The first applicant was the owner and underwriter of the MV 'MSC Susanna'. The second applicant was the demise charterer of the MV 'MSC Susanna', which, due to s 232(2) of the Merchant Shipping Act 57 of 1951 (MSA), was deemed to be the owner of the vessel. The first respondent was the National Port Authority of South Africa, a Division of Transnet (SOC) Ltd. The second respondent was the Ministère des Armées, the Ministry having responsibility in terms of the French law for the French Navy of the French Republic. The third respondent was Saudi Basic Industries Corporation (SABIC), a company incorporated in the Kingdom of Saudi Arabia. The applicants sought to join the second and third respondents to an action already instituted by the applicants against the first respondent pursuant to s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983.

The incident giving rise to the litigation occurred on 10 October 2017 at the port of Durban. A considerable storm struck the port. The MV 'MSC Susanna' and other vessels were berthed at the port. The storm caused the MV 'MSC Susanna' and at least four other vessels to break their moorings. The MV 'MSC Susanna' drifted and collided with a number of vessels, including the 'FNS FloreaI', and other port infrastructure.

The main issue is limitation of liability in terms of s 261 of the MSA:

When owner not liable for whole damage. - (1) The owner of a ship, whether registered in the Republic or not, shall not, if any loss of life or personal injury to any person, or any loss of or damage to any property or rights of any kind, whether movable or immovable, is caused without his actual fault or privity-

(a) if no claim for damages in respect of loss of or damage to property or rights arises, be liable for damages in respect of loss of life or personal injury to an aggregate amount exceeding 206,67 special drawing rights for each ton of the ship's tonnage; or

(b) if no claim for damages in respect of loss of life or personal injury arises, be liable for damages in respect of loss of or damage to property or rights to an aggregate amount exceeding 66,67 special drawing rights for each ton of the ship's tonnage; or

(c) if claims for damages in respect of loss of life or personal injury and also claims for damages in respect of loss of or damage to property or rights arise, be liable for damages to an aggregate amount exceeding 206,67 special drawing rights for each ton of the ship's tonnage: Provided that in such a case claims for damages in respect of loss of life or personal injury shall, to the extent of an aggregate amount equivalent to 140 special drawing rights for each ton of the ship's tonnage, have priority over claims for damages in respect of loss of or damage to property or rights, and, as regards the balance of the aggregate amount equivalent to 206,67 special drawing rights for each ton of the ship's tonnage, the unsatisfied portion of the first-mentioned claims shall rank pari passu with the last-mentioned claims.

The second respondent accepts that the provisions of s 261 of the MSA would have applied to it, but for s 3(6) of the MSA, which provides: 'The provisions of this Act shall not apply to ships belonging to the defence forces of the Republic or of any other country'. The second respondent contends that the 'FNS Floreal' is a naval vessel of the French Navy and accordingly, the MSA does not apply to it.

The applicants are not merely seeking to join the second respondent in the pending litigation, but are seeking a declaratory order that the second respondent is bound by the provisions of the MSA.

The applicants contend that s 261 is focused on granting a right to limitation on a ship that has caused the damage. It does not seek to limit those who can claim against the ship. As long as the damage by the ship relates to property or rights, the limitation applies. The nature of the property damaged by the ship is irrelevant. The applicants conclude that while the MSA is not applicable to the 'FNS Floreal', it is applicable to the MV 'MSC Susanna' and to claims against MV 'MSC Susanna'. The applicants, further, contend that if s 261 creates unfairness by limiting claims by the 'FNS Floreal' but does not limit claims against the 'FNS Floreal', the unfairness should be addressed by appropriate amending legislation, not by judicial contortions unfairly refusing limitation to the MV 'MSC Susanna'. Anomalies consistent with internal law can only be resolved by amendments to the legislation. The applicants contend that s 3(6) of the MSA has no application in the interpretation of s 261 of the MSA. The provision is directed at excluding the Navy from the various provisions dealing with maritime safety, crewing, crew wages, licensing and other provisions, which clearly cannot be rendered applicable to a naval vessel. The applicants also argue that it excludes the application of the MSA to ships, not to all the property of the Defence Force. It is an anomaly that limitation can be excluded on a Defence Force ship, but can be allowed on the Defence Force property on the ship. It is not clear why on policy grounds the Navy ought to be in a preferred position relative to other claimants.

The applicants state that the concept of limitation arose in the Netherlands and was adopted in England as early as 1733. International Conventions on limitation followed in 1924, 1957 and 1976. South Africa is not a party to the aforementioned Conventions. South Africa encapsulated limitation in ss 261-263 of the MSA. The UK law of limitation cannot be of any help in the interpretation of the South African law of limitation because it developed from the position when the Crown was not liable in tort, which has never been the position in South Africa.

The second respondent contends that the purpose of s 3(6) of the MSA is clear. It is to exempt naval vessels from the vast network of rights and obligations created by the MSA. The position of naval ships differs from that of merchant ships. The MSA seeks to regulate merchant shipping. Section 261 refers to 'loss of life or personal injury to any person, or any loss of or damage to any property or rights of any kind, whether movable or immovable'. It is common cause that the 'FNS Floreal' is a ship. As such, it is property. However, it is not the type of property contemplated in s 261, because it is a naval vessel to which the provisions of the MSA do not apply. The reference in s 261 to 'any property' falls to be qualified by s 3(6) of the MSA, with the result that limitation may be claimed in respect of damage to any property which is not a ship belonging to the Defence Force. The exclusion in s 3(6) encompasses the whole of every provision in the MSA. Whether the ship is the subject or object of a provision, and whether the provision creates a right or obligation, it is embraced by s 3(6). The second respondent contends that the approach that the applicants are advocating will result in absurdities. For example, if a naval vessel were to be involved in a collision with a merchant ship, how will s 255 of the MSA, which allows for apportionment of damages in proportion to degrees of fault, be applied? It would allow the owner of the merchant vessel to claim apportionment in terms of s 255 but the owner of the naval vessel could not. It is manifestly unjust to have the second respondent prohibited from benefiting from the limitation regime in respect of damage caused by its naval ship; but if damage is caused to its naval ship by another vessel, then to subject its claim to limitation.

Held: The application to join the second respondent is dismissed with costs.

Alexander J in Nagos Shipping Ltd v Owners, Cargo Lately Laden on Board the MV Nagos 1996 (2) SA 261, 271-72 (D) (CMI1051) referred to limitation as 'that time-honoured and intentionally endorsed practice, which is now embodied in domestic statute. ... The South African Merchant Shipping Act reflects in s 261 the accepted principle that, in the interests of encouraging sea bound trade and enterprise, a ship owner should be protected in a given amount, save where he has been at fault'. The concept of limitation of liability is well-known throughout the maritime law and has, in modern times, becomes a basic premise upon which maritime commerce is conducted.

Section 261 of the MSA absolves the shipowner from liability which exceeds an amount in ZAR, calculated by applying the factor of the vessel's tonnage to a prescribed number of SDRs of the International Monetary Fund. Section 261 looks after the interests of merchant shipowners, not the rights of owners of property damaged or lost. The legislature must have been well aware that there would be owners of property that was either damaged or lost who were not regular participants in the shipping business or in international shipping commerce. Nevertheless, for the benefit of international shipping commerce, such owners are subject to a limitation in their claims.

The Navy is a specific category of shipowners. It does not normally participate in commercial shipping. It does not benefit from commercial shipping. Historically, it is excluded from legislation regulating commercial shipping. It is not entitled to a limitation of claims against it in terms of s 261 of the MSA because it is excluded as a bearer of rights and obligations in terms of the MSA. The legislature, when enacting s 3(6), entrenched the de facto position. When the legislature enacted s 261 it must be taken that it intended consistency. If it intended that the Navy, as a shipowner, should be bound by s 261, it was expected to state so. But it had excluded the Navy by broadly excluding it from the provisions of the MSA. It was, therefore, not necessary, if it intended the navy to remain excluded, to state in s 261 that the Navy was excluded. Taking into consideration the purpose of the limitation law it is artificial to say that property in s 261 includes naval ships. That would pay lip service to s 3(6) of the MSA.

[For the successful appeal to the Supreme Court of Appeal, see MV 'MSC Susanna': Owners and Underwriters of the MV 'MSC Susanna' v Transnet (SOC) Ltd [2021] ZASCA 135 (CMI1240).]