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[1995] ZASCA 98
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Owner of MV "Maritime Prosperity" v Owner of MV "Lash Atlantico" (42/94) [1995] ZASCA 98; 1996 (1) SA 22 (SCA); (15 September 1995)
CASE NO 42/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
THE OWNER OF THE
M V "MARITIME PROSPERITY
" Appellant
and
THE OWNER OF
THE
M V LASH ATLANTICO
' Respondent
CORAM
: CORBETT CJ, SMALBERGER, NESTADT, MARAIS JJA, et SCOTT AJA.
DATE OF HEARING
: 17 August 1995
DATE OF JUDGMENT
: 15 September 1995
JUDGMENT
/
CORBETT CJ
2
CORBETT CJ
:
On 16 October 1990 and off Port Said, Egypt, a collision took place between
the motor vessel "Maritime Prosperity" and the motor vessel
"Lash Atlantico".
Strange to relate, shortly thereafter on either 23 October or 28 October 1990 a
second collision took place between
the same vessels in the same locality. The
uncertainty about the date of the second collision is not material, but for
convenience
I shall take it to have occurred on 28 October 1990. The collisions
caused damage to both vessels. At all material times the "Maritime
Prosperity"
was owned by the Rosario Navigation Company Inc ("Rosario"), a company
incorporated under the laws of Panama; while the
"Lash Atlantico" was owned by
the Coastal Barge Corporation ("Coastal"), a corporation organized under the
laws of the United States
of America, which has its registered office in
Florida, USA and carries on business in Maryland, USA. Both Rosario and Coastal
are
thus peregrini as far as the courts of this country are concerned. The
"Maritime Prosperity" sails under the Panamanian flag, whereas
the "Lash
Atlantico" is registered in New York.
On 14 October 1992 Rosario, in
pursuance of an action in rem, caused a summons and a warrant of arrest to issue
in the Durban and
Coast Local
3
Division (in the exercise of its admiralty jurisdiction) against the "Lash
Atlantico",
claiming damages in respect of the damage caused to the "Maritime Prosperity"
by the collisions off Port Said. The warrant was executed
and the "Lash
Atlantico" arrested at Durban on 10 November 1992. Subsequently she was released
on the strength of a letter of undertaking
given by the United Kingdom Mutual
Steamship Assurance Association (Bermuda) Ltd on behalf of Coastal.
On 20 August 1993 Coastal made an urgent application (without notice to
Rosario) to the Durban and Coast Local Division (exercising
its admiralty
jurisdiction) for a rule nisi, having the effect (pending the return day) of an
interim order, in which the main relief
claimed was:
(1) an order, in terms of sec 344(3) of the Merchant Shipping Act 57 of 1951,
whereby the prescriptive period of two years, as provided
for in sec 344 (1) of
that Act,be extended (in respect of a claim for damages against the "Maritime
Prosperity" for the damage sustained
by the "Lash Atlantico" in the two
aforementioned collisions) until 27 October 1993; and
(2) an order that the deputy sheriff of the Court be authorized and directed to
arrest the "Maritime Prosperity" in terms of sec
5(3)(a) of the
Admiralty
4 Jurisdiction Regulation Act 105 of 1983
("the Admiralty Act") for the
purpose of providing security for a claim-in-reconvention which Coastal
intended to file in the action instituted by Rosario on 14 October 1992 and
in which Coastal proposed to counterclaim for damages and ancillary relief
in respect of damage sustained by the "Lash Atlantico" in the aforesaid
collisions.
In its founding affidavit (deposed to by Mr M W H
Posemann,
Coastal's attorney of record) the background facts as recounted above, are
set ,
forth. In addition, it is alleged that the collisions were caused by the
negligence
of the servants or agents of Rosario in various (specified)
respects. Details are
also given of the damage sustained by the "Lash
Atlantico" and of the claim for
damages, which is computed in an amount of
US$490 226.06. In the affidavit
it is accepted that the two-year prescriptive
period, laid down by sec 344(1) of the
Merchant Shipping Act, is applicable
and that this period terminated, in regard to
the two collisions, on 15
October 1992 and 27 October 1992 respectively. The
claim by Rosario, as set
forth in its action in rem instituted by the arrest of the
"Lash Atlantico"
on 10 November 1992, is denied by Coastal and it is stated that
Coastal
wishes to counterclaim in that action for damages (in the amount
5 aforementioned) suffered by its vessel, "Lash Atlantico", which damages are
in
excess of the damages claimed by Rosario.
The affidavit then proceeds to explain why Coastal did not
previously (and prior to the lapse of the two-year prescriptive period) take
action
against the "Maritime Prosperity", or Rosario, in order to recover the
aforementioned damages; and to seek to lay a factual foundation for an
extension
of the period of prescription in terms of sec 344(3) of the Merchant Shipping
Act.
For reasons which will later emerge it is not necessary to go into the
details of
this aspect of the matter.
The application came before Shearer J on 20 August 1993. He
granted an order in the form prayed. On 7 September 1993 Rosario's
attorneys
filed notice of an intention to oppose the confirmation of the rule
nisi; on the
return day. An answering affidavit, deposed to by Mr A J Pike
(Rosario's
attorney of record), was filed in which (i) the collisions are
admitted, but the
alleged negligence of Rosario's servants or agents in both
collisions is denied;
(ii) it is alleged that any claim against the owners of
either the "Lash Atlantico"
or the "Maritime Prosperity" became prescribed on
15 October 1992 and 27
October 1992; (iii) it is admitted that Rosario and Coastal are peregrini;
and
6 (iv) Coastal's case for the extension of the prescriptive period in terms
of sec
344(3) of the Merchant Shipping Act is canvassed generally.
To this a replying affidavit (deposed to by Mr Posemann) was filed. This
deals mainly with the case for the extension of the period
of prescription in
terms of sec 344(3) of the Merchant Shipping Act and need not be referred to in
any detail.
On the return day (19 November 1993) the matter was heard by
Thirion J. He reserved judgment and then (on 10 December 1993) made an
order (a)
dismissing the application for the extension of the period of prescription in
terms of sec 344 (3) of the Merchant Shipping
Act and discharging the rule nisi
in so far as it related to such extension; and (b) confirming that portion of
the rule nisi relating
to the arrest of the "Maritime Prosperity" in terms of
sec 5(3)(a) of the Admiralty Act "in so far as it relates to an action in
personam by the applicant (Coastal) against the respondent (Rosario)". Apart
from directing that the applicant (Coastal) should pay
respondent's (Rosario's)
costs in respect of an appearance on 3 December 1993, he made no order as to the
costs of the application.
The judgment of Thirion J has been reported (see
Owner of the M V Lash Atlantico v Owner of the M V Maritime Prosperity
1994 (3) SA 157
(D) ). .
7 With leave of the Court a quo Rosario now appeals to this Court against
that
portion of the order of Thirion J which I have summarized under (b) above
(see
the reported judgment at p 167 A) and against the order as to costs.
There is no
cross-appeal against the dismissal by Thirion J of the
application for the extension
of the prescriptive period. Consequently that
question is no longer in issue.
At the hearing of the appeal application was
made by Coastal for the condonation of its failure to file the required power of
attorney
in accordance with the time limits prescribed by AD Rule 5(3)(c). The
application was not opposed and this Court granted the necessary
condonation,
subject to the costs of the application being borne by Coastal.
It must be
emphasized at the outset that we are here concerned with a security arrest in
terms of sec 5(3)(a) of the Admiralty Act.
This subsection, as amended by sec
4(d) of Act 87 of 1992, provides as follows:
"A court may in the exercise of its admiralty jurisdiction order the arrest
of any property for the purpose of providing security
for a claim which is or
may be the subject of an arbitration or any proceedings contemplated, pending or
proceeding, either in the
Republic or elsewhere, and whether or not it is
subject to the law of the Republic, if the person seeking the arrest has a claim
enforceable by an
8
action in personam against the owner of the property concerned or an action
in rem against such property or which would be so enforceable
but for any such
arbitration , or proceedings."
Sec 5(3)(aA) goes on to provide that any property so arrested or any security
for, or the proceeds of, any such property shall be
held as security for any
such claim or pending the outcome of any such arbitration or proceedings.
An applicant for an order for the arrest of a ship in terms of sec 5(3)(a)
must satisfy the Court (I leave out of account associated
ships, since that
contingency does not arise here) -
(a) that he has a claim enforceable by an action in rem against the ship or by
an action in personam against the owner of the
ship;
(b)
that he
has a prima facie case in respect of such
claim;
(c) that the claim is prima facie enforceable in the forum (or forums) in which
the applicant contemplates bringing proceedings for
the enforcement of such
claim; and
(d) that he has a genuine and reasonable need for security in respect of the
claim.
(See
Cargo Laden and Lately Laden on Board The M V
Thalassini Avgi v M V
9
Dimitris
1989 (3) SA 820
(A), at 831 E- 833 A;
Bocimar N V v
Kotor Overseas
Shi
pping Ltd
[1994] ZASCA 5
;
1994 (2) SA 563
(A), at 578 G - 579 D.) In order to
establish the
prima facie case referred to in (b) and (c) above all that the
applicant need show
is that there is evidence which, if accepted, would establish a cause of
action. As
was emphasized in the cases quoted, an application under sec 5(3)(a) is not
the
appropriate vehicle for obtaining rulings or decisions on issues that would
have
to be adjudicated upon by the court hearing the main proceedings (see
Bocimar
case, supra, at 579 E - 580 B). This does not, however, apply to
requirements
(a ) and (d) above (see
Bocimar
case, supra at 580 B - 581 I).
In
the present case it is not disputed that Coastal's application for the security
arrest of the "Maritime Prosperity" satisfies requirements
(a), (c) and (d)
above. Rosario contends, however, that by reason of extinctive prescription
Coastal has failed to establish requirement
(b), i e that it has a prima facie
claim against Rosario in respect of the damages caused to the "Lash Atlantico"
by the collisions
off Port Said. In determining the validity of this contention,
I will bear in mind the standard of proof required for the establishment
of a
prima facie case as to cause of action.
The appeal hinges largely on the interpretation to be placed on
sec
10 344 of the Merchant Shipping Act. The relevant portion of this section
reads as
follows:
"344. (1) The period of extinctive prescription in respect of legal
proceedings to enforce any claim or lien against a ship or her
owners in respect
of any damage to or loss of another ship, her cargo or freight, or any goods on
board her, or damage for loss of
life or personal injury suffered by any person
on board her, caused by the fault of the former ship, whether such ship be
wholly
or partly in fault, or in respect of any salvage services shall be two
years and shall begin to run on the date when the damage or
loss or injury was
caused or the salvage services were rendered.
(2) The period of extinctive prescription in respect of legal proceedings under
this Act to enforce any contribution in respect of
an overpaid proportion of any
damages for loss of life or personal injury shall be one year and shall begin to
run on the date of
payment.
(3) Any court having jurisdiction to try proceedings referred to in sub-section
(1) or (2) shall, before or after the expiry of such
period, if it is satisfied
that owing to the absence of the defendant ship from the Republic and its '
territorial waters and from
the country to which the plaintiff's ship belongs or
in which the plaintiff resides or carries on business and its territorial
waters,
the plaintiff has not during such period had a reasonable opportunity of
arresting the defendant ship, extend such period
sufficiently
11 to give him such
reasonable opportunity.
(4) . . ."
The provisions as to extinctive prescription contained in this section must
be read together with the general law relating to prescription
as set forth in
chapter III of the
Prescription Act 68 of 1969
.
Sec 16(1)
, as amended, of this
Act (which is to be found in chapter HI) provides that:
"Subject to the provisions of subsection (2)(b), the provisions of this
chapter shall, save in so far as they are inconsistent with
the provisions of
any Act of Parliament which prescribes a specified period within which a claim
is to be made or an action is to
be instituted in respect of a debt or imposes
conditions on the institution of an action for the recovery of a debt, apply to
any
debt arising after the commencement of this Act."
It is common cause that the provisions of sec 344(1) of the Merchant Shipping
Act which lay down a two-year prescriptive period as
regards legal proceedings
to enforce any claim or lien against a ship or her owners in respect of inter
alia damage to another ship
caused by the fault of the former ship are
inconsistent with, and therefore in terms of
sec 16(1)
of the
Prescription Act
supplant
, contrary provisions as to prescriptive periods which are to be found
in
12
the
Prescription Act. Moreover
it is clear from what I have already stated
that
periods of two years have run since the damage to the "Lash Atlantico"
was caused by the collisions giving rise to Coastal's claims
against the
"Maritime Prosperity" and/or Rosario.
Coastal contends nevertheless that
sec
13(l)(b)
of the
Prescription Act of 1969
applies to these claims and that this
provision saves them from prescriptive extinction.
Sec 13(1)
provides that
"If -
(a)
the creditor is a minor or
is insane or is a person under curatorship or is prevented by superior force
including any law or any order
of court from interrupting the running of
prescription as contemplated in
section 15(1)
; or
(b)
the debtor is outside the Republic; or
(c)
the creditor and debtor are married to each other;
or
(d)
the creditor and debtor are partners
and the debt is a debt which arose out of the partnership relationship;
or
(e)
the creditor is a juristic person and
the debtor is a member of the governing body of such
juristic
13 person; or
(f)
the debt is the object of a
dispute subjected to arbitration; or
(g)
the
debt is the object of a claim filed against the estate of a debtor who is
deceased or against the insolvent estate of the debtor
or against a company in
liquidation or against an applicant under the Agricultural Credit Act, 1966 (Act
No 28 of 1966); or
(h) the creditor or the debtor is
deceased and an executor of the estate in question has not yet been appointed;
and
(i) the relevant period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one
year after, the day on
which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e),
(f), (g) or (h) has ceased
to exist,
the period of prescription shall not be completed before a year
has elapsed after the day referred to in paragraph (i)."
Rosario's counter to this is that sec 13(l)(b) is inconsistent with sec 344
(3), read with sec 344 (1), of the Merchant Shipping Act
and that accordingly
reliance thereon is precluded by
sec 16(1)
of the
Prescription Act. Coastal's
answer to this contention is a two-fold one: firstly, that
sec 344(3)
applies
only to actions in rem and that, since Coastal's counterclaim will be in
personam, there
14
will not be any scope for inconsistency; and, secondly, that in any event
even if
sec 344(3)
applies to both actions in rem and actions in personam, there is
in fact no inconsistency between
sec 344
(3) and
sec 13(1)(b).
The first issue produced by these rival contentions relates to the scope of
sec 344(3)
, and more specifically to the question whether the power to extend
the prescriptive period conferred by it on the court applies to
both actions in
rem and actions in personam or only to the former.
In terms of our law of
admiralty (currently the Admiralty Act) there are two procedures whereby a
maritime claim may be enforced in
a provincial or local division exercising its
admiralty jurisdiction. These are the action in rem and the action in personam.
The
former is instituted by the arrest of property falling within one or more of
the various categories listed in sec 3(5) of the Admiralty
Act. (For convenience
I shall henceforth refer only to the property usually so arrested, viz the ship
against or in respect of which
the claim lies.) This remedy is available where
the claimant has a maritime Hen over the ship to be arrested or where the owner
of
the ship to be arrested would be liable to the claimant in an action in
personam in respect of the cause of action concerned (sec
3(4)). The action in
rem is, in a sense, a proceeding against the ship in question.
15
And the primary purpose of this arrest is to give the action utility
and
effectiveness by affording the plaintiff pre-judgment security. (See
M
V Jute Express v Owners of the Cargo Lately Laden on Board the M V Jute Express
1992 (3) SA 9
(A), at 17 J - 18 B.) The action in personam, on the other
hand, is brought by the service of a summons on the defendant in accordance
with
Rule 5(3) of the Admiralty Proceedings Rules. There are certain jurisdictional
requirements which limit the persons against
whom the action may be brought.
These include (see sec 3(2) of the Admiralty Act): (i) residence or the carrying
on of business by
the defendant in the Republic; (ii) the attachment of property
of the defendant within the area of the court's jurisdiction in order
to found
or confirm jurisdiction; (iii) the consent of, or the submission by, the
defendant to the jurisdiction of the court; and
(iv) in the case of a defendant
company the fact that it has its registered office in the Republic. The property
which may be attached
to found or confirm jurisdiction includes, but is not
limited to, the ship against or in respect of which the claim lies.
Although
in describing these actions I have referred to the provisions of the Admiralty
Act, which came into operation on 1 November
1983, and although certain
legislative changes were introduced by that Act, the action
16 in rem and the action in personam were part of the law of admiralty
administered
by the courts of admiralty in this country at the time when the Merchant
Shipping
Act was passed and the general distinction between them was then known
and
observed. (See
The Owners. Master and Crew of the SS "Humber" v
The
Owners and Master of the SS "Answald"
1912 AD 546
, 556-7;
Beaver
Marine
(Pty) Ltd v Wuest
1978 (4) SA 263
(A), at 274 H - 275 C.)
In the
Court below it was apparently common cause by the conclusion of the argument in
the application that sec 344(3) deals only
with a claim in rem (see the reported
judgment at 164 G-H). Before us counsel for Rosario resiled from this concession
and reverted
to the contention that the subsection covers both forms of action.
For the reasons which follow I am of the opinion that this contention
is
ill-founded.
Firstly, the wording of sec 344(3) is indicative of an intention
to confine the ambit of the subsection to actions in rem. The subsection
speaks
in , two places of "the defendant ship" (Afrikaans: "die verweerder-skip"). This
wording, which is very unusual, is appropriate
only to an action in rem on the
basis that, as I have indicated, such an action is regarded as being, in a
sense, an action against
the ship in respect of which the cause of action lies.
The wording
17 is quite inappropriate to an action in personam against the owner of the
ship. ,
Moreover, it is clear that this wording is not unintended or fortuitous.
This
appears from sec 344(1) which draws the same distinction between actions in
rem
and actions in personam when referring to -
". . . legal proceedings to enforce any claim or lien against a ship or her
owners . . .".
The legal proceedings "against a ship" clearly refer to an action in rem;
whereas legal proceedings "against . . . her owners" refer
equally clearly to an
action in personam. This distinction is pursued in sec 344(3); and there is, in
my view, plainly a correlation
between proceedings "against a ship" and "the
defendant ship". The fact that sec 344(3) speaks only of the defendant ship is,
therefore,
a strong indication that sec 344(3) was intended to deal only with
actions in rem. Secondly, the grounds upon which an extension
shall be granted
under sec 344(3) point in the same direction. They are that owing to the absence
of the defendant ship from the
Republic of South Africa and its territorial
waters and the absence of the defendant ship from the country to which the
plaintiffs
ship belongs or in which the plaintiff resides or carries on business
and its territorial waters, the plaintiff has not during the
prescriptive period
had a
18 reasonable opportunity of "arresting the defendant ship". These grounds
are
peculiarly pertinent to an action in rem which depends upon the arrest of
the
defendant ship, or the ship in respect of which the claim lies, and which
would be
frustrated by the ship's absence from these countries and their respective
territorial
waters; but they are wholly inapposite to an action in personam which does
not
require the arrest of the ship in respect of which the claim lies. Indeed, it
is
difficult to see why a plaintiff bringing, or wishing to bring, an action in
personam
should qualify for the benefit of an extension of the prescriptive period on
the
grounds provided for in sec 344(3), especially where during the two-year
prescriptive period there would have been no practical or legal impediment
to
prevent him doing so.
Thirdly, the relief which is granted when a good
case has been made out under sec 344(3) is an extension of the period of
prescription
"sufficiently" in order to give the plaintiff a reasonable
opportunity to arrest the defendant ship. Again this points unmistakeably
to an
action in rem, and to an action in rem only.
In support of his argument that
sec 344(3) applied also to actions in personam, counsel for Rosario referred to
an English statutory
provision, viz sec
19
8 of the Maritime Conventions Act, 1911, and to the English decision of
The
Espanoleto
[1920] P 223.
This Act was passed in order to give
effect to two conventions signed at the Brussels Conference of 1910 dealing
respectively with
collisions between vessels and with salvage. It is required to
be "construed as one" with the Merchant Shipping Acts, 1894 to 1907
(sec 10).
Sec 8 of the Act reads as follows:
"No action shall be maintainable to enforce any claim or lien against a
vessel or her owners in respect of any damage or loss to another
vessel, her
cargo or freight, or any property on board her, or damages for loss of life or
personal injuries suffered by any person
on board her, caused by the fault of
the former vessel, whether such vessel be wholly or partly in fault, or in
respect of any salvage
services, unless proceedings therein are commenced within
two years from the date when the damage or loss or injury was caused or
the
salvage services were rendered, and an action shall not be maintainable under
this Act to enforce any contribution in respect
of an overpaid proportion of any
damages for loss of life or personal injuries unless proceedings therein are
commenced within one
year from the date of payment:
Provided that any court having jurisdiction to deal with an action to which
this section relates may, in accordance with the rules
of court, extend any such
period, to such extent and on such conditions as it thinks fit, and shall,
if
20
satisfied that there had not during such period been any reasonable
opportunity of arresting the defendant vessel within the juridiction
of the
court, or within the territorial waters of the country to which the plaintiff's
ship belongs or in which the plaintiff resides
or has his principal place of
business, extend any such period to an extent sufficient to give such reasonable
opportunity."
It will be noted that the section resembles sec 344(1), (2) and (3) of our
Merchant Shipping Act. The first 10 lines (down to the
words ". . .services were
rendered . . ." correspond to sec 344(1); the next 5 lines (down to ". . . date
of payment . . .") to sec
344(2); and the proviso to sec 344(3). There is,
however, a significant difference between the proviso to sec 8 and sec 344(3):
the
former contains, in addition to the mandatory extension of the prescriptive
period provided that certain facts are established (in
terms similar to sec
344(3) ), provision for a discretionary power of extension to such extent and on
such conditions as the court
may think fit. Patently sec 344(3) contains no such
discretionary power.
The case of
The Espanoleto
, supra, related to a
collision between the vessels "Artisan" and "Espanoleto" on 20 February 1917, as
a result of which the plaintiff's
husband, the master of the "Artisan", lost his
life. Plaintiff issued
21
a writ in rem on 13 December 1918. It was not served because by that time
the
"Espanoleto" had left the jurisdiction, and no warrant of arrest was
applied for. On 19 March 1920, the "Espanoleto" having by that
time come within
the jurisdiction and the writ not having been served within the required period
of 12 months, the plaintiff applied
to court ex parte for leave to renew the
writ. She obtained that leave and caused the warrant of arrest to issue. On the
following
day conditional appearance was entered and an undertaking to put in
bail given by the defendant, the owner of the "Espanoleto". Defendant
then
applied to set aside the writ, the renewal thereof and the warrrant of arrest
and to discharge the undertaking.
Various grounds were advanced in support of
the defendant's application. One contention was that the plaintiff had failed to
commence
proceedings within two years, as required by sec 8, since that section
contemplated that proceedings should be commenced not by issuing
a writ but by
arrest. Hill J who heard the application said in this regard (at 225):
"I do not agree. Sect 8 relates to proceedings in personam as well as to
proceedings in rem. It is an English statute, and in English
law it is well
understood that proceedings are commenced by the issue of a writ. Order I., r.
1, and
22
Order II., r. 1, of the Rules of the Supreme Court, show that an action in
the Admiralty Division, like an action in any other Division,
is commenced by
the issue of a writ, and I can see no reason at all for giving a different
meaning to the commencement of proceedings
under s. 8 from that which obtains in
every other action."
The point here considered concerns the meaning of the words "proceedings . .
. are commenced" in that part of sec 8 which corresponds
to sec 344 (1) of our
Act. The observation that sec 8 relates to proceedings in personam as well as
proceedings in rem, which is
clearly correct in a general sense with reference
to this part of sec 8 (as it would be with regard to sec 344(1) ), does not
touch
the question of the ambit of the mandatory power of extension contained in
that portion of the proviso to sec 8 which corresponds
to sec 344 (3).
Consequently, this observation, which was heavily relied upon by counsel for
Rosario, does not advance its case.
After stating what is quoted above, Hill
J went on to deal with what he described as "the real point in the case", viz a
renewal of
the original writ which had been issued within the two-year period
but had not been timeously renewed. The judgment proceeds (at
226-7):
23
"In general the Court must not by renewal deprive a defendant of an existing
right to the benefit of a statute of limitations. But
s 8 of the Maritime
Conventions Act is a limitation section of a very peculiar kind, for it contains
a proviso unknown to any other
statute of limitations; in one event - namely, if
there has not been any reasonable opportunity of arresting the defendant vessel
within the period - it directs the extension of the limited period of two years,
and further gives the Court power to extend it on
any other sufficient
grounds.
In my judgment, when an application to extend the time for the renewal of a
writ in an action which comes within s 8 is made, the
matter is not to be
disposed of merely by saying that the two years have elapsed and the claim is
statute barred and no renewal can
be granted. The application to renew must be
considered on its merits, and the Court must inquire whether the circumstances
are such
that the Court would give leave to issue a writ, notwithstanding that
the time had expired."
Having canvassed the facts of the case the Court expressed the view that it
might fall within the "obligatory part of the proviso",
but preferred to
exercise the discretion provided for in the other part of the proviso in favour
of the plaintiff. An order extending
the period for the renewal of the writ and
dismissing defendant's application was accordingly granted.
In all the circumstances I do not think that
The Espanoleto
provides
24 support for the argument of counsel for
Rosario. Moreover, it seems to me that
there is an important distinction between the provisions of the proviso to
sec 8 of
the Maritime Conventions Act and sec 344(3) of the Merchant Shipping Act,
viz
the presence in the former, but not in the latter, of a discretionary power
of
extension in the widest possible terms. No doubt this power relates to
both
actions in rem and in personam. But it does not follow that sec 344(3),
which
contains no such discretionary power and the wording of which refers so
pertinently to actions in rem only, likewise applies as well to actions in
personam.
In the course of my researches I have come across two other English
cases which at first blush might appear to be relevant, viz
The "Arraiz"
[1924] 19 LI L Rep 235 (AD), [1925] 132 LT Rep 715 (CA); and
The Master
and Crew of Steam Tug "William Gray" v Owners of Steamship "Llandovery
Castle"
(1920) 2 LI L Rep 273 (CA). However, they both dealt with instances
of the exercise of the discretionary portion of the proviso to
sec 8 and, for
the reasons already indicated, I do not find them to be of any real assistance
in the interpretation of sec 344(3).
For these reasons I hold that sec 344(3)
must be construed as being confined in its application to actions in rem.
Counsel for appellant
conceded that,
25
in the event of this Court making such a finding, the appeal had to fail.
This
concession was correctly made. If sec 344(3) applies only to actions in rem
then there can be no inconsistency between that subsection
and
sec 13(l)(b)
of
the
Prescription Act as
far as actions in personam are concerned. It was common
cause that Coastal's contemplated claim-in-reconvention would constitute
a ,
proceeding in personam. Ergo there is no legal obstacle to Coastal's reliance
upon
sec 13(l)(b)
to overcome the consequences of the running of the two-year
prescriptive period. Prima facie, therefore, Rosario's objection to the
security
arrest of the "Maritime Prosperity" on the grounds of extinctive prescription is
not well founded. Consequently the Court
a quo correctly confirmed the arrest in
so far as it relates to an action in personam.
I should perhaps add that in
the circumstances it is not necessary to decide the question whether, assuming
sec 344(3)
to apply to actions in personam as well, there is necessarily an
inconsistency between
sec 13(l)(b)
and
sec 344(3)
, read with
sec 344(1).
Nor is
it necessary to pronounce finally on the applicability of
sec 13(l)(b)
to the
facts of this case. Both questions are left
26
open.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
SMALBERGER JA)
NESTADT JA)
MARAIS JA) CONCUR
SCOTT AJA)