Beaver Marine (Pty) Ltd v Wuest

• Jurisdiction: South Africa
• Judge: Trollip JA, Rabie JA, Hofmeyr JA, Miller JA and Joubert JA
• Judgment Date: 02 August 1978
• Citation: 1978 (4) SA 263 (A)
• Hearing Date: 22 May 1978
• Court: Appellate Division

Trollip JA:

This appeal concerns the validity under Admiralty law of the arrest of the motor vessel Farandole that was ordered by the South Eastern Cape Local Division sitting as a Court of Admiralty.

The following facts were common cause or not disputed in these proceedings.

B (1) The respondent, whom I shall call "Wuest", is an engineer trading as "Hymatic" in Cape Town. During the period August 1976 to March 1977 he carried out certain repairs, and in connection therewith supplied certain materials, to the vessel. They were necessary to enable it to proceed to sea. It is normally engaged in fishing, often outside the Republic's C territorial waters. These repairs were effected in Cape Town. The balance still owing in respect thereof is R10 123,50.

(2) The vessel was originally owned by South Atlantic Management (Pty) Ltd who sold it to appellant ("Beaver Marine") in January 1977. It is registered in Cape Town as a South African vessel. Both these companies also have their registered head offices in Cape Town.

D (3) On 10 March 1977, while the vessel was in harbour in Port Elizabeth, the South-Eastern Cape Local Division, sitting as a Court of Admiralty, granted an order, on the urgent ex parte application of Wuest, for it to be arrested and held in the custody of the Deputy Sheriff. The order for the arrest was expressed to be "in an action in rem to be instituted in this Court within seven days of the said arrest" in which Wuest would E claim payment of the above-mentioned R10 123,50, interest, and costs. The vessel was duly arrested.

(4) In support of his application for the arrest Wuest alleged that he believed that Beaver Marine was about to be liquidated which would "practically nullify" his rights to the vessel as security for his claim. F Indeed, after the arrest, the company was placed under provisional liquidation.

(5) On 18 March 1977 Beaver Marine, through its provisional liquidator, applied to the same Court, as a matter of urgency, for the release of the vessel from arrest on the ground that such arrest was unlawful. This G application was opposed. The main ground relied upon was that the Court, sitting as an Admiralty Court, had no jurisdiction under Admiralty law to entertain Wuest's claim for payment of the repairs and therefore to order the arrest of the Farandole. A subsidiary ground was that the facts alleged were insufficient to establish that Beaver Marine, the vessel's new owner, was liable for the repairs.

H (6) Despite the limited time at his disposal, owing to the urgency of the matter, the learned Judge, ADDLESON J, dealt with the issues fully, found against Beaver Marine, held that the arrest of the vessel was lawful, and dismissed the application. An appeal against the judgment to the Full Bench of the Eastern Cape Division failed. Beaver Marine has now appealed with the necessary leave to this Court.

The jurisdiction of the Court of first instance, sitting as an Admiralty Court is at present derived exclusively from certain English statutes,

Trollip JA

namely the Colonial Courts of Admiralty Act 1890 (53 and 54 Vict c 27) read with the High Court of Admiralty Acts of 1840 (3 and 4 Vict cap 65) and 1861 (24 Vict c 10). See Crooks & Co v Agricultural Co-operative Union A Ltd 1922 AD 423; Trivett & Co (Pty) Ltd and Others v Wm Brandt's Sons & Co Ltd and Others 1975 (3) SA 423 (A). Our Admiralty Jurisdiction Regulation Act 5 of 1972 is not yet operative. The relevant part of the 1890 Act reads:

"2 (1) Every Court of law in a British possession... which has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned... and such Court in reference to B the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty...

(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England..."

C According to the construction of s 2 (2) by the Privy Council in The Yuri Maru, The Woron 1927 AC 906 the jurisdiction of a Colonial Admiralty Court is governed by the admiralty jurisdiction of the English High Court as it existed in 1890; it is not affected by any subsequent English enactments. See, too, Tharros Shipping Corporation SA v Owner of the Ship Golden D Ocean 1972 (4) SA 316 (N) at 321 - 2. As at 1890 the admiralty jurisdiction of the English High Court, in so far as it was regulated by statute, is contained in the High Court of Admiralty Acts of 1840 and 1861. It is now authoritatively settled that those English statutes on admiralty law and jurisdiction became part of our law on the establishment E of the Republic in 1961, and the introductory words in s 2 (1) of the 1890 Act must therefore now be read as "every Court of law in the Republic" (Trivett's case supra at 436F). It follows too, of course, that the adjective "Colonial" is no longer applicable to any of our Courts sitting as Admiralty Courts.

Both the 1840 and 1861 Acts endow the High Court of Admiralty with F jurisdiction over certain kinds of claims for necessaries. According to s 6 of the 1840 Act the jurisdiction is to decide

"all claims for necessaries supplied to any foreign ship or sea-going vessel".

And s 5 of the 1861 Act confers jurisdiction

"over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs"

G unless the owner is domiciled in the country. It was common cause that neither section applied to Wuest's claim for repairs in the present case, for assuming they were necessaries, the Farandole was not, in relation to the Court of first instance, "a foreign ship or sea-going vessel", nor were such necessaries supplied to it "elsewhere than in the port to which H it belongs". It will be recalled that the Farandole is a South African vessel and the repairs were carried out in Cape Town, the port to which it belongs (see paras (1) and (2) above). The only provision in these statutes relied upon by Wuest for the arrest of the vessel was s 4 of the 1861 Act. It reads:

"The High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the Court."

"Cause" is defined in s 2 as including

"any cause, suit, action, or other proceedings in the Court of Admiralty".

Section 35 says:

Trollip JA

"The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam."

It is unnecessary to elaborate on proceedings in personam - they are directed against the person liable to pay the claim. Nor is it necessary A ...