MS "Bonanza" Schiffahrtgesellschaft mbH & Co, KG and Another v Durban Coal Terminal Company (Pty) Ltd t.a Bulk Connexions and Another (A50/2017) [2018] ZAKZDHC 6 (29 March 2018)

Parties

Procedural Posture

Admiralty Application / Judgment on Application for Declaratory Relief and Limitation of Liability

Legal Issues

1. 1 Whether the applicants are entitled to a declaratory order limiting their liability under section 261 of the Merchant Shipping Act for claims arising from the collision in Durban port.
2. 2 Whether the South African limitation of liability applies to claims instituted in foreign jurisdictions by the first respondent.
3. 3 Whether the first respondent qualifies as a claimant in the South African jurisdiction for purposes of section 261.

Ratio Decidendi

The court found that the first respondent is not a claimant in the South African jurisdiction for purposes of section 261 of the Merchant Shipping Act, as it has not instituted any claim in South Africa and has expressly indicated its intention to litigate in foreign courts. Section 261 does not operate extra-territorially and cannot be used to bind foreign claimants or courts. The establishment of a limitation fund in South Africa is only relevant to claims brought within the jurisdiction. The question of whether the South African limitation is substantive or procedural law is for the foreign court to determine, not for the South African court to pre-empt. The application for a...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

• The application is dismissed with costs, including the costs of two counsel.