Brady-Hamilton Stevedore Co and Others v MV Kalantiao

• Jurisdiction: South Africa
• Judge: Leon J
• Judgment Date: 16 June 1987
• Citation: 1987 (4) SA 250 (D)
• Court: Durban and Coast Local Division

Leon J:

Pursuant to an application brought on behalf of the plaintiffs the Registrar of this Court, on 15 April 1986, issued a warrant of arrest directing the Sheriff to arrest the B ship Kalantiao and to keep it under arrest until further order. Subsequent to her arrest, security, which was acceptable to the plaintiffs' attorneys, was filed by the defendant and the ship was allowed to sail.

In this application the defendant seeks an order:

(a)

that the aforesaid warrant of arrest be set aside;

(b)

that the plaintiffs release the aforesaid security filed by the defendant; and

(c)

costs.

For the purpose of the defendant's present application it is common cause that:

(i)

the plaintiffs have a valid claim against P V D Christensen, the time charterers of the MV Kalantiao, in respect of stevedoring services rendered to the vessel in ports of the United States of America in pursuance of an agreement concluded in the United States on 11 March 1985;

(ii)

the proper law of the contract is the Federal Law of E the United States;

(iii)

in terms of that law the plaintiffs enjoy a maritime lien;

(iv)

if the events upon which the plaintiffs' claim is founded had taken place within the jurisdiction of this Court, the plaintiffs would not have acquired a maritime lien as such facts would not, according to the law to be applied in terms of s 6 of the Admiralty jurisdiction Regulation Act 105 of 1983 (the 'Act'), give rise to a maritime lien. F

The dilemma which arises in the present application is described by Professor Jackson in his article 'Foreign Maritime Liens in English Courts: Principles and Policy' (1981) LMCLQ at 335 thus:

'If a forum limits its recognition to its own maritime liens, G the classical description of such a lien that it "travels with the thing into whosoever possession it may come" is incorrect. It will attach and become detached according to the views of particular jurisdictions. On the other hand, if a forum does recognise foreign liens, to that extent it hands over control of its policy to another legal system, and that system is able to extend its policy beyond its sphere of direct control.'

H Section 3(4) of the Act provides that:

'Without prejudice to any other remedy that may be available to a claimant or to the rules relating to the joinder of causes of action a maritime claim may be enforced by an action in rem :

(a)

if the claimant has a maritime lien over the property to be arrested.'

I There is no definition contained in the Act of a 'maritime lien' and the other sections containing references thereto (ss 1 (i), (ii), (v) and 11 (i)(e)) provide no assistance in resolving the question as to which maritime liens are encompassed by s 3(4)(a).

In Shaw Admiralty Jurisdiction and Practice in South Africa at J 86, the learned author expresses the view that

Leon J

'... it is perhaps fortunate that the Legislature has A refrained from attempting to deal with the intractable subject of the definition of a maritime lien'.

The position is the same in England (see Jackson Enforcement of Maritime Claims (1985) at 4).

It accordingly becomes necessary to determine which maritime liens will be afforded recognition by our law and, more B specifically, whether or not our Courts will recognise a maritime lien created by the law of a foreign State in circumstances in which our own law would not confer a lien.

At the outset it is necessary to identify the law which must be applied. Section 6(1) of the Act provides that with regard to any matter in respect of which a Court of Admiralty of the Republic referred to in the Colonial Courts of Admiralty Act C 1890 had jurisdiction immediately prior to the commencement of the Act, ie I November 1983, the South African Court must 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 a matter at such commencement'

and in regard to any other matter it is obliged to apply D Roman-Dutch law. It was common cause between counsel (and see Shaw (op cit at 73)) that the reference in s 6(1) of the Act to the 'High Court of Justice of the United Kingdom' shall properly be regarded as a reference to the Supreme Court of England and Wales as constituted by the Supreme Court Act 1981.

In English law the maritime lien formed the foundation of the inherent jurisdiction of the English Courts of Admiralty E (Harmer v Bell: The Bold Buccleugh (1852) 7 Moo PC 267 at 284 - 5; Jackson (op cit at 4 - 5)) and as such was therefore a matter in regard to which our Courts, sitting in the exercise of their powers of Courts of admiralty under the Colonial Courts of Admiralty Act 1890, exercised jurisdiction. (Trivett & Co (Pty) Ltd and Others v Wm Brandt's Sons & Co Ltd and Others 1975 (3) SA 423 (A); Beaver Marine (Pty) Ltd v F Wuest 1978 (4) SA 263 (A) at 274.)

The maritime lien as such was unknown in Roman-Dutch law which recognised, however, a number of tacit hypothecs over ships but which were greatly diminished by the rule that they were extinguishable on alienation because in Roman-Dutch law, differing from the civil law, 'mobilis non habent sequelam ' G (Shaw (op cit at 88); Bamford The Law of Shipping in South Africa 2nd ed at 21 - 5). It accordingly follows that the law to be applied in answering the question raised in this application is, by virtue of the provisions of s 6(1)(a) of the Act, the law which the Supreme Court of England and Wales in the exercise of its admiralty jurisdiction H would have applied to such matter at 1 November 1983. This was common cause between counsel.

The meaning and effect of a statutory provision which binds South African Courts to apply the law of a foreign country has been considered by our Courts and it is clear from those judgments that, where the Court is so enjoined to apply English law to a question, it is bound to I apply the authoritative statements of English law by the Courts of England. (Van der Linde v Calitz 1967 (2) SA 239 (A) at 25OF; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 617; Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A) at 677E - H.)

The question then arises as to what the authoritative statements of the English law on the topic are. The problem in J this case is that the majority

Leon J

A decision of the Privy Council in Bankers Trust International Ltd v Todd Shipyard Corporation: The Halcyon Isle [1980] 3 All ER 197 (PC) supports the applicant, while the minority decision supports the respondent and the Privy Council divided 3 - 2. On the other hand, a decision of the Court of Appeal in The B Colorado [1923] P 102 may possibly support the respondents, but I shall deal with that case more fully later.

In dealing with this question, Shaw at 73 - 4 takes the view that on the basis of the decision in Van der Linde v Calitz (supra) the relevant law would be ascertained by reference, in the first instance, to decisions of the Privy Council. If there is no such decision then, according to the Privy Council itself, when the question is what the law of England is, the C judgments of the English Court of Appeal are persuasive only. They are not binding and fully authoritative as to English law. I shall return to Van der Linde v Calitz later.

The question which arises in this case also arose in Southern Steamship Agency Inc and Another v MV Khalij Sky 1986 (1) SA 485 (C) D . In that case it was held that the maritime lien for necessaries which the claimant enjoyed under the law of the United States of America was enforceable in a South African Court of Admiralty, notwithstanding the fact that South African law does not otherwise recognise such a lien. In reaching that conclusion Munnik JP held that he was not bound by the majority decision in The Halcyon Isle but preferred and followed the E minority view in that case. He also followed and approved the Canadian decisions in Strandhill v Hodder 1927 AMC 244 ((1926) 4 DLR 801) and Todd Shipyards Corp v Altema Companta Maritima SA; The Ioannis Daskalelis (1973) 32 DLR (3d) 571 ([1974] 1L1 LR 174). The Canadian Federal Court of Appeal has since followed those decisions (see Marlex Petroleum v The Ship Har F Rai (1984) 4 DLR 4th 739 (1984 AMC 1649)). In the course of his judgment Munnik JP referred to the substantive nature of the right conferred by a maritime lien and rejected the notion that a maritime lien should be regarded as a procedural remedy.

Before I consider the rival views, it is necessary first to deal with a matter raised by Mr Gordon on behalf of the G applicant. He reminded me that my obligation was to ascertain the authoritative expression of English law and then apply it. (See also Oriental Commercial Shipping Co Ltd v MV Fidias 1986 (1) SA 714 (D) at 719.) Accordingly I must decide that law as it is, not as I think it should be. He also relied upon Van der Linde v Calitz (supra) which I shall, as I have said, consider H in detail later. Mr Gordon correctly conceded, however, that according to the English system of precedent its authoritative expression is laid down by the House of Lords which has not yet spoken on the point. He suggested that the probabilities were that the House of Lords would support the majority in the Halcyon Isle case. He referred to the fact that the Judicial I Committee of the Privy Council and the Appellate Committee of the House of Lords have a common membership (11) and that it would be unlikely to diverge from a decision which its members have reached in their alternate capacity (De Lasala v De Lasala [1979] 2 All ER 1146 (PC) at 1153).

It becomes necessary to examine the structure of the Supreme Court of England and Wales. In terms of s 1(1) of the Supreme J Court Act 1981 (Chap 54) the Supreme Court of England and Wales consist of:

Leon J

(i)

a...