Orient Shipping (first respondent; disponent owner) chartered MV Bavarian Trader to Pancoast (applicant). The first respondent refused to load a cargo for discharge and the applicant elected to treat the refusal as a repudiation of the charterparty. The applicant redelivered the MV Bavarian Trader at Bandar Imam Khomeini in Iran (rather than the stipulated redelivery port in Durban) 18 days before the expiry of the charter. A dispute thus arose between the first respondent and the applicant. At the London arbitration, the first respondent claimed for unpaid hire, lost hire, the cost of bunkers consumed in sailing the vessel to Durban, and the costs of a bunker call at Fujairah. The first respondent caused the MV Mariner II to be arrested for security of its claim. The applicant paid USD 559,553.24 without prejudice and reserved its rights to reclaim this sum in the arbitration. The applicant counterclaimed for repayment and arrested the MV Bavarian Trader for security.

The issue was whether a ship could be arrested as an associated ship in terms of s 3(7)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA) where it was also the ship in respect of which the maritime claim arose.

Held: The applicant was not entitled to arrest the MV Bavarian Trader under s 5(3) of the AJRA. The language of ss 3(6) and 3(7)(a) of the AJRA clearly indicated that the ship concerned and the associated ship would be different vessels.

A ship in respect of which a maritime claim arises (the ship concerned) could not be arrested as an associated ship in terms of ss 3(6) and 3(7)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 in respect of that claim. An associated ship must be a different ship from the ship concerned.

The background to the introduction of the associated ship jurisdiction can be found in the report by the South African Law Commission (SALC) that produced the AJRA - it was thought to be a logical extension of the Arrest Convention 1952, but the broad notions upon which the Arrest Convention 1952 was founded had been preserved.

The Arrest Convention 1952 was the product of a protracted period of negotiation and drafting of agreement on a Convention for the arrest of ships that harmonised the English system involving the arrest in rem of the ship concerned and the Continental system of arresting all property in the ownership of the debtor, which resulted in the compromise embodied in the sister ship arrest provisions of the Arrest Convention 1952. The associated ship regime was thus seen, whether rightly or wrongly, as an extension of the sister ship arrest provisions of the Arrest Convention 1952. A ship arrested as a sister ship could not be the ship in respect of which the maritime claim had arisen, because sister ship arrests were only available under the Arrest Convention 1952 in circumstances where both vessels were owned by the person liable in personam in respect of the maritime claim.

It was also plain from the language of the SALC report that the proposed introduction of a jurisdiction to commence proceedings in rem by way of the arrest of an associated ship manifestly contemplated that the associated ship would be a different ship from the ship concerned.