MT Argun v Master and Crew of the MT Argun and Others

• Jurisdiction: South Africa

MT Argun v Master and Crew of the MT Argun and Others
2004 (1) SA 1 (SCA)

2004 (1) SA p1

Citation	2004 (1) SA 1 (SCA)
Case No	653/2002
Court	Supreme Court of Appeal
Judge	Marais JA, Farlam JA, Navsa JA, Cloete JA and Jones AJA
Heard	May 16, 2002
Judgment	September 19, 2002
Counsel	M Wragge for the appellant.; L Burger for the respondents.

Flynote : Sleutelwoorde B

Shipping — Admiralty proceedings — Arrest of ship — Action not falling away upon lapse of arrest by which instituted — Judgment in rem given after lapse of arrest executable against vessel under arrest in another action. C

Shipping — Admiralty proceedings — Orders as to interest — Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(2)(f) — Approach of Supreme Court of Appeal in deciding to interfere with interest order made by High Court in exercise of its admiralty jurisdiction — Section 5(2)(f) conferring wide and unfettered jurisdiction on Court in respect of interest orders — SCA only entitled to D interfere if it came to conclusion that High Court failed to exercise judicial discretion.

Shipping — Admiralty action in rem — Admiralty Jurisdiction Regulation Act 105 of 1983 — Costs — Sheriff's preservation costs and reasonable remuneration in connection therewith forming part of costs of suit and correctly included in costs order. E

Headnote : Kopnota

An admiralty action in rem does not fall away when the arrest by which it was instituted falls away. (Paragraphs [30] and [34] at 10J - 11B and 11H - H/I.) Judgments in rem given against a vessel in such actions are executable against the vessel notwithstanding that the arrest had lapsed. (Paragraph [37] at 12D - F/G.) F

Section 5(2)(f) of the Admiralty Jurisdiction Regulation Act 105 of 1983, which provides that '(a) Court may in the exercise of its admiralty jurisdiction . . . make such an order as to interest, the rate of interest in respect of any sum awarded by it and the date from which interest is to accrue . . . as to it appears just', confers a wide and unfettered discretion. Whether such an G

2004 (1) SA p2

order can be interfered with on appeal depends on whether the Appeal Court is able to come to A the conclusion that the Court below failed to exercise a judicial discretion. (Paragraphs [38] and [42] at 12G - H/I and 13D/E - E/F.)

In a maritime action in rem instituted by the arrest of a ship the Sheriff's expenses reasonably incurred after judgment in respect of the preservation of the ship as well as his reasonable remuneration in connection with such expenses properly constitute part B of the costs of suit. The fact that preservation costs and expenses are differentiated, for ranking purposes, from the costs of enforcing the claim, cannot affect this position. (Paragraph [48] at 14D - F/G.)

Cases Considered

Annotations

Reported cases C

Adel Builders (Pty) Ltd v Thompson 2000 (4) SA 1027 (SCA): dictum at 1032H - J applied

Anastassiades v Argus Printing and Publishing Co Ltd 1955 (2) SA 349 (T): referred to

Bankers Trust International Ltd v Todd Shipyard Corporation: The Halcyon Isle [1981] AC 221 (PC) D ([1980] 3 All ER 197): referred to

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

Ex parte Neethling and Others 1951 (4) SA 331 (A): dictum at 335H applied

MT Argun: Sheriff of Cape Town v MT Argun, Her Owners and All Persons Interested in Her and Others; Sheriff of Cape Town and Another v MT Argun, Her E Owners and All Persons Interested in Her and Another 2001 (3) SA 1230 (SCA): referred to

MV Stella Tingas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (A): referred to

Republic of India and Another v Indian Steamship Co Ltd (No 2) 1998 AC 878 (HL(E)): referred to F

R v De Jager 1903 TS 36: applied

The August 8 [1983] 2 AC 450 (PC): referred to

The City of Mecca (1879) 5 PD 28: referred to

The Dictator [1892] P 304 ([1891 - 4] All ER Rep 360): referred to

The Indian Grace (No 2) [1998] 1 Lloyds Rep 1 (HL): referred to

The Volant (1842) 1 W Rob 382 (166 ER 616): referred to G

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): dictum at 310D - E applied

Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1987 (3) SA 794 (C): referred to H

Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A): referred to

Trivett & Co (Pty) Ltd and Others v Wm Brandt's Sons & Co Ltd and Others 1975 (3) SA 423 (A): referred to.

Statutes Considered

Statutes

The Admiralty Jurisdiction Regulation Act 105 of 1983, s 5(2)(f): see Juta's Statutes of South Africa 2002 vol 1 at 1-111. I

Case Information

Appeal from two judgments delivered in the Cape Provincial Division. The facts appear from the reasons for judgment.

M Wragge for the appellant.

L Burger for the respondents. J

2004 (1) SA p3

In addition to the authorities referred to in the judgment of the Court, counsel for the parties referred to the following authorities: A

Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1145F - H, 1146H - 1147C

Bouygues Offshore and Another v Owner of the MT Tigr and Another 1995 (4) SA 49 (C) at 67J - 68B

Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) at 344G B

Harnischfeger Corporation and Another v Appleton and Another 1993 (4) SA 479 (W) at 485D - G

Laws v Rutherfurd 1924 AD 261 at 262

President of India v La Pintada Cia Navegacion SA [1984] 2 All ER 773 (HL) at 779a - b and 782a - c C

Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting Syndicate Nos 960, 48, 1183 and 2183 2002 (3) SA 765 (T) at 815D - 817B

Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 777G, 779D - G, 783J - 784C D

The Banco [1971] 1 All ER 524 (CA) at 531a - 532c

The Falcon [1981] 1 Lloyds Rep 13 at 17

The Jones Brothers (1877) 3 Asp 478

The MV Cristina (1938) 60 Lloyds Rep 147 at 162 - 3

The MV Joannis Vatis (No 2) [1922] P 213 at 223

The MV Jute Express v Owners of the Cargo Laden and Lately Laden on Board the MV Jute Express 1992 (3) SA 9 (A) at 17I - 18C and 19A - I E

The MV Sea Joy 1998 (1) SA 487 (C) at 507J - 508B, 509B - C

The MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) at 752F - H F

The King Magnus (1891) P 223 at 236

The Northumbria (1869) 36 MLC 314

The Ripon City [1895 - 9] All ER 487 (P) at 498

The St Charles (1927) P 17 Asp 399 at 402

The Tervaete [1922] P 259 at 264, 273

Thoroughbred Breeders' Association v Price Waterhouse 2001 (4) SA 551 (SCA) at 494H G

Christie The Law of Contract 4th ed (2001) at 578, 591 - 2

Gilmore and Black Admiralty Law 2nd ed (1975) at 589 - 90

Jackson Enforcement of Maritime Claims (1985) at 167 H

Meeson Admiralty Jurisdiction Practice 2nd ed (2000) at para 4-066

Price The Law of Maritime Liens (1940) at 15, 59

Roscoe The Admiralty Jurisdiction Practice of the High Court of Justice (1931) at 344

Teare 'The Admiralty Action in rem and the House of Lords' 1998 Lloyds Maritime and Commercial Quarterly Review at 33 I

Tetley Maritime Liens and Claims 2nd ed at 53 - 5, 267, 271 - 2

Thomas Maritime Liens (1980) paras 9, 92 - 3, 302, 311.

Cur adv vult.

Postea (September 19). J

2004 (1) SA p4

Judgment

Farlam JA: A

Introduction

[1] This is an appeal from judgments delivered on 13 August 2002 and 12 September 2002 by Foxcroft J in the Cape Provincial Division of the High Court, sitting as a Court of Admiralty in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 (to which I shall refer in what follows as 'the Act'). In the first judgment on appeal B the learned Judge dealt with two admiralty cases which were heard before him. The first was case No AC127/99, in which the master and crew who were serving on board the MT Argun when she arrived in Cape Town on 25 May 1999 claimed various amounts in an action in rem against the vessel in respect of wages due as at C various dates as well as interest and costs of repatriation. The master also claimed an amount in respect of work done and expenses incurred. In what follows the plaintiffs in case No AC127/99 will be referred to as 'the first respondents'. D

[2] The second case was case No 134/99. This was also an action in rem against the vessel. In this case the plaintiffs were the master and crew of the MT Argun who had served on board the vessel during the period 25 July 1995 to 31 January 1996. The main claim was in respect of unpaid wages due as at 24 July 1996. They also had an alternative claim for an amount allegedly due to them in terms of a settlement. In what follows I shall refer to the E plaintiffs in case No AC134/99 as 'the second respondents'.

[3] In the second judgment on appeal the learned Judge dealt with these two cases as well as a third case, which was case No AC4/2002. The plaintiffs in this case, also an action in rem against the vessel, were the first 21 plaintiffs in case No AC127/99. F Their claims were in respect of wages due and unpaid for the period 1 July to 13 October 1999, being the day before they were repatriated to Russia. In what follows I shall refer to them as 'the third respondents'.

[4] The arrest by which the first action in rem (case No AC127/99) was instituted took place on 14 July 1999 and the G arrest by which the second action in rem (case No AC134/99) was instituted took place on 23 July 1999.

[5] On 30 July 1999 the Sheriff of Cape Town applied to the Cape Provincial Division for an order inter alia declaring (i) that various parties at whose instance the vessel had been arrested H (the first and second respondents and two other companies who are not parties to the present appeal) were jointly and severally...