Southern Steamship Agency Inc and Another v MV Khalij Sky

• Jurisdiction: South Africa
• Judge: Munnik JP
• Judgment Date: 15 March 1984
• Hearing Date: 10 August 1981
• Court: Cape Provincial Division

Southern Steamship Agency Inc and Another v MV Khalij Sky
1986 (1) SA 485 (C)

1986 (1) SA p485

Citation	1986 (1) SA 485 (C)
Court	Cape Provincial Division
Judge	Munnik JP
Heard	August 10, 1981
Judgment	March 15, 1984

Flynote : Sleutelwoorde

B Shipping — Admiralty action in rem — Maritime lien — Such a limited right of property securing and travelling with a maritime claim — If Admiralty Court has jurisdiction to entertain the claim, it will not disregard the lien — Maritime lien validly conferred by lex loci as much part of the C claim as is a mortgage similarly valid by the lex loci.

Headnote : Kopnota

A maritime lien is a right of property given by way of security for a maritime claim. If an Admiralty Court has jurisdiction to entertain the claim, it will not disregard the lien. A maritime lien validly conferred by the lex loci is as much part of the claim as is a mortgage similarly valid by the lex loci. Each is D a limited right of property securing the claim. The lien travels with the claim as does the mortgage and the claim travels with the ship.

Bankers Trust International Ltd v Todds Shipyard Corporation; The Halcyon Isle [1980] 2 Lloyds LR 325 ([1980] 3 All ER 197 (PC)): dicta at 339 (Lloyds LR), 214g-h (All ER) approved and applied. E

Case Information

Application in terms of Rule 71 for the decision of a question of law. The facts appear from the reasons for judgment.

B Hoberman SC for the applicants.

D van Reenen for the respondent.

Cur adv vult. F

Postea (March 15).

Judgment

Munnik JP:

It is not necessary to set out in great detail the history of the proceedings in this matter since, by consent G between the parties, this Court, sitting as a Court of Admiralty, is required in terms of Rule 71 to decide a question of law which, in the circumstances of this case, it is convenient to have decided in the first instance. Briefly, the relevant facts are as follows.

Both applicants individually entered into contracts with the H head charterer and/or the subcharterer of the respondent vessel whilst it was in the port of New Orleans in the State of Louisiana in the United States of America, a port other than its home port, the contracts being respectively for agency services and disbursements for necessaries in the case of first applicant and stevedoring in the case of second applicant. I First applicant performed the services contracted for and in the result the head charterer and/or subcharterers became liable for the payment of certain sums of money specified in the papers but not admitted by respondent.

It is common cause that, according to United States law, both applicants have a maritime lien on the vessel in respect of the services and disbursements in question enforceable by an action in rem and this is so irrespective of whether credit was given J to the vessel or to the charterer.

1986 (1) SA p486

Munnik JP

A The enactment of the Colonial Courts of Admiralty Act of 1890 (53 & 54 Vict c 27) created every Court of law in a British possession with unlimited civil jurisdiction, a Court of Admiralty with the same jurisdiction as the Admiralty jurisdiction of the High Court in England. In effect, therefore, this Court has to apply the English Admiralty Law as B it was in July 1891. Our own Admiralty Jurisdiction Regulation Act 105 of 1983 does not apply in the instant matter since proceedings were commenced in 1980. The problem that arises, therefore, is to ascertain what English Admiralty Law on the point in issue was in July 1891. The task is not made easier by the fact that, whereas up to 1871 the concept of a C general maritime law as opposed to municipal law of States found favour in the British Courts, in the last quarter of the 19th century there emerged, as Thomas puts it in his work Maritime Liens (being vol 14 of the series British Shipping Laws), "a clear traditional repulsion against the notion of a distinct and separate code of maritime law". This attitude is expressed as follows by BRETT MR in The Gaetano and Maria 1882 D PD 137 at 142 where he says:

"It is not the ordinary municipal law of the country but it is the law which the English Court of Admiralty, under an Act of Parliament, by reiterating decisions and traditions and principles, has adopted as the English maritime law."

It is further expanded upon by Lord DIPLOCK in The Tojo Maru: Owners of Motortanker Tojo Maru (her cargo and freight) v NV E Bureau Wijsmuller 1972 CA 242 (HL) ([1971] 1 All ER 1110) in the following terms, in disagreeing with DENNING MR who had taken the opposite view in the same Court:

"Outside the special field of 'prize' in times of hostilities there is no 'maritime law of the world' as distinct from the internal municipal laws of its constituent sovereign States that is capable of giving rise to rights or liabilities F enforceable in English Courts. Because of the nature of its subject-matter and its historic derivation from sources common to many maritime nations, the internal municipal laws of different States relating to what happens on the seas may show greater similarity to one another than is to be found in laws relating to what happens upon land. But the fact that the consequences of applying to the same facts the internal municipal law of different sovereign States would be to give G rise to similar legal rights and liabilities should not mislead us into supposing that those rights or liabilities are derived from 'a maritime law of the world' and not from the internal municipal law of a particular sovereign State."

Thomas, at 317 para 567 of his work supra, cites the above passage and summarises its effect very well in the following terms:

"Today, therefore, it is plain that judicial reference to a H general maritime law is not an allusion to an esoteric and supra-national body of marine law to which the municipal law of sovereign States is subservient but simply a euphemism for the maritime law administered by the English Admiralty Court. Although historically English maritime law may have, in part, derived from a general maritime law and continues to be influenced by traditions of that code, no such distinct body of jurisprudence is now recognised. In the context of conflict of laws, any reference to a general maritime law is simply a I reference to the lex fori. Nonetheless, the judicial 'label', notwithstanding its propensity to mislead, survives and, in Oteri v The Queen, Lord DIPLOCK himself refers to the principles of 'the law of the sea' in determining the circumstances in which a ship is to be considered a British ship."

Although Thomas prefaces this paragraph with the word "today", what he says is applicable to the English admiralty law as it stood in July 1891 since it is prior to this date that the J repulsion of the "maritime law of the world" view occurred in British Courts.

1986 (1) SA p487

Munnik JP

Having said all this I return to the problem facing the Court A in this instant case. This Court is not bound by English decisions, although particularly in the field of admiralty law they have, if not what Mr Van Reenen for the present respondent called "compelling persuasive effect", at least strong persuasive effect. What would in a former era have been a decision binding in this Court decisive of the point in issue, B now falls to be closely examined to determine whether, in fact, the opinion of the majority of the Privy Council delivered by Lord DIPLOCK and concurred in by Lord ELWYN JONES and Lord LANE should be followed in preference to the minority view of Lord SALMON and Lord SCARMAN in Banker's Trust International Ltd v Todds Shipyard Corporation; The Halcyon C Isle [1980] 2 Lloyd's LR 325 ([1980] 3 All ER 197 (PC)) (hereinafter and generally referred to as The Halcyon Isle). There can be no doubt that, although in that case the noble Lords were concerned with the priority of a claim under a British mortgage over a ship and one for repairs which, under the United States law, amounted to a maritime lien, implicit in the judgment was a decision as to whether a right recognised as D a maritime lien by the lex loci contractus should be recognised in an English Admiralty Court as a maritime lien if under the lex fori, ie British law and in particular the English rules of conflict of laws, it would not be recognised as a maritime lien. That this is so appears unambiguously from E the following passage in the majority judgment at 332:

"In their Lordships' view the English authorities on close examination support the principle that, in the application of English rules of conflict of laws, maritime claims are classified as giving rise to maritime liens which are enforceable in actions in rem in English Courts where and only where the events on which the claim is founded would have given rise to a maritime lien in English law, if those...