Great River Shipping Inc v Sunnyface Marine Ltd

• Jurisdiction: South Africa
• Judge: Howie J
• Judgment Date: 28 October 1991
• Docket Number: 135/91; 163/91; 173/91
• Hearing Date: 16 October 1991
• Court: Cape Provincial Division

Howie J:

In July this year respondent, a Cypriot company, instituted an F action in rem against applicant, a Panamanian company, in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act'). The action was commenced by the arrest of the motor vessel Great Eagle at Saldanha Bay and is presently pending in this Court in the exercise of its admiralty jurisdiction. The main claim is for a declarator that respondent is owner of the ship and entitled to its possession. The alternative G claim, on the premise that respondent is not the owner and that the owner is liable to respondent in personam, is for the recovery of damages arising from the concerted fraudulent actions of a number of parties which resulted in respondent being dispossessed of the ship at Qingdao in the People's Republic of China and applicant's becoming its current registered owner.

H The application before me now, brought as a matter of urgency, is for an order releasing the ship from arrest and ancillary relief. The hearing formally ended on 16 October, but various supplementary submissions continued to be made at various stages up to 23 October.

Applicant became registered owner of the ship on 30 May this year. It is alleged, and applicant accepts this for present purposes, that up to that I date respondent was the owner. Under respondent's ownership the vessel was named Mnimosyni.

The application has been argued on three grounds. The first, not dealt with in the affidavits, is a preliminary law point. It is that as a matter of statutory interpretation the Act does not empower an action in rem where the action and the arrest are directed at the claimant's own vessel, J as is the

Howie J

A case in a vindicatory claim. The second ground is that respondent has no prima facie case justifying the action and the accompanying arrest. The third ground is that this Court is not the appropriate forum and that jurisdiction should be declined in terms of s 7(1) of the Act.

Dealing with the first ground, argument was presented by both sides on the B footing that the following matters are common cause:

(1)

that the claims relate to the ownership or possession of the ship in terms of subpara (a) of the definition of 'maritime claim' in s 1(1) of the Act;

(2)

that South African admiralty law, as it was prior to the C commencement of the Act, permitted a vindicatory action in rem involving the arrest of the claimant's own ship;

(3)

that current English admiralty law, dating from long before such commencement, and since, also permits such action and arrest.

Because the facts referred to in 2 and 3 are common cause and the present point was argued on that basis, it is unnecessary to refer to the relevant D history or authority in any depth or detail. The South African admiralty law which preceded the Act consisted of English admiralty law frozen as at 1890 and made applicable to this country by the English Colonial Courts of Admiralty Act, 1890. According to that English admiralty law, an owner could proceed in rem against his own ship to arrest and recover possession of it: Roscoe Admiralty Practice 5th ed at 38-9. An example of a case E where such proceedings were accepted as competent is The Jupiter 21 Ll LR 116 at 117. As already mentioned, that is still the English admiralty law.

The Act repealed the 1890 English statute, thus doing away with the then South African admiralty law. The components of the present South African F admiralty law must therefore be sought within the four corners of the Act. The provisions of the Act which are presently relevant are these. Section 3(4) reads thus:

'Without prejudice to any other remedy that may be available to a claimant . . . 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; or

(b)

G 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:

'Subject to the provisions of ss (9), an action in rem, other than such an action in respect of a maritime claim contemplated in para (a), (b) or (c) H of the definition of "maritime claim", may be brought by the arrest of an associated ship instead of the ship in respect of which the maritime claim arose.'

Section 3(9), it may be mentioned, is of no importance in the instant case.

Reverting to the definition of 'maritime claim' in s 1(1), it contains the following:

'(a)

I any claim relating to the ownership or possession of a ship;

(b)

any claim relating to the ownership of a share in a ship or to any dispute between co-owners of a ship as to the ownership, possession, employment or earnings of that ship;

(c)

any claim in respect of a mortgage, hypothecation, right of retention or pledge of, or charge on, a ship;

J . . .

Howie J

(z)

A any claim not falling under any of the previous paragraphs which a Court of Admiralty of the Republic referred to in the Colonial Courts of Admiralty Act, 1890 . . . of the United Kingdom, could have heard and determined immediately before the commencement of this Act, or relating to any matter in respect of which any Court of the Republic is empowered to exercise admiralty jurisdiction. . . .' [*]

B Finally, s 6 reads:

'(1) Notwithstanding anything to the contrary in any law or the common law contained a Court in the exercise of its admiralty jurisdiction shall -

(a)

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, 1890, of the United Kingdom, had jurisdiction immediately before the C commencement of this 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, in so far as that law can be applied;

(b)

with regard to any other matter, apply the Roman-Dutch Law applicable in the Republic. D

(2) The provisions of ss (1) shall not derogate from the provisions of any law of the Republic applicable to any of the matters contemplated in para (a) or (b) of that subsection.'

During argument I was referred to the unreported case of Dias Compania E Naviera SA v MV Al Kazemah and Others (Durban and Coast Local Division, case A77/89, judgment dated 26 September 1989) in which the Court was called upon to deal with the submission that because the applicant there sought to vindicate his ship, his proceedings in rem were incompetent as being beyond the terms of s 3(4) in that they were neither in respect of a maritime lien nor in respect of a ship belonging to someone against whom F he had an action in personam. It was contended that s 3(4) contained a numerus clausus and that consequently no other actions in rem were competent. The Court, Bristowe J, rejected this argument, holding that the words 'without prejudice to any other remedy' contemplated remedies including actions in rem and that, had the Legislature

G

Howie J

A intended s 3(4) to constitute a numerus clausus, it would have said that an action in rem was maintainable only in the instances referred to in paras (a) and (b). The learned Judge went on to point out that had that indeed been the intention, the anomalous situation would then exist in which the buyer of a ship would have an action in rem directed to acquiring ownership, but an existing owner would have no such action if he B wished to enforce ownership.

In the present matter Mr Hurt (with him Mr Wragge), for respondent, relied on the conclusions of Bristowe J. In addition he referred to the fact that s 3(6) clearly created an action in rem which does not fit within the mould of s 3(4) and said that this feature destroyed the numerus clausus C argument. He also contended that, as s 6 imports the 1983 English admiralty law in all respects not repugnant to South African law, this meant that a vindicatory action in rem was in fact made part of the admiralty law as prescribed for South Africa by the Act.

Mr Hofmeyr, who appeared with Miss De Swardt for applicant, candidly D conceded that the unavailability of what I have called a vindicatory action in rem would be not only strange, given that it was part of our admiralty law up to 1983, but a significant shortcoming in our current admiralty law. However, so he argued, it was for the Legislature, not the Courts, to deal with any casus omissus in this respect. His basic proposition was that the current law made no provision for such an action E in rem. To support that contention he argued that the arrest in issue did not fall within the terms of any of the express provisions of s 3(4); that the repeal of the 1890 English enactment, and the concomitant dispatch of South African admiralty law as it was up till then, left no residual right in rem which could be said to come within the introductory words to s F 3(4); that those words in any event serve to draw a distinction between actions in rem and other remedies and that the reference to 'any other emedy' therefore excluded actions in rem; that although s 6 required the application of English law to claims such as the present, clearly that law had to be subject to the terms of the Act; that the provisions of para (z) of the definition of 'maritime claim' had to do with claims, not the G remedies with which to enforce them; and that for several of these reasons the decision in the Al Kazemah had been incorrect.

Mr Hofmeyr did not argue, as I understood him, that the categorisation in paras (a) and (b) of s 3(4) was of any significance in itself. He merely used it as an appropriate starting point by stating that a vindicatory H action in rem was not to be found there, and consequently the question was whether it was to be found anywhere else in the Act.

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