Weissglass NO v Savonnerie Establishment

• Jurisdiction: South Africa
• Citation: 1992 (3) SA 928 (A)

Weissglass NO v Savonnerie Establishment
1992 (3) SA 928 (A)

1992 (3) SA p928

Citation	1992 (3) SA 928 (A)
Court	Appellate Division
Judge	Corbett CJ, E M Grosskopf JA, Nestadt JA, Van den Heever JA, Howie AJA
Heard	March 10, 1992
Judgment	May 29, 1992

Flynote : Sleutelwoorde G

Shipping — Maritime claim — What constitutes — Claim for necessaries — H Subparagraph (z) of definition of 'maritime claim' in s 1(1) of Admiralty Jurisdiction Regulation Act 105 of 1983 — Subparagraph (z) enjoins South African Admiralty Court to apply principles of law relating, inter alia, to claims for necessaries supplied to ships which English Court would have applied in 1890 to 'any claim not falling under the previous paragraphs' I — 'Necessaries' being whatever owner of vessel, as prudent man, if present, would have ordered as being fit and proper for service on which vessel engaged — Three categories of person having claim for necessaries — Firstly, those who supply necessaries, the so-called 'necessaries men' — Secondly, person who pays for necessaries (usually shipowner's agent) J — Immaterial that agent's claim is for reimbursement in

1992 (3) SA p929

A respect of necessaries paid for by agent in accordance with prior mandate after their supply by necessaries man — Thirdly, person who advances money to enable necessaries not only to be paid for, but also to be obtained — Person who advances money by way of reimbursement (usually to agent) for necessaries already supplied will not, unless he had before B their procurement undertaken to pay for them, have maritime claim for necessaries.

Shipping — Maritime claim — What constitutes — Claim for necessaries — Subparagraph (l) of definition of 'maritime claim' in s 1(1) of Admiralty Jurisdiction Regulation Act 105 of 1983 — 'Any claim in respect of goods C supplied or services rendered to a ship for the employment or maintenance thereof' — To be interpreted as equivalent to claim for necessaries — Neither language of sub- para (l) nor any other consideration justifying subpara (l) being given extended meaning to include advances to reimburse shipowner's agent in respect of necessaries already supplied.

D Shipping — Maritime claim — Whether decision of Court, in granting attachment order, that applicant has maritime claim is appealable - Section 7(2) and (4) of Admiralty Jurisdiction Regulation Act 105 of 1983 requires Court to classify claim, which means that Court has to reach decision on merits — Application for attachment, being brought ex parte and adjudicated on affidavits, involves no decision on merits — Decision E that applicant's claim a maritime claim for purposes of granting attachment order thus appealable in terms of s 12 of Act.

Shipping — Admiralty action in personam — Attachment of vessel in terms F of s 4(4)(a) of Admiralty Jurisdiction Regulation Act 105 of 1983 — Save possibly where application for attachment abuse of process of Court or in some other exceptional case, remedy not discretionary one — Use of 'may' in section not conclusive of Legislature's conferring discretion — In this instance, 'may' indicating conferral of power coupled with duty to use it. G

Headnote : Kopnota

By virtue of subpara (z) of the definition of 'maritime claim' in s 1(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, those principles of law relating, inter alia, to claims for necessaries supplied to ships which the English Court would have applied in 1890 are applicable to 'any claim not falling under the previous paragraphs' of the definition of 'maritime claim'. The source of those principles is two English Admiralty Court Acts: one dating from 1840 in terms of which jurisdiction is H conferred to decide 'all claims . . . for necessaries supplied to any foreign ship or sea-going vessel'; the other, dating from 1861, in terms of which jurisdiction is extended 'over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs'. The English Courts have adopted the definition of 'necessaries' as meaning whatever the owner of a vessel, as a prudent man, if present, would have ordered as being 'fit and proper for the service on which a vessel is engaged'. That definition has been applied by South African Courts. There I are three categories of person who may have the right to claim for necessaries. Firstly, those who supplied the necessaries, the so-called 'necessaries men', have a claim. Secondly, the person who pays for necessaries supplied to a ship has as good a claim as the person who actually supplied them (this person would usually be the shipowner's agent). There is a qualification to the right to claim on this basis, namely where the agent has agreed to look to the personal liability of the J principal alone. On the other hand it is immaterial that the

1992 (3) SA p930

A agent's claim against the shipowner is for reimbursement in respect of necessaries paid for by the agent in accordance with his prior mandate after their supply by the necessaries man. The third class of person who may have a claim for necessaries supplied to a ship is the person who advances money to enable the necessaries not only to be paid for, but also to be obtained. Only then is there a claim for necessaries. A person who advances money (usually to the ship's agent) by way of reimbursement for B necessaries which have already been supplied will not, unless he had before their procurement undertaken to pay for them, have a claim for necessaries within the meaning of the 1840 and 1861 Acts.

The respondent, a Liechtenstein corporation carrying on business as a financier, had obtained an order in a Provincial Division for the attachment of two motor fishing vessels then berthed at the Table Bay dock C in Cape Town and owned by an Israeli company, Atlantic, to found jurisdiction in an action which the respondent wished to institute against Atlantic for the amounts of US$300 000 and US$45 000. The order of attachment had been obtained ex parte. The appellant, who had been appointed the 'receiver' of Atlantic (this would appear to correspond to a South African judicial manager), applied to have the attachment set aside. His application was dismissed and the attachment of the vessels to found jurisdiction remained in force.

In an appeal from the dismissal of the application to have the attachments set aside, the main issue was whether the application to attach the two D vessels had correctly been granted. Where both parties, as in this instance, were peregrini to the Republic as a whole, the existence of a maritime claim was a fundamental prerequisite to the exercise by the Court of its admiralty jurisdiction. The respondent founded its claims on subparas (l) and (z) of the definition of 'maritime claim' in s 1(1) of Act 105 of 1983. Subparagraph (l) spoke of 'any claim in respect of goods supplied or services rendered to a ship for the employment or maintenance E thereof'. The respondent's case was that it had lent to Atlantic the sums claimed, giving rise to maritime claims which it had been entitled to enforce, in reliance upon s 3(2)(b) read with s 4(4)(a) of the Act, by an action in personam against Atlantic. The following were undisputed facts. Atlantic's agent in Cape Town, QLM, handled the provisioning of its vessels, their bunkering and repairs, port facilities, the hiring of crew and the shipment to Israel of fish caught. By early 1985 Atlantic's financial position had deteriorated to the extent that it owed QLM certain F moneys in respect of disbursements already made; a number of accounts for services rendered to Atlantic's vessels were due for payment; and vessels could not be provisioned and fitted in order to be put to sea. QLM demanded from Atlantic a guarantee for US$300 000, failing which it would refuse to disburse any further amounts on Atlantic's behalf. These further amounts included an amount of R484 000 which, in terms of an itemised bill compiled by Atlantic's Cape Town manager, was required for goods and G services to enable one of the vessels to be put to sea. The guarantee was furnished at the instance of the respondent, whose chief executive officer was also Atlantic's chief executive officer and a substantial minority shareholder in Atlantic. Following upon the furnishing of the guarantee QLM made the necessary disbursements to enable Atlantic's vessels to be put to sea. By April 1985 Atlantic owed QLM R704 000, and QLM indicated that it would 'call up' the guarantee unless Atlantic discharged its indebtedness. In May the bank paid QLM US$300 000, which was equivalent to H R574 162,68, and QLM released the bank from its guarantee.

As to the respondent's claim for US$45 000, Atlantic ran an account with an oil company for the bunkering of its vessels. By May 1985 Atlantic had reached its credit limit and it was informed that no further bunkers would be supplied unless a 'cash payment' was made. An amount of US$45 000 was transferred from a bank in Israel to QLM's bank account in Cape Town and, on Atlantic's instructions, QLM then paid to the oil company the sum of R80 000 on Atlantic's behalf. I

The appellant argued, inter alia, that s 4(4)(a) of the Act afforded the Court a discretion whether or not to grant an attachment order and that the Court should have exercised its discretion against the respondent. It submitted, further, that the payments in question had not given rise to a maritime claim. On the respondent's behalf it was argued that the Court which had originally granted the attachment order had decided that the respondent's claims were maritime claims and, in terms of s 7(2) and (4) J of the Act, that that finding was not appealable.

1992 (3) SA p931

A Held, that, save possibly where an application for attachment was an abuse of the Court's process or in some other...