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[2021] ZASCA 135
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MV 'MSC Susanna': Owners and Underwriters of the MV 'MSC Susanna' and Another v Transnet (SOC) Ltd and Another (1039/2020) [2021] ZASCA 135; [2022] 1 All SA 126 (SCA); 2022 (2) SA 85 (SCA) (6 October 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1039/2020
Name of Ship:
MV 'MSC SUSANNA'
In the matter between:
THE OWNERS AND
UNDERWRITERS OF
THE MV 'MSC
SUSANNA'

FIRST APPELLANT
THE DEMISE CHARTERERS OF
THE
MV 'MSC
SUSANNA'

SECOND APPELLANT
and
TRANSNET (SOC) LTD –
THE NATIONAL PORTS
AUTHORITY OF SOUTH
AFRICA

FIRST RESPONDENT
THE MINISTÈRE DE
ARMÉES

SECOND RESPONDENT
SAUDI BASIC INDUSTRIES
CORPORATION

THIRD RESPONDENT
Neutral citation:
MV 'MSC S
usanna
':
Owners and Underwriters of the MV 'MSC S
usanna
'
and Another v Transnet (SOC) Ltd and Another
(1039/2020)
[2021] ZASCA 135
(6 October 2021)
Coram:
NAVSA,
WALLIS, SCHIPPERS, MBATHA and GORVEN JJA
Heard
:
1 September 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 6 October
2021
Summary:
Tonnage limitation – s 261(1) of
the Merchant Shipping Act 57 of 1951 (MSA) – whether limitation
can be invoked by owner
of merchant ship against the owner of a ship
owned by the defence force of South Africa or another country –
ss 3(3) and
(6) of the MSA.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg sitting in the exercise of its
admiralty jurisdiction (Mngadi J, sitting
as court of first
instance):
1
The appeal is upheld with costs, such costs to include those
consequent upon the employment
of two counsel.
2
The order of the high court is set aside and replaced by the
following order:
'The rule
nisi is confirmed in the following terms:
1
The Ministére des Armées is joined as a defendant in
the action instituted
by the appellants under case number A4/2019.
2
The Appellants are granted leave to amend the pleadings in the said
action so as to
plead their cause of action against the Ministére
des Armées.
3
The Ministére des Armées is ordered to pay the costs
occasioned by its
opposition to the application, such costs to
include those consequent upon the employment of two counsel.'
JUDGMENT
Wallis JA (Navsa,
Schippers, Mbatha and Gorven JJA concurring)
[1]
On 10 October 2017, during a substantial
storm in the port of Durban the
MSC
Susanna
broke her moorings and, while
drifting in the port, collided with several vessels, including the
FNS ‘Floreal’
.
The
Floreal
was a French naval vessel under the control of the second respondent,
the Ministère des Armées (the Ministry) of
the French
Republic. The
MSC Susanna
also allided with cranes and other infrastructure owned by the first
respondent, Transnet (SOC) Ltd – The National Ports
Authority
of South Africa (the NPA). The NPA sued the appellants, respectively
the owners and underwriters on the one hand, and
the demise charterer
on the other, of the
MSC Susanna
,
for damages in an amount of some R23 million arising out of this
incident. The Ministry's response, to the appellants' action
for a
declaration of non-liability in relation to the damages to the
Floreal,
was
to lodge a counterclaim for damages amounting, together with interest
and costs, to nearly €10 million.
[2]
Given the value of the actual and potential
claims against the appellants, on 7 November 2019 they issued a writ
of summons in a
limitation action against the NPA, contending that
their total liability for damages arising out of the events of 10
October 2017
should be limited in terms of the provisions of s
261(1)(
b
)
of the Merchant Shipping Act 57 of 1951 (the MSA). On the same day
they launched the present proceedings seeking the joinder of
the
Ministry to the limitation action. The application was resisted by
the Ministry on the grounds that, as the owner of a foreign
naval
vessel, the right to limit was excluded as against it by the
provisions of s 3(6) of the MSA. That point was upheld
by
Mngadi J in the KwaZulu-Natal Division of the High Court,
Pietermaritzburg sitting in the exercise of its admiralty
jurisdiction.
The present appeal is with his leave.
[3]
In terms of the provisions of SCA Rule 8(8)
the parties have sensibly agreed on the following statement of the
issue in this appeal:
‘
The
parties agree that the appeal turns on whether the owners and demise
charterers of a merchant ship may, in circumstances where
a merchant
ship causes damage to a ship belonging to a defence force as
contemplated in Section 3(6) of the Merchant Shipping Act,
1951 (‘the
Act’), seek a limitation of liability in terms of Section 261
of the Act in respect of the claim of that
defence force.’
That
admirably encapsulates the issue in this case. It is common cause
that, if the answer favours the appellants, the high court
should
have ordered the joinder of the Ministry. If it is against them, then
the high court judgment was correct.
[1]
While it is expressed in these succinct terms it is 'a question of
very great difficulty', as Viscount Simmonds LC said in
Nisbet
Shipping Co Ltd v Reginam
,
[2]
a case to which I will revert.
Tonnage
limitation
[4]
The right of shipowners
and certain other parties to limit their liability for damages
arising from the operation of the vessel
is an ancient one.
Legislation providing for ship owners to limit their liability to the
value of the vessel is to be found in
statutes dating from the 1600’s
in various parts of Europe, particularly the Netherlands.
[3]
It was introduced in England in 1733 by legislation enacted in
response to the decision in
Boucher
v Lawson
,
[4]
in which a cargo of gold bullion was entrusted to the Master of a
vessel, who proved unable to resist temptation and absconded
with it.
The owners of the vessel were held liable to the full extent of the
value of the gold, which vastly exceeded the value
of the vessel.
Parliament intervened by passing
the
Responsibility of Shipowners Act,
[5]
limiting the liability of shipowners to the value of the ship, its
equipment and any freight due for the voyage. Similar legislation
was
introduced in the United States of America in 1851. Three
international conventions on limitation of liability by shipowners

were concluded in the last century, although complete uniformity has
not been achieved.
[6]
It has been described as 'a time honoured and internationally
endorsed practise' which is now embodied in our domestic
legislation.
[7]
[5]
For our purposes it is sufficient to note
that until the passage of the MSA, South Africa did not have domestic
legislation dealing
with limitation. The English Merchant Shipping
Act, 1894 remained of application in South Africa
[8]
and made provision for limitation of liability calculated on the
gross registered tonnage (GRT) of the vessel.
[9]
This changed with the passage of the MSA in 1951. Section 261 of the
MSA is headed:
'When owner
not liable for whole damage'
and
s 261(1)(
b
),
which is the provision relied upon by the appellants
,
reads:
'
The
owner of a ship, whether registered in the Republic or not, shall
not, if … any loss or damage to any property or rights
of any
kind, whether movable or immovable, is caused without his actual
fault or privity─
(
a
)
. . .
(
b
)
if no claim for damages in respect of loss of life or personal injury
arises be liable for damages in respect of loss of or damage
to
property or rights to aggregate amount exceeding 66.67 special
drawing rights for each ton of the ship’s tonnage.'
[6]
The basis for the
Ministry's contention that the appellants may not invoke this
provision in respect of its claim is to be found
in s 3 of the
MSA. Section 3(3) provides that the Act binds the State, subject to
the entitlement of the Minister of Transport
to exempt vessels owned
by the government of South Africa or Transnet from a range of
provisions dealing with crew and the recovery
of wages. Section 3(6),
on which the Ministry relied, reads:
'The
provisions of this Act shall not apply to ships belonging to the
defence forces of the Republic or of any other country.'
The
Ministry contended that, as the
Floreal
was part of the French
navy and therefore part of the French defence force, the provisions
of s 261 did not apply in relation
to its claim against the
appellants.
[7]
The appellants'
contention was that s 261(1)(
b
)
conferred an internationally recognised right upon them as the
owners
[10]
of the
MSC Susanna
to limit their
liability and that they were invoking limitation against the
Ministry, as the party making a claim against them,
and not against
the
Floreal
.
They submitted that the right to limit is conferred in relation to
claims for loss of life or personal injury, or any loss of
or damage
to any property of any kind, whether movable or immovable. The effect
of the Ministry's contention is to introduce an
unwarranted
qualification to the broad and unqualified words 'any property of any
kind' by adding 'save a naval vessel owned by
the defence force of
any nation'.
Discussion
[8]
The issue is one of the
proper interpretation of ss 261(1)(
b
)
and 3(6) of the MSA. It is, so far as the argument and the
authorities to which we have been referred go, entirely novel. As
always, one starts with the words of s 261(1)(
b
).
[11]
Its terms are clear and comprehensive. The right to limit is given to
the owner of a vessel, an expression given an extended meaning
in
s 263(2), in respect of all loss or damage to any property or
rights of any kind, whether movable or immovable. That language

encompasses all types of property, without qualification. It is
clearly wide enough to include the loss or damage embodied in the

claim by the Ministry. Counsel rightly conceded that if this section
and the others that are contained in Part 4 of Chapter 5 of
the MSA
were contained in a separate statute without s 3(6), the right
to limit would be available on this language in respect
of the
Ministry's claim. That means that the focus must necessarily fall on
the effect of s 3(6).
[9]
It is indisputable that
s 3(6) excludes the bulk of the provisions of the MSA from
application to both South African and foreign
vessels forming part of
their country's defence forces. These vessels can conveniently be
referred to as naval vessels, although
it is conceivable that there
might be vessels forming part of branches of the defence force other
than the navy. The MSA's provisions,
dealing with the administration
of the MSA (Chapter I); matters concerning the registration of
vessels in the South African registry
(Chapter II); certificates of
competency and service of crew (Chapter III); engagement, discharge,
repatriation, payment, discipline
and general treatment of seafarers
(Chapter IV); safety of ships and life at sea (Chapter V, Parts I, II
and III); shipping enquiries
and courts of marine enquiry (Chapter
VI); carriage of goods by sea (Chapter VIII, now repealed in its
entirety); and offences,
penal provisions and legal procedures
(Chapter IX) cannot be effectively applied to naval vessels. The
regimes under which the
armed forces of most, if not all, countries
operate are so different in these areas from the manner in which
other vessels operate,
even those owned by sovereign governments,
that the reasons for an exclusionary provision such as s 3(6)
are apparent.
[10]
Other areas
of the MSA are more problematic. In its original form it included in
Chapter VII (sections 293 to 306 of the MSA) provisions
in respect of
wreck and salvage, that have now been repealed by the
Wreck and
Salvage Act 94 of 1996
, which incorporates the provisions of the
International Convention on Salvage, 1989 into domestic law.
[12]
The
Wreck and Salvage Act is
binding on the State, but Article 4(1)
of the Convention excludes warships and all non-commercial vessels
owned or operated by
States and entitled at the time of salvage
operations to sovereign immunity, unless the State decides otherwise.
The effect is
that a salvor in relation to such a vessel does not
enjoy the protection of the Convention. That does not, however, mean
that a
salvor may not provide salvage services or receive a salvage
reward. It merely means that they must deal with the State concerned

in relation to such services.
[11]
Chapter 5,
Part IV
of
the MSA differs from these other provisions, in that, save in
respects of two matters of no relevance to vessels other than
South
African registered vessels,
[13]
it is not concerned with the operation of vessels, the treatment of
crew or issues of safety. Its primary focus is on two areas
of the
liability of owners of vessels. First, it deals with the division of
loss between shipowners in the event of a collision
under
s 255
;
liability for personal injury under
s 256
; and claims for
contribution against joint wrongdoers in relation to the latter
claims under
s 257.
Second, under
s 261
it provides for the
right of a ship owner and certain other parties to limit the extent
of their liability arising out of an incident
causing loss of life or
physical injury to persons, or loss of or damage to property, or a
combination of both, where these were
caused without the actual fault
or privity of the ship owner. These two areas of liability are not
concerned with regulating the
operation of the vessel or vessels
involved in that incident. In the case of a collision the question is
who, and if more than
one vessel is involved, in what proportions,
those responsible for the collision shall bear the loss. Where
personal injury has
been caused it is the liability for damages and
rights of contribution between joint wrongdoers that are regulated.
In the case
of limitation the concern is with the extent of the
liability of the owner of the harm-causing vessel.
[12]
It is noteworthy that
each of these is concerned with the liability of owners of ships to
third parties, and claims against and
between owners of ships. That
the claims arise out of the operation of the ships is incidental. The
focus is on the legal liability
of the owners and, in the case of
limitation claims, other parties such as charterers, managers and
operators of ships.
[14]
These are purely commercial matters concerning the rights and
obligations of owners of ships. This is important in the light of
the
wording of
s 3(6)
, because it says that the provisions of the
MSA shall not apply 'to ships'. It does not say that its provisions
will not apply
to the owners of ships. Much less does it say that the
Act does not apply to defence forces, so as to preclude owners of
merchant
ships from invoking its provisions by, for example, seeking
an order for the division of loss after a collision, or a
contribution
to the damages arising from jointly caused personal
injury, or an order limiting their liability.
[13]
Linguistically s 3(6)
is not apt to exclude the invocation of limitation by the owners of
the
MSC Susanna
.
That straightforward view is the same as that of Kerwin and Estey JJ
of the Supreme Court of Canada in construing a similarly
worded
provision in the Canada Shipping Act, 1934 in
The
Queen v Nisbet Shipping Co Ltd
.
[15]
They said:
'The
final point raised by the appellant is that in any event it is
entitled to a limitation of liability under s 649 of the
Canada
Shipping Act
. As the owner of the
Orkney
, the Crown would
ordinarily be entitled to take advantage of this provision but it is
said that s 712 of the
Act
prevents this result. That
section provides: —
'This
Act shall not except where specifically provided apply to ships
belonging to His Majesty.'
In
my opinion this section has no reference to a claim for limitation of
liability under s 649, which can only be put forward
by an
owner.'
[14]
Some reinforcement for
the view that this is the ordinary meaning of the words of the
section is to be found in the dissenting judgment
of Locke J,
[16]
where he said, after a consideration of the history of this
legislation in both England and Canada, that:
'In
my opinion, s 712 should be construed as applying to or in
respect of ships belonging to Her Majesty and that, accordingly,
the
limitation of the liability of His Majesty
qua
owner is
excluded by s 712. To construe the section otherwise would be,
in my judgment, to fail to interpret the section in
such manner as
will best ensure the attainment of the object of the enactment …'
In
other words, while on its language s 712 applied to owners and
not ships, considerations of the historical context, and
in
particular a significant difference between the wording of the 1927
Act and the 1934 Act, led to a construction that the entire
Act was
excluded in respect of Crown-owned ships.
[15]
The Ministry's heads of
argument advanced an interpretation of s 261(1)(
b
)
on the basis that it attributed to the appellants' argument the
premise that s 261 only applied to one ship. They contended
that
this was faulty, because in the circumstances of a collision there
would be two ships. One it described as 'the offending
ship' and the
other as 'the damaged ship'. It submitted that s 261(1) applied
not only to the offending ship, but also to
the damaged ship. In my
view the suggested premise did not underpin the appellants' argument
and the conclusion sought to be drawn
was faulty. Section 261 is
concerned with the liability of an owner of a ship, not the ship
itself. Whatever the precise nature
of an action
in
rem
, the underlying
liability will be borne by the owner of the ship. Where the action is
in personam
the position is even clearer. As to the damaged ship, the claim
arising from that damage is the claim of that ship's owner. Ships
do
not bring claims.
[16]
Before the MSA was
enacted our law in regard to limitation was to be found in s 503
of the English Merchant Shipping Act, 1894.
[17]
In
Smith's Coasters
this court held
that a shipowner facing a claim by the South African Railways &
Harbours, an agency of the State, could not
raise a defence of
limitation under s 503. However, it reached that conclusion on
the basis that, as a matter of royal prerogative,
the Crown could not
be bound by a statute unless the statute expressly or by necessary
implication bound the Crown. The implication
of permitting reliance
on limitation was that a claim vested in the Crown would be reduced
and that could not occur unless the
Crown was bound by the provisions
of s 503. There was no general language in the statute
justifying the conclusion that the
Crown was bound and no basis for
implying that it was. Accordingly an exception to a plea based on
limitation under s 503
was upheld.
[18]
That was a narrow conclusion relating only to the South African state
and not to foreign states or their vessels, whether military
or
otherwise.
[17]
The case is
unhelpful. We are not concerned with a claim against the South
African State, but if we were s 3(3) of the MSA
expressly
provides that it binds the State. Nor are we concerned with a claim
against a foreign State. In any event the principle
invoked there
does not apply in relation to foreign States. Nor can there be any
question of sovereign immunity arising because
it is the Ministry
making a claim against the appellants, not them making a claim
against the Ministry. The grounds upon which
Smith's
Coasters
was
decided are inapplicable here.
[18]
The Ministry also
argued that the title of the MSA – the Merchant Shipping Act –
and the long title 'To provide for
the control of merchant shipping
and matters incidental thereto' indicated that it was not concerned
with naval vessels. It said
that this purpose was manifested in
s 3(6) of the MSA. The difficulty with the submission is that it
overlooked the words
'and matters incidental thereto'. One matter of
great concern to owners of merchant ships is the possibility of
claims arising
against them in the course of the operation of their
ships. Chapter 5, Part IV deals with that issue in a manner that
is consistent
with international practice in maritime matters. The
MSC Susanna
is
a merchant ship and was engaged in merchant shipping at the time of
the incident giving rise to the claims against the appellants.
Its
owners invoked a provision of the MSA that in terms they are entitled
to invoke. Allowing the appellants to limit their liability
in
relation to the claims in this case is clearly something incidental
to merchant shipping.
[19]
The Ministry relied on
the judgment of the Privy Council in
Nisbet
(PC)
.
[19]
The claim in that case arose from a collision between a foreign
merchant vessel and a Canadian warship. As a result of the collision

the merchant vessel and her cargo were a total loss. The claim –
effectively against the Canadian government – was
to recover
the damages suffered in consequence of the loss of the ship and its
cargo. By a majority of six to one the Canadian
court held that it
was open to the Crown to invoke limitation against the ship owner's
claim.
[20]
On appeal from the judgment of the Supreme Court of Canada, the Privy
Council reversed this decision.
[20]
The advice of the Board
was delivered by Viscount Simonds LC.
[21]
He first dealt with the approach of the majority in the Supreme
Court. This proceeded on the basis that under the Petition of Right

Act, 1938 in Canada
[22]
the courts had been given jurisdiction to decide claims against the
Crown. The question then was the extent of the Crown's liability
in
respect of such claims. Six judges
[23]
held that the liability imposed under the Petition of Right Act was
the same liability as an ordinary citizen would attract in
respect of
the same claim. That liability could be limited under the relevant
provision of the Canada Shipping Act and therefore
the Crown could
limit its liability, provided a proper case was made for
limitation.
[24]
[21]
Viscount Simonds noted
that the Canadian statute had conferred jurisdiction, without
referring to the imposition of liability on
the Crown, but accepted
that its effect was to impose liability on the Crown. He went on:
‘
The
question then is, what is the measure of the liability which is not
defined by the Act but is to be inferred from the creation
of
jurisdiction? It is not in dispute that at least those circumstances
which give rise to a claim between subject and subject
will support a
claim by a subject against the Crown. From this, it is an easy step
to say that a subject is not entitled to any
greater relief against
the Crown than he would be against a fellow subject, and this is
supported by reference to s 8 of the Petition
of Right Act . . . ,
which provides that the statement of defence or demurrer to a
Petition of Right may raise, besides any legal
or equitable defences
in fact or in law available under that Act, any legal or equitable
defences which would have been available
if the proceedings had been
a suit or action in a competent court between subject and subject.
Nor can it be ignored that, though
the right to limit liability for
damages is not part of the common law but in England and Canada alike
is the creature of statute,
it is a right almost universally
established in the law of nations and of considerable antiquity. It
would therefore, be easily
assumed that the Crown, assenting to the
imposition of a new liability, would secure for itself the advantage
at least limiting
it in a manner so generally conceded. This view is
thus cogently stated by Rand J ([1953] SCR at 488):
"
Where
liability, then, on the same footing as that of a subject, is
established, giving a right to damages, I can think of no more

appropriate enactment to which that basic rule of the prerogative
could be applied than to a statutory limitation of those damages."
The
basic rule which the learned judge refers is that under which it is
said that the Sovereign may avail himself of the provisions
of any
Act of Parliament.
'
[22]
The advice continued:
'These
are the considerations which prevailed with the learned judges of the
Supreme Court, with the exception of Locke J with whose
judgment
their Lordships find themselves in agreement. They are weighty
considerations but, as it appears to their Lordships, they
do not
explain why full effect should not be given to s 712. It is true
that, in 1934, that section, which was itself a re-enactment
of s 741
of the Merchant Shipping Act, 1894, could have no operation in regard
to any liability of the Crown, for it was only in
1938 that any
relevant liability was imposed on the Crown. It does not, however,
follow that, when that liability is imposed, as
it is by the amending
Act of 1938, the provisions of s 712 can be ignored. In the United
Kingdom the same problem arose as, when
under the Crown Proceedings
Act, 1947, the Crown was for the first time made liable for the
tortious acts of its servants, and
it was by that Act [s 5]
specifically enacted that the sections of the Merchant Shipping Act
1894, should apply to limit the
liability of the Crown. And in
Canada, similar provision is now made by the Crown Liability Act,
1953.’
[23]
With all due respect it
does not seem to me that s 712 had the effect given to it by the
Board. In a later passage Viscount
Simonds said that no distinction
could be drawn between the words ‘ships belonging to His
Majesty’ and words such as
‘His Majesty’
simpliciter. I fail to see why that would be the case. In my view
there is a straightforward difference
between provisions dealing with
a person's ships and a provision dealing with the person themself.
But it may be that the decision
was in large measure based on the
sequence in which the Canadian statutes had been enacted. The Canada
Shipping Act was passed
in 1934, four years before Canadian courts
were given jurisdiction to decide cases brought against the Crown.
Accordingly, when
the Canada Shipping Act replaced the English
Merchant Shipping Act 1894, claims for damages against the Crown
based on maritime
collisions could not be brought as of right and the
provisions of s 503 of the Merchant Shipping Act 1894 could not
be invoked
either by or against the Crown. The Board's advice may be
explained on the basis that the 1938 statute conferring jurisdiction
could not confer upon the Crown a statutory right not granted to it
under the 1894 statute.
[24]
It is as well at this
point to highlight a significant difference between the issue in that
case and the present case. There it
was the Crown, as defendant in
the action, seeking to limit its liability by invoking the relevant
provisions of the Canada Shipping
Act, and the owner of the ship that
was lost resisting limitation. Here it is the reverse. The owner of
the
MSC Susanna
invokes a right to limit clearly given under s 261(1)(
b
)
and its entitlement to do so is resisted under s 3(6). The
equivalent of the question before the Board in
Nisbet
PC
, would be to ask
whether, if the roles between the
MSC
Susanna
and the
Floreal
had
been reversed, the Ministry as the owner of the
Floreal
would have been
able to limit its liability. No doubt in that situation, had the
appellants questioned the Ministry's right to invoke
limitation, the
arguments for each party would have been reversed.
[25]
We do not have to
decide that issue in this appeal. It is interesting that in Canada,
following the example of the United Kingdom,
legislation was passed
to reverse the effect of the decision in
Nisbet
PC. That is a
pointer to the restriction held to exist in that case not being
desirable. But it is a question that could easily
arise in the event
of a collision between a South African naval vessel and a merchant
ship and we have not heard sufficiently full
argument to determine it
now. It might also arise in cases dealing with ss 255, 256 and 257 of
the MSA on which no argument was
addressed. The appellants were
content to advance their case on the basis that this might be the
situation. The submission that
the appellants' contentions would not
give a sensible meaning to section 261 might be an argument in favour
of national defence
forces being entitled, along with all other
vessels, to invoke limitation where their operations cause loss of
life or personal
injury, or loss of or damage to property and rights.
It is not an argument against the proposition that limitation may be
invoked
in relation to claims by a national defence force against a
ship owner.
[26]
No discernible reason
of policy supports a different construction of s 261(1)(
b
).
Limitation of liability exists as a matter of policy. None of the
conventions on limitation exclude its invocation in respect
of claims
arising from damage done to or by naval vessels. We were not referred
to any provisions in the laws of any other maritime
state that would
preclude a claim in respect of damage done to a naval vessel from
being required to participate along with other
creditors in the
distribution of a limitation fund. France was an original signatory
to the 1976 Limitation Convention, which contains
no exemption from
the invocation of limitation for naval vessels.
[25]
Sixty-three other states, including virtually all major maritime
nations, with the exception of the United States of America,
[26]
were either signatories to, or have ratified, the Convention. An
exemption from the right to invoke limitation in respect of claims
by
naval vessels would therefore be inconsistent with international
practice.
[27]
There are also
incongruities arising from the Ministry's argument. Section 261 deals
with three situations, namely, an occurrence
causing loss of life or
personal injury; an occurrence causing loss or damage to property or
rights; and an occurrence that causes
both loss of life or personal
injury and loss or damage to property or rights. Had the incident
giving rise to this case resulted
in loss of life or injury to naval
personnel on board the
Floreal
,
they and the dependents of any who were killed could have brought
actions against the appellants to recover damages. Any such
claims
would have been subject to limitation. Nothing in s 3(6)
suggests that the officers and crew of the
Floreal
would enjoy some
special exemption from the application of limitation. It seems
incongruous to say that the Ministry, as the owner
of the
Floreal
,
can do what its officers and crew cannot and escape the application
of limitation.
[28]
A second incongruity is
that the effect of the Ministry's construction would be that vessels
belonging to the defence force of South
Africa or another state,
would be able to resist any limitation of their claims under s 261,
but other vessels owned by the
South African state or any foreign
state would not. Thus if the polar supply and research ship, the
S
A Agulhas II
, was
involved in a collision caused entirely by another vessel, whilst en
route to Marion Island and Prince Edward Island, limitation
could be
invoked in regard to any claims by its owner, the Department of
Environmental Affairs, arising from the collision. However,
if it was
being accompanied at the time by the
SAS
Protea
, a marine
survey vessel, and that vessel was likewise involved in the collision
without fault on its part, limitation would not
apply, because the
SAS Protea
is
part of the South African navy and the SANDF.
Result
[29]
In the result I
hold that the appellants are entitled to claim to limit their
liability, if any, arising from the events in Durban
harbour on
10 October 2017 in respect of the claim by the Ministry under
s 261(1)(
b
)
of the MSA. Their entitlement to do so is not excluded by s 3(6)
of the MSA. Accordingly, the following order is made:
1
The appeal is upheld with costs, such costs to include those
consequent upon the employment
of two counsel.
2
The order of the high court is set aside and replaced by the
following order:
'The rule
nisi is confirmed in the following terms:
1
The Ministére des Armées is joined as a defendant in
the action instituted
by the appellants under case number A4/2019.
2
The Appellants are granted leave to amend the pleadings in the said
action so as to
plead their cause of action against the Ministére
des Armées.
3
The Ministére des Armées is ordered to pay the costs
occasioned by its
opposition to the application, such costs to
include those consequent upon the employment of two counsel.'
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant:
S R Mullins SC (with him P J Wallis SC)
Instructed by:
Shepstone & Wylie, Umhlanga Rocks;
Matsepes Inc, Bloemfontein
For respondent:
C J Pammenter SC (with him D Cooke)
Instructed by:
Clyde & Co, Cape Town;
Lovius Block, Bloemfontein.
[1]
The basis for the joinder is s 5(1) of the Admiralty Jurisdiction
Regulation Act 105 of 1983 (the AJRA).
[2]
Nisbet Shipping Co Ltd v Reginam
[1955] 3 All ER 11
(PC)(
Nisbet PC
).
[3]
Wandile Zondo,
Limitation
of Liability for Maritime Claims: A South African Perspective
a thesis submitted in partial fulfilment of a Master of Science
degree at the World Maritime University in Malmö, Sweden

helpfully traces the history of limitation at pp 3-13. The thesis is
available at
https://commons.wmu.se/cgi/viewcontent.cgi?article=1510&context=all_dissertations.
[4]
Boucher v Lawson
[1815] EngR 83
;
95
ER 116
;
Griggs
1997
LMCLQ
369
to 373.
[5]
Responsibility of Shipowners Act 1733 (7 Geo II.
c 15).
[6]
The three are the 1924 International Convention
for the Unification of Certain Rules relating to the Limitation of
Liability of
Owners of Sea-going Vessels (only ratified by fifteen
states); the International Convention Relating to the Limitation of

Liability of Owners of Sea-going Vessels, Brussels 1957 and the
Convention on Limitation of Liability for Maritime Claims, London

1976, read with the 1969 Tonnage Convention and the 1996 Protocol
amending the limits of liability under the Convention.
[7]
Nagos Shipping Ltd v Owners, Cargo lately
laden on board the MV Nagos, and Another
1996
(2) SA 261
(D) at 271G-H.
[8]
See
South African
Railways and Harbours v Smith's Coasters (Prop) Ltd
1931
AD 113.
[9]
Gross registered tonnage is a potentially
misleading expression in that it is not a measurement of weight or
mass, but of the
carrying capacity of the vessel, deriving its name
from the tuns or barrels that were the common means of storing many
goods
for shipment on board vessels at that time. Originally it was
measured by determining how many tuns could be loaded on the vessel.

It is now measured on the basis of the internal volume of the vessel
subject to certain exclusions.
[10]
In the extended sense given by s 263 of the
MSA.
[11]
Sub-sections (
a
)
and (
c
)
are similarly worded and deal first with the case where loss of life
or personal injury alone are caused, and second with the
case where
there is both loss of life and personal injury and loss or damage to
property. The limitation amount is set in special
drawing rights
(SDRs) and varies as between the three different cases as dealt with
in s 261(1).
[12]
Section 2 of Act 94 of 1996.
[13]
The respects relate to the obligation to report
accidents to the proper officer and the obligation to give notice to
SAMSA of
the loss of a vessel under ss 259 and 260
respectively. See ss 259(2) and 260.
[14]
MSA s 263(2).
[15]
Her
Majesty the Queen v Nisbet Shipping Company Limited
1953
CanLII 77
(SCC);
[1953] 1 SCR 480
(SCC) at 492 (
Nisbet
SCC
).
[16]
Ibid, at 502.
[17]
Merchant Shipping Act, 1894 (57 & 58 Vict. C
60).
Smith's Coasters
, op cit, fn 8;
Atlantic
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GMBH of Bremen
1986 (4) SA 865
(C) at 875H-J.
[18]
It appears that this would also have been the
position in England at that time.
Dampskibs
Aktieselskabet 'Mineral' of Narvik v Owners of steamship
'Myrtlegrove' and Others
[1919] 1
Lloyds Law Reports 289 (Adm Div) at 290.
[19]
Op cit, fn 2.
[20]
Nisbet SCC
, op
cit, fn 15.
[21]
That was the time when no dissents were allowed in decisions of the
Privy Council, because it was notionally giving advice to
the
monarch and therefore only a single advice could be given upon which
the monarch was to act.
[22]
The equivalent of the Crown Liabilities Act 1 of
1910 as explained in
Smith's Coasters
,
op cit, fn 8. Prior to this enactment proceedings against the Crown
were only permissible if granted by the Crown following
upon the
lodging of a Petition of Right.
[23]
In addition to Kirwin and Estey JJ, they were
Rand J, concurred in by Rinfret CJ, at 488 and Kellock and
Cartwright JJ at 496
of
Nisbet SCC
.
[24]
The Supreme Court of Canada had remitted that
issue to the trail court for determination.
[25]
The 'Heidberg'
Court
of Cassation, Commercial Chamber, 22 September 2015.
[26]
In the United States of America the subject is
dealt with under U S Code Title 46, Subtitle III §§ 30101
to 31343.
Like the United Kingdom and Canada there is a provision
(§31106) providing that the United States is entitled to the
exemptions
and limitations of liability provided by law to an owner,
charterer, operator, or agent of a vessel.