the party entering appearance to defend is
not as such before the court. The difference is not ascribable to the

provisions of rule 8(3) and the dictum to that effect is not
correct.
[36] For those reasons the proposition that admiralty
rule 8(3) reverses that aspect of the decision in
The
Dictator
that held that, when a person
enters an appearance in an admiralty action in rem,
that is a submission to the jurisdiction of the court, is incorrect.
The
rule is silent on the question of submission to the jurisdiction
and there is no reason why that should not be dealt with in admiralty

proceedings in the same way in which our courts deal with it in the
exercise of their ordinary jurisdiction. On the facts set out
in para
15 the owner of the
Alina II
had
submitted to the court’s jurisdiction in respect of the claims
by Transnet prior to the order for attachment being obtained.
That
order should not therefore have been granted and the high court was
correct not to confirm it.
[37] In arriving at that conclusion it is unnecessary to
express any final view on any other aspect of the decision in
The
Dictator
, or the nature of the action in rem,
or to consider whether the judgment of Lord Steyn in
The
Indian Grace (No 2)
53
should be followed in South Africa. It is also
unnecessary to decide whether there may be circumstances in which a
party may enter
appearance to defend an action in rem on such
terms as to avoid submitting to the court’s jurisdiction in
respect of
that person’s personal liability on the claim. It
suffices to say that on all the facts of this case there was a
submission
to the court’s jurisdiction. That conclusion renders
it unnecessary to consider the other points debated in argument.
[38] The appeal is dismissed with costs, such costs to
include those consequent on the employment of two counsel.
M
J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: R W F MacWilliam SC (with him D J Cooke)
Instructed by
Bowman Gilfillan, Cape Town
Matsepes Inc, Bloemfontein
For respondent: A M Stewart SC (with him M Steenkamp)
Instructed by
Shepstone & Wylie, Cape Town
Honey Attorneys Inc, Bloemfontein.
1
Ad
fundandam et confirmandam jurisdictionem.
2
Presumably
in reliance on admiralty rule 4(7)(a)(ii).
3
As
held in
Yorigami Maritime Construction Company Limited v
Nissho-Iwai Co Limited
1977 (4) SA 682
(C). It is unnecessary to
consider whether that judgment remains good law. See Malcolm Wallis
The Associated Ship & South African Admiralty Jurisdiction
(2010) at 348, fn 25.
4
In
those circumstances an attachment is impermissible.
Jamieson v
Sabingo
2002 (4) SA 49
(SCA);
Hay Management Consultants
(Pty) Ltd v P3 Management Consultants (Pty) Ltd
2005 (2) SA 522
(SCA);
T
s
ung v Industrial Development Corporation of SA
Limited
[2006] ZASCA 28
;
2006 (4) SA 177
(SCA) paras 6 and 13.
5
Hudson
v Hudson and another
1927 AD 259
at 268.
6
The
Dictator
[1892] P 304.
7
The
Cella
(1888) 13 PD 82
at 85;
The Rena K
[1979] 1 All ER
397
(QBD (Adm Ct)) at 416;
Republic of India & another v
India Steamship Co Ltd (The “ Indian Grace”)(No 2)
[1996] 2 Lloyd’s Rep 12 (CA) at 23.
8
There
are textual indications in the Act and the admiralty rules that this
is permissible. In s 3(4) it is said that the
right to
institute proceedings in rem exists ‘without prejudice to
any other remedy that may be available to a claimant’.
Rule
22(5) provides that the heading of documents in admiralty
proceedings shall reflect whether the proceedings are in rem
or
in personam or in rem and in personam
.
Whilst
one does not normally construe a statute by reference to the rules
made under it the admiralty rules were drafted at the
same time as
the Act by the same person (Mr D J Shaw QC), albeit that for reasons
unconnected with their contents they were not
promulgated until
three years after the Act came into force. As such the rules may be
a guide to the thinking underlying the
Act.
9
As
illustrated by the decision of the House of Lords in
Ashley &
another v Chief Constable of Sussex Police
[2008] UKHL 25
;
[2008] 3 All ER 573
(HL).
10
See
the authorities in fn 4.
11
Mediterranean
Shipping Co v Speedwell Shipping Co Ltd & another
1986 (4)
SA 329
(D) at 333E-G. The passage was approved by this court in
Purser v Sales; Purser & another v Sales & another
[2000] ZASCA 135
;
2001 (3) SA 445
(SCA) para 13.
12
Hay
Management Consultants (Pty) Ltd v P3 Management Consultants (Pty)
Ltd,
supra, paras 14 and 15.
13
See
the examples in
Du Preez v Philip-King
1963 (1) SA 801
(W) at
803H-804G. In some of those cases participation in litigation up to
the stage of
litis contestatio
was seen as crucial. That does
not apply in a case where the question is whether the owner of a
ship, by conduct in relation to
an action in rem in which it
has not been cited, has submitted to the jurisdiction of the court.
In such a case the question
is simply whether the conduct amounts to
a submission, whatever stage the proceedings in rem have
reached.
14
At
334A.
15
Footnote
6, supra.
16
At
310.
17
At
319.
18
The Gemma
[1899] P 285.
19
At
291.
20
At
291.
21
Mr
Justice Bruce and Charles Fuhr Jemmett, assisted by George Grevill
Phillimore,
A Treatise on the Jurisdiction and Practice of the
English Courts in Admiralty Actions and Appeals being a Third
Edition of Williams’
and Bruce’s Admiralty Practice
3 ed (1902) at 18-26.
22
The
Dupleix
[1912] P 8
at 15;
The Jupiter
[1924] P 236
at
242;
The Banco: Owners of the motor vessel Monte Ulia v Owners of
the ships Banco & others
[1971] 1 All ER 524
(PDA and CA) at
531f-g. The position is the same in Australia.
Caltex Oil v The
Dredge Willemstad
[1976] HCA 65
;
(1976) 136 CLR 529
at 539. After appearance in
an action in rem ‘the action proceeds as if it were an
action in personam (without
ceasing to be an action in rem)
against that person. Once a relevant person files an appearance, the
plaintiff will file
a statement of claim "on each party who has
entered an appearance" and the relevant person becomes liable
to have judgment
entered against it personally and to the full
extent of the claim, not limited by the value of the ship …’
per Allsop
J in
Comandate Marine Corp v Pan Australia Shipping
Pty Ltd
2006 FCAFC 192
para 109
[2006] FCAFC 192
; ,
(2006) 238 ALR 457
,
(2006) 157
FCR 45.
The position in Singapore is the same.
Kuo Fen Ching v
Dauphin Offshore Engineering and Trading Pte Ltd
[1995] 3 SLR
721
at 726,
1999 SGCA 95.
23
The
August 8
[1983] 2 AC 450 (PC) 456.
24
The
Burns
[1907] P 137
at 149. There is of course nothing to prevent
that personal liability from being established in other proceedings
25
The
“Maciej Rataj”
[1992] 2 Lloyd’s Rep 552 (CA)
at 559 and 561.
26
Compania
Naviera Vascongado v Steamship “Cristina” and Persons
Claiming an Interest Therein
[1938] AC 485
(HL) at 505.
27
The
Nordglimt
[1988] 2 All ER 531
(QBD) at 545e-g. Although that
case was overruled in
Republic of India & another v India
Steamship Co Ltd (The “Indian Grace”)(No 2)
[1998]
1 Lloyd’s Rep 1 (HL) the correctness of this passage was not
questioned.
28
I
am not aware of any case where the issue arose nor is there a
reported judgment dealing with it.
29
Gys
Hofmeyr ‘Admiralty Jurisdiction in South Africa’
1982
Acta Juridica
30
at 47.
30
The
two are in the same terms. The original rules came into force on
1 December 1996 and they were repealed and replaced
on
18 April 1997. For most present purposes it suffices to
refer to rule 8(3) as if it applied throughout the relevant
period.
31
Promulgated
under an Order in Council dated 23 August 1883.
32
Form
4.
33
Rule
22.
34
Rule
21.
35
Rules
23 to 26.
36
Rules
39 to 46.
37
As
was the case of
Incorporated General Insurances Ltd v Shooter t/a
Shooter’s Fisheries
1987 (1) SA 842
(A).
38
This
rule replaced rule 6(3) with effect from 19 May 1997 but is in
identical terms.
39
D
J Shaw QC
Admiralty Jurisdiction and Practice in South Africa
at 112.
40
At
p 31. The same view appears to be held by Gys Hofmeyr SC in the
draft of the relevant chapter of the second edition of his
work
Admiralty Jurisdiction Law and Practice in South Africa
, a
copy of which was made available to us by counsel, with his consent.
In fn 74 he writes: ‘A person who intervenes and
defends the
action – whether personally liable in respect of the claim or
not – submits to the jurisdiction of the
court to make orders
relating to that defence, such as an order as to costs.’ Where
the person intervening is personally
liable in respect of the claim
there is no apparent reason why that should not be treated as a
submission to the jurisdiction
in respect of the claim. Whether the
plaintiff wishes to take advantage of that or is content to pursue
the matter in rem
alone is for the plaintiff to decide.
41
There
are passages in some academic writing as well as in certain
judgments that suggest that some maritime lawyers held this
view.
42
In
England in terms of Practice Directive 61.3.3 issued under CPR 61
the defendant must be described in the claim form. This requirement

is satisfied by describing the defendant as ‘the owners or
demise charterers of the ship’. Nigel Meeson
Admiralty
Jurisdiction and Practice
3 ed (2003) para 4.5, p 126. In
Australia admiralty rule 15(1) requires that process initiating an
action in rem must
specify a relevant person in relation to the
maritime claim. The definition of relevant person in s 3(1) of
the Admiralty
Act 1988 (Cth) provides that it means a person who
would be liable on the claim in proceedings in personam
.
Liability attaches by virtue of the express provisions of s 31(1)
of the Admiralty Act 1988 (Cth). In New Zealand a notice
of
proceeding in rem under form 69 to the admiralty rules is
addressed to ‘the owners and all others interested in’

the vessel or property to be arrested. The form of a summons in rem
in Singapore and Hong Kong is similar. The relevant
statutes, rules
and forms are to be found in the appendices in Damien J Cremean
Admiralty Jurisdiction Law and Practice in Australia, New
Zealand, Singapore and Hong Kong
3 ed (2008). The difference in
procedural forms between these countries and South Africa enables
the action in them to continue
as both an action in rem and an
action in personam after the entry of appearance to defend,
without the need for an
amendment of the summons or the issue of
some other form of process commencing action.
43
Admiralty
rule 8(4) provides for notice of intention to defend to be given by
a person on whom the summons has not been served
or even where there
has been no service at all of the summons.
44
SA Boatyards
CC (t/a Hout Bay Boatyard) v The Lady Rose (formerly known as the
Shiza
1991 (3) SA 711
(C).
45
Later
editions of Professor Jackson’s work do not contain any such
criticism.
46
At
715F-H.
47
This
was the position under the Vice-Admiralty Rules and is the present
position under rule 10.
48
Bouyges
Offshore & another v Owner of the MT Tigr & another
1995
(4) SA 49
(C).
49
As
pointed out in para 30, that could not be the case without an
amendment to join the owner as a party in personam.
50
At
67J-68B.
51
MT
Argun: MT Argun v Master and Crew of the MT Argun & others
2004
(1) SA 1
(SCA).
52
Para
26.
53
Footnote
27 ante.