Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar Srl v MV Andrico Unity and Others

JurisdictionSouth Africa
JudgeCorbett JA, Hoexter JA, Grosskopf JA, Milne JA and Nicholas AJA
Judgment Date29 March 1989
Citation1989 (4) SA 325 (A)
CourtAppellate Division

Corbett JA:

On 5 April 1984 the motor vessel Andrico Unity ('the vessel'), while in Table Bay Harbour, was arrested in an action in rem in pursuance of an order granted in the Cape of Good Hope G Provincial Division, in the exercise of that Court's admiralty jurisdiction in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act'). The order of arrest was made at the instance of Grecian-Mar SRL ('Grecian-Mar') of Buenos Aires, Argentina, which claimed in the action payment of US $22 071,10 in respect of H necessaries, being stores and provisions, supplied to the vessel by Grecian-Mar at the ports of Villa Constitucion and Buenos Aires in Argentina during November 1983. On 13 April 1984 the vessel was also arrested in rem by order of the same Court at the instance of Transol Bunker BV ('Transol') of Ridderkerk, Holland, which claimed in its action payment of US $73 554,35 in respect of bunkers (fuel oil and gas I oil) supplied to the vessel during November 1983, also at Villa Constitucion and Buenos Aires.

The vessel was released from arrest after security had been furnished. Thereafter the owners of the vessel, a Panamanian company known as Geranium Maritime SA, made separate applications for the discharge of J the orders of arrest. The applications were heard simultaneously by Marais

Corbett JA

A J inasmuch as the issues arising were the same in both applications. The learned Judge granted the applications with costs. His careful and comprehensive judgment has been reported: see Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1987 (3) SA 794 (C). I shall call this 'the reported judgment'. With B leave of the Court a quo Grecian-Mar and Transol now appeal to this Court against the whole of the judgment and order of Marais J.

By agreement between the parties the issues which the Court a quo was asked to decide were limited to two (see reported judgment at 789F - H). The appeal related only to the second of these issues. Before stating this issue it is necessary to refer to certain provisions of the C Act and some of the background facts.

The object of the Act, according to its long title, is to provide for the vesting of the powers of the Admiralty Courts of the Republic in the Provincial and Local Divisions of the Supreme Court, and for the extension of these powers; for the law to be applied by, and the procedure applicable in, these Divisions; for the repeal of the D Colonial Courts of Admiralty Act 1890, of the United Kingdom, insofar as it applies to the Republic; and for incidental matters. Prior to the commencement of the Act on 1 November 1983 the position was as set out in Malilang and Others v MV Houda Pearl 1986 (2) SA 714 (A) at 722J - E 723C. That is, the jurisdiction of the South African Courts of admiralty was governed by the Colonial Courts of Admiralty Act 1890, of the United Kingdom, which conferred upon them the same admiralty jurisdiction as that enjoyed by the English High Court as it existed in 1890. And the law to be applied was English admiralty law as administered by the English High Court exercising admiralty jurisdiction in 1890.

F The vesting of the powers of the old South African Admiralty Courts in the Provincial and Local Divisions of the Supreme Court of South Africa is effected by s 2 of the Act, which decrees that they

'... shall have jurisdiction... to hear and determine any maritime claim...'.

The definition of 'maritime claim' in s 1(1) of the Act contains, G in subparas (a) - (z) inclusive, a long list of such claims. In terms of s 3 a maritime claim may be enforced by either an action in personam or an action in rem. Section 3(4) and (5), dealing with actions in rem, provides as follows:

'(4) Without prejudice to any other remedy that may be available to a claimant or to the rules relating to the joinder of causes of action, a maritime claim may be enforced by an action in rem -

(a)

H if the claimant has a maritime lien over the property to be arrested; or

(b)

if the owner of the property to be arrested would be liable to the claimant in an action in personam in respect of the cause of action concerned.

(5) An action in rem shall be instituted by the arrest within the area of jurisdiction of the Court concerned of property of one or more of the following categories against or in respect of which the claim lies:

(a)

I the ship, with or without its equipment, furniture, stores or bunkers;

(b)

the whole or any part of the equipment, furniture, stores or bunkers;

(c)

the whole or any part of the cargo;

(d)

the freight.'

Both Grecian-Mar and Transol rely, at this stage at any rate (see J the reported judgment at 796I - 797B), on the provisions of s 3(4)(a) in order

Corbett JA

A to sustain the actions in rem brought by them. This requires the claimant to have a maritime lien over the property to be arrested, in this case the vessel.

The term 'maritime lien' is not defined in the Act. Apart from s 3(4)(a), it occurs in two other provisions of the Act. Firstly, among the maritime claims listed in s 1(1) - under the definition B of 'maritime claim' - is:

'(v)

any claim relating to any maritime lien, whether or not falling under any of the preceding paragraphs'.

And, secondly, s 11 (which deals with the ranking of claims in regard to a 'fund in a Court' resulting from the sale of arrested property in terms of s 9 or in regard to security given in respect of property C in connection with a maritime claim or in regard to the proceeds of property sold pursuant to an order or in the execution of a judgment of a Court in terms of the Act) lists in ss (1)(e)

'claims in respect of any maritime lien not falling under any category mentioned in any of the preceding paragraphs'.

D Thus the maritime lien is by definition a type of maritime claim and its importance lies in the facts that:

(a)

it constitutes one of the bases upon which a claimant may found an action in rem (s 3(4)(a)); and

(b)

it confers a certain preference in the ranking of claims in E terms of s 11.

I shall later examine more closely the nature of the maritime lien. At this stage, and in order to delineate the problem which arises in this appeal, it suffices to say that in maritime law the term 'maritime lien' denotes a legal concept which appears to have originated in the 19th F century and which is to be found, sometimes in a slightly different guise or under a different name, in the legal systems of many maritime countries. Different municipal systems of law (I use the word 'municipal' here in the conflicts sense: see Cheshire and North's Private International Law 11th ed at 3) accord the status of a maritime lien to different groups of maritime claims. Thus, for example, English admiralty law has limited the maritime lien to claims relating to G (1) salvage, (2) collision damage, (3) seaman's wages, (4) bottomry, (5) master's wages and (6) master's disbursements. Of these bottomry is now obsolete. (See Bankers Trust International Ltd v Todd Shipyards Corporation: The Halcycon Isle [1981] AC 221 (PC) ([1980] 3 All ER 197 (PC)) at 232h - 233a.)

H According to United States law, on the other hand, maritime liens arise from a far wider range of maritime claims, both in contract and in tort (see 70 American Jurisprudence 2nd, 559; Gilmore and Black The Law of Admiralty 2nd ed at 627 - 33). The essential effect of a maritime lien, in English admiralty law at any rate, is that it attaches ex lege to the ship or other property (for convenience I shall merely refer to I the ship) in respect of which the maritime claim arose and it follows the ship, irrespective of changes in ownership or possession, and irrespective of the state of knowledge of the new owner or possessor. The lien does not depend on the lienee (the holder of the lien) acquiring or retaining possession of the ship. As I have indicated, it enables the lienee to bring an action in rem, even though no claim J in personam lies against the owner of the ship, and it

Corbett JA

A confers upon the lienee a certain preference when the ship is sold and there is a limited fund for the satisfaction of creditors' claims. The lien is asserted by the arrest of the ship in a proceeding in rem and it then relates back to the time when it first attached.

As regards the law to be applied by a South African Court B exercising admiralty jurisdiction since 1 November 1983, s 6(1) of the Act provides as follows:

'(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 C 1890, of the United Kingdom, had jurisdiction immediately before the commencement of this Act, apply the law 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, insofar as that law can be applied;

(b)

with regard to any other matter, apply the Roman-Dutch law D applicable in the Republic.'

I shall discuss these provisions later.

In the present case Grecian-Mar and Transol instituted their respective actions in rem by causing the Andrico Unity to be arrested by order of the Court a quo on the basis of their respective claims for E the price of stores and provisions and bunkers supplied to the vessel in Argentina. Their claims for the price of the goods supplied undoubtedly constituted maritime claims within the definition in s 1(1) of the Act. This is not in dispute. The question, however, is whether these claims gave rise to the maritime liens, thus grounding the claim by each of F the appellants to be entitled to institute...

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43 practice notes
  • The Shipping Corporation of India Ltd v Evdomon Corporation and Another
    • South Africa
    • Invalid date
    ...Legal Words and Phrases vol 2 at 394-5; Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 329G-I, 334H-335C; s 2(2) of the Colonial Courts of Admiralty Act, 1890; Shaw Admiralty Jurisdiction and Practice in South Africa at ......
  • Maritime liens and the conflict of laws - an exegesis of The Halcyon Isle and preceding Anglo-common law decisions
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...the distributing court makes about the nature and signif‌icance of the maritime claims before it, which in this case was a contest 250 1989 (4) SA 325 (A). See paragraph 10.3.5.251 See JC Sweeney, “The Silver Oar and Other Maces of the Admiralty: Admiralty Jurisdiction in America and the Br......
  • Maritime liens and the conflict of laws - an exegesis of the Anglo-common law decisions after The Halcyon Isle
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...elsewhere, even if it would not, in its own right, qualify as a maritime lien locally.”269 1987 (3) SA 794 (C).270 The Andrico Unity 1989 (4) SA 325 (A) at 330.271 MWH Posemann, “Maritime Lien: Enforcement in South Africa − Government by the lex fori” [1988/89] 7(3) Oil & Gas Law and Taxati......
  • Weissglass NO v Savonnerie Establishment
    • South Africa
    • Invalid date
    ...Others 1987 (3) SA 794 (C) at 799C-J; Transol Bunker BV v MV Andrico Unity and G Others; Grecian Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 330B-C; Rennie NO v South African Sea Products Ltd 1986 (2) SA 138 (C); Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348B-349D; C......
  • Request a trial to view additional results
35 cases
  • The Shipping Corporation of India Ltd v Evdomon Corporation and Another
    • South Africa
    • Invalid date
    ...Legal Words and Phrases vol 2 at 394-5; Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 329G-I, 334H-335C; s 2(2) of the Colonial Courts of Admiralty Act, 1890; Shaw Admiralty Jurisdiction and Practice in South Africa at ......
  • Weissglass NO v Savonnerie Establishment
    • South Africa
    • Invalid date
    ...Others 1987 (3) SA 794 (C) at 799C-J; Transol Bunker BV v MV Andrico Unity and G Others; Grecian Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 330B-C; Rennie NO v South African Sea Products Ltd 1986 (2) SA 138 (C); Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348B-349D; C......
  • The Seaspan Grouse - Seaspan Holdco 1 Ltd and Others v MS Mare Tracer Schiffahrts and Another
    • South Africa
    • Invalid date
    ...1973 (1) SA 462 (T): referred to D Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A): referred Wahloo Sand BK en Andere v Trustees, Hambly Parker Trust en Andere 2002 (2) SA 776 (SCA): referred to Wary Holdings (Pty) Ltd v Sta......
  • MV Nyk Isabel Northern Endeavour Shipping Pte Ltd v Owners of MV Nyk Isabel and Another
    • South Africa
    • Invalid date
    ...Bulk SA 1997 (2) SA 454 (D): approved Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others H 1989 (4) SA 325 (A): referred to Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240; [2005] ZASCA 1......
  • Request a trial to view additional results
8 books & journal articles
  • Maritime liens and the conflict of laws - an exegesis of The Halcyon Isle and preceding Anglo-common law decisions
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...the distributing court makes about the nature and signif‌icance of the maritime claims before it, which in this case was a contest 250 1989 (4) SA 325 (A). See paragraph 10.3.5.251 See JC Sweeney, “The Silver Oar and Other Maces of the Admiralty: Admiralty Jurisdiction in America and the Br......
  • Maritime liens and the conflict of laws - an exegesis of the Anglo-common law decisions after The Halcyon Isle
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...elsewhere, even if it would not, in its own right, qualify as a maritime lien locally.”269 1987 (3) SA 794 (C).270 The Andrico Unity 1989 (4) SA 325 (A) at 330.271 MWH Posemann, “Maritime Lien: Enforcement in South Africa − Government by the lex fori” [1988/89] 7(3) Oil & Gas Law and Taxati......
  • List of cases
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...Unity, The 1987(3) SA 794 (C), see also Transol Bunker BV v MV Andrico Unity, Grecian Mar SRL v MV Andrico UnityAndrico Unity, The 1989(4) SA 325 (A), see also Transol Bunker BV v MV Andrico Unity, Grecian Mar SRL v MV Andrico Unity Andromeda Marine SA v OW Bunker & Trading A/S [2006] 2 Llo......
  • The early English Admiralty Court and the conceptualisation of the maritime lien : an historical conspectus
    • South Africa
    • Transactions of the Centre for Business Law No. 2011-47, January 2011
    • 1 January 2011
    ...Court of South Africa (Juta & Co, Kenwyn, 1997) 1182.407 Transol Bunker BV v MV Andrico Unity; Grecian Mar SRL v MV Andrico Unity 1989(4) SA 325 (A) at 331 to 2225.8.2 Some Non-judicial Def‌initionsIn The Law of Money Securities, Cavanagh def‌ined a maritime lien as “a right specif‌ically b......
  • Request a trial to view additional results

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