In the High Court of South Africa
(Western Cape Division, Cape Town)
(EXERCISING ITS ADMIRALTY JURISDICTION)

Case No: AC 20/2024

[REPORTABLE]
NAME OF SHIP: MV “GREY FOX”
In the matter between:
TI YA TOIVO LTD First Ap plicant

TIS MANAGEMENT LTD Second Applicant
TRANS HEX SUPPLY SERVICES (PTY) LTD Third Applicant

BELTON PARK TRADING 127 (PTY) LTD Fourth Applicant
and

MV “GREY FOX” First Respondent

CAMISSA STEVEDORING SERVICES (PTY) LTD Second Respondent
HELVETIA CONTAINER LINE, A DIVISION OF FRACHT AG Third Respondent

Admiralty Action in rem and in personam

Matter Heard: 17 February 2025
Judgment Delivered: 27 March 2025


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JUDGMENT


MANTAME, J
[1] The applicants i n this application are seek ing a declaratory order that this
Court has jurisdiction to hear the TI YA TOIVO LTD’s ( TYT) claim against the third
respondent (Helvetia ) in terms of Section 3 of the Carriage of Goods by Sea Act 1 of
1986 (COGSA) and that the action was validly commenced against Helvetia.
Alternatively, the applicant seeks the joinder of Helvetia as the third defendant in terms of Section 5 (1) of the Admiralty Jurisdiction Regulation Act 105 of 1983
(Admiralty Act ) as amended.
[2] The applicant s brought this application before this Court to ensure that all
the parties involved in a cargo claim are present before Court. On 25 September
2024, the applicants as plaintiffs , commenced an admiralty action against the
respondents seeking payment of US$ 28,172,105.18 for damages incurred due to a
damaged generator. Helvetia , the contractual carrier of the damaged generator , was
identified and said to be an undisputable party to the dispute and was therefore cited
as the third defendant in that action.
[3] This application was opposed by Helvetia, asserting that this Court lacks
jurisdict ion to adjudicate this claim. In fact, it was said , amongst the applicants, it was
only TYT who seeks this relief against Helvetia. TYT seeks to circumvent the terms
of the very contract it relies upon for its alleged claim against Helvetia. The contract requires that all disputes be determined exclusively by the Hamburg Courts applying German law. [4] The background facts to this application are that on 05 April 2024, an incident
occurred in the port of Cape Town. A generator , carried under a bill of lading issued
by Helvetia in terms of which TYT was the consignee, was dropped into the hold of
the first respondent’s vessel ( the vessel ) while being discharged by the second
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respondent , Camissa Stevedoring Services . The generator was damaged beyond
repair .

[5] The generator was intended to be installed on a diamond mining vessel. The
damage to the generator resulted in significant losses for the vessel, TYT, and other
applicants. The applicants stated that Helvetia, being a contractual carrier, was the
party contractually obliged to deliver the generator to TYT in good order or condition. Helvetia did not fulfil its obligations and ostensibly breached a contract of carriage.
This resulted in the applicants commencing an admiralty action against the respondents on 25 September 2024.
[6] The summons alleged that TYT, as the consignee under the bill of lading,
may initiate any action concerning the carriage of goods specified i n the bill of lading
in a competent court in South Africa, in terms of Section 3 of the Carriage of Goods
by Se a Act 1 of 1986 in respect of Helvetia. As Helvetia did not have any property
within the jurisdiction of this Court, it was not possible for TYT to arrest, or attach
assets belonging to Helvetia. TYT proceeded on the basis that Section 3 (1) of
COGSA empowered it to pursue litigat ion in South Africa against Helvetia,
regardless of the court’ s jurisdiction al status.
[7] Following the service of summons , Helvetia indicated that it did not accept
that Section 3 of COGSA vested this Court with jurisdiction. It is for this reason that the applicants now seek a declaratory order affirming that this Court has jurisdiction
to hear TYT’s claim against Helvetia, or alternatively , a declaratory order for Helvetia
to be joined to the action as the third defendant in terms of Secti on 5(1) of the
Admiralty Act.
[8] Helvetia , in opposing joinder, contended that TYT has made claims without
adducing the requis ite evidence to demonstrate that it has incurred additional loss es
arising from physical damage to the cargo for which it seeks to hold Helvetia
accountable. In addition, Helvetia stated that TYT is determined to pursue this claim
despite having already received compensation from its insurers for the CIP value of the damaged cargo, which includes the contract price, transport costs to Cape Town, insurance, and a 10% uplift. TYT has assigned its alleged claim for that loss to the
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underwriter, which has appointed German lawyers and intends claiming against
Helvetia in the Hamburg Courts as assignees. Helvetia in the circumstances would be expected to face the same cause of action in two jurisdictions.
[9] In essence, Helvetia stated that Section 3 of COGSA does not confer
jurisdiction upon this Court as alleged by TYT. According to Section 3, proceedings can only be commenced in a “competent Court”, being one which exercises jurisdiction properly established in accordance with Section 3 (2) of the A dmiralty Act
as amended.
[10] Helvetia asserted that TYT, alternatively , is seeking a joinder. It has not made
out a proper case for the joinder , as it has failed to demonstrate a prima facie case.
It has not established the required rights under the contract of carriage pursuant to
which the relevant cargo was carried to South Africa. The bill of lading issued on behalf of Helvetia is what is referred to as “straight” bill of lading, and is non-negotiable or transferable sea transport document as defined in Section 2 (2) of the
Sea Transport Documents Act 65 of 2000 ( STDA) . Further, the consequential
damages enumerated claims that TYT seeks to advance are excluded by the terms
of the contract of carriage relied upon by TYT, and TYT has been indemnified by its
insurers in respect of the claim for the physical damage to the cargo. Given the circumstances , even if this Court were to find that TYT has made out a prima facie
case, it should nevertheless exercise its discretion and refuse the joinder.
[11] Section 3(1 ) of COGSA reads as follows :
‘3. Jurisdiction of Courts -
(1) Notwithstanding any purported ouster of jurisdiction, exclusive jurisdiction
clause or agreement to refer any dispute to arbitration, and notwithstanding
the provisions of the Arbitration Act , 1965 (Act No. 42 of 1965) , section 7 (1)
(b) of the Admiralty Jurisdiction Regulation Act 1983 (Act No. 105 of 1983) and the International Arbitration Act, 2017, any person carrying on business in
the Republic and the consignee under , or holder of , any bill of lading, waybill
or like document for the carriage of goods to a destination in the Republic or to any port in the Republic, whether for final discharge or for disc harge or for
5

discharge for further carriage, may bring any action relating to the carriage of
the said goods or any such bill of lading, waybill or document in a c ompetent
court in the Republic.’

[12] TYT subm itted that Section 3 (1) of COGS A provides additional statutory
jurisdiction. The stipulation that all disputes must be resolved exclusively by
Hamburg Courts in Germany was acknowledged without contention. However, it was
said that this provision must be interpreted disjunctively , and it therefore applies to
either a person carrying on a business in South Africa or the consignee under, or
holder of any bill of lading, waybill , or similar document for the carriage of goods to a
destination in South Africa or to any port in South Africa1 (collectively described as
“local cargo interest”). Section 3 (1) indicates that local cargo interest , such as TYT,
are permitted to bring cargo claims in South Africa.
[13] Helvetia agreed with TYT that this is the first case in which COGSA related
issues has arisen in the sense that no cargo claimant has ever contended that Section 3 of COGSA vests an admiralty Court, ipso facto, with jurisdiction to
determine a cargo claim. In effect, it was stated that TYT complicates what is
ordinarily a straight forward issue, and in so doing misses the compelling reason why
Professor Hare expresses the views that
2:
13.1 The effect of the section is to overrule any exclusive jurisdiction clause
in a carriage contract , thereby entitling a l ocal consignee to sue locally for any
loss of or damage to cargo landed in South Africa, either as its final destination or for trans hipment .
13.2 The section does not create any new jurisdiction but merely preserves
the South African Court’s jurisdiction in the face of a contractual ouster. The local Court must still be one of “competent jurisdiction”, and the requirements
of the Admiralty Act as to jurisdiction and the accompanying arrest or attachment have to be met.
[14] TYT accepted that German law is the chosen jurisdiction by the parties.
However, TYT emphasised that it is endowed by the express statutory provision with

1 The Alka 1994 (4) SA 622 (D)
2 John Hare, Shipping Law & Admiralty Jurisdiction in South Africa, 2nd ed, Juta at pages 649- 650
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locus standi to bring the action before this Court. Effectively, it was contended that
this is the legal question that has to be determined by this Court. For instance, it was
argued that in Eskom Holdings Soc Ltd v Vaal River Development Association (Pty)
Ltd and Others3, the Constitutional Court held that:
‘[249] …a legal issue should only be decided at the interlocutory stage of the
proceedings if it would result in the final disposal of either the matter as a
whole or a particular aspect thereof.’
[15] Alternatively, TVT submitted that since Helvetia is an indisputable and/or
unquestionable party to this dispute, it can be joined in terms of Section 5 (1) of the Admiralty Act. In T he Safmarine Agulhas Merkur Delta Shipping Corporation v
Osram (Pty) Ltd
4, it was held that joinder of a party to an action in terms of Section 5
(1) of the Admiralty Jurisdiction Regulation Act (no 105 of 1983) requires
demonstration that the plaintiff has a reasonably arguable case that the court has jurisdiction over the party joined and that the plaintiff has a prima facie case against
that party. The final determination of both aspects is , however, a matter for the trial
court.

[16] In quiet a recent decision, MV Smart: Minmetals Logistics Zhejiang Co Ltd v
Owners and underwriters of MV Smart and Another
5 (The Smart), the SCA had this
to say:
‘[21] Following the above approach to interpretation, s 5(1) properly
construed, contemplates three possible categories, spatially separated by the
word “or” where a joinder may be ordered namely –
a) where any party to the proceedings has a claim, whether jointly with, or
separately from, any other party to those proceedings, against the party to be
joined; or
b) where any party to the proceedings is entitled to the claim a
contribution or an indemnification against the party to be joined; or
c) a person in respect of whom any question or issue in the proceedings
is substantially the same as a question or issue which has arisen or will arise

3 2023 (4) SA 325 (CC) at paras 249
4 2008 SCOSA E176 (D)
5 2025 (1) SA 392 (SCA) para [21]
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between the party and the person to be joined and should be determined in
such a manner as to bind that person. ’

[17] Essentially, it was submitted that the SCA in The Smart observed that Section
5 (1) provides extended powers, in the interest of justice and convenience, which
would otherwise not be available to a High Court when it is not exercising its
admiralty jurisdiction . In fact, it was argued that TYT’s claim falls under category (a)
above. In such circumstances, there is no way in which Helvetia would not be
included in these proceedings.
[18] On consideration of Section 3(1) of COGSA it appears that the legislature was
acutel y aware that this provision carefully interpreted, and employing the often
quoted Endumeni
6 principles, would be applicable to a person conducting and /or
carrying on business in South Africa, as well as to the consignee or holder of a bill of
lading even if there is an exclusive law and jurisdiction clause in the bill of lading.
The legislature was alive to the fact that the conditions of carriage would be set out in the bill of lading. In my understanding, the conditions as set out in the bill of lading do not oust the provisions of COGSA and or the jurisdiction of this Court. [Emphasis
added] .
[19] Helvetia contended that the jurisdiction of this Court should be disregarded as
the Hamburg Court has exclusive jurisdiction to adjudicate on this claim. In the bill of
lading, Clause 25. LAW AND JURISDICTION reads as follow:

“Except as otherwise provided specifically herein any claim, dispute, suit or proceeding arising under this Bill of Lading and/or the contract between
Carrier and the booking party shall be governed by German laws and shall be determined exclusively in the Hamburg courts. Carrier shall have the option to file a suit at Merchant’s place of business.”
[20] This clause suggests that despite the Hamburg courts having exclusive
jurisdiction to determine any claim, dispute, suit or proceedings, Helvetia would also

6 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2
All 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012)
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have had an option to file a suit at a Merchant’s place of business, in the event of a
dispute and/or a necessity.

[21] It appears that Section 3 (1) of COGSA must be read and understood within
its context . Essentially , it authorises the local cargo interest to pursue litigation in
South Africa. While the carrier has an option to sue at the Merchant’s place of
business as stated in Clause 25 above, l ikewise, Section 3(1) provides the local
cargo interest an additional statutory jurisdiction, in addition to the jurisdiction
mutually agreed and chosen by the parties for purposes of dispute resolution in their
bill of lading . In my mind, the bill of lading and section 3 read together suggests
some flexibility in so far as jurisdiction is concerned. In any event, there should be
parity of arms in so far as parties to litigation are concerned.
[22] In my opinion Professor Hare’s perspectives in paragraph 13.1 and 13.2
seems to be misplaced, as there is no preservation of the South African Courts
jurisdiction in the face of the contractual ouster. For instance, a party who incurred damages of a magnitude as alleged by TYT cannot be expected to shoulder the
costs of litigating in a foreign jurisdiction at great expense. The option of pursuing
litigation in a suitable and competent jurisdiction by a local cargo interest should be
an important factor to consider.
[23] I agree with the applicants that local cargo interests have no realistic
opportunity , or bargaining power to negotiate the terms of the contracts of carriage.
In most circumstances, t hey are the standard form commercial contract s and, in
particular they are signed by only one party and are often drafted in a manner that
lacks clarity by that party.
7 As noted by Wilson: “… the inherent inequality of
bargaining power as between parties to a bill of lading contract has necessitated restrictions being imposed on the traditional principle of freedom of contract.”
8

[24] Helvetia contended that Section 3 (1) of COGSA should be cross- referenced
with Section 7 of the Admiralty Jurisdiction Regulation Act. Section 7 in my view, is
irrelevant in so far as this dispute is concerned. On the other hand, Section 3 (1) is

7 William Tetley, International Maritime and Admiralty Law (2002) page 117
8 John F Wilson, Carriage Goods by Sea, 6th edition ( 2008) page 6
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specific with regard to the dispute where it is applicable. It was suggested that
Section 3 (1) should refer to a court appropriately endowed or with the admiralty
jurisdiction. This Court has no qualms with that suggestion as this Court is fully
clothed with such requirements. It was submitted further the local court must still be
one of “ competent jurisdiction”, and the requirements of the Admiralty Act regarding
jurisdiction and the accom panying arrest or att achment must be fulfilled. This
argument contradicts the fact that cargo claims frequently involve a foreign party
which does not possess any assets with in the jurisdiction, and therefore renders the
accompanying arrest and attachment potentially unfeasible.
[25] In circumstances where it would not be possible to recover damages through
the usual methods proposed by Helvetia, the legislature deemed it proper to enact
Section 3 (1) of COGSA so as to safeguard, secure and/or protect the local cargo
interest s. Section 3 (1) is pointedly and distinctly unique. Put differently, it is one of
its kind. Tetley refers to it as unashamedly parochial .
9 It goes without saying that
Section 3 (1) of COGSA afforded the local cargo interests with addition al rights
which they already have under the A dmiralty Act. Clearly, there is nothing sinister
that the legislature has created in protecting the local cargo interest s. This Court has
real and substantial connection with the cause of action. The generator was allegedly damaged beyond repair in this jurisdiction . As a consequence thereof the
loss suffered by TYT originated from this area of jurisdiction. Helvetia conducts
business and trade in South Africa. It derives financial benefits from commercial
agreements with local cargo interest s.

[26] Notwithstanding Helvetia’s submission that Hamburg courts hold exclusive
jurisdiction over this claim, it was confirmed during the hearing that no action has
been filed in Hamburg Court. Besides, the one-year time frame for such claims will
conclude on 05 April 2025. To date, the action filed under this case number is the
only action regarding this claim.


9 Tetley describes it as “nationalistic” and (in the footnote) “inward – looking” (pages 110 – 111:”
Some national carriage goods by sea statutes have “nationalistic ” provisions of jurisdiction and
arbitration, notably those of Australia, New Zealand, South Africa, and Nordic Countries, which
provisions, unfortunately, restrict party autonomy and damage the uniformity of international maritime
law on this important subject.”
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[27] Notably, TYT has proceeded against other respondents in pursuit of its claim
in this Court. It makes no sense for TYT to proceed in Hamburg Court against
Helvetia regarding the same cause of action. In my considered view , it is therefore in
the interest of justice practical and convenient for these claims to be adjudicated in
this Court. Section 3 (1) empowers local cargo interest s the authority to pursue
litigation in South Africa. Given the circumstances , I find that this Court has
jurisdiction to hear TYT’s claim against Helvetia.
[28] In light of this Court’s finding in the main, it would not be necessary to deal
with the alternative prayer of joinder of the third def endant in terms of Section 5 (1) of
the Admiralty Act . However, it is important to state that the applicants have put up a
strong and compelling case in this regard – more – so in light of the recent SCA
judgment, The Smart .
[29] In conclusion, I find that the objections that were raised by Helvetia on
jurisdiction are misconceived and have no basis.
[30] In the result the following order is made:
30.1 It is declared that this Court has jurisdiction to hear the first applicant ’ (TYT’s)
claim against the third respondent (Helvetia), as set out in the summons under the above case number, in terms of Section 3 (1) of the Carriage of Goods by the Sea Act 1 of 1986;
30.2 The action was validly commenced against the third respondent;
30.3 The third respondent is ordered to pay costs of this application, including the costs of two Counsel on Scale C .

MANTAME J
WESTERN CAPE HIGH COURT
Counsel for the Applicant: ADV MICHEAL FITZGERALD SC
ADV DARRYL COOKE
Instructed by: BOWMAN GILFILLAN INC.

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Counsel for the Third Respondent: ADV JAMES MACKENZIE
Instructed by: DAWSON EDWARDS AND ASSOCIATES