MV Alina II (No 2) Transnet Ltd v Owner of MV Alina II

• Jurisdiction: South Africa
• Citation: 2011 (6) SA 206 (SCA)

MV Alina II (No 2)
Transnet Ltd v Owner of MV Alina II
2011 (6) SA 206 (SCA)

2011 (6) SA p206

Citation	2011 (6) SA 206 (SCA)
Case No	898/10
Court	Supreme Court of Appeal
Judge	Brand JA, Ponnan JA, Malan JA, Theron JA and WALLIS JA
Heard	August 29, 2011
Judgment	September 15, 2011
Counsel	RWF MacWilliam SC (with DJ Cooke) for the appellant.; AM Stewart SC (with M Steenkamp) for the respondent.

Flynote : Sleutelwoorde E

Shipping — Admiralty law — Maritime claim — Enforcement — Duplication of actions (in rem and in personam) on same claim based on same cause — Whether permissible — Semble: No prohibition on claimant resorting F to both forms of procedure — No reason in principle why both actions cannot run simultaneously.

Shipping — Admiralty law — Maritime claim — Jurisdiction — Submission — What constitutes — To be assessed on ordinary principles governing submission to jurisdiction — Entry of appearance to defend in rem action by shipowner G constituting submission to court's jurisdiction for the purposes of an action in personam against the owner where owner intending to resist claim of pre-existing personal liability — If so, subsequent attachment to confirm jurisdiction in separate proceedings in personam against owner in respect of same claim impermissible.

Headnote : Kopnota

H Semble: Since maritime law permits both claims in rem and in personam, and allows a claimant whose claim has not been satisfied in rem to pursue a claim in personam for the balance, there is no reason in principle why he should not be able to pursue them simultaneously to recover his claim. (Paragraphs [9] – [10] at 211C – 212C.)

By entering appearance to defend a maritime action in rem, the owner, provided I always that he was already personally liable on the claim and the normal requirements for submission were met, submits himself to the jurisdiction of the court in respect of that claim, with the result that an action in personam may be pursued against him, either seperately or by way of amendment to the summons in the action in rem. In such a case a subsequent attachment to confirm jurisdiction in separate proceedings in J personam against the owner in respect of the same claim would be both

2011 (6) SA p207

unnecessary and impermissible. (Paragraphs [12] – [15], [27] – [31] and A [34] – [36] at 212F – 214E, 219B – 221F and 223B – 224B.)

Cases Considered

Annotations:

Reported cases

Southern Africa

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

Du Preez v Philip-King 1963 (1) SA 801 (W): referred to

Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522 (SCA): applied

Hudson v Hudson and Another 1927 AD 259: dictum at 268 applied

Incorporated General Insurances Ltd v Shooter t/a Shooter's Fisheries C 1987 (1) SA 842 (A): referred to

Jamieson v Sabingo 2002 (4) SA 49 (SCA) ([2002] 3 All SA 392): applied

Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D): dictum at 333E – G applied

MT Argun: MT Argun v Master and Crew of the MT Argun and Others 2004 (1) SA 1 (SCA) ([2003] 4 All SA 139): dictum in para [26] criticised D

MV Alina II (No 1): Transnet Ltd v Owner of MV Alina II 2011 (6) SA 40 (WCC): confirmed on appeal but for different reasons

Purser v Sales; Purser and Another v Sales and Another 2001 (3) SA 445 (SCA) ([2001] 1 All SA 25): referred to

SA Boatyards CC (t/a Hout Bay Boatyard) v The Lady Rose (formerly known as the Shiza) 1991 (3) SA 711 (C): considered E

Tsung v Industrial Development Corporation of SA Ltd 2006 (4) SA 177 (SCA): dicta in paras [6] and [13] applied

Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C): referred to.

Australia F

Caltex Oil (Australia) (Pty) Ltd v The Dredge Willemstad (1977) 51 AJLR 270 ((1976) 136 CLR 529): referred to

Comandate Marine Corp v Pan Australia Shipping Pty Ltd 2006 FCAFC 192 ((2006) 238 ALR 457; (2006) 157 FCR 45): referred to.

England

Ashley and Another v Chief Constable of Sussex Police [2008] 3 All ER 573 (HL): referred to G

Republic of India and Another v Indian Steamship Co Ltd (The Indian Grace) (No 2) [1996] 2 Lloyd's Rep 12 (CA): referred to

Republic of India and Another v Indian Steamship Co Ltd (The Indian Grace) (No 2) [1998] 1 Lloyd's Rep 1 (HL): referred to H

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

The Banco [1971] P 137 (CA) ([1971] 1 All ER 524): referred to

The Burns [1907] P 137 ((1907) 10 Asp MLC 424): compared

The Cella (1888) 13 PD 82 (CA): referred to

The Cristina [1938] AC 485 (HL) ((1938) 1 All ER 733): compared

The Dictator [1892] P 304 ([1891 – 4] All ER Rep 360): discussed and applied I

The Dupleix [1912] P 8: referred to

The Gemma [1899] P 285: discussed

The Jupiter [1924] P 236 (21 Lloyd's Rep 116): referred to

The Maciej Rataj [1992] 2 Lloyd's Rep 552 (CA): compared

The Nordglimt [1988] 2 All ER 531 (QB): compared

The Rena K [1979] 1 All ER 397 (QBD (Adm Ct)): referred to. J

2011 (6) SA p208

Singapore A

Kuo Fen Ching and Another v Dauphin Offshore Engineering & Trading Pte Ltd [1995] 3 SLR 721 (1999 SGCA 95): referred to.

Case Information

Appeal against a decision in the Western Cape High Court, Cape Town B (reported as MV Alina II (No 1): Transnet Ltd v Owner of MV Alina II 2011 (6) SA 40 (WCC).

RWF MacWilliam SC (with DJ Cooke) for the appellant.

AM Stewart SC (with M Steenkamp) for the respondent.

Cur adv vult. C

Postea (September 15).

Order

D The appeal is dismissed with costs.

Judgment

Wallis JA (Brand JA, Ponnan JA, Malan JA and Theron JA concurring):

[1] This appeal raises a short but important question of admiralty law and practice. A plaintiff commences an action in rem by way of the arrest E of a vessel on the basis of the owner's personal liability for the claim. The owner of the vessel delivers notice of intention to defend the action in order to contest its liability for that claim. Can the plaintiff then obtain the attachment of the vessel to found and confirm jurisdiction [1] in separate proceedings in personam against the owner in respect of the same claims? The appellant, Transnet Ltd, says that it can, but the F respondent, the owner of the Alina II, disputes this. The question arises in the following circumstances.

[2] Transnet is the port authority at Saldanha Bay and trades as Transnet Port Terminals and Transnet National Port Authority. It is G responsible for the operation of the Langebaan Iron Ore Terminal at Saldanha Bay. On 29 October 2009 the Alina II, a bulk carrier, berthed at one of the two berths at the terminal and commenced loading a cargo of about 175 902 mt of Sishen iron-ore fines. The vessel completed loading on 31 October 2009. It was then observed that it had taken on a port list and it was down by the head by about 50 cm. Investigations H revealed that this was due to the ingress of water to the No 2 Double Bottom port ballast tank caused by a fracture at frames 227 – 228.

[3] After this discovery the vessel remained at the berth until her cargo had been transshipped. This took time and it only left Saldanha Bay on 27 March 2010. Transnet contends that it has suffered damages in I consequence of the vessel's occupation of the berth during this period. On 13 January 2010 Transnet caused the Alina II to be arrested in two actions in rem with a view to recovering those damages. There is no significant difference between the two and henceforth I will treat them as

2011 (6) SA p209

Wallis JA (Brand JA, Ponnan JA, Malan JA and Theron JA concurring)

a single action. The owner of the vessel caused a notice of intention to A defend to be delivered on 27 January 2010 and on 19 February 2010 Transnet delivered its particulars of claim. It suffices for present purposes to note that it advances claims in both contract and delict. The contractual claim is said to arise from a contract between Transnet and the owner of the vessel. The delictual claim is based on a legal duty B allegedly owed by the owner to Transnet and a negligent breach of that duty by the owner, either personally or acting through the master and crew for whom the owner is said to be vicariously liable. Accordingly Transnet's claims are squarely based on the personal liability of the owner and are pursued in rem by virtue of the provisions of s 3(4)(b) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act). C

[4] On 19 March 2010 the vessel was again arrested in an action by four companies in the Kumba Mining group advancing claims of nearly $275 million. This prompted the attorney acting for the owner [2] to send an email to all the other parties having actual or potential claims against the vessel saying: D

'Please be advised that:

1.

Any security which the owners may put up should be limited to the value of vessels;

2.

Let us know what you need in order to make a valuation of the vessel before she departs; E

3.

Be informed that any security which we provide to enable the vessel to depart is without prejudice to our rights to apply in due course to (1) reduce the security and/or (2) substitute it for security to cover all the claims against the vessel.'

This stance precipitated the application by Transnet for an attachment F of the vessel ad fundandam et confirmandam jurisdictionem. The reason, as explained by Transnet's attorney in the founding affidavit, was that it believed that if it attached the vessel to commence an action in personam against its owner the vessel could only be released against the provision of security for the full amount of Transnet's claims. [3] The application was brought ex parte and without notice to the owner or its attorney in order G to forestall a submission to the...