South African admiralty law assists those who have a claim against shipowners by granting claimants the entitlement to arrest a ship that enters its jurisdiction. Such action may be taken by virtue of the South African Admiralty Regulation Act, No. 105 of 1983 (the “Act”) which effectively prevents a ‘guilty’ ship from legally departing from the jurisdiction by means of a warrant of arrest of the vessel. Such warrant of arrest may be issued whilst court action is pending, irrespective of the flag she is sailing under.
A comprehensive number of incidents trigger the application of an arrest of a vessel as contemplated in section 1 of the Act, such as claims relating to:
- the ownership of a ship or a share in a ship;
- the possession, delivery, employment or earnings of a ship;
- any mortgage, hypothecation, right of retention, pledge or other charge on or off a ship, and any bottomry or respondentia bond;
- damage caused by or to a ship, whether by collision or otherwise;
- loss of life or personal injury caused by a ship or any defect in a ship or occurring in connection with the employment of a ship;
- loss of or damage to goods (including the baggage and the personal belongings of the master, officers or seamen of a ship) carried or which ought to have been carried in a ship; or
- salvage; etc.
The ways in which one may arrest a ship in South Africa are as follows:
Arrest in rem:
A maritime claim may be enforced by an action ‘in rem’ if the claimant has a maritime lien as recognised by the Act over the property to be arrested. These are for seamen’s and master’s wages; salvage; damage received by or done by a ship; and bottomry and respondentia bonds. Alternatively, an arrest may be made where the owner (or demise charterer) of the property to be arrested would be liable to the claimant in an action ‘in personam’ where he/she would be personally liable in a direct action against them.
Arrest in personam:
An arrest ‘in personam’ may occur when the Defendant is a:
- person resident or carrying on business at any place in South Africa;
- person whose property within the Court’s area of Jurisdiction has been attached by the claimant to found or confirm jurisdiction;
- person who has consented or submitted to the jurisdiction of the Court;
- if the court has jurisdiction over him or her in terms of Chapter lV of the Insurance Act, No. 27 of 1943, which relates to business underwritten by underwriters at Lloyds; or
- company, if the company has a registered office in South Africa.
The property arrested may be any property belonging to the defendant and may include bunkers, rights to freight or hire due (which are situated where the defendant’s debtor is located), rights to monies in a bank account, and rights in a pending action against a fund.
MORE CATEGORIES IN PART 2 – make sure you read it.
Please note that the above article is not intended to represent an exhaustive or all-inclusive synopsis of all the aspects relating to maritime ship arrests in South Africa as same has been simplified for the purposes of this publication. It should furthermore not be assumed that there have not been further developments in the law subsequent to the publication hereof. Readers are therefore cautioned to seek legal assistance before taking any decisions based on the information herein.
About the Author – Kavisha Baboolal :
Kavisha Baboolal is an attorney with over four years’ experience in the legal industry, holding an LLB degree and a Masters in Maritime Commerce.
She has worked
- as a Judge’s Associate at the Durban Labour Court
- as a Legal Adviser at Mediterranean Shipping Company (Pty) Ltd.
- in the shipping, energy and trade department at Garlicke & Bousfield Inc
- part-time at the University of KwaZulu-Natal as a researcher, lecturer and supervisor of masters’ dissertations.
She has also lectured on Fundamental Human Rights at Varsity College.
Her experience includes maritime and logistics claims, company formation and restructuring, mergers and acquisitions, and other corporate and commercial matters.