Owner of MV "Maritime Prosperity" v Owner of MV "Lash Atlantico" (42/94) [1995] ZASCA 98; 1996 (1) SA 22 (SCA); (15 September 1995)

Owner of MV "Maritime Prosperity" v Owner of MV "Lash Atlantico" (42/94) [1995] ZASCA 98; 1996 (1) SA 22 (SCA); (15 September 1995)

Section 344(3) of the Merchant Shipping Act is limited to actions in rem, as evidenced by its reference to 'the defendant ship' and the grounds for extension being tied to the opportunity to arrest the ship. The subsection does not apply to actions in personam, which do not require arrest of the ship. Therefore, there is no inconsistency between section 344(3) and section 13(1)(b) of the Prescription Act in relation to actions in personam. Coastal's contemplated counterclaim is in personam, and its reliance on section 13(1)(b) to overcome prescription is legally sound. The appellant's objection to the security arrest based on prescription fails, and the arrest for security in respect of...

Citation
[1995] ZASCA 98
Parties
Appellant: Owner of MV "Maritime Prosperity"; Respondent: Owner of MV "Lash Atlantico"
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 September 1995
Case Number
42/94
Procedural Posture
Civil Appeal / Appeal From the Durban and Coast Local Division (admiralty Jurisdiction)
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Smalberger, Nestadt, Marais, Scott
Legal Topics
Security Arrest, Prescription Period, Action in Rem, Action in Personam, Merchant Shipping Act, Prescription Act
Admiralty and Maritime Security Arrest Prescription Period Action in Rem Action in Personam Merchant Shipping Act Prescription Act

Case Brief

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Parties

Owner of MV "Maritime Prosperity"

Appellant

Owner of MV "Lash Atlantico"

Respondent

Procedural Posture

Civil Appeal / Appeal From the Durban and Coast Local Division (admiralty Jurisdiction)

Legal Issues

  1. 1 Does section 344(3) of the Merchant Shipping Act 57 of 1951 apply to actions in personam as well as actions in rem?
  2. 2 Is there an inconsistency between section 344(3) of the Merchant Shipping Act and section 13(1)(b) of the Prescription Act 68 of 1969 regarding prescription?
  3. 3 Is the respondent's claim for damages prescribed, thereby precluding a security arrest under section 5(3)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983?

Ratio Decidendi

Section 344(3) of the Merchant Shipping Act is limited to actions in rem, as evidenced by its reference to 'the defendant ship' and the grounds for extension being tied to the opportunity to arrest the ship. The subsection does not apply to actions in personam, which do not require arrest of the ship. Therefore, there is no inconsistency between section 344(3) and section 13(1)(b) of the Prescription Act in relation to actions in personam. Coastal's contemplated counterclaim is in personam, and its reliance on section 13(1)(b) to overcome prescription is legally sound. The appellant's objection to the security arrest based on prescription fails, and the arrest for security in respect of...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The costs of the condonation application for late filing of the power of attorney are to be borne by Coastal.