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1989
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[1989] ZASCA 29
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Brady-Hamilton Stevedoring Company and Others v Motor Vessel "Kalantiao" and Others (29/89) [1989] ZASCA 29 (29 March 1989)
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
BRADY-HAMILTON STEVEDORING
COMPANY
CRESCENT WHARF AND WAREHOUSE
COMPANY
STEVEDORING SERVICES OF AMERICA
INCORPORATED
Appellants
and
THE MOTOR VESSEL "KALANTIAO"
HER OWNERS, AND OTHER PARTIES
INTERESTED IN HER
Respondents
CORAM
: CORBETT, HOEXTER, E
M GROSSKOPF, MILNE JJA, et NICHOLAS AJA.
DATES OF HEARING
: 7 and 8
November 1988
DATE OF
JUDGMENT
:
29
March 1989
JUDGMENT
CORBETT
JA:
This is an appeal against a
judgment of Leon J delivered in the Durban and Coast Local Division,
in which he, at the instance of the
owners (respondent), set aside a
warrant for the arrest of the motor vessel
2
Kalantiao
("the vessel") in an action in
rem
instituted
by the appellants. Subsequent to
the arrest of the vessel security was furnished and the vessel was
allow-ed to sail. Leon J also
granted, at the instance of respondent,
an order for the release of the security. (The judgment of Leon J has
been reported, see
Brady Hamilton
Stevedore Co and Others v M
V
Kalantiao
1987 (4) SA 250
(D).)
The appellants' claims relate to
stevedoring services performed for the vessel at various ports in the
United States of America in
pursuance of a written contract entered
into in the United States on 11 March 1985. It was common cause
between the parties in the
Court a
quo
that the proper law of
the contract was the Federal Law of the United States; that in terms
of that law the appellants enjoyed maritime
liens in re-spect of
their claims; and that if the events upon which the appellants'
claims were founded had taken
3 place within the jurisdiction of
the Court a
quo
the
appellants would not have
enjoyed maritime liens
according
to the law to be applied in terms of sec 6
of
the Admiralty Jurisdiction Regulation Act 105 of 1983.
The essential
issue, viz. whether in these circumstances our law recognized the
foreign maritime liens, was the same as that which
arose in the
matters of
Transol Bunker BV v Motor
Vessel "Andrico Unity" Her Owners and Any Parties
Interested in Her
and
Grecian
Mar SRL v Motor Vessel "Andrico Unity" Her Owners and any
Parties Interested in Her
("
The
Andrico Unity
case"), which came
on appeal to this Court at the same time. For the reasons stated in
the judgment in
The Andrico Unity
case the matters were heard together and the conclusion was reached
that in circumstances such as these our law
does not recognize the foreign mari-time
lien. It follows that the appeal in this matter
4 must be
dismissed with costs. As in the judgment in
The
Andrico Unity
case,
I
record
also in this judgment, for the benefit of the taxing master, that the
Court sat for two full days in the combined hearing of
the appeals in
The Andrico Unity
case and the appeal in the present matter and that in my estimation
half that time should be attributed to
The
Andrico Unity
case and half to the appeal in the present matter.
The appeal is dismissed with
costs.
M M CORBETT
HOEXTER JA) NICHOLAS AJA)