Brady-Hamilton Stevedore Co and Others v MV Kalantiao

• Jurisdiction: South Africa
• Citation: 1987 (4) SA 250 (D)

Brady-Hamilton Stevedore Co and Others v MV Kalantiao
1987 (4) SA 250 (D)

1987 (4) SA p250

Citation	1987 (4) SA 250 (D)
Court	Durban and Coast Local Division
Judge	Leon J
Heard	February 19, 1987; May 29, 1987
Judgment	June 16, 1987

Flynote : Sleutelwoorde

Shipping — Admiralty action in rem — Admiralty Jurisdiction Regulation Act 105 of 1983 — Contractors H rendering stevedoring services to vessel in United States ports and in terms of contract entered into in United States seeking to justify arrest of vessel in South Africa on grounds that, under law of United States, they enjoyed maritime lien over vessel — Section 6(1) of Act prescribing that law applicable is law which the High Court of Justice in the United I Kingdom would have applied on 1 November 1983 — Section requiring Court to apply authoritative statements of English law by Courts of England — Court in casu thus having to determine what a notional Court in England would have determined the law of England to be — Notional Court in England would have decided that question whether circumstances J in issue would have given rise to maritime lien or not to be determined by lex fori, not lex loci

1987 (4) SA p251

contractus — Lex fori would not have recognised A circumstances in issue as giving rise to maritime lien — Application to release vessel from arrest granted.

Headnote : Kopnota

The plaintiffs, pursuant to a contract entered into in the United States of America in terms of which they had rendered stevedoring services to the defendant vessel in various American ports, had had the vessel arrested in Durban harbour B on the grounds that, under the law of the United States, they enjoyed a maritime lien over the vessel on the basis of which they had been entitled to proceed in rem. The defendant applied for the release of the vessel on the grounds that the lex fori, and not the lex loci contractus, determined whether or not the circumstances in issue gave rise to a maritime lien and, in this instance, that the lex fori would not, according to the law to be applied in terms of s 6 of the Admiralty Jurisdiction Regulation Act 105 of 1983, having recognised the C circumstances as giving rise to a maritime lien.

The question for decision was whether or not the Court would recognise a maritime lien created by the law of a foreign State in circumstances in which South African law would not confer a lien. In terms of s 6(1) of the Admiralty Jurisdiction Regulation Act, the applicable law was the law which the High Court of Justice in the United Kingdom (being, in terms of the Supreme Court Act of 1981, the Supreme Court of England and Wales) would have applied at the date of commencement of the D Act, ie 1 November 1983. The Supreme Court of England and Wales consists of a Court of Appeal, a High Court of Justice and a Crown Court. The House of Lords is part of the appellate hierarchy of the Supreme Court, but the Privy Council is not. The decisions of the Privy Council do, however, have highly persuasive value. The Court in casu interpreted s 6(1) as meaning that it should apply authoritative statements of English law by the Courts of England. The problem was, however, that (a) the House of Lords had not pronounced upon the issue; E (b) the majority decision of the Privy Council in Bankers Trust International Ltd v Todd Shipyard Corporation: The Halcyon Isle [1980] 3 All ER 197 (PC) supported the defendant, while the minority decision supported the plaintiff; and (c) there was a possibility that the decision of the Court of Appeal in The Colorado [1923] P 102 might have supported the minority decision in The Halcyon Isle and therefore the plaintiff.

The Court regarded the issue not as whether it preferred the majority view to the minority view in the Halcyon Isle case, F but what a notional Court in England would have decided the law of England to be on 1 November 1983. After examining the decisions in the cases mentioned, as well as the decisions preceding and succeeding them, it concluded as follows:

(a)

the Privy Council had decided by a majority that the lex fori determined whether a maritime lien should be recognised or not;

(b)

the decision in The Colorado, being the relevant decision G of the Court of Appeal, did not support the minority in the Halcyon Isle case;

(c)

there were no decisions subsequent to The Halcyon Isle in England which in any way called into question the majority view in The Halcyon Isle ;

(d)

the majority view in The Halcyon Isle was clearly defensible and would therefore continue to be of persuasive force in England;

(e)

the English cases spanning more than 100 years before The H Halcyon Isle all supported the conclusion of the majority;

(f)

an English Court faced with the above would in all probability follow the majority in The Halcyon Isle.

The defendant's application was accordingly granted.

Case Information

Application for the release of a vessel arrested in rem. The I facts appear from the reasons for judgment.

D A Gordon SC for the applicant (the defendant in the action for the arrest of the vessel).

D G Scott SC for the respondents (the plaintiffs in the action for the arrest of the vessel).

Cur adv vult.

1987 (4) SA p252

Postea (June 16).

Judgment

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

1987 (4) SA p253

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...