Oriental Commercial and Shipping Co Ltd v MV Fidias

• Jurisdiction: South Africa
• Judge: Nienaber J
• Judgment Date: 08 October 1985
• Citation: 1986 (1) SA 714 (D)
• Court: Durban and Coast Local Division

Nienaber J:

Section 3 (4) (a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 ("the Act") provides that a maritime claim may be enforced by an action in rem if the claimant has a J maritime lien. "Maritime claim" is extensively defined in the Act but there is no definition of "maritime lien". And that is the very issue in this case:

Nienaber J

whether the plaintiff enjoys a maritime lien in respect of the A vessel, the mv Fidias, which it can pursue in this jurisdiction against the vessel even though the owner of the vessel was not responsible for the debt giving rise to the claim.

The plaintiff is described in the pleadings as

"a company duly incorporated and registered with limited B liability according to the laws of the Kingdom of Saudi Arabia which carries on business as suppliers of bunkers and vessels' port agent"

in Saudi Arabia. The mv Fidias is owned by Compania Makedonia de Navegacion SA carrying on business at and through their agents, Fafalios Shipping SA in Piraeus, Greece. The mv Fidias C was under charter to Alsa Schifffahrtsgesellschaft GmbH of Bremen, Germany. During September and October 1983 and at Dammam, in Saudi Arabia, the plaintiff, at the instance and on the instructions of the charterer (Alsa), rendered certain services, paid certain port expenses and supplied bunkers and fuel to the vessel amounting, in all, to US$220 907,84. This sum has never been paid to the plaintiff. In terms of the D charterparty such payment was the exclusive responsibility of the charterer. The charterer has in the meantime been placed under liquidation. The plaintiff now looks to the defendant for payment. It moved to attach and arrest the vessel at Durban. The arrest of the vessel was averted only by an undertaking given by the defendant on conditions acceptable to the E plaintiff.

The plaintiff, in order to succeed in an admiralty action in rem in this jurisdiction, must prove that a maritime lien came into existence when the goods and the services in question were supplied to the vessel in Saudi Arabia (s 3 (4) (a)). The plaintiff's claim undoubtedly conforms to the statutory description of a maritime claim which is defined, inter alia, F as "any claim in respect of goods supplied or services rendered to a ship for the employment or maintenance thereof" (s 1 (1) (ii) (l)). A maritime lien is a secured maritime claim which originates in a particular manner. English law at present recognises a numerus clausus of maritime liens, restricted to G debts incurred in respect of or occasioned by the vessel and which may arise, to employ South African legal terminology, ex contractu (such as seaman's and master's wages), ex delicto (collision damage) or quasi ex contractu (for instance master's disbursements and claims for salvage). (See Bankers Trust International Ltd v Todd Shipyard Corporation; The Halcyon Isle H [1980] 3 All ER 197 (PC) (1980 Lloyds Rep 326).) A maritime lien attaches to the vessel, her apparel or cargo, as the case may be, and follows the res, regardless of any change in the ownership thereof. In Gulf Oil Trading Co and Others v The Fund Comprising the Proceeds of the Sale of the MV Emerald Transporter; Irving Trust Co v Gulf Trading Co and Others; Gulf Oil Trading Co and Others v The Fund Comprising the Proceeds of I the Sale of the MV Jade Transporter J [*], an as yet unreported judgment of the Full Bench of this Division, HOWARD J declared at 142B:

"Without attempting to define the concept, I think it is trite to say that a maritime lien is a charge in the nature of a jus in re aliena which encumbers the ship against or in respect of which the claim lies."

Nienaber J

A The claim of a so-called "necessaries man", who supplies goods and services to the vessel not falling under any of the other recognised categories, is regarded as a maritime lien in American admiralty jurisdiction (see The Emerald Transporter (supra at 16)) but not according to English law (Johnson v B Black: The Two Ellens (1872) LR 4 PC 161). In England he must enforce his claim by an action in personam against the debtor and not by an action in rem against the vessel. The plaintiff's claim in this case would therefore not qualify as a maritime lien according to English domestic law.

English law is relevant because of s 6 of the Act. The relevant C subsections thereof provide as follows:

"6 (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 commencement of this Act, apply the law D 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, 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.

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

Counsel for the plaintiff seized on this section to support his contention that the claim of a necessaries man does qualify as a maritime lien for the purpose of a South African tribunal.

The argument is a two-fold one:

1.

The Act itself, properly construed, recognises the claim of a necessaries man as a maritime lien. F

2.

In any event the law of Saudi Arabia, which is the proper law of the contract governing the supply of goods and services to the vessel - that was common cause in this G case - treats the claim of the necessaries man as a maritime lien; English law, while not recognising it as such for its own domestic purposes, would have respected Saudi Arabian law in this regard; by virtue of s 6 of the Act this Court is enjoined to follow suit; consequently the claim of the plaintiff must be recognised as a maritime H lien and be enforced as such in this jurisdiction.

I deal with each of these arguments in turn.

Ad 1: "The provisions of the Act...