The Owners Master and Crew of the SS "Humber" v the Owners and Master of the SS "Answald"

• Jurisdiction: South Africa
• Judge: Coram Innes ACJ, Solomon J, CG Maasdorp JP, J De Villiers JP and Wessels J
• Judgment Date: 23 September 1912
• Citation: 1912 AD 546
• Hearing Date: 18 September 1912
• Court: Appellate Division

Innes, A.C.J.:

The facts of this dispute are very fully stated in the reasons of the trial Court. A collision occurred in February last between the steamers concerned at or near the mouth of the Elbe. The incident formed the subject of an investigation before the Sea Court at Hamburg, and the finding of that tribunal (regarding whose powers and jurisdiction we possess no accurate information), was to the effect that the collision had resulted from unavoidable accident. In April, the Answald put in to Durban harbour, and at the instance of the appellants she was provisionally arrested to found jurisdiction in a suit for damages to be instituted by edictal citation. The rule however was discharged by the Provincial Division, subject to the deposit of security to the amount of £10,000 for the due performance by the respondents of any order which this Division might make; and the present appeal is against the order so discharging it. That order, though interlocutory in form, was appealable without special leave (see Steytler v Fitzgerald, 4 Buch., A.C. 479; 1911 AD 295); and the point to be decided is whether the Natal Provincial Division has, either apart from, or with the assistance of, the machinery of arrest, jurisdiction to entertain a personal action between two peregrini, in respect of a tort committed outside its territorial limits.

The powers of that Division, standing as it does in the place of the late Supreme Court, are set out in section 6 of Act No. 39, 1896 (Natal). It is to have "jurisdiction in all causes . . . . . arising within the said Colony, and jurisdiction over all His Majesty's subjects and all other persons whomsoever within the said Colony." In the recent case of Beckett & Co. v Kroomer (10th July, 1912), we had to consider the meaning and effect of

Innes, A.C.J.

section 16 of the Transvaal Administration of Justice Proclamation, the provisions of which are practically identical with those of the clause just quoted. The only difference between the two is that in the Transvaal statute the words "residing or being" occur after the word "whomsoever"; but as no person could possibly be described as "within the said Colony" without "residing or being" there, it is clear that the effect of the two statutes is, for all practical purposes, the same. The conclusion come to in Beckett's case was that the expression "causes arising" formed the dominating feature of the section; and that when a Court was given unlimited jurisdiction in all "causes arising" within, a certain area, that amounted to a jurisdiction to entertain all suits for which, by the common law of the Colony, the highest Court of first...