Tharros Shipping Corporation SA v Owner of the Ship 'Golden Ocean'

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Leon J
• Judgment Date: 03 August 1972
• Citation: 1972 (4) SA 316 (N)
• Hearing Date: 24 July 1972

Leon, J.:

On 3rd July, 1972 the Assistant Registrar of this Court (sitting as a Court of Admiralty) issued a writ of summons in rem at the instance of the plaintiffs against the defendant. On that date and also at the instance of the plaintiffs, the Assistant Registrar issued a

Leon J

writ of arrest with respect to the ship Golden Ocean. These writs were served upon that ship on 4th July, 1972 and the ship was thereupon arrested.

The defendant's attorneys caused an appearance to defend the action to A be filed and served on behalf of the defendant on 6th July, 1972. That appearance was filed under protest, without prejudice to the defendant's right to object to the jurisdiction of this Court either to sit as a Court of Admiralty or to exercise the powers of a Court of Admiralty in respect of this action.

The ship has been under arrest since 4th July, 1972, and is still under arrest. It was scheduled to depart from Durban on 5th July, 1972, and B proceed to Cape Town to discharge cargo. By notice of motion dated 24th July, 1972, the defendant has applied for an order that the ship Golden Ocean be released from arrest forthwith and that the plaintiffs pay the costs of the application.

C It appears from the affidavit of the defendant's attorney, which was filed on behalf of the defendant, that while the ship remains under arrest the defendant is not only suffering a substantial loss of revenue but it is also incurring expenses for keeping the ship in harbour which amount to about R473 per day. From the defendant's point of view it is D clear that the application is one of considerable urgency and it was accordingly heard as an urgent application.

This Court was constituted as a Court of Admiralty by the Colonial Courts of Admiralty Act, 1890 (53 and 54 Vict.), when the Colony of Natal was a British possession. It is the defendant's case that, notwithstanding the provisions of sec. 135 of the South Africa Act, 1909, and sec. 107 of the Republic of South Africa Constitution Act, 32 E of 1961, inasmuch as Natal is no longer a British possession, this Court is not a Court of Admiralty and has no jurisdiction to sit as such. It is accordingly the defendant's case that the issue of the writ of arrest was ultra vires the Assistant Registrar and that, therefore, the arrest of the ship pursuant to such writ was unlawful.

In the alternative, the defendant contends that, upon a proper F interpretation of sec. 2 (2) of the Colonial Courts of Admiralty Act, the Admiralty jurisdiction of this Court:

(a)

is limited to the admiralty jurisdiction of the High Court of G England as it existed at the time of the passing of that Act (25th July, 1890) or at the time of its commencement;

(b)

does not embrace the extended Admiralty jurisdiction conferred upon the High Court of England by secs. 1 and 3 (4) of the Administration of Justice Act, 1956 (4 and 5 Eliz. Chap. 46).

It is common cause in this case that, prior to the commencement of the H Administration of Justice Act, 1956, the Admiralty jurisdiction of the High Court of England did not extend to or permit the arrest in an action in rem of a ship of a defendant unless the cause of action sued upon arose in respect of that ship. The effect of sec. 3 (4) of that Act was to confer, for the first time in England, jurisdiction to arrest either the ship in respect of which the cause of action is alleged to have arisen or any other ship in the same ownership.

'That sub-section... is a sub-section introduced for the purpose of enlarging the Admiralty jurisdiction of the Court. As I view it, its purpose is to confer,

Leon J

for the first time in England, the right to arrest either the ship in respect of which the cause of action is alleged to have arisen or any other ship in the same ownership'

- per WILLMER, J., in The St. Elefterio, 1957 P. 179 at p. 185. In The A Beldis, 1936 P. 51, it was held that the procedure in rem in the Admiralty Court at that time did not permit the arrest of a ship or other property of a defendant unconnected with the cause of action.

It appears both from the statement of claim annexed to the writ of summons as well as from the affidavit of one Hellberg, pursuant to which B the writ of arrest was issued, that the Golden Ocean is not the ship in connection with which the claim of the plaintiffs arose. That claim concerns the vessel Irene Xilas which was chartered by the plaintiffs to Golden Buffalo Shipping Corporation. It is also common cause that the claim is one in rem which is manifestly the case. In these circumstances it follows that, if the defendant's alternative C contention which concerns the proper interpretation of sec. 2 (2) of the Colonial Courts of Admiralty Act is correct, the argument concerning that sub-section must be upheld. I defer for the moment further consideration of that aspect of the case.

D Finally, it was the defendant's further alternative contention that, if the Admiralty jurisdiction of this Court does embrace the extended Admiralty jurisdiction conferred upon the High Court of England by secs. 1 and 3 (4) of the Administration of Justice Act, 1956, the affidavit or affirmation of Chu Chi Tao filed in these proceedings established that:

(i)

E the ship Golden Ocean is, and has, at all material times, been owned by Golden Ocean Shipping Corporation, a Liberian corporation with limited liability;

(ii)

the ship is not beneficially owned in respect of all the shares therein by Chu Chi Tao or Golden Buffalo Shipping Corporation or any person other than Golden Ocean Shipping Corporation.

F When the matter was called, Mr. Fagan, on behalf of the plaintiffs, applied for an adjournment of 14 days in order to reply to the abovementioned allegations which he said were in dispute. Mr. Howard, who appeared on behalf of the defendant, thereupon abandoned, for the G purposes of this application, the defendant's final contention and the necessity for an adjournment fell away. Thereafter it was agreed between counsel that the application proceed on the two legal issues which...