The respondent claimed to be owed a sum of money after having repaired the Mount Ymitos in 1996 at Singapore. On 13 December 1996, the respondent arrested the Mount Ymitos in Hong Kong. It was sold on 26 March 1997. The sale proceeds appeared insufficient for the respondent's claim. In July 1997, the respondent obtained a default judgment. The Hong Kong action remained purely an action in rem against the Mount Ymitos. In October 1997, the respondent arrested the Fortune 22 in South Africa as an associated ship under ss 3(6) and 3(7) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act). It was accepted that both ships were associated. Both actions in rem were instituted by the respondent in respect of the same maritime claim.

Althogh the Fortune 22 was released following provision of security, it was deemed to be still under arrest (s 3(10)(a)(i) of the Act). The owners of the Fortune 22 (the applicant) applied to set aside the deemed arrest. Among other things, the applicant argued that s 3(6) of the Act must be given its ordinary meaning to bar the respondent from arresting the Fortune 22. Section 3(6) of the Act reads: '[A]n action in rem … may be brought by the arrest of an associated ship instead of the ship in respect of which the maritime claim arose.'

The applicant also argued that s 3(8) of the Act supports the contention that the words 'instead of' in s 3(6) must be given their ordinary meaning. Section 3(8) reads: 'Property shall not be arrested and security therefor shall not be given more than once in respect of the same maritime claim by the same claimant.'

In contrast, the respondent argued that the words 'instead of' in s 3(6) of the Act must be given a different meaning so as to extend the operation of the subsection to the position where, notwithstanding the fact that the offending ship has already been arrested in a foreign jurisdiction, an associated ship may nevertheless be arrested here. The respondent's case is that the words 'instead of the [offending] ship' must be construed as meaning 'instead of arresting the offending ship within the jurisdiction of the Court'. The respondent cited Miller JA in Euromarine International of Mauren v The Ship Berg 1986 (2) SA 700 (A) (The Berg) 712C-D:

It is true that s 3(6) read with s 5(3) describes a method for recovery of money due to one who has suffered injury or loss for which he has a maritime claim, but it does much more than that; it gives to the claimant a right which he never had before, namely to recover what is due to him from a party who was not responsible for the damage suffered by him. It provides the claimant not only with a method for recovery but with an additional or alternative defendant.

The respondent emphasised that Miller JA's reference to an 'additional' as well as to an 'alternative' defendant, and argued that it is possible, under s 3(6), for a claimant to bring separate and distinct actions in rem (albeit in different jurisdictions) against two or more ships in respect of the same maritime claim. The respondent also argued that s 3(8) applies only within the jurisdiction of a South African Court. The respondent also pointed out that under s 5(2)(d) of the Act property in addition to that already arrested could be arrested in order to provide additional security for any claim.

Held: Application allowed.

The deemed arrest is set aside. The respondent must return the security. Having arrested the Mount Ymitos in Hong Kong and having proceeded in rem against the Mount Ymitos, the respondent cannot also arrest the Fortune 22 in South Africa in respect of the same maritime claim.

The respondent's contentions were rejected. The ordinary meaning of the phrase 'instead of' entails that a claimant may not arrest both the offending ship and an associated ship. One or the other might be arrested, but not both. The phrase 'instead of' cannot in its ordinary meaning be construed to mean 'as well as' or 'in addition to'.

The same interpretation has been afforded to the corresponding, but differently worded, provision under s 3(4) of the Administration of Justice Act 1956 (UK): The Banco [1971] P 137, 152 (CA) (CMI2156). Such an interpretation gives effect to the Arrest Convention 1952 (the Convention). The Union of South Africa was apparently not a party to the Convention, but it was ratified by the United Kingdom. Under the Convention, it was agreed that only one ship might be arrested. This was either the offending ship or any other ship belonging to the same owner. The Banco also quoted from (and added emphasis to) the text of art 3.3 of the Convention as follows:

[I]f a ship has been arrested in any one of such jurisdictions, or bail or other security has been given in such jurisdiction … any subsequent arrest of the ship or of any ship in the same ownership by the same claimant for the same maritime claim shall be set aside, and the ship released.

The Banco accurately reflects the English law as it stood on 1 November 1983, the date on which the Act came into operation in South Africa. Subject to the Act, that is the law applicable here: s 6(1) read with s 6(2) of the Act. English law countenances the arrest of only one ship in English waters at the instance of any one claimant in respect of any one claim which that claimant seeks to enforce by means of an action in rem (The Banco). It is also very probable, on The Banco, that English law is to the same effect where another ship has been arrested outside English waters: in terms of art 3.3 of the Convention, which weighed heavily with the Court in The Banco, where that is the position a second arrest cannot be effected in England, provided that the first arrest took place in the jurisdiction of a contracting State.

Proceedings in rem are often international in their operation and effect in the sense that it frequently happens, that peregrini find themselves litigating with one another in foreign courts. Such litigation is subject to less in the way of territorial restrictions than is municipal litigation. It would be curious if the legislature had confined itself in enacting s 3(6) of the Act entirely to arrests within the jurisdiction of a South African court. Foreign judgments can be recognised subject to certain requirements: Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D) 517B-D. There is no good reason for the Legislature to close its eyes to foreign arrests. Meanwhile, the respondent has not challenged the arrest of the Mount Ymitos or the default judgment in Hong Kong.

There is nothing in the Act which is materially inconsistent with what was said in The Banco as regards the arrest of more than one ship in respect of the same claim. Moreover, the Legislature must have been aware of the Convention when it passed the Act (see Great River Shipping Inc v Sunnyface Marine Ltd 1992 (2) SA 87 (C) at 91C) even if not bound by it. If, in enacting s 3(6) of the Act, it had desired to depart from the Convention, it would have used words different from 'instead of', which are entirely consistent with the Convention.

Secondly, the respondent has read too much into what was said in The Berg. In using the phrase 'additional or alternative defendant', Miller JA did not intend to hold that multiple actions in rem could be brought by the arrest of more than one ship by the same claimant in respect of the same claim. That was not a question which arose for decision in The Berg. Miller JA was merely repeating or paraphrasing what had been said in the court below (Euromarine International of Mauren v The Ship Berg 1984 (4) SA 647 (N) 659E-F):

In effect, the Legislature has given the maritime claimant an additional, or rather alternative, defendant from which to satisfy his claim which arose against the original guilty defendant.

The omission of the word 'rather' after 'or' can hardly have been intended by Miller JA to have had the far-reaching consequences now contended for by the respondent.

Thirdly, the legislature could not have intended s 3(8) of the Act to have been of only local application; in the sense that it could have envisaged and countenanced a second arrest of property in South Africa which had already been arrested, and replaced by security, in a foreign jurisdiction. The reasoning given above for s 3(6) of the Act is equally applicable to s 3(8).

Finally, s 5(2)(d) of the Act does not assist the respondent. On the contrary, it illustrates what clear and definite language the legislature used in the Act when it set out to depart from the terms of the Convention and of the English law as set out in The Banco. In any event, the respondent did not arrest the Fortune 22 in terms of this section.