Seaspan Holdco 1 Limited and Others v MS Mare Tracer Schiffahrts GMBH & Co KG and Another (376/18) [2019] ZASCA 2; 2019 (4) SA 483 (SCA) (1 February 2019)

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[2019] ZASCA 2
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Seaspan Holdco 1 Limited and Others v MS Mare Tracer Schiffahrts GMBH & Co KG and Another (376/18) [2019] ZASCA 2; 2019 (4) SA 483 (SCA) (1 February 2019)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
376/18
In the matter
between:
SEASPAN HOLDCO 1
LIMITED                                                                 FIRST

APPELLANT
SEASPAN
CORPORATION                                                                     SECOND

APPELLANT
MV ‘SEASPAN
GROUSE’                                                                            THIRD

APPELLANT
and
MS MARE TRACER SCHIFFAHRTS
GMBH
& CO
KG
FIRST

RESPONDENT
MS
MARE TRAVELLER SCHIFFAHRTS
GMBH
& CO
KG
SECOND

RESPONDENT
Neutral citation:
MV Seaspan Grouse: Seaspan Holdco 1 Ltd v MS Mare Traveller
Schiffahrts GmbH
(376/18)
[2019] ZASCA 02
(1
February 2019)
Coram:
Maya P, Wallis, Molemela, Makgoka and Schippers JJA
Heard:
12 November 2018
Delivered:
1 February 2019
Summary:
Admiralty – s 3(4) of Admiralty Jurisdiction Regulation Act
105 of 1983 (AJRA) –
in rem
action based on
in
personam
liability of owner of ship – arrest of associated
ship – s 3(7) of AJRA requiring that associated ship be owned
at commencement
of action by person personally liable on claim –
s 1(2) of AJRA – commencement of action date on which process
instituting
action served in terms of s 1(2)(
a
)(i).
ORDER
On
appeal from:
KwaZulu-Natal Division, Durban, of the High Court,
exercising its admiralty jurisdiction (Gyanda J sitting as court of
first instance)
reported
sub nom
:
Seaspan
Grouse:
Seaspan
Holdco and Others v MS Mare Tracer Schiffahrts and Another
2018
(5) SA 284
(KZD):
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 with the
following:
‘It
is ordered that:
(a) The arrests of the
Seaspan Grouse
under case numbers
A69/2016 and A70/2016 be and are hereby set aside.
(b) The Registrar of the High Court, Durban, is directed to release
the cash held as security for the respondents’ claims
to an
account nominated by the applicants’ attorney of record within
five court days.
(c) The respondents are to pay the costs of this application.’
3. The period of five days in para (b) of the High Court’s
order in para 2 of this order is to run from the date of this
order.
JUDGMENT
Wallis
and Schippers JJA (Maya P and Molemela JA concurring):
[1] Under the
Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA), a
claimant may issue a summons
in rem
and warrant of arrest in
respect of a vessel, or obtain an order for its attachment to found
and confirm jurisdiction (
ad fundandam et confirmandam
jurisdictionem
), before the vessel named in the summons or
attachment order comes within the area of jurisdiction of a South
African court. It
is therefore possible for a change in ownership of
the vessel to occur between the time when the summons is issued, or
the attachment
order is granted, and the arrest or attachment. This
appeal addresses the consequences of that occurring in the context of
a summons
and warrant of arrest issued against an associated ship.
However, it was accepted in argument that the position would be no
different
in the case of a summons
in rem
and warrant of
arrest issued against the ship in respect of which the maritime claim
arose.
[2] In the
Monica
S
[1]
the Admiralty judge, then Brandon J, was confronted with this issue.
He held that in English admiralty law the action commenced
with the
issue of the writ. The right of the claimant to assert a statutory
right of action
in rem
arose from that time and was
enforceable by the arrest of the named vessel. A change in ownership
of the vessel after the issue
of the writ made no difference to the
claimant’s entitlement to arrest the vessel. For obvious
reasons such writs have come
to be referred to as protective writs.
Although it has been questioned insofar as its exposition of the
historic position is concerned,
writers in this field have accepted
it.
[2]
Counsel for the appellant did not question its application in English
law, although it is not clear that it is as widely accepted
as
suggested by counsel for the respondents.
[3]
[3] In the present
case, Gyanda J, sitting in the KwaZulu-Natal Division, Durban of the
High Court, in the exercise of its admiralty
jurisdiction, held that
the
Monica S
correctly reflected the position in our law. In a
case raising the same issue in the Western Cape Division of the High
Court, exercising
its admiralty jurisdiction, Burger AJ reached the
opposite conclusion.
[4]
It falls to this court to decide which was correct. The appeal is
before us with leave granted by Gyanda J.
The facts
[4] The facts are
uncontroversial. The first and second respondents (the respondents)
are German registered companies. They owned
the motor vessels,
Mare
Tracer
and
Mare Traveller
respectively, and chartered them
to Hanjin Shipping Co Ltd (Hanjin Shipping). Each respondent had a
claim for unpaid charter hire
against Hanjin Shipping arising out of
those charters.
[5] Hanjin Shipping
was at one stage South Korea’s largest container line and one
of the world’s top ten container carriers
in terms of capacity.
On 1 September 2016 the Seoul Central District Court granted an order
commencing rehabilitation proceedings
in respect of Hanjin Shipping.
The following day the respondents caused summonses
in rem
and
warrants of arrest, referred to in argument as protective writs, to
be issued out of the KwaZulu-Natal Division, Durban and
various other
divisions of the High Court in an endeavour to enforce their claims.
These cited various associated ships as defendants,
including the
vessel that is the subject of this appeal, the
Seaspan Grouse
,
formerly the
Hanjin Gdynia
.
[6] The registered
owner of the
Hanjin Gdynia
, when the appellants issued their
protective writs, was J O O Shipping SA. This was a one ship company,
the sole shareholder of
which was an employee of Hanjin Shipping, who
was entirely under the direction of his employer. After Hanjin
Shipping commenced
rehabilitation proceedings, the mortgagee of the
Hanjin Gdynia
, Societé Generale, exercised its rights
under the mortgage to take effective possession of the vessel. It
caused J O O Shipping
to sell it to Seaspan Holdco 1 Limited
(Seaspan), the first appellant, in terms of a Memorandum of Agreement
(MOA) dated 14 December
2016. Delivery pursuant to the MOA occurred
on 29 December 2016. The purchase of the
Hanjin Gdynia
occurred
simultaneously with the purchase of three other vessels the
Hanjin
Atlanta
, the
Hanjin Kingston
and the
Hanjin Monaco
.
Seaspan’s purpose in acquiring these vessels was to re- sell
them at a profit, which it has done in respect of the
Hanjin
Gdynia
. All of this occurred before Hanjin Shipping was declared
bankrupt on 17 February 2017.
[7] The South Korean
courts have held that structuring the ownership of a vessel in the
manner described in para 6 is lawful and
valid. The effect is that
the employee, who is the registered owner of the shares in the
ship-owning company, is entitled to dispose
of the vessel. A creditor
may not go behind the employee’s ownership to his employer,
Hanjin Shipping. Accordingly, there
was no dispute before us that the
sale of the
Hanjin Gdynia
to Seaspan was an arms-length and
bona fide transaction. Seaspan became the registered owner of the
vessel, now renamed the
Seaspan Grouse
, before the vessel was
arrested and without knowledge of the protective writs.
[8] On 23 August
2017 the respondents arrested the
Seaspan Grouse
in Durban
pursuant to the protective writs they had issued nearly a year
earlier. The arrests were discharged after security, in
the form of
cash was lodged with the Registrar of the High Court, Durban. On 18
September 2017 Seaspan and its holding company,
the second appellant,
applied to set aside the arrest and to procure repayment of the
security. The High Court dismissed the application
for the reasons
already described.
The issue
[9] The respondents’
claims against Hanjin Shipping were claims
in personam
, based
on obligations arising under the two charterparties. Under the AJRA
maritime claims may be pursued in two ways, either by
way of an
action
in personam
against the person liable in respect of the
claim, or by way of an action
in rem
. The respondents could
have followed either course in pursuing their claims, but elected to
proceed by way of an action
in rem
.
[10] A maritime
claim may be enforced by way of an action
in rem
if the
claimant has a maritime lien over the ship in respect of which the
claim arose (the ship concerned), or if the owner of the
ship
concerned would be liable in an action
in personam
in respect
of that claim.
[5]
We do not need to concern ourselves with cases where the claimant has
a maritime lien over the property to be arrested. Our law
recognises
only a limited number of maritime liens
[6]
and the nature of the maritime lien is that it is enforceable against
the ship notwithstanding a change in ownership.
[7]
Accordingly the problem in this case does not arise where the
claimant has a maritime lien. Here the
in rem
procedure was
invoked on the basis that the claimant had a claim
in personam
against the owner of the property to be arrested.
[11] Section 3(6) of
the AJRA provides that an action
in rem
may be brought by the
arrest of an associated ship instead of the ship concerned.
[8]
Section 3(7) provides that:
(7) For the purposes of subsection (6) an associated ship means a
ship, other than the ship in respect of which the maritime claim

arose–
(i) owned, at the time when the action is commenced, by the person
who was the owner of the ship concerned at the time when the
maritime
claim arose; or
(ii) owned, at the time when the action is commenced, by a person who
controlled the company which owned the ship concerned when
the
maritime claim arose; or
(iii) owned, at the time when the action is commenced, by a company
which is controlled by a person who owned the ship concerned,
or
controlled the company which owned the ship concerned, when the
maritime claim arose.’
[12] The critical
words in each of these subsections are ‘owned, at the time when
the action is commenced’. It is common
cause that the
respondents’ claims were claims
in personam
against
Hanjin Shipping and that all of the Hanjin vessels named in the
protective writs were at the time of their issue controlled
by Hanjin
Shipping. Accordingly, if the respondents’ actions against the
Seaspan Grouse
commenced when the protective writs were issued
on 2 September 2016, the change in ownership of the vessel occurred
after the actions
commenced. In that event the respondents remained
entitled to cause the vessel to be arrested in pursuance of their
claims, notwithstanding
the change in ownership. If the actions only
commenced when the summons and warrant of arrest were served, they
were not, because
at that time the vessels were not owned by a person
identified in any of the subsections of s 3(7).
[13] The AJRA
provides in s 1(2)(
a
) for when an action commences. It
contains four subsections describing the commencement of an admiralty
action in different circumstances.
The respondents submitted that s
1(2)(
a
)(iii) was applicable and that their actions commenced
when the protective writs were issued. Seaspan contended that s
1(2)(
a
)(i) was applicable and that the action commenced when
the process instituting the action was served. As J O O Shipping SA
no longer
owned the vessel at that date it submitted that the arrests
of the
Seaspan Grouse
fell to be set aside. The issue is which
is correct.
The arguments
[14] Counsel for
Seaspan submitted that the correct approach to s 1(2) was first to
identify the relevant purpose for which it was
necessary to determine
when an admiralty action commenced. There are two places in the AJRA
itself where this is relevant, namely,
in determining whether a
vessel is an associated ship in terms of s 3(7)(
a
) and in the
ranking of claims in terms of s 11(4)(
c
). However, the
section’s scope of operation is far wider, because many
maritime contracts contain clauses that require action
to be
instituted or suit to be brought within a particular time. There are
also international maritime conventions such as the
Hague Rules
[9]
and its successors, principally the Hague-Visby Rules,
[10]
and the Salvage Convention,
[11]
that contain limitation or time bar provisions, the operation of
which is dependent upon when claimants commence an action to pursue

their claims. Some of these may be compulsorily applicable to
maritime contracts. In addition there is the general law governing

prescription, or limitation of actions as it is described in some
jurisdictions.
[15] Counsel
submitted that, where it is necessary to determine when an admiralty
action commenced, the appropriate commencement
date under s 1(2) must
be selected having regard to the relevant purpose. These commencement
dates overlap, so it is necessary
to choose which is applicable in
every situation. The proper interpretation of s 1(2) is a matter of
South African law in accordance
with established principles of
interpretation of statutes
[12]
and there is no need to have regard to English or other foreign
authority in that regard. The action
in rem
against an
associated ship is a unique institution existing nowhere else in the
world and it is therefore necessary to pay close
attention to the
principles underpinning the AJRA in determining whether a vessel is
an associated ship. There is little point
in having regard to English
law as to the nature and effect of issuing a writ in proceedings
in
rem
, when we are construing a South African statute that differs
materially from its English counterpart.
[16] He contended
that this construction preserved the underlying purpose of the
associated ship, which is that liability should
be imposed where it
properly lies by virtue of common ownership or common control.
[13]
Accepting that the purchaser of a vessel may be unaware of the
existence of a maritime lien, he submitted that it was inappropriate

to extend the potential liabilities of purchasers to statutory rights
in rem
arising from a lengthy and indeterminate
[14]
list of maritime claims, going considerably beyond those identified
in the Arrest Convention.
[15]
Finally, he submitted that, s 39(2) of the Constitution requires the
court to construe the AJRA in a manner that best promotes
the spirit,
purport and objects of the Bill of Rights. A construction of s 3(7)
that permitted the arrest of vessels as associated
ships, even though
there was no connection at all between the person liable
in
personam
on the claim and the ship being arrested, was not the
interpretation that best promoted the spirit, purport and objects of
the Bill
of Rights and in particular s 25 thereof dealing with the
right to property.
[17] Counsel for the
respondents adopted a different approach. He submitted that there is
no overlap between the different subsections
of s 1(2) and that the
only provision relevant to the present case is s 1(2)(
a
)(iii).
He relied upon the judgment in this court in the
Jute Express
[16]
to contend that s 1(2)(
a
)(i) applies only to claims
in
personam
and not proceedings
in rem
. The purpose of the
AJRA was to assist maritime claimants by facilitating the arrest of
vessels, not only the ship concerned, but
also associated ships.
[17]
A maritime lien travels with the ship notwithstanding a change in
ownership and there is no reason why the same should not be true
of
claims giving rise to a statutory right
in rem
. This is
particularly so given that, in countries such as the United States of
America,
[18]
maritime liens are by statute afforded to a far wider group of claims
than in the United Kingdom. There is no harm in this because
the
issue of protective writs and the application of the principle in the
Monica S
is a well-recognised feature of maritime commerce, so
that purchasers insure against the risk of such claims being pursued
against
the vessels they purchase. The purchaser of a vessel usually
has no means of ascertaining whether it is burdened by a maritime
lien. The position is different in regard to statutory rights of
action
in rem
arising by virtue of the issue of a protective
writ, because in South Africa there is a separate register of
admiralty actions and
it is commonplace for attorneys to be
instructed to undertake searches to check for the existence of
protective writs.
[18] Counsel
submitted that the existence of the statutory right of action
in
rem
had been recognised from the time that the jurisdiction of
the Admiralty Court in England had been extended by the statutes of
1840
and 1861.
[19]
This was the effect of the judgment in the
Monica S
and it had
never been challenged in any jurisdiction that, like South Africa,
originally derived its admiralty jurisdiction from
England via the
Colonial Courts of Admiralty Act.
[20]
The
Monica S
was applicable in South African admiralty
proceedings prior to the AJRA and there was no reason for it not to
form part of our admiralty
law under the AJRA.
[19] He contended
that s 1(2)(
a
) served to identify one fixed date of
commencement of an action in all cases and that it was absurd to
speak of an action having
several different commencement dates
depending upon different purposes. Once an action has commenced it
has commenced for all purposes.
The word ‘relevant’ could
not be taken to detract from the impact of the word ‘any’,
which in its ordinary
connotation means ‘each and every’
and encompasses all purposes. The 1992 amendments to the AJRA had
been formulated
in the light of the decision in the
Jute Express
and the court should be guided by what was decided in that case
in construing the amended section.
[20] In the heads of
argument counsel drew attention to the approach to construing the
expression ‘maritime lien’ in
the AJRA in the
Andrico
Unity.
[21]
The court held that in terms of s 6(1)(
a
) of the AJRA it was
bound to apply English admiralty law to that question, because the
matter before it was whether the plaintiffs
had maritime liens over
the
MV Andrico Unity
. He contrasted this with
The Silver
Star
.
[22]
There the issue was whether the ship concerned in relation to the
maritime claim that had given rise to an arbitration award, was
also
the ship concerned for the purposes of the award itself. The court
said this was a matter of statutory interpretation of the
relevant
provisions of the AJRA, and that no question of resorting to s
6(1)(
a
) arose. The submission advanced, somewhat tentatively,
was that, if the
Andrico Unity
remained good law, the question
in this case fell to be answered by resort to English law.
[21] The point was
not taken any further in the course of oral argument and rightly so,
although it was again raised in supplementary
heads of argument,
delivered after the hearing in response to a question by the court.
In the application of s 6(1) in the present
case the ‘matter’
was when the actions
in rem
against the
Seaspan Grouse
commenced, for the purpose of its arrest as an associated ship.
That involved the interpretation of s 1(2) of the AJRA, which for
any
relevant purpose deals with when an admiralty action commences. Even
assuming that determining the date of commencement of
an action
in
rem
was a matter, in respect of which a South African court of
admiralty would have had jurisdiction under the Colonial Courts of
Admiralty
Act, s 6(2) of the AJRA provides that nothing in s 6(1)
shall derogate from the provisions of a South African law applicable
to
that matter. Here there is an express provision of the AJRA
dealing with the very question and we are enjoined to interpret and

apply that provision, whatever may have been the previous position in
English admiralty law.
Section
1(2) of the AJRA and the
Jute Express
[22] The competing
submissions of counsel were closely bound up with the history of this
section and the judgment in the
Jute Express
, which dealt with
it as originally enacted. Some consideration must therefore be given
to the original text of s 1(2) and to what
was decided in the
Jute
Express.
[23] Prior to its
amendment in 1992, s 1(2) provided:
‘For the purposes of any law, whether of the Republic or not,
relating to the prescription of or the limitation of time for
the
commencement of any action, suit, claim or proceedings, an admiralty
action shall be deemed to have commenced–
(a) by the making of an application for the attachment of property to
found jurisdiction if the application is granted and the
attachment
carried into effect;
(b) by the issue of any process for the institution of an action
in
rem
if that process is thereafter served;
(c) by the service of any process by which that action is
instituted.’
[24] The ambit of
the section was considerably narrower than in its present form. Its
only concern was to deal with statutory regimes
governing
prescription or limitation of actions in respect of maritime
claims.
[23]
In the forefront of the minds of those who drafted the AJRA was the
provision of Article 3(6) of the Hague and Hague-Visby Rules,
which
provided, in relevant part, that:
‘
...
the carrier and the ship shall in any event be discharged from all
liability whatsoever in respect of the goods, unless suit
is brought
within one year after the delivery of the goods or the date when the
goods should have been delivered.’
These
rules applied by statute in many countries in relation to contracts
for the carriage of goods from those countries and, as
such, the
question of when ‘suit is brought’ was one well
recognised in maritime circles in South Africa when the AJRA
was
enacted. It had arisen specifically in relation to an attachment,
where the court held that the making of the application amounted
to
the bringing of suit for the purpose of the Hague Rules.
[24]
Not surprisingly, therefore, that situation was dealt with in s
1(2)(
a
).
[25] The
Jute
Express
did not raise an issue under s 1(2). No process had been
issued and no arrest of the vessel had been effected, because
security
for the claim had been given to prevent its arrest in terms
of s 3(10)(
a
) of the AJRA. However, the summons was only
issued (and served) more than a year after security had been
furnished. The owners
of the vessel raised a special plea that the
claim was time-barred in terms of the contractual incorporation of
the Hague Rules
in the bill of lading, as suit had not been brought
within one year of the claim arising. The issue was whether obtaining
security
amounted to the bringing of suit, because of the provision
in s 3(10)(
a
) of the AJRA that if security had been given the
vessel was deemed to have been arrested and to be under arrest.
[26] The claimants
argued that s 3(5) of the AJRA provided that an action
in rem
shall be instituted by the arrest of the vessel. Section 3(10)(
a
)
deemed the vessel to have been arrested and to be under arrest if
security was given to prevent its arrest. The object of the
deeming
provision was to bring about the same situation as would have
prevailed had the vessel actually been arrested. Accordingly,
the
claimants should be deemed to have instituted an action and to have
brought suit as required by Article 3(6).
[25]
The counter argument was that s 3(5) reflected the requirement that
an action
in rem
required the arrest of the vessel, not that
the action was commenced (suit was brought) by the arrest. The latter
was inconsistent
with both English admiralty and South African
procedure. This approach was consistent with the provisions of s 1(2)
as it then
stood. There was nothing in s 3(10)(
a
) to indicate
that an action was deemed to commence by the giving of security to
prevent the arrest of the vessel. That would create
an anomaly, where
an action might have commenced, notwithstanding the fact that no
court exercising admiralty jurisdiction was
in any way seized of the
matter or had any knowledge of its existence. Such a conclusion was
inconsistent with the entire notion
of bringing suit as embodied in
the Hague Rules.
[26]
[27] The judgment
began by saying that the question in issue was whether an action
in
rem
is commenced by arrest or by the issue of summons.
[27]
The central concern of the parties was whether suit had been brought
in terms of Article 3(6) of the Hague Rules. The court accepted
that
to bring suit was to commence appropriate proceedings for enforcing
the claim.
[28]
The claimants contended that the institution of the action
in rem
in terms of s 3(5) of the AJRA constituted the commencement of
the proceedings.
[28] Howie AJA, who
gave the judgment of the court, rejected this contention, giving
eight reasons for doing so.
[29]
In summary they were these:
·
In South African procedure all actions commence with the issue
of summons.
[30]
·
Where the legislature thought it necessary to deal with the
commencement of an action, in the context of interrupting
prescription
or limitation provisions, it did so in s 1(2), departing
from the ordinary position in our law.
[31]
·
The claimant’s argument created a contradiction between
s 1(2)(
b)
which provided that an action
in rem
commenced
by the issue of process for its institution, and s 3(5), which
required the action to be instituted by an arrest.
·
The purpose of s 3(5) was to make arrest an essential
requirement of an action
in rem.
·
The distinction between the Afrikaans translation of
‘commenced’ in s 1(2) (‘ʼn aanvang te geneem
het’)
and ‘instituted’ in s 3(5) (‘word
ingestel’) made it plain that in speaking of the institution of
the action
the legislature was not concerned with its commencement.
·
In the old practice under the Colonial Courts of Admiralty
Act, action was commenced by the issue of summons, and there was no
reason
to alter the situation when enacting the AJRA.
·
Holding that the action was commenced by an arrest or deemed
arrest gave rise to anomalies. On the one hand, until the vessel was

arrested there would be no action, notwithstanding the existence of a
summons. On the other, where security was given to prevent
an arrest,
there would be an action without a summons and there can be no action
without a summons.
·
Lastly, construing the AJRA as meaning that the action
commenced with the issue of summons was in accordance with
established procedure
and created no inconsistencies or
incongruities.
[30] It is helpful
to point out what was not decided in the
Jute Express
. The
court did not decide that an arrest, actual or deemed, was
unnecessary in order to institute an action
in rem
. Nor did it
express any view on the consequences of issuing a summons, beyond
saying it was the commencement of an action, and
accordingly
necessary for the purpose of bringing suit in terms of Article 3(6)
of the Hague Rules.
[31] The AJRA and ss
1(2) and 3(7) in particular were amended by way of the Admiralty
Jurisdiction Regulation Amendment Act 87 of
1992, which was passed on
18 June 1982 and commenced on 1 July 1982. Mr Mullins suggested that
the amendments to s 1(2) were precipitated
by the decision in the
Jute Express
. That cannot be correct. The Bill giving rise to
the amending Act and containing s 1(2) in its current form was tabled
in Parliament
on 26 February 1992, a month before the judgment. The
explanatory note reveals that it had been debated by the Maritime Law
Association
and considered by several judges president and legal
bodies. It made comprehensive changes to the AJRA in a number of
areas. It
seems more likely that in the debates leading up to the
Bill’s preparation the issue raised in the
Jute Express
was
considered, possibly in the light of the judgment in the court below
handed down over a year earlier.
[32]
The amended s 1(2)
[32] The section
reads as follows:
‘(
a
) An admiralty action shall for any relevant purpose
commence –
(i) by the service of any process by which that action is instituted;
(ii) by the making of an application for the attachment of property
to found jurisdiction;
(iii) by the issue of any process for the institution of an action
in
rem
;
(iv) by the giving of security or an undertaking as contemplated in
section 3(10)
(a)
.
(b) An action commenced as contemplated in paragraph
(a)
shall
lapse and be of no force and effect if-
(i)
an application contemplated in paragraph
(a)
(ii) is not
granted or is discharged or not confirmed;
(ii)
no attachment is effected within twelve months of the grant of an
order pursuant to such an application or the final decision
of the
application;
(iii)
a process contemplated in paragraph
(a)
(iii) is not served
within twelve months of the issue thereof;
(iv)
the property concerned is deemed in terms of section 3(10)
(a)
(ii) to have been released and discharged.’
[33] The immediate
question is whether the section fixes a single commencement date for
every admiralty action, being the date first
occurring among the
alternatives in s 1(2)(
a
), or whether there is a choice of
commencement date, depending upon the purpose for which the date of
commencement of the action
is relevant.
[34] The enquiry
inevitably commences with the language of the section
[33]
and particularly the words ‘for any relevant purpose’.
Prior to its amendment s 1(2) was only concerned with the
commencement
of an admiralty action in the context of statutory time
bars and limitation periods. Now it applies to any relevant purpose.
While
the word ‘any’ usually connotes ‘all’,
meaning must be given to the word ‘relevant’. It cannot

be ignored as suggested by counsel. Even if it were, it would not
lead inevitably to the conclusion that the date of commencement
of
the action would be the same for every purpose arising in relation to
a particular claim. Whenever there is more than one date
that could
apply a choice must be made.
[35] The phrase ‘any
relevant purpose’ emphasises that the previous restriction to
statutory time bars and limitation
periods has been removed and that
the section now encompasses all circumstances where the date of
commencement of the action is
relevant. Semantically, the addition of
the word ‘relevant’, suggests that the purpose for which
the enquiry has to
be made affects which of the four possibilities
listed in the subsections of s 1(2) applies in any given situation.
There is nothing
linguistically to indicate that the earliest date
must be chosen and any later ones ignored.
[36] Mr Mullins
contended that subsections (i) to (iv) deal with separate and
distinct situations. He relied upon the following
passage from the
Jute Express
:
[34]
‘In the normal course, prescription is not interrupted by the
issue of summons but by the service of summons … and,
as
already mentioned, an action is not commenced by the service of
summons but by the issue of summons. Manifestly the Legislature

intended to unify the moment of commencement in relation to
prescription on the one hand and statutory time limitations on the

other. One finds, therefore, that in the case of an action
in rem
the moment of commencement is deemed to be the issue of process
and,
in the case of an action in personam, the service of process
(see s 1(2)(c))
’ (Emphasis added.)
[37] With respect,
the deeming provisions to which reference was made did not unify the
moment of commencement in respect of prescription
and statutory time
limitations. Prescription commences running when the debt is due, not
when summons is either issued or served.
It appears that Howie AJA
had in mind the interruption of prescription and the bringing of suit
and like expressions in other statutory
limitation periods. Even then
the deeming provision did not unify the two. Prescription would be
interrupted and a time bar defeated
by service of a summons in
actions
in personam
, other than one where an attachment was
necessary. In actions
in personam
where an attachment was
necessary, prescription would be interrupted and a time bar defeated
by making the application for attachment.
In an action
in rem
the
same time bar on the same claim would be defeated without service by
the mere issue of a summons. This was hardly satisfactory.
[38] Mr Mullins
submitted that in the last sentence of this passage the court drew a
distinction between an action
in rem
, where the issue of
summons would commence the action, and an action
in personam
where
service was necessary. As the present s 1(2)(
a
)(i) is in the
same terms as the former s 1(2)(
c
), he argued that it could
not be invoked in regard to an action
in rem
. We do not think
that is correct. It reads into the subsection a restrictive
limitation that is not to be found in its language.
The preamble
refers generally to ‘an admiralty action’, which includes
both an action
in rem
and an action
in personam
. It
goes on to provide that the action will commence by the service of
process ‘by which
that action
is instituted’.
There is no warrant for reading that as if the words ‘that
action’ read ‘an action
in personam
’. It
also ignores the provisions of s 1(2)(
a
)(ii) dealing
specifically with when proceedings commence in the case of an action
in personam
instituted by an attachment. In our view, Howie
AJA was doing no more than contrasting cases where no attachment was
necessary,
because the defendant was an
incola,
or had
consented or submitted to the jurisdiction, or was a company with a
registered office in South Africa, with an action
in rem
. In
those cases s 1(2)(
c
) would determine when the action
commenced and, in accordance with established procedural law
governing prescription, that would
be on service of summons. The
court was well aware that in those cases the action would
procedurally have commenced when the summons
was issued.
[39] There was no
need for Howie AJA to consider whether s 1(2)(
c
) might also
apply in some instances to actions
in rem
. If he had, an
obvious example would have been where a warrant was obtained without
issuing a summons where a court ordered the
issue of the warrant. In
that event, there seems to be no reason, linguistic or practical why,
in order to defeat a time bar, or
interrupt prescription, the action
should not have commenced by service of the warrant in terms of the
former s 1(2)(
c
). One can readily imagine a scenario where a
vessel came into port unexpectedly, to take on bunkers or collect
urgently needed
spare parts, and it was necessary both to secure its
arrest before it left and defeat an imminent time bar. In that
situation there
might not be an adequate opportunity to prepare a
summons. We can think of no good reason why the service of the
warrant of arrest
in those circumstances would not defeat the time
bar, when service of an attachment order would have done so.
[40] Reverting to
the present s 1(2), Mr Mullins sought to bolster his argument that s
1(2)(
a
)(i) related only to actions
in personam
, by
submitting that there was a clear correspondence between ss
1(2)(
a
)(ii) and ss 1(2)(
b
)(i) and (ii); between ss
1(2)(
a
)(iii) and ss 1(2)(
b
)(iii); and ss 1(2)(
a
)(iv)
and ss 1(2)(
b
)(iv). There was no need for a provision that the
action would lapse after service of process in terms of ss 1(2)(
a
)(i)
because the action would then be before the court. That would be the
situation with an action
in personam
, but an action
in rem
would commence earlier and therefore it was necessary to provide
for the situation where the summons was not served.
[41] There were two
problems with this submission. The first was the one to which we have
already drawn attention, namely that in
some circumstances,
admittedly unusual, a warrant of arrest could be authorised without
the issue of summons. The second is that
the point of correspondence
between the subsections of s 1(2)(
a
) and those of s 1(2)(
b
)
was raised in the minority judgment in the
Cape Spirit
,
[35]
but not in the reported argument of counsel, and the majority did not
accept it. It is not in our view sound.
[42] Turning to the
subsections, s 1(2)(
a
)(i) speaks of service of process by
which the action is instituted. Section 3(5) of the AJRA, (which was
not amended in 1992) says
an action
in rem
shall be instituted
by an arrest. There is no reason at the level of language for saying
that these should not correspond. The same
applies to s 3(2)(
c
),
which says that an action
in personam
may be instituted
against a person whose property has been attached. The fact that in
both cases there are other provisions of s
1(2)(
a
) that could
apply does not affect this. There is no reason to confine subsection
(i) to actions
in personam
as submitted by the respondents.
[43] The other three
subsections of s 1(2)(
a
) provide a date earlier than service
of process and concurrent attachment or arrest as the date of
commencement of an admiralty
action. The only significant difference
between them and the earlier version of the section is the inclusion
of subsection (iv),
making the giving of a security or an undertaking
under s 3(10)(
a
) a ground for the commencement of an admiralty
action. Nothing suggests that their inclusion was not primarily
directed at prescription,
limitation provisions and time bars, as had
originally been the case. The reference to giving security or an
undertaking dealt
with the situation that arose in the
Jute
Express
. The difference between the different subsections
emphasises the likelihood that different relevant purposes might
require different
dates of commencement of the action.
[44] There is a
further difficulty. On the respondents’ argument, s 1(2)(
a
)(iv)
creates a situation where an action has commenced, but no court is
seized of it or is even aware of its existence. The court
in the
Jute
Express
characterised that as ‘compatible with neither
logic nor established practice’.
[36]
Clearly that is so. It points in favour of a construction of s
1(2)(
a
) that requires the court to choose the commencement
date that is appropriate to the relevant purpose. Interruption of
prescription
or a time bar is one thing, but the entitlement to
arrest an associated ship that has changed ownership since the
warrant was issued
is an entirely different matter.
[45] A significant
anomaly is created on the respondents’ approach. It flows from
the provisions of s 1(2)(
b
), which provide for the lapsing of
actions commenced in the circumstances set out in s 1(2)(
a
)(ii)
to (iv). That is a novel concept in our civil procedure. Actions may
be dismissed for non-prosecution, but nowhere do they
lapse
automatically. Where there has been service of the process by which
the action is instituted, there is no mention of the
action lapsing
in any circumstance. In the context of time bar and limitation
provisions, as well as under our own law governing
prescription,
[37]
the requirement that suit be brought, or action instituted, or
prescription be interrupted by the commencement of action, carries

with it an obligation, express or implied, that the suit or action is
continued to finality. If it is withdrawn or lapses, the
time bar,
limitation period or prescription can be invoked to defeat the claim
in subsequent proceedings as if there had been no
interruption. This
implies that the primary purpose of the provisions of ss 1(2)(
a
)(ii)
to (iv) is to assist claimants to comply with time bars or limitation
periods by bringing proceedings timeously.
[46] Finally, there
is manifestly an overlap between the different subsections of s
1(2)(
a
), in the sense that in any one case more than one of
the situations described in those subsections may arise. It would
have been
relatively easy and obvious in those circumstances to say
in the section that the action would commence in all cases when the
first
occurring of those situations occurred. We appreciate that this
is something of a makeweight point, but it does provide a pointer
as
to the proper construction of the section.
[47] All of these
factors, in our view, support the notion that s 1(2)(
a
)
provides a flexible standard for determining when an action
commences, depending upon the relevant purpose for which that enquiry

has to be made. Turning from there to the wider context, s 3(4) is
important. It says that a maritime claim may be enforced by
an action
in rem
if the claimant
has
a maritime lien over the
property to be arrested. There can be no doubt that the lien must
exist at the time of the arrest. It may
also be enforced by an action
in rem
if the owner of the property to be arrested would be
liable
in personam
on the claim. The words ‘to be
arrested’ speak to the situation at the time of the arrest. It
is the owner of that property
who must be liable
in personam
,
not its former owner. The respondents’ arguments create a
disjuncture between the arrest and the underlying liability. In
turn
s 3(4) is linked to the requirement in s 3(5) that an action
in
rem
is instituted by the arrest. This caused Shaw
[38]
to write that:
‘In
view of the provisions of s 3(5) that the action is instituted by the
arrest of the property, that is the moment when
it is required that
the owner [of the property to be arrested] be liable to the claimant
in the action in personam referred to
in s 3(4).’
The
respondents’ approach gives no effect to the provision in s
3(5) that the action is instituted by the arrest.
[48] Both textually
and contextually therefore, the approach to s 1(2)(
a
) advanced
by Seaspan is to be preferred. It gives effect to all the words used
and avoids the anomalies inherent in the approach
of the respondents.
In addition, we bear in mind the injunction in s 39(2) of the
Constitution that we should prefer an interpretation
that best gives
effect to the spirit, purport and objects of the Bill of Rights.
Given that the contentions by the respondents
potentially raise a
question of their compatibility with the provisions of s 25 of the
Constitution, that provides a further reason
for preferring the
construction advanced by Seaspan. We therefore hold that in applying
the section the court must first identify
the relevant purpose under
consideration and then select the appropriate commencement date.
The appropriate commencement date in applying s 3(7)
[49] The relevant
purpose was the arrest of the
Seaspan Grouse
as an associated
ship. That required that, at the commencement of the action, the
Seaspan Grouse
was owned by a company controlled at that time
by Hanjin Shipping.
[39]
Whether that was so depended on whether, for that relevant purpose,
the date of commencement of the admiralty actions was the date
of
issue of the protective writs (s 2(1)(
a
)(iii)) or the date of
the arrest (s 2(1)(
a
)(i)). In our view it was the latter.
[50] In the first
place, using the date of service of the summons is consistent with
the provisions of ss 3(4) and (5) in two respects.
It ensures that
the owner of the property to be arrested is also the person liable to
the claimant in an action
in personam
. It also co-ordinates
the commencement of the action and the institution of the claim.
[51] Second, that
approach accords with the basic purpose of the associated ship
jurisdiction. From the outset it was directed at
resolving the
difficulties occasioned by the dramatic shift to owning vessels in
separate one-ship owning companies after the Second
World War.
[40]
This was explained in the Law Commission Report
[41]
leading to the passage of the AJRA. There is nothing in the AJRA to
suggest that it was intended to render liable to arrest vessels

having no connection at the time of arrest, either by way of common
ownership or by way of common control, to either the ship concerned

in the case of an associated ship, or the person liable
in
personam
on the claim.
[52] Third,
considerable difficulties arise if, instead of proceeding
in rem
,
whether against the ship concerned or an associated ship, the
claimant seeks to enforce its claim
in personam
, commencing
with the
attachment ad fundandam et confirmandam jurisdictionem
of
the same vessel.
[42]
On the respondents’ approach, s 1(2)(
a
)(ii) means that
the commencement of the action for the purposes of the attachment
would be when application was made for an order.
If arrests and
attachments are to be dealt with in a consistent fashion, it should
follow that, having obtained an order in advance
of the vessel’s
arrival, the claimant would be entitled to attach it, notwithstanding
any change in ownership between that
date and the execution of the
attachment order.
[53] This would
involve a profound change in our law governing such attachments.
Corbett JA in
Lendalease
,
[43]
said:
‘It
is clear law that an applicant seeking the attachment of his debtor’s
property
ad fundandam jurisdictionem
must satisfy the Court,
on a balance of probabilities, that the property to be attached
belongs to the debtor. The
onus
is upon the applicant to do
so. The Court will not order the attachment of the property of
another for the purpose of founding jurisdiction
because to do so
would be futile and of no effect.’
[54] We do not think
that the AJRA as originally enacted had that result. Section 4(4)
demonstrates that, when it was thought necessary
to alter the law
governing attachments in admiralty cases, this was done expressly.
Neither s 4(4) in its original form, nor s
1(2), had that effect
expressly. There is no warrant for saying that a change of this
significance was brought about indirectly.
It would have been
inconsistent with the Law Commission’s report on the review of
the law of admiralty,
[44]
which drew attention to the fact that the existing situation, where
one court applied two separate systems of law to essentially
similar
matters, depending on whether the case was brought in the ordinary
courts or before the courts sitting as colonial courts
of admiralty,
was unsatisfactory. Although the existing admiralty law was to be the
basis of reform,
[45]
the report recognised ‘that the rules of Roman-Dutch law ought,
so far as is possible, to be preserved and that concepts
foreign to
the South African legal system ought not to be introduced …’.
[46]
[55] Two fundamental
changes were made to the established Roman Dutch law in regard to
attachments
ad fundandam et confirmandam jurisdictionem
.
[47]
The first, in s 4(4)(
a
), varied the rule that an attachment
could only be obtained by a
peregrinus
[48]
against another
peregrinus
if there existed, in addition, some
other ground of jurisdiction (
ratione jurisdictionis
).
[49]
The second, in terms of s 4(4)(
b
), permitted an application
for an attachment to be brought notwithstanding that the property to
be attached was not yet within
the area of jurisdiction of the court.
In that event the attachment order could be served when the property,
almost invariably
a ship or its bunkers or stores, came within the
jurisdiction. There was nothing to suggest that over and above these
changes an
attachment order procured in advance of the vessel’s
arrival could be executed notwithstanding a change in ownership in
the
interim.
[56] The AJRA placed
attachments on the same footing as arrests. Where the basis of the
claim was
in personam
liability, the claimant had a choice of
remedy. In both it was permissible to set in train the proceedings
that would lead to the
arrest or attachment, before the ship arrived
in the court’s area of jurisdiction and execute the process
after it had done
so. Either step could be taken a considerable
period in advance of the ship’s arrival. That was consistent
with the fact
that proceedings by way of arrest and attachment serve
the same purposes of founding or confirming jurisdiction and of
providing
security for the claim.
[50]
In South African law once security has been obtained, by way of the
attachment or arrest, a person taking transfer of ownership
of the
vessel does so subject to the prior rights afforded thereby –
qui prior est tempore potior est iure
.
[51]
There was no mechanism whereby a right taking precedence over that of
a bona fide new owner could be created before attachment.
[57] The amendments
effected in 1992 did not affect the matter. Section 1(2) was amended;
ownership of the associated ship was expressly
required to be when
the action commenced; and, the power to attach was extended to
associated ships. None of these addressed directly
the question of a
change in ownership between the date on which the application for an
attachment order was made and the date of
service of that order.
[58] In their
supplementary heads of argument respondents’ counsel did not
contend for such a revolutionary change. They accepted
that if there
were a bona fide change in ownership between the date on which an
attachment order was obtained, and the date upon
which it could be
executed it would no longer be lawful to attach the ship. Applying
that to this case would mean that, if an application
for an
attachment order had been made on 2 September 2016, the date when the
summonses
in rem
were issued, the
Seaspan Grouse
could
lawfully have been arrested in Durban in an action
in rem
, but
could not have been attached in the action
in personam
. That
is absurd when dealing with the same claim, the same
in personam
liability, and the same ship or associated ship.
[59] Counsel
submitted that there was a further difficulty in relation to a
security arrest of an associated ship in terms of s
5(3) of the AJRA.
Such an arrest is neither an action
in rem
nor an action
in
personam
, but an arrest ordered by the court for the purpose of
providing security for a claim. Section 5(3) empowers the court to
order
the arrest of any property ‘if the person seeking the
arrest has a claim enforceable by an action
in personam
against
the owner of the property concerned or an action
in rem
against
such property’. This includes an associated ship on the basis
that the claimant has an action
in rem
against the vessel. In
order to arrest the vessel as an associated ship it is necessary to
determine who owned it when the ‘action
is commenced’
against it. Having regard to the definition of ‘admiralty
action’ in s 1, he submitted that the
application for the
security arrest is an admiralty action.
[60] In the ordinary
course a security arrest would only be sought once the vessel was in
port,
[52]
and the earliest date for commencement of that action, on the
respondents’ argument, would be when the application papers

were issued after the vessel arrived in port. A protective writ could
have been issued at a much earlier stage, in which case,
if a change
in ownership had occurred between the date of issue of the protective
writ and the date of issue of the application
papers in the security
arrest, the vessel could be arrested in an action
in rem
, but
could not be arrested as security for the same claim. That is a
further significant anomaly, recreating as it would the situation

where vessels were arrested in actions
in rem
purely for the
purpose of obtaining security for proceedings elsewhere and not in
order to pursue a claim before a South African
court.
[53]
[61] All these
difficulties are avoided by selecting the date in s 1(2)(
a
)(i)
as the date of commencement of the action for the purposes of all
associated ship arrests. That would accord with the view
of Shaw,
cited above in para 47, in relation to the ship concerned. Our
attention was drawn to a summary of the previous position
in regard
to associated ship arrests in the
Pericles GC
,
[54]
which suggested that under the original s 3(7)(
a
)(i), dealing
with sister ships,
[55]
the relevant date for ownership of an associated ship was the date
upon which the maritime claim arose. The summary appeared to
be based
on a concession by counsel in the heads of argument and the example
given would not in any event have altered the outcome
of the case. In
The Heavy Metal
[56]
this court unanimously approved the statement by Shaw
[57]
that:
‘If,
therefore, A, at the relevant time (that is, at the time of the
arrest) owns a ship, that ship will be an associated
ship if A, at
the time when the maritime claim arose, was the owner of the ship
concerned. Changes of ownership in the ship concerned
after the time
when the maritime claim arose are irrelevant, as is the question
whether the ship which is an associated ship was
owned by A at the
time when the maritime claim arose.’
In our
view the latter statement was a correct description of the original
position in regard to associated ships and the amendments
to s 3(7)
were merely confirmatory of the existing position.
[62] It must be
borne in mind that the
Monica S
only affords a claimant a
security interest because it permits the vessel to be arrested where
there has been a change in ownership
between the issue of the writ
and its service when the vessel is arrested. Hofmeyr
[58]
explains why in South Africa a security interest does not accrue
before an arrest:
‘The
issue of process for the institution of proceedings
in rem
will
not serve to protect the creditor from the effects of the owner’s
sequestration or liquidation or the intervention of
business rescue
proceedings. That protection will accrue only when the creditor
secures its position by making an arrest. The notion
that the
security interest or charge accruing pursuant to an action
in rem
attaches to the
res
at different times depending on
whether or not insolvency or business rescue proceedings has
intervened is, from a jurisprudential
point of view, less than
satisfactory. Moreover, the purposes of arrest are to obtain
jurisdiction over the res and to provide
security for the claim.
Neither result is achieved unless an arrest is made. Pending arrest
jurisdiction is not obtained and the
security interest can be no more
than a contingent one. In these circumstances it seems artificial to
regard the
res
as being burdened with the security interest
before arrest. Admittedly the charge created by the maritime lien is
also contingent
on arrest but the maritime lien is an exceptional
legal phenomenon and has always been treated as
sui generis
.’
[63] In the face of
these considerations the reliance placed on the
Monica S
was
misplaced. Accepting that the decision correctly reflected the
English law under the Colonial Courts of Admiralty Act, and therefore

South African admiralty law prior to 1983, the AJRA defined the
circumstances in which an action
in rem
can be brought,
whether against the ship concerned or an associated ship. It also
preserved the action
in personam
based on the attachment
ad
fundandam et confirmandam jurisdictionem
, which does not exist in
English law. The arrest provisions of the AJRA are incompatible with
the decision in the
Monica S
and therefore that judgment
cannot apply in South African admiralty law, whether in relation to
the arrest of the ship concerned
or an associated ship. That does not
mean that protective writs cannot be issued in South Africa and
served when the vessel comes
within the jurisdiction. It merely means
that such a writ gives no protection to a claimant against an
intervening bona fide change
of ownership.
Conclusion
[64] The appeal must
succeed. We make the following order:
1. The appeal of the first and second appellants 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 with the
following:
‘It is ordered that:
(a) The arrest of the
Seaspan Grouse
under case numbers
A69/2016 and A70/2016 be and are hereby set aside.
(b) The Registrar of the High Court, Durban, is directed to release
the cash held as security for the respondents’ claims
to an
account nominated by the applicants’ attorney of record within
five (5) court days.
(c) The respondents are to pay the costs of this application.’
3. The period of five days in para (b) of the High Court’s
order in para 2 of this order is to run from the date of this
order.
__________________
M J D
WALLIS
__________________
A
SCHIPPERS
JUDGES
OF APPEAL
Makgoka J (Dissenting)
[65] I have had the
privilege of reading the erudite judgment prepared by my colleagues
Wallis JA and Schippers JA (the first judgment).
Regrettably, I
respectfully disagree with their construction of the relevant
provisions of the AJRA. On my interpretation of those
provisions, the
right to arrest the vessel pursuant to the action in rem accrues as
at the date on which an action in rem commences
– the date of
issue of the writ of summons, alternatively, such writ and the
arrest. I would thus dismiss the appeal with
costs. Below is a brief
exposition of my reasons for that conclusion.
[66] The relevant
facts giving rise to the dispute are common cause, and have been
admirably set out in the first judgment. Thus,
they will not be
repeated here. The relevant sections of the AJRA are ss 1(2), 3(4),
3(5), 3(6), 3(7) and 6. The AJRA was amended
on 1 July 1992 by the
Admiralty Jurisdiction Regulation Amendment Act 87 of 1992 (the
Amendment Act) in several respects.
[67] Before I
consider the relevant provisions, I will briefly state the following:
the nature and purpose of a maritime lien; the
broad interpretational
principles within which the provisions should be construed; a
consideration of the state of our law as at
the date of the enactment
of the AJRA; and the policy considerations underlying the AJRA. I
consider these, in turn.
[68] The nature and
purpose of a maritime lien was aptly described by Binnie J in
Holt
Cargo Systems Inc v ABC Containerline N.V (Trustees of)
[2001]
SCC 90
;
[2001] 3 SCR 907
para 26:
‘Broadly
speaking, a maritime lien arises without registration or other
formality when debts of a specific nature are incurred
by or on
behalf of a ship. The lien creates a charge which “goes with
the ship everywhere, even in the hands of a purchaser
for value
without notice, and has a certain ranking with other maritime liens,
all of which take precedence over mortgages”
(
The Tolten
,
[1946] P.135 (C.A), per Scott L.J., at p.150). It may be described,
in that sense, as a “secret lien.”
As to
the necessity for such a lien, the learned judge explained in para
27:
‘The
reason for this privileged status for maritime holders is entirely
practical. The ship may sail under a flag of convenience.
Its owners
may be difficult to ascertain in a web of corporate relationships. .
. Merchant seamen will not work the vessel unless
their wages
constitute a high priority against the ship. The same is true of
others whose work or supplies are essential to the
continued voyage.
The Master may be embarrassed for lack of funds, but the ship itself
is assumed to be worth something and is
readily available to provide
a measure of security. Reliance on that security was and is vital to
maritime commerce. Uncertainty
would undermine confidence. The
appellant Trustees’ claim to “international comity”
in matters of bankruptcy
must therefore be weighed against competing
considerations of a more ancient and at least equally practical
international system
– the law of maritime commerce.’
[69] South Africa
has not been insulated from the practical difficulties and
considerations referred to above. In the
Jute Express
[59]
this court, with reference to Shaw
Admiralty Jurisdiction and
Practice in South Africa
at 25
et seq
and several English
authorities, observed that the primary purpose of an arrest in an
in
rem
action is ‘to give the action utility and effectiveness
by affording the plaintiff pre-judgment security’.
[70] The principles
which should inform the interpretation of relevant provisions of the
AJRA, are trite. They must be construed
by a conventional process of
statutory interpretation. This includes giving consideration to the
language used in the light of
the ordinary rules of grammar and
syntax; the context in which the provisions appears; the apparent
purpose to which they are directed
and the material known to those
responsible for the enactment of the AJRA. See
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
[71] Section 39(2)
of the Constitution enjoins courts, when interpreting any
legislation, to promote the spirit, purport and objects
of the Bill
of Rights. Where the court is faced with two interpretations, one
constitutionally valid and the other not, the court
must adopt the
constitutionally valid interpretation provided that to do so would
not unduly strain the language of the statute.
See
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2000 (10) BCLR 1079
;
2001
(1) SA 545
(CC) paras 23-25. On the other hand, where a provision is
reasonably capable of two interpretations, the one that better
promotes
the spirit, purport and objects of the Bill of Rights should
be adopted. See
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and
Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) paras 46,
84 and 107. Courts must also adopt a generous and purposive approach
as explained by the Constitutional Court in
Ferreira v Levin NO &
others; Vryenhoek & others v Powell NO and Others
1996 (1) SA
984
(CC);
1996 (1) BCLR 1
(CC) para 46.
[72] At the outset,
it is useful, for historical context to the AJRA, to establish the
state of the law immediately prior to its
promulgation. In this
regard, s 6(1) is relevant. It provides that a court in exercise of
its admiralty jurisdiction shall, with
regard to any matter in
respect of which a court of admiralty had jurisdiction immediately
before the commencement of the Act,
apply the law which the High
Court of Justice of the United Kingdom in the exercise of its
admiralty jurisdiction would have applied
with regard to such matter
at such commencement, insofar as that law can be applied. Section
6(2) provides that the provisions
of subsection (1) shall not
derogate from the provisions of any other law of the Republic
applicable to matters described in the
subsection. Obviously, the
AJRA is part of ‘any other’ law envisaged in s 6(2). Of
course all these are subject to
the Constitution.
[73] The principle
entrenched in s 6 was accepted by this court in
Transol Bunker BV
v MV Andrico Unity and Others: Grecian-Mar SRL v MV Andrico Unity and
Others
1989 (4) SA 325
(SCA) at 334C-336B. The case concerned the
recognition of foreign maritime liens in South Africa. It was held
that when a South
African court exercises its admiralty jurisdiction
in terms of the AJRA, it was required to apply English admiralty law
as it existed
on 1 November 1983, including the relevant principles
of English private international law. See also
Marcard Stein &
Co v Port Marine Contractors (Pty) Ltd and Others
[1995] ZASCA 76
;
1995 (3) SA 663
(A) at 671H-J where this court had to decide on the conflict of laws,
in particular which system of law governed the transfer of
ownership
of a ship. The court held that the issue had to be resolved by
reference to the law applied by the English High Court
exercising
admiralty jurisdiction as at 1 November 1983.
[74] In
The
Silver Star
[60]
para 31 this court accepted that once the jurisdictional hurdles are
overcome, the provisions of s 6 are applicable in the adjudication
of
maritime claims. There is no dispute that in this case the issue had
moved beyond jurisdiction. It is common cause that the
court a quo
exercised admiralty jurisdiction to the ‘matter’ referred
to in s 6(1), which related to whether the claimant
had maritime lien
over the property arrested, and thus whether the arrest orders should
be set aside. This matter fell within the
pre-existing jurisdiction
of the court, which was enjoined to administer English law.
[75] In sum,
therefore, by virtue of s 6(1) the law which would have applied
immediately prior to the promulgation of the AJRA is
the English
admiralty law. It can be summarised as follows: With the institution
of suit
in rem
, a contingent right of security is created upon
the ship which will be brought into effect by the arrest of the ship,
regardless
of change of ownership between the issue and the arrest.
This is the essence of the judgment in the
Monica S
[61]
,
which was underpinned by policy considerations to protect
maritime claimants.
[62]
The judgment has been accepted and applied in a number of
Commonwealth jurisdictions, including Hong Kong, Australia, and
Singapore.
[76] In the court a
quo, the parties, correctly in my view, accepted that the
Monica S
reflected our law prior to the promulgation of the AJRA, and that
the latter mirrors that of its English and Commonwealth counterparts.

That law is applicable unless it is incompatible with the AJRA or
inconsistent with the Constitution. It is correct that the
Monica
S
was based on the interpretation of the relevant provisions of
English admiralty law. However, it assumes some importance by virtue

of s 6(1). It also provides a useful historical context to the
interpretation of the AJRA. Accordingly, the attempt by the
appellants
to minimise the significance of the judgment should not
find favour.
[77] In the
Jute
Express
this court was concerned with whether in terms of the
AJRA (before the amendment in July 1992) an admiralty action
in
rem
is commenced by arrest or by the issue of summons. An
in
rem
arrest of a vessel had been pre-empted by the provision of
security, giving rise to a deemed arrest in terms of s 3(10)(
a
).
The court had regard to, among others, s 3(5) which provided that an
action in rem is instituted by the arrest of property. Despite
the
wording of s 3(5), it was held that an admiralty action commenced
with the issue of the
in rem
summons, and not with the arrest
of the defendant vessel. With reference to Rule 5 of the rules made
in terms of the English Vice-Admiralty
Courts Act 1863 (in force in
South Africa by virtue of the Colonial Courts of Admiralty Act 1890),
the court concluded that an
action
in rem
commences in all
instances with the issue of summons. This was ‘either because
of established procedural law or because of
the terms of s 1(2)(
b
)
of the Act’ (at 20F). The latter section is the equivalent of
the current s 1(2)(
a
)(iii). I shall return to this aspect.
[78] It is correct
that the
Jute Express
did not express any view on the
consequence of issuing a summons beyond saying it was a commencement
of an action. However, the
judgment remains relevant to the issue in
dispute, for two reasons. First, it underlines the English heritage
of South African
maritime law, in particular the historical nature of
an
in rem
action as it developed in English maritime law,
which is stated in the
Monica S
. Second, it is significant in
the manner in which it interpreted s 1(2)(
c
) in the original
Act. It concluded that reference in that subsection to service of
process by which the admiralty action is commenced,
must be reference
to the service of a summons
in personam
, and not
in rem
,
because the commencement of an
in rem
action had been dealt
with in s 1(2)(
b
).
[79] The
Jute
Express
was delivered on 27 March 1992. As correctly pointed out
in the first judgment, the Bill giving rise to the AJRA was tabled in
parliament
in February 1992, a month before the judgment, and that
discussions around it had taken place many months before. It follows
that
the debates leading to the adoption of the Bill could not have
been influenced by the
Jute Express
. However, the Bill was
assented to by parliament on 18 June 1992, three and half months
after the judgment was delivered. It is
therefore more likely that
before assenting to the Bill, parliament was aware of the judgment,
in particular the construction this
court had placed on s 1(2)(
c
)
as stated above.
[80] It is safe to
make this assumption because leading maritime law practitioners took
a keen and active part in the shaping of
the AJRA,
[63]
and presumably, the Amendment Act. The inference is thus almost
irresistible that those who were responsible for the final draft
of
the Amendment Act must have had the
Jute Express
judgment
before them when the Amendment Act was finally assented to. If that
construction was at odds with its intention, the legislature
would no
doubt have clarified the point before the enactment of the Bill.
[81] What is more,
there is no discernible suggestion in the Amendment Act to do away
with the practice of issuing protective writs.
The preamble to the
Amendment Act states the purpose thereof as:
‘To amend the Admiralty Jurisdiction Regulation Act, 1983, so
as to define or define anew certain expressions; to further
regulate
court procedure; to extend the powers of the court regarding orders
for the attachment of property to found jurisdiction;
to make further
provision for the sale of arrested property; to make express
provision for referring claims against a fund to a
referee; and to
further regulate the ranking of claims; and to provide for matters
connected therewith’.
[82] To my mind,
therefore, the cumulative effect of s 6(1) and the
Jute Express
is
a strong pointer that shortly before the commencement of the AJRA,
the position of our admiralty law was as stated in the
Monica S
.
That position, as already stated, was that an action
in rem
commenced with the issue of the writ of summons
in rem
,
and could be enforced against the defendant vessel regardless of a
change of ownership in the time before the arrest of the vessel.
[83] In construing
the relevant provisions of the AJRA, it is important to bear in mind
the important differences between the
in rem
and
in
personam
procedures in the AJRA. As correctly pointed out in the
respondents’ supplementary written submissions, the
in rem
procedure is peculiar to admiralty jurisdiction, whereas the
action
in personam
and attachment procedure derive their
origins from the Roman-Dutch common law.
[84] Also,
consideration should be given to the particular and unique
difficulties which maritime claimants face in seeking to enforce

their claims, and to the novel procedures which have developed over
time to assist maritime claimants in this regard. These policy

considerations have found expression in the AJRA, as accepted by this
court in
The Heavy Metal
[64]
and
The NYK Isabel
.
[65]
[85] In
The Heavy
Metal
at 1106I it was stated that the principal purpose of the
AJRA is to assist the party applying for the arrest rather than the
party
opposing it. It was also observed at 1105G-H that the object of
the associated ship arrest provisions was to enable the arrest of
an
associated ship instead of the guilty ship. Its purpose is to benefit
the party applying for the arrest by providing it with
a method of
recovery against an alternative defendant. This affords the party
relief to which it would otherwise not have been
entitled.
[86] Similarly, in
The NYK Isabel
para 45, it was observed that the manifest
purpose of the Act is to assist maritime claimants to enforce
maritime claims. The provisions
of the Act should therefore be given
a generous interpretation consistent with that purpose. The
appellants did not take issue
with the policy consideration
underlying the AJRA. Instead, their submission was that their
construction of the relevant sections
is not inconsistent with the
said policy, and is moreover, constitutionally compliant.
[87] The above
considerations, and the fact that the practice of issuing protective
writs has been a long-standing practice in South
Africa and a number
of jurisdictions with which we share common-law heritage, largely
influence my interpretation of the relevant
sections of the AJRA, to
which I now turn.
[88] Before the
amendment, s 1(2) read:
‘For the purpose of any other law, whether of the Republic or
not, relating to the prescription of or the limitation of time
for
the commencement of any action, suit, claim or proceedings, an
admiralty action shall be deemed to have commenced –
(a) by the making of an application for the attachment of property to
found jurisdiction if the application is granted and the
attachment
carried into effect;
(b) by the issue of any process for the institution of an action
in
rem
if that process is thereafter served;
(c) by the service of any process by which that action is
instituted.’
[89] After the
amendment, s 1(2) reads:
‘(
a
) An admiralty action shall for any relevant purpose
commence-
(i) by the service of any process by which that action is instituted;
(ii) by the making of an application for the attachment of property
to found jurisdiction;
(iii) by the issue of any process for the institution of an action
in
rem
;
(iv) by the giving of security or an undertaking as contemplated in
section 3(10)
(a).
(b) An action commenced as contemplated in paragraph
(a)
shall
lapse and be of no force and effect if-
(i) an application contemplated in (a)(ii) is not granted or is
discharged or not confirmed;
(ii) no attachment is effected within twelve months of the grant of
the order pursuant to such application or the final decision
of the
application;
(iii) a process contemplated in paragraph
(a)
(iii) is not
served within twelve months of the issue thereof;
(iv) the property concerned is deemed in terms of section
3(10)
(a)
(ii) to have been released and discharged.’
[90] Section 3(4)
provides for the enforcement of a maritime claim by an action
in
rem
, subject to two alternate conditions: if the claimant has a
maritime lien over the property to be arrested, or if the owner of
the property to be arrested would be liable to the claimant in an
action
in personam
in respect of the cause of action
concerned. Section 3(6) provides for an action
in rem
to be
brought by the arrest of an ‘associated ship’. Section
3(7)(
a
) defines an ‘associated ship’. Under the
original definition, the person was required to own the associated
ship when
the maritime claim arose. In the amended version, ownership
is required when the action is commenced.
[91] Before the
amendment, s 1(2) was concerned only with statutory prescription or
limitation of time for the action. In its amended
form, it has been
widened to include, in addition to those issues, the commencement
date of admiralty action ‘for any relevant
purpose’. The
amendment also retained the same requirement that the
in rem
summons be served or the attachment be put into effect, but
incorporated relevant time limits in s 1(2)(
b
).
[92] On behalf of
the appellants, it was submitted that the commencement date for a
maritime claim by way of an action
in rem
may, for the
relevant purpose, fall within ss 1(2)(
a
)(i) and 1(2)(
a
)(iii).
Accordingly, although an admiralty action can only be commenced once,
the actual commencement date must depend on the purpose
relevant to
that action. In terms of s 1(2) an action
in rem
is thus not
only commenced by the mere issue of any process but also, in
appropriate circumstances, ‘by the service of any
process by
which that action is instituted.’ Thus, submitted counsel, in
the context of the commencement of an action in
rem against an
associated ship, the action commences either on the date upon the
process instituting the action served, which date
will coincide with
the arrest of the vessel, or on the date of its deemed arrest (if
security is given).
[93] I disagree. As
counsel for the appellants accept, procedurally, an action can only
commence once. The further difficulty with
that contention is that
there is a clear distinction between the two subsections. As
correctly submitted on behalf of the respondents,
properly construed,
s 1(2)(
a
)(i) is restricted to an action
in personam
,
where it has not been necessary to attach property to found
jurisdiction, and to any other proceedings which are not otherwise

specifically provided for in s 1(2), but within the broad definition
of admiralty action. Section 1(2)(
a
)(i) cannot possibly
include an action
in rem
because such action is specifically
provided for in ss 1(2)(
a
)(iii) and 1(2)(
b
)(iii).
[94] In the
Jute
Express
reference was made to s 1(2)(
c
) – the
equivalent of the current s 1(2)(
a
)(i) – as applying to
an action
in personam
, distinct from s 1(2)(
b
) –
the equivalent of the current s 1(2)(
a
)(iii) – which
provides for an action
in rem
. Although s 1(2) has been
amended, its essence remains the same post the amendment. There is
therefore no reason why the construction
adopted in the
Jute
Express
in respect thereof should not be followed. It is a canon
of interpretation that where the legislature employs words that have
previously
received judicial interpretation, and in a later statute
uses the same language in dealing with the same subject matter, it
intends
that language so used by it be given meaning already
judicially attributed to it. See
Ex Parte Minister of Justice: In
re R v Bolon
1941 AD 345
at 359-360.
[95] Section 1(2)
must of course be read with the other relevant sections. With regard
to s 3(4), it does not stipulate that the
requirements set out in the
subsection must be present at the time that the arrest is effected.
It is therefore neutral in relation
to when the requisite personal
liability of the owner of the ship must be present for purposes of a
direct action
in rem
. But, as stated already, s 1(2) provides
that an admiralty action
in rem
commences, ‘for any
relevant purpose’ with the issue of the
in rem
summons.
Section 3(6) provides for an action
in rem
by the arrest of an
associated ship, whereas s 3(7) – which defines an associated
ship for the purposes of an action
in rem
– provides
that the relevant time for determining the requisite control of the
associated ship is when the action is commenced.
[96] On the
appellants’ construction, the relevant time for the
determination of the requisite control of an associated ship
would be
different to the time for determining the requisite ownership of a
ship which is the subject of a direct action in rem.
It is difficult
to accept that the legislature would have intended this. Properly
construed, the better view seems to be that for
purposes of an action
in rem
, the jurisdictional requirements must be present when
the action commences, ie when the summons is issued, and the action
in rem
is thereby commenced. This construction is fortified by
the wording of s 3(7) after the 1992 amendment. Whereas under the
original
definition the relevant time when the person or company, as
the case may be, was required to own the associated ship was when the

maritime claim arose, the section now provides that the relevant time
is when the action is commenced. In any event, as already
emphasised,
this was our common law position as of 1 November 1983, derived from
English law, as articulated in the
Monica S
.
[97] This leads me
briefly to s 4(4)(d). It provides that a court may order the
attachment of any ship, which, if the action concerned
had been an
action
in rem
, would be an associated ship. I must say this
subsection does not seem particularly helpful in determining the
relevant time when
the jurisdictional requirements in an
in rem
action, should be present. Be that as it may, the attachment
referred to in the subsection would found the court’s
jurisdiction
for determination of the
in personam
liability of
the ship concerned. This is because s 3(6) and s 3(7) do not relate
for
in personam
liability of the associated ship’s
owner. It must be borne in mind that s 3(7) refers to ‘when the
action is commenced’
in the definition of an associated ship.
This must perforce refer to an action
in rem
, and not
in
personam
.
[98] With regard to
the constitutional injunction, it is instructive that the appellants,
apart from not challenging the constitutionality
of the AJRA, have
not identified any right likely to be infringed by the effect of a
protective writ. However, the right likely
to be implicated is in s
25 of the Constitution, which prohibits arbitrary deprivation of
property. In the context of maritime
law, and the peculiar
difficulties associated with the enforcement of maritime claims, I am
unpersuaded that the respondents’
construction of the relevant
provisions of the AJRA are not constitutionally compliant.
[99] The legislature
would have been aware of the unique difficulties experienced by
maritime claimants in enforcing their claims.
Importantly, the
legislature would have been aware of the long-standing practice of
issuing protective writs
in rem
against defendant vessels to
protect claimants against, among others, changes of ownership. As
counsel for the respondents pointed
out, the in personam debtor is in
many instances, a peregrinus, and its vessels would be likely to call
at a South African port
sporadically, if at all. As such, a writ of
summons in rem could be issued, but probably not served immediately.
[100] There is
nothing in the AJRA that suggests that the legislature had intended a
radical departure from the prevailing law as
at the date of its
enactment. And, once this is accepted that the
Monica S
principle
reflected the law at that date, only the clearest intention of the
legislature should gravitate us to the appellants’
argument. At
the risk of repetition, there is simply no such intention in the
language of the AJRA as amended. I agree with counsel
for the
respondents that the process of issuing protective writs is
entrenched, rather than done away with, in the AJRA.
[101] Thus, the
construction contended for by the appellants would be a radical
departure from the existing law, and would remove
from the maritime
claimants the right to issue protective writs, which had been a
long-established practice. Thus, absent a clear
indication that the
legislature intended to place South Africa on a radically different
trajectory in admiralty law from the Commonwealth
jurisdictions, it
must be presumed to have intended to continue with the practice. The
practical difficulties postulated in para
58 of the main judgment may
point to inherent weaknesses in the AJRA. But they do not, in my
view, lead to a result contrary to
the intention of the legislature
as shown by the context and other considerations referred to in this
judgment. Put differently,
those anomalies are not sufficient to
deviate from the clear textual and contextual indications in the
AJRA.
[102] Viewed in this
light, the appellants’ construction would be at odds with the
presumption of statutory interpretation
that the legislature is
presumed not to intend changing the law more than is necessary,
particularly when taking away existing
rights. See
Cloete Murray
N.O. and Another v Firstrand Bank Ltd
[2015] ZASCA 39
;
2015 (3)
SA 438
(SCA) para 40. In his work,
Interpretation of Statutes
(1992) 159, the learned author Devenish describes this as ‘a
seminal and pervasive presumption’, which facilitates legal

certainty and the administration of justice.
[103] The meaning
that counsel for the appellants sought to assign to the relevant
provisions of the AJRA is not supported by their
plain wording,
especially s 1(2), s 3(6) and s 3(7). Although the issue in dispute
arises squarely for the first time in this case,
how this court has
interpreted related provisions previously provides some guidance.
None of those cases support the appellants’
interpretation,
which, in my view, unduly strains the language of the Act. This is
unnecessary, as the relevant provisions are
clear and unambiguous,
and permit only of the construction in favour of the respondents. The
respondents’ interpretation
gives effect to the policy
underlying the AJRA. Furthermore, it recognises the practical
difficulties encountered by maritime claimants
and the need for
jurisprudential comity among common-law jurisdictions. As trenchantly
remarked by Rand J in
Laane and Balster v Estonian State Cargo &
Passenger Steamship Line
[1949] SCR 530
at 545, in maritime
commerce, ‘rules of practical convenience commanding general
assent are a virtual necessity’.
[104] In sum, I find
the respondents’ submissions far more compelling, especially
given the historical context of the AJRA.
For all these
considerations I am impelled to the conclusion that the court a quo
was correct in its interpretation of the relevant
provisions of the
AJRA. I would accordingly dismiss the appeal with costs, including
costs of two counsel.
_________________
T M
MAKGOKA
JUDGE OF
APPEAL
APPEARANCES
For Appellant: M J
Fitzgerald SC (with him R Fitzgerald)
Instructed by:
Bowmans, Cape Town,
Matsepes Inc,
Bloemfontein
For Respondents: S
Mullins SC (with him J McKenzie)
Instructed by:
Shepstone & Wylie, Cape Town,
Phatshoane Henney
Attorneys, Bloemfontein
[1]
The Monica S [1967] Lloyd’s Rep 113 (QB Adm); [1967] 3 All ER
740 (QBD).
[2]
Derrington and Turner The Law and Practice of Admiralty Matters
11-12, para 2.07 describe this as a characteristic of the action
in
rem. See also Nigel Meeson and John Kimbell Admiralty Law and
Practice (4th ed, 2011) paras 3.90 to 3.93.
[3]
Damian J Cremean Admiralty Jurisdiction, Law and Practice in
Australia, New Zealand, Singapore and Hong Kong (3rd ed, 2008) 189

said that it is doubtful whether it applies in Australia arising
from the operation of ss 6 and 15 of the Admiralty Act 1988
(Cth),
but the Monica S could possibly apply in New Zealand, Singapore and
Hong Kong. The same passage appears in Admiralty Jurisdiction,
Law
and Practice in Australia, New Zealand, Singapore, Hong Kong and
Malaysia (4th ed 2015) 186 with the same possibility extended
to
Malaysia. The correctness of Brandon J’s decision was left
open by the Court of Appeal in In re Aro Co Ltd
[1980] 1 Ch 196
at
208-9, but there are clear indications in the judgment of Brightman
LJ that he regarded it as correct. It was apparently initially

followed in Singapore, but rejected in Dauphin Offshore Engineering
and Trading Pte Ltd Inc v Owners of the Vessel Capricorn
[1999] 2
SLR 390
at 398 a judgment not available to us. It has been followed
in Cyprus. Demetriou Pampos and Others v SS Sapphire Seas
(2000) 1
CLR 1680.
In view of the approach adopted in argument we have not
further explored this question.
[4]
MS Mare Traveller Tebtale Marine Inc v MS Mare Traveller Schiffahrts
GmbH & Co KG 2018 (2) SA 490 (WCC).
[5]
Section 3(4) of the AJRA. An action in rem may be pursued against
property other than the ship concerned in certain circumstances,
but
for present purposes it suffices to approach the matter as though an
action in rem may only be brought against a ship.
[6]
Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v
MV Andrico Unity and Others
1989 (4) SA 325
(A) at 331G-H and
354F-H.
[7]
MV Andrico Unity, ibid, 331H- 332A.
[8]
Owners of the MV Silver Star v Hilane Ltd (The Silver Star)[2014]
ZASCA 194;
2015 (2) SA 331
(SCA) para 14.
[9]
International Convention for the Unification of Certain Rules of Law
relating to Bills of Lading (“Hague Rules” and
Protocol
of Signature (Brussels, 25 August 1924).
[10]
The Hague Rules as amended by the Brussels Protocol, 1968 now a
schedule to the Carriage of Goods by Sea Act 1 of 1986; Article

3(6).
[11]
International Convention on Salvage, 1989 now a schedule to the
Wreck and Salvage Act 94 of 1996
; Article 23.
[12]
Natal Joint Municipal Pension Fund v Endumeni Municipality
(Endumeni)
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18 approved
as correctly reflecting our law in Airports Company South Africa v
Big Five Duty Free (Pty) Ltd
[2018] ZACC 33
para 29.
[13]
Euromarine International of Mauren v The Ship ‘Berg’ and
Others
1986 (2) SA 700
(A) at 712A.
[14]
See
s 1(1)
of the AJRA sv ‘maritime claims’ especially
sub-para (ee).
[15]
Convention for the Unification of Certain Rules Relating to the
Arrest of Sea Going Ships (Brussels 1952).
[16]
MV Jute Express v Owners of the cargo lately laden on board the MV
Jute Express
1992 (3) SA 1
(A) at 17B.
[17]
MV Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD
[1999] ZASCA 44
;
1999 (3) SA 1083
(SCA) para 6 (per Smalberger JA);
Northern Endeavour Shipping (Pty) Ltd v Owners of MV NYK Isabel
2017
(1) SA 25
(SCA) paras 44-45.
[18]
Federal Maritime Liens Act 46 U.S.C. § 31301 – 31343.
[19]
Admiralty Court Act, 1840 (3 & 4 Vict. c. 65) and Admiralty
Court Act, 1861 (24 Vict. c. 10).
[20]
Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict).
[21]
The Andrico Unity at 334A-335C.
[22]
Op cit, fn 9, para 31.
[23]
D J Shaw QC Admiralty Jurisdiction and Practice in South Africa 34.
[24]
Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA
381 (D).
[25]
Jute Express pp 11C-E and 15I.
[26]
Jute Express, p 10F-11B.
[27]
Jute Express, p 11I-J.
[28]
Jute Express, p 13I-J.
[29]
Jute Express, p 16H-19H.
[30]
Marine and Trade Insurance Co Ltd v Reddinger
1966 (2) SA 407
(A) at
413D; Labuschagne v Labuschagne; Labuschagne v Minister van Justisie
1967 (2) SA 575
(A) at 584.
[31]
Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544 (A).
[32]
Owners of the Cargo lately laden aboard the MV Jute Express v MV
Jute Express 1991 (3) SA 246 (D).
[33]
Endumeni, op cit.
[34]
Jute Express 17A-B.
[35]
MT Cape Spirit: Owners of the cargo lately laden on board the mt
Cape Spirit v mt Cape Spirit and Others
1999 (4) SA 321
(SCA) para
27.
[36]
Jute Express 19C-F.
[37]
Prescription Act 68 of 1969
,
s 15(2).
[38]
Shaw, op cit, fn 23.
[39]
In terms of
s 3(7)(c)
of the AJRA Hanjin Shipping is deemed to have
been the owner of the Mare Trader and the Mare Traveller at the time
that the respondents’
maritime claims arose. In order to
arrest the Seaspan Grouse the respondents had to show that, at the
commencement of the admiralty
actions in rem, the Seaspan Grouse was
owned by a company (J O O Shipping SA) that was controlled by Hanjin
Shipping.
[40]
M J D Wallis The Associated Ship and South African Admiralty
Jurisdiction 41-43.
[41]
South African Law Commission, Project 32, 15 September 1982, para
7.3.
[42]
AJRA
s 4(4)
has permitted this since the amendments in 1992.
[43]
Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola &
others
1976 (4) SA 464
(A) at 489B-C.
[44]
South African Law Commission, Project 32, 15 September 1982.
[45]
Ibid, para 6.4.
[46]
Ibid, para 6.3.
[47]
Shaw, op cit, pp 49-50.
[48]
A person not residing in South Africa. See Tick v Broude and Another
1973 (1) SA 462
(T) at 467C-471E.
[49]
Ewing McDonald & Co Ltd v M & M Products Co
[1990] ZASCA 115
;
1991 (1) SA 252
(A) at 258I-259D.
[50]
Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd
1977 (4)
SA 682
(C) at 697H-698E; MT Argun: Sheriff of Cape Town v MT Argun,
her Owners and All Persons Interested in Her and Others; Sheriff of

Cape Town MT Argun, her Owners and All Persons Interested in Her and
Another
2001 (3) SA 1230
(SCA) para 30, p 1244E-F.
[51]
Krause v Van Wyk en andere
1986 (1) SA 158
(A) at 171G-J; Wahloo
Sand BK en Andere v Trustees, Hambly Parker Trust en Andere
2002 (2)
SA 776
(SCA) paras 12-15. It was suggested at one point in the
argument that an attachment or an arrest gives rise to a pignus
judiciale,
or judicial pledge, but this is incorrect as that arises
from an attachment in execution. Union and Rhodesia Wholesale Ltd v

Brown & Co
1922 AD 549
at 558-559.
[52]
We understand that on occasions when the vessel’s arrival was
imminent and the duration of its stay likely to be brief,
orders for
security arrests were issued conditional on the vessel’s
arrival and subject to an affidavit being lodged with
the Registrar
of the court when it arrived, after which the arrest order would be
issued. There is no provision in the AJRA providing
for this
procedure, but it is unnecessary for us to decide whether it is
permissible.
[53]
The Eleftheria
(1969) 2 All ER 641
(PDA) at 645; Intercontinental
Export Company (Pty) Limited v m.v. "Dien Danielsen"
1982
(3) SA 534
(N) at 541D-H.
[54]
National Iranian Tanker Co v MV Pericles GC
1995 (1) SA 475
(A) at
480E-F, 481C-D and 485D-F.
[55]
Ships having the same owner. Under the Arrest Convention provision
was made for the arrest of a sister ship in place of the ship
in
respect of which the maritime claim arose.
[56]
MV Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD
[1999] ZASCA 44
;
1999 (3) SA 1083
(SCA) para 49.
[57]
Shaw, op cit, 37-38.
[58]
Gys Hofmeyr Admiralty Jurisdiction Law and Practice in South Africa
2 ed 2012 at 129, footnotes omitted.
[59]
Supra fn 16.
[60]
Supra fn 8.
[61]
Supra fn 1.
[62]
A Mandaraka-Sheppard Modern Maritime Law Volume 1: Jurisdiction and
Risks 3 ed (2013) at page 104.
[63]
See South African Law Commission’s Report on the Review of the
Admiralty, 1982.
[64]
Supra fn 17.
[65]
Supra fn 17.