Protective writ set aside on basis that vessel no longer owned by entity liable
Creditors of Hanjin Shipping issued protective writs out of various South African courts against more than 70 Hanjin beneficially owned ships to facilitate their arrest in rem, as associated ships, when they called at local ports.
Tebtale, owners of Mount Meru, one of the vessels affected, applied to have her removed from the list.
Tebtale had purchased the Mount Meru after the issue of the writs and were not liable in personam to the particular creditor in question.
The Mount Meru found its way onto the list as a ship associated with the Mare Traveller, the vessel against which the creditor had a claim in personam.
Burger AJ granted an order removing the Mount Meru from the list.
Burger AJ’s reasoning is unsatisfactory.
In South Africa, admiralty, actions in rem are governed by provisions of the Admiralty Jurisdiction Regulation Act 105 of 1983. Relevant to the issue are:
- s 1 2 a, which provides that an admiralty action shall . . . commence, i by the service of any process by which that action is instituted; [or]
. . . iii by the issue of any process for the institution of an action in rem;
- s 3 4 b, which requires the claimant to establish that the owner of the ship would be liable to the claimant in an action in personam; and
- s 3 7 a i, which provides that an associated ship means a ship, other than the ship in respect of which the maritime claim arose . . . owned, at the time when the action is commenced, by the person who was the owner of the ship concerned at the time when the maritime claim arose [emphasis added]
Burger AJ was of the view that that requirement for the commencement of action had to be the same for both the action in rem procedure, s 3 4 b, and the associated ship provision, section 3 7 a i.
The conflation of the two sections was the foundation of the error (the opinion of this writer) which followed.
A claim under section 3 4 b against a chattel, ie a vessel, required the existence of a claim in personam, and could, as a matter of practicality, not proceed without the arrest of the vessel.
Because the requirements for 3 4 b and 3 7 a i had to be the same, it followed that 3 7 a i also required the arrest of the vessel.
This reasoning is directly counter to the parties’ agreement that the Mount Meru was an associated vessel when the writ was issued. The basis of the protective writ practice is the recognition that the mere issue of a writ establishes a right.
The root of the problem was the failure to recognise the difference between “enforcement” of a claim under 3 4 b and “commencement of action” under 3 7 a i.
The two sections involved similar, but different, remedies.
As in the Monica S there was extended reference to old authorities and recourse to principle, futile, because the ultimate effect of the two rival positions was the same.
Burger J’s conclusion has been endorsed by the SCA in the Seaspan Grouse.
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