Most Read Contributor in South Africa, September 2016
The long debated issue of whether the possessory rights of a
bareboat charterer are capable of being arrested or attached has
finally been argued. The Durban court has found, relying on South
African law relating to lease, that a bareboat charterer's
right to possession of a vessel arises from the contractual terms
of the charter party and, as such, is purely personal in nature and
located where the owner of the ship resides (being where the right
would have to be enforced). For that reason such right is not
capable of being arrested within the jurisdiction where the court
Of concern was the court's finding that section 1(3) of the
Admiralty Jurisdiction Regulation Act, No 105 of 1983 does not
apply to arrests for security in terms of section 5(3) of that
Act. That sub-section provides -
"For the purposes of an action in rem, a charterer
by demise shall be deemed to be, or to have been, the owner of the
ship for the period of the charter by demise."
That was made on the basis that a security arrest is not an
in rem proceeding but a "stand alone"
However, section 5(3)(a) provides -
"A court may in the exercise of its admiralty jurisdiction
order the arrest of any property for the purpose of providing
security for a claim which is or may be the subject of an
arbitration or any proceedings contemplated, pending or proceeding,
either in the Republic or elsewhere, and whether or not it is
subject to the law of the Republic, if the person seeking
the arrest has a claim enforceable by an action in
personam against the owner of the property concerned or
an actionin remagainst such property or which would be so
enforceable but for any such arbitration or proceedings."
It is clear from the emphasised wording that one can, so long as
all the other requirements are met, arrest for security if the
person seeking the arrest has a claim enforceable by an action
in rem against such property. As such, arguably section
1(3) does apply in respect of security arrests.
However, as the claim in this case related to an alleged failure
by the bareboat charterer to pay hire for charter services on
certain off-shore supply vessels the claim was clearly unrelated in
any way to the possessory rights of the bareboat charterer in the
mt "Rio Canoni" and, consequently, in rem
proceedings were not competent. On that basis section 1(3)
was not applicable in this case.
mt "Rio Caroni" (previously the mt
"Amarylis") CH Offshore Ltd v PDV Marina SA and others
(unreported judgment, KZNLD, Durban, Case No A113/2013, 5 November
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Attractive new shipping provisions in South Africa’s new Taxation Laws Amendment bill go some way in showing that the government is serious about taking steps to revive South Africa’s rather sleepy international shipping sector.
This paper considers the recent developments in Nigerian Ship
Arrest Law – the Admiralty Jurisdiction Procedure Rules
(AJPR) 2011 for the Federal High Court of Nigeria (FHC), and its
effect on ship arrest practice.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).