THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1039/2020

Name of Ship: MV 'MSC SUSANNA'
In the matter between:
THE OWNERS AND UNDERWRITERS OF
THE MV 'MSC SUSANNA'

FIRST APPELLANT
THE DEMISE CHARTERERS OF THE
MV 'MSC SUSANNA'

SECOND APPELLANT
and
TRANSNET (SOC) LTD – THE NATIONAL PORTS
AUTHORITY OF SOUTH AFRICA
FIRST RESPONDENT
THE MINISTÈRE DE ARMÉES

SECOND RESPONDENT
SAUDI BASIC INDUSTRIES
CORPORATION

THIRD RESPONDENT

Neutral citation: MV 'MSC Susanna': Owners and Underwriters of the
MV 'MSC Susanna' and Another v Transnet (SOC) Ltd
and Another (1039/2020) [2021] ZASCA 135
(6 October 2021)
Coram:
NAVSA,
WALLIS,
SCHIPPERS,
MBATHA
and
GORVEN JJA

Heard:
1 September 2021
Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 6 October 2021
Summary: Tonnage limitation – s 261(1) of the Merchant Shipping Act
57 of 1951 (MSA) – whether limitation can be invoked by owner of
merchant ship against the owner of a ship owned by the defence force of
South Africa or another country – ss 3(3) and (6) of the MSA.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg sitting in the exercise of its admiralty jurisdiction
(Mngadi J, sitting as court of first instance):
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the high court is set aside and replaced by the
following order:
'The rule nisi is confirmed in the following terms:
The Ministére des Armées is joined as a defendant in the action
instituted by the appellants under case number A4/2019.
The Appellants are granted leave to amend the pleadings in the said
action so as to plead their cause of action against the Ministére des
Armées.
The Ministére des Armées is ordered to pay the costs occasioned
by its opposition to the application, such costs to include those
consequent upon the employment of two counsel.'

JUDGMENT

Wallis JA (Navsa, Schippers, Mbatha and Gorven JJA concurring)
[1] On 10 October 2017, during a substantial storm in the port of
Durban the MSC Susanna broke her moorings and, while drifting in the
port, collided with several vessels, including the FNS ‘Floreal’. The
Floreal was a French naval vessel under the control of the second
respondent, the Ministère des Armées (the Ministry) of the French

Republic. The MSC Susanna also allided with cranes and other
infrastructure owned by the first respondent, Transnet (SOC) Ltd – The
National Ports Authority of South Africa (the NPA). The NPA sued the
appellants, respectively the owners and underwriters on the one hand, and
the demise charterer on the other, of the MSC Susanna, for damages in an
amount of some R23 million arising out of this incident. The Ministry's
response, to the appellants' action for a declaration of non-liability in
relation to the damages to the Floreal, was to lodge a counterclaim for
damages amounting, together with interest and costs, to nearly €10
million.

[2] Given the value of the actual and potential claims against the
appellants, on 7 November 2019 they issued a writ of summons in a
limitation action against the NPA, contending that their total liability for
damages arising out of the events of 10 October 2017 should be limited in
terms of the provisions of s 261(1)(b) of the Merchant Shipping Act 57 of
1951 (the MSA). On the same day they launched the present proceedings
seeking the joinder of the Ministry to the limitation action. The
application was resisted by the Ministry on the grounds that, as the owner
of a foreign naval vessel, the right to limit was excluded as against it by
the provisions of s 3(6) of the MSA. That point was upheld by Mngadi J
in the KwaZulu-Natal Division of the High Court, Pietermaritzburg
sitting in the exercise of its admiralty jurisdiction. The present appeal is
with his leave.

[3] In terms of the provisions of SCA Rule 8(8) the parties have
sensibly agreed on the following statement of the issue in this appeal:
‘The parties agree that the appeal turns on whether the owners and demise charterers
of a merchant ship may, in circumstances where a merchant ship causes damage to a

ship belonging to a defence force as contemplated in Section 3(6) of the Merchant
Shipping Act, 1951 (‘the Act’), seek a limitation of liability in terms of Section 261 of
the Act in respect of the claim of that defence force.’
That admirably encapsulates the issue in this case. It is common cause
that, if the answer favours the appellants, the high court should have
ordered the joinder of the Ministry. If it is against them, then the high
court judgment was correct.1 While it is expressed in these succinct terms
it is 'a question of very great difficulty', as Viscount Simmonds LC said in
Nisbet Shipping Co Ltd v Reginam,2 a case to which I will revert.

Tonnage limitation
[4] The right of shipowners and certain other parties to limit their
liability for damages arising from the operation of the vessel is an ancient
one. Legislation providing for ship owners to limit their liability to the
value of the vessel is to be found in statutes dating from the 1600’s in
various parts of Europe, particularly the Netherlands.3 It was introduced
in England in 1733 by legislation enacted in response to the decision in
Boucher v Lawson,4 in which a cargo of gold bullion was entrusted to the
Master of a vessel, who proved unable to resist temptation and absconded
with it. The owners of the vessel were held liable to the full extent of the
value of the gold, which vastly exceeded the value of the vessel.
Parliament intervened by passing the Responsibility of Shipowners Act,5
limiting the liability of shipowners to the value of the ship, its equipment
and any freight due for the voyage. Similar legislation was introduced in

1 The basis for the joinder is s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the
AJRA).
2 Nisbet Shipping Co Ltd v Reginam [1955] 3 All ER 11 (PC)(Nisbet PC).
3 Wandile Zondo, Limitation of Liability for Maritime Claims: A South African Perspective a thesis
submitted in partial fulfilment of a Master of Science degree at the World Maritime University in
Malmö, Sweden helpfully traces the history of limitation at pp 3-13. The thesis is available at
https://commons.wmu.se/cgi/viewcontent.cgi?article=1510&context=all_dissertations.
4 Boucher v Lawson 95 ER 116; Griggs 1997 LMCLQ 369 to 373.
5 Responsibility of Shipowners Act 1733 (7 Geo II. c 15).

the United States of America in 1851. Three international conventions on
limitation of liability by shipowners were concluded in the last century,
although complete uniformity has not been achieved.6 It has been
described as 'a time honoured and internationally endorsed practise'
which is now embodied in our domestic legislation.7

[5] For our purposes it is sufficient to note that until the passage of the
MSA, South Africa did not have domestic legislation dealing with
limitation. The English Merchant Shipping Act, 1894 remained of
application in South Africa8 and made provision for limitation of liability
calculated on the gross registered tonnage (GRT) of the vessel.9 This
changed with the passage of the MSA in 1951. Section 261 of the MSA is
headed:
'When owner not liable for whole damage'
and s 261(1)(b), which is the provision relied upon by the appellants,
reads:
'The owner of a ship, whether registered in the Republic or not, shall not, if … any
loss or damage to any property or rights of any kind, whether movable or immovable,
is caused without his actual fault or privity─
(a) . . .

6 The three are the 1924 International Convention for the Unification of Certain Rules relating to the
Limitation of Liability of Owners of Sea-going Vessels (only ratified by fifteen states); the
International Convention Relating to the Limitation of  Liability of Owners of Sea-going Vessels,
Brussels 1957 and the Convention on Limitation of Liability for Maritime Claims, London 1976, read
with the 1969 Tonnage Convention and the 1996 Protocol amending the limits of liability under the
Convention.
7 Nagos Shipping Ltd v Owners, Cargo lately laden on board the MV Nagos, and Another 1996 (2) SA
261 (D) at 271G-H.
8 See South African Railways and Harbours v Smith's Coasters (Prop) Ltd 1931 AD 113.
9 Gross registered tonnage is a potentially misleading expression in that it is not a measurement of
weight or mass, but of the carrying capacity of the vessel, deriving its name from the tuns or barrels
that were the common means of storing many goods for shipment on board vessels at that time.
Originally it was measured by determining how many tuns could be loaded on the vessel. It is now
measured on the basis of the internal volume of the vessel subject to certain exclusions.

(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 aggregate amount
exceeding 66.67 special drawing rights for each ton of the ship’s tonnage.'

[6] The basis for the Ministry's contention that the appellants may not
invoke this provision in respect of its claim is to be found in s 3 of the
MSA. Section 3(3) provides that the Act binds the State, subject to the
entitlement of the Minister of Transport to exempt vessels owned by the
government of South Africa or Transnet from a range of provisions
dealing with crew and the recovery of wages. Section 3(6), on which the
Ministry relied, reads:
'The provisions of this Act shall not apply to ships belonging to the defence forces of
the Republic or of any other country.'
The Ministry contended that, as the Floreal was part of the French navy
and therefore part of the French defence force, the provisions of s 261 did
not apply in relation to its claim against the appellants.

[7] The appellants' contention was that s 261(1)(b) conferred an
internationally recognised right upon them as the owners10 of the
MSC Susanna to limit their liability and that they were invoking
limitation against the Ministry, as the party making a claim against them,
and not against the Floreal. They submitted that the right to limit is
conferred in relation to claims for loss of life or personal injury, or any
loss of or damage to any property of any kind, whether movable or
immovable. The effect of the Ministry's contention is to introduce an
unwarranted qualification to the broad and unqualified words 'any
property of any kind' by adding 'save a naval vessel owned by the defence
force of any nation'.

10 In the extended sense given by s 263 of the MSA.

Discussion
[8] The issue is one of the proper interpretation of ss 261(1)(b) and
3(6) of the MSA. It is, so far as the argument and the authorities to which
we have been referred go, entirely novel. As always, one starts with the
words of s 261(1)(b).11 Its terms are clear and comprehensive. The right
to limit is given to the owner of a vessel, an expression given an extended
meaning in s 263(2), in respect of all loss or damage to any property or
rights of any kind, whether movable or immovable. That language
encompasses all types of property, without qualification. It is clearly wide
enough to include the loss or damage embodied in the claim by the
Ministry. Counsel rightly conceded that if this section and the others that
are contained in Part 4 of Chapter 5 of the MSA were contained in a
separate statute without s 3(6), the right to limit would be available on
this language in respect of the Ministry's claim. That means that the focus
must necessarily fall on the effect of s 3(6).

[9] It is indisputable that s 3(6) excludes the bulk of the provisions of
the MSA from application to both South African and foreign vessels
forming part of their country's defence forces. These vessels can
conveniently be referred to as naval vessels, although it is conceivable
that there might be vessels forming part of branches of the defence force
other than the navy. The MSA's provisions, dealing with the
administration of the MSA (Chapter I); matters concerning the
registration of vessels in the South African registry (Chapter II);
certificates of competency and service of crew (Chapter III); engagement,
discharge, repatriation, payment, discipline and general treatment of

11 Sub-sections (a) and (c) are similarly worded and deal first with the case where loss of life or
personal injury alone are caused, and second with the case where there is both loss of life and personal
injury and loss or damage to property. The limitation amount is set in special drawing rights (SDRs)
and varies as between the three different cases as dealt with in s 261(1).

seafarers (Chapter IV); safety of ships and life at sea (Chapter V, Parts I,
II and III); shipping enquiries and courts of marine enquiry (Chapter VI);
carriage of goods by sea (Chapter VIII, now repealed in its entirety); and
offences, penal provisions and legal procedures (Chapter IX) cannot be
effectively applied to naval vessels. The regimes under which the armed
forces of most, if not all, countries operate are so different in these areas
from the manner in which other vessels operate, even those owned by
sovereign governments, that the reasons for an exclusionary provision
such as s 3(6) are apparent.

[10]   Other areas of the MSA are more problematic. In its original form
it included in Chapter VII (sections 293 to 306 of the MSA) provisions in
respect of wreck and salvage, that have now been repealed by the Wreck
and Salvage Act 94 of 1996, which incorporates the provisions of the
International Convention on Salvage, 1989 into domestic law.12 The
Wreck and Salvage Act is binding on the State, but Article 4(1) of the
Convention excludes warships and all non-commercial vessels owned or
operated by States and entitled at the time of salvage operations to
sovereign immunity, unless the State decides otherwise. The effect is that
a salvor in relation to such a vessel does not enjoy the protection of the
Convention. That does not, however, mean that a salvor may not provide
salvage services or receive a salvage reward. It merely means that they
must deal with the State concerned in relation to such services.

[11] Chapter 5, Part IV of the MSA differs from these other provisions,
in that, save in respects of two matters of no relevance to vessels other

12 Section 2 of Act 94 of 1996.

than South African registered vessels,13 it is not concerned with the
operation of vessels, the treatment of crew or issues of safety. Its primary
focus is on two areas of the liability of owners of vessels. First, it deals
with the division of loss between shipowners in the event of a collision
under s 255; liability for personal injury under s 256; and claims for
contribution against joint wrongdoers in relation to the latter claims under
s 257. Second, under s 261 it provides for the right of a ship owner and
certain other parties to limit the extent of their liability arising out of an
incident causing loss of life or physical injury to persons, or loss of or
damage to property, or a combination of both, where these were caused
without the actual fault or privity of the ship owner. These two areas of
liability are not concerned with regulating the operation of the vessel or
vessels involved in that incident. In the case of a collision the question is
who, and if more than one vessel is involved, in what proportions, those
responsible for the collision shall bear the loss. Where personal injury has
been caused it is the liability for damages and rights of contribution
between joint wrongdoers that are regulated. In the case of limitation the
concern is with the extent of the liability of the owner of the harm-
causing vessel.

[12] It is noteworthy that each of these is concerned with the liability of
owners of ships to third parties, and claims against and between owners
of ships. That the claims arise out of the operation of the ships is
incidental. The focus is on the legal liability of the owners and, in the
case of limitation claims, other parties such as charterers, managers and
operators of ships.14 These are purely commercial matters concerning the
rights and obligations of owners of ships. This is important in the light of

13 The respects relate to the obligation to report accidents to the proper officer and the obligation to
give notice to SAMSA of the loss of a vessel under ss 259 and 260 respectively. See ss 259(2) and 260.
14 MSA s 263(2).

the wording of s 3(6), because it says that the provisions of the MSA shall
not apply 'to ships'. It does not say that its provisions will not apply to the
owners of ships. Much less does it say that the Act does not apply to
defence forces, so as to preclude owners of merchant ships from invoking
its provisions by, for example, seeking an order for the division of loss
after a collision, or a contribution to the damages arising from jointly
caused personal injury, or an order limiting their liability.

[13] Linguistically s 3(6) is not apt to exclude the invocation of
limitation by the owners of the MSC Susanna. That straightforward view
is the same as that of Kerwin and Estey JJ of the Supreme Court of
Canada in construing a similarly worded provision in the Canada
Shipping Act, 1934 in The Queen v Nisbet Shipping Co Ltd.15 They said:
'The final point raised by the appellant is that in any event it is entitled to a limitation
of liability under s 649 of the Canada Shipping Act. As the owner of the Orkney, the
Crown would ordinarily be entitled to take advantage of this provision but it is said
that s 712 of the Act prevents this result. That section provides: —
'This Act shall not except where specifically provided apply to ships belonging to His
Majesty.'
In my opinion this section has no reference to a claim for limitation of liability under
s 649, which can only be put forward by an owner.'

[14] Some reinforcement for the view that this is the ordinary meaning
of the words of the section is to be found in the dissenting judgment of
Locke J,16 where he said, after a consideration of the history of this
legislation in both England and Canada, that:
'In my opinion, s 712 should be construed as applying to or in respect of ships
belonging to Her Majesty and that, accordingly, the limitation of the liability of His

15Her Majesty the Queen v Nisbet Shipping Company Limited 1953 CanLII 77 (SCC); [1953] 1 SCR
480 (SCC) at 492 (Nisbet SCC).
16 Ibid, at 502.

Majesty qua owner is excluded by s 712. To construe the section otherwise would be,
in my judgment, to fail to interpret the section in such manner as will best ensure the
attainment of the object of the enactment …'
In other words, while on its language s 712 applied to owners and not
ships, considerations of the historical context, and in particular a
significant difference between the wording of the 1927 Act and the 1934
Act, led to a construction that the entire Act was excluded in respect of
Crown-owned ships.

[15] The Ministry's heads of argument advanced an interpretation of
s 261(1)(b) on the basis that it attributed to the appellants' argument the
premise that s 261 only applied to one ship. They contended that this was
faulty, because in the circumstances of a collision there would be two
ships. One it described as 'the offending ship' and the other as 'the
damaged ship'. It submitted that s 261(1) applied not only to the
offending ship, but also to the damaged ship. In my view the suggested
premise did not underpin the appellants' argument and the conclusion
sought to be drawn was faulty. Section 261 is concerned with the liability
of an owner of a ship, not the ship itself. Whatever the precise nature of
an action in rem, the underlying liability will be borne by the owner of
the ship. Where the action is in personam the position is even clearer. As
to the damaged ship, the claim arising from that damage is the claim of
that ship's owner. Ships do not bring claims.

[16] Before the MSA was enacted our law in regard to limitation was to
be found in s 503 of the English Merchant Shipping Act, 1894.17 In
Smith's Coasters this court held that a shipowner facing a claim by the

17 Merchant Shipping Act, 1894 (57 & 58 Vict. C 60). Smith's Coasters, op cit, fn 8; Atlantic
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GMBH of Bremen 1986 (4) SA 865 (C) at
875H-J.

South African Railways & Harbours, an agency of the State, could not
raise a defence of limitation under s 503. However, it reached that
conclusion on the basis that, as a matter of royal prerogative, the Crown
could not be bound by a statute unless the statute expressly or by
necessary implication bound the Crown. The implication of permitting
reliance on limitation was that a claim vested in the Crown would be
reduced and that could not occur unless the Crown was bound by the
provisions of s 503. There was no general language in the statute
justifying the conclusion that the Crown was bound and no basis for
implying that it was. Accordingly an exception to a plea based on
limitation under s 503 was upheld.18 That was a narrow conclusion
relating only to the South African state and not to foreign states or their
vessels, whether military or otherwise.

[17]  The case is unhelpful. We are not concerned with a claim against
the South African State, but if we were s 3(3) of the MSA expressly
provides that it binds the State. Nor are we concerned with a claim
against a foreign State. In any event the principle invoked there does not
apply in relation to foreign States. Nor can there be any question of
sovereign immunity arising because it is the Ministry making a claim
against the appellants, not them making a claim against the Ministry. The
grounds upon which Smith's Coasters was decided are inapplicable here.

[18] The Ministry also argued that the title of the MSA – the Merchant
Shipping Act – and the long title 'To provide for the control of merchant
shipping and matters incidental thereto' indicated that it was not
concerned with naval vessels. It said that this purpose was manifested in

18 It appears that this would also have been the position in England at that time. Dampskibs
Aktieselskabet 'Mineral' of Narvik v Owners of steamship 'Myrtlegrove' and Others [1919] 1 Lloyds
Law Reports 289 (Adm Div) at 290.

s 3(6) of the MSA. The difficulty with the submission is that it
overlooked the words 'and matters incidental thereto'. One matter of great
concern to owners of merchant ships is the possibility of claims arising
against them in the course of the operation of their ships. Chapter 5,
Part IV deals with that issue in a manner that is consistent with
international practice in maritime matters. The MSC Susanna is a
merchant ship and was engaged in merchant shipping at the time of the
incident giving rise to the claims against the appellants. Its owners
invoked a provision of the MSA that in terms they are entitled to invoke.
Allowing the appellants to limit their liability in relation to the claims in
this case is clearly something incidental to merchant shipping.

[19] The Ministry relied on the judgment of the Privy Council in Nisbet
(PC).19 The claim in that case arose from a collision between a foreign
merchant vessel and a Canadian warship. As a result of the collision the
merchant vessel and her cargo were a total loss. The claim – effectively
against the Canadian government – was to recover the damages suffered
in consequence of the loss of the ship and its cargo. By a majority of six
to one the Canadian court held that it was open to the Crown to invoke
limitation against the ship owner's claim.20 On appeal from the judgment
of the Supreme Court of Canada, the Privy Council reversed this
decision.

[20] The advice of the Board was delivered by Viscount Simonds LC.21
He first dealt with the approach of the majority in the Supreme Court.
This proceeded on the basis that under the Petition of Right Act, 1938 in

19 Op cit, fn 2.
20 Nisbet SCC, op cit, fn 15.
21 That was the time when no dissents were allowed in decisions of the Privy Council, because it was
notionally giving advice to the monarch and therefore only a single advice could be given upon which
the monarch was to act.

Canada 22 the courts had been given jurisdiction to decide claims against
the Crown. The question then was the extent of the Crown's liability in
respect of such claims. Six judges23 held that the liability imposed under
the Petition of Right Act was the same liability as an ordinary citizen
would attract in respect of the same claim. That liability could be limited
under the relevant provision of the Canada Shipping Act and therefore the
Crown could limit its liability, provided a proper case was made for
limitation.24

[21] Viscount Simonds noted that the Canadian statute had conferred
jurisdiction, without referring to the imposition of liability on the Crown,
but accepted that its effect was to impose liability on the Crown. He went
on:
‘The question then is, what is the measure of the liability which is not defined by the
Act but is to be inferred from the creation of jurisdiction? It is not in dispute that at
least those circumstances which give rise to a claim between subject and subject will
support a claim by a subject against the Crown. From this, it is an easy step to say that
a subject is not entitled to any greater relief against the Crown than he would be
against a fellow subject, and this is supported by reference to s 8 of the Petition of
Right Act . . . , which provides that the statement of defence or demurrer to a Petition
of Right may raise, besides any legal or equitable defences in fact or in law available
under that Act, any legal or equitable defences which would have been available if the
proceedings had been a suit or action in a competent court between subject and
subject. Nor can it be ignored that, though the right to limit liability for damages is not
part of the common law but in England and Canada alike is the creature of statute, it is
a right almost universally established in the law of nations and of considerable
antiquity. It would therefore, be easily assumed that the Crown, assenting to the

22 The equivalent of the Crown Liabilities Act 1 of 1910 as explained in Smith's Coasters, op cit, fn 8.
Prior to this enactment proceedings against the Crown were only permissible if granted by the Crown
following upon the lodging of a Petition of Right.
23 In addition to Kirwin and Estey JJ, they were Rand J, concurred in by Rinfret CJ, at 488 and Kellock
and Cartwright JJ at 496 of Nisbet SCC.
24 The Supreme Court of Canada had remitted that issue to the trail court for determination.

imposition of a new liability, would secure for itself the advantage at least limiting it
in a manner so generally conceded. This view is thus cogently stated by Rand J
([1953] SCR at 488):
"Where liability, then, on the same footing as that of a subject, is established, giving a right to
damages, I can think of no more appropriate enactment to which that basic rule of the
prerogative could be applied than to a statutory limitation of those damages."
The basic rule which the learned judge refers is that under which it is said that the
Sovereign may avail himself of the provisions of any Act of Parliament.'

[22] The advice continued:
'These are the considerations which prevailed with the learned judges of the Supreme
Court, with the exception of Locke J with whose judgment their Lordships find
themselves in agreement. They are weighty considerations but, as it appears to their
Lordships, they do not explain why full effect should not be given to s 712. It is true
that, in 1934, that section, which was itself a re-enactment of s 741 of the Merchant
Shipping Act, 1894, could have no operation in regard to any liability of the Crown,
for it was only in 1938 that any relevant liability was imposed on the Crown. It does
not, however, follow that, when that liability is imposed, as it is by the amending Act
of 1938, the provisions of s 712 can be ignored. In the United Kingdom the same
problem arose as, when under the Crown Proceedings Act, 1947, the Crown was for
the first time made liable for the tortious acts of its servants, and it was by that Act
[s 5] specifically enacted that the sections of the Merchant Shipping Act 1894, should
apply to limit the liability of the Crown. And in Canada, similar provision is now
made by the Crown Liability Act, 1953.’

[23] With all due respect it does not seem to me that s 712 had the effect
given to it by the Board. In a later passage Viscount Simonds said that no
distinction could be drawn between the words ‘ships belonging to His
Majesty’ and words such as ‘His Majesty’ simpliciter. I fail to see why
that would be the case. In my view there is a straightforward difference
between provisions dealing with a person's ships and a provision dealing
with the person themself. But it may be that the decision was in large

measure based on the sequence in which the Canadian statutes had been
enacted. The Canada Shipping Act was passed in 1934, four years before
Canadian courts were given jurisdiction to decide cases brought against
the Crown. Accordingly, when the Canada Shipping Act replaced the
English Merchant Shipping Act 1894, claims for damages against the
Crown based on maritime collisions could not be brought as of right and
the provisions of s 503 of the Merchant Shipping Act 1894 could not be
invoked either by or against the Crown. The Board's advice may be
explained on the basis that the 1938 statute conferring jurisdiction could
not confer upon the Crown a statutory right not granted to it under the
1894 statute.

[24] It is as well at this point to highlight a significant difference
between the issue in that case and the present case. There it was the
Crown, as defendant in the action, seeking to limit its liability by
invoking the relevant provisions of the Canada Shipping Act, and the
owner of the ship that was lost resisting limitation. Here it is the reverse.
The owner of the MSC Susanna invokes a right to limit clearly given
under s 261(1)(b) and its entitlement to do so is resisted under s 3(6). The
equivalent of the question before the Board in Nisbet PC, would be to ask
whether, if the roles between the MSC Susanna and the Floreal had been
reversed, the Ministry as the owner of the Floreal would have been able
to limit its liability. No doubt in that situation, had the appellants
questioned the Ministry's right to invoke limitation, the arguments for
each party would have been reversed.

[25]  We do not have to decide that issue in this appeal. It is interesting
that in Canada, following the example of the United Kingdom, legislation
was passed to reverse the effect of the decision in Nisbet PC. That is a

pointer to the restriction held to exist in that case not being desirable. But
it is a question that could easily arise in the event of a collision between a
South African naval vessel and a merchant ship and we have not heard
sufficiently full argument to determine it now. It might also arise in cases
dealing with ss 255, 256 and 257 of the MSA on which no argument was
addressed. The appellants were content to advance their case on the basis
that this might be the situation. The submission that the appellants'
contentions would not give a sensible meaning to section 261 might be an
argument in favour of national defence forces being entitled, along with
all other vessels, to invoke limitation where their operations cause loss of
life or personal injury, or loss of or damage to property and rights. It is
not an argument against the proposition that limitation may be invoked in
relation to claims by a national defence force against a ship owner.

[26] No discernible reason of policy supports a different construction of
s 261(1)(b). Limitation of liability exists as a matter of policy. None of
the conventions on limitation exclude its invocation in respect of claims
arising from damage done to or by naval vessels. We were not referred to
any provisions in the laws of any other maritime state that would preclude
a claim in respect of damage done to a naval vessel from being required
to participate along with other creditors in the distribution of a limitation
fund. France was an original signatory to the 1976 Limitation
Convention, which contains no exemption from the invocation of
limitation for naval vessels.25 Sixty-three other states, including virtually
all major maritime nations, with the exception of the United States of
America,26 were either signatories to, or have ratified, the Convention. An

25 The 'Heidberg' Court of Cassation, Commercial Chamber, 22 September 2015.
26 In the United States of America the subject is dealt with under U S Code Title 46, Subtitle III
§§ 30101 to 31343. Like the United Kingdom and Canada there is a provision (§31106) providing that

exemption from the right to invoke limitation in respect of claims by
naval vessels would therefore be inconsistent with international practice.

[27] There are also incongruities arising from the Ministry's argument.
Section 261 deals with three situations, namely, an occurrence causing
loss of life or personal injury; an occurrence causing loss or damage to
property or rights; and an occurrence that causes both loss of life or
personal injury and loss or damage to property or rights. Had the incident
giving rise to this case resulted in loss of life or injury to naval personnel
on board the Floreal, they and the dependents of any who were killed
could have brought actions against the appellants to recover damages.
Any such claims would have been subject to limitation. Nothing in s 3(6)
suggests that the officers and crew of the Floreal would enjoy some
special exemption from the application of limitation. It seems
incongruous to say that the Ministry, as the owner of the Floreal, can do
what its officers and crew cannot and escape the application of limitation.

[28] A second incongruity is that the effect of the Ministry's
construction would be that vessels belonging to the defence force of
South Africa or another state, would be able to resist any limitation of
their claims under s 261, but other vessels owned by the South African
state or any foreign state would not. Thus if the polar supply and research
ship, the S A Agulhas II, was involved in a collision caused entirely by
another vessel, whilst en route to Marion Island and Prince Edward
Island, limitation could be invoked in regard to any claims by its owner,
the Department of Environmental Affairs, arising from the collision.

the United States is entitled to the exemptions and limitations of liability provided by law to an owner,
charterer, operator, or agent of a vessel.

However, if it was being accompanied at the time by the SAS Protea, a
marine survey vessel, and that vessel was likewise involved in the
collision without fault on its part, limitation would not apply, because the
SAS Protea is part of the South African navy and the SANDF.

Result
[29]  In the result I hold that the appellants are entitled to claim to limit
their liability, if any, arising from the events in Durban harbour on
10 October 2017 in respect of the claim by the Ministry under s 261(1)(b)
of the MSA. Their entitlement to do so is not excluded by s 3(6) of the
MSA. Accordingly, the following order is made:
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the high court is set aside and replaced by the
following order:
'The rule nisi is confirmed in the following terms:
The Ministére des Armées is joined as a defendant in the action
instituted by the appellants under case number A4/2019.
The Appellants are granted leave to amend the pleadings in the said
action so as to plead their cause of action against the Ministére des
Armées.
The Ministére des Armées is ordered to pay the costs occasioned
by its opposition to the application, such costs to include those
consequent upon the employment of two counsel.'

___________________________
M J D WALLIS
JUDGE OF APPEAL

Appearances
For appellant:
S R Mullins SC (with him P J Wallis SC)

Instructed by:
Shepstone & Wylie, Umhlanga Rocks;
Matsepes Inc, Bloemfontein

For respondent:
C J Pammenter SC (with him D Cooke)

Instructed by:
Clyde & Co, Cape Town;
Lovius Block, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
FROM The Registrar, Supreme Court of Appeal
DATE 6 October 2021
STATUS Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.
MV 'MSC Susanna': Owners and Underwriters of the MV 'MSC Susanna' and
Another v Transnet (SOC) Ltd and Another (1039/2020) [2021] ZASCA 135
(6 October 2021)
The SCA today upheld an appeal from the KwaZulu-Natal Provincial Division,
Pietermaritzburg, exercising admiralty jurisdiction, in this matter, which arises
from events on 10 October 2017 during a substantial storm in the port of
Durban. During the storm the MSC Susanna broke her moorings and collided
with several other vessels as well as land installations. One of these vessels
was the FNS 'Floreal' a French naval vessel owned by the French Defence
Ministry.
The owners, underwriters and charterers of the MSC Susanna are facing
substantial claims from Transnet and from the French Defence Ministry
arising out of this incident. If held liable they wish to invoke their right in
respect of these claims to limit the damages they must pay in terms of the
provisions of s 261(1)(b) of the Merchant Shipping Act 57 of 1951 (the MSA).
To that end they sought the joinder of the French Defence Ministry in the
limitation action. The joinder was resisted on the grounds that the provisions
of the MSA could not be invoked against the Ministry in the light of the
provisions of s 3(6) of the MSA, which provides that the provisions of the MSA

shall not apply to ships belonging to the SANDF or the defence force of any
other country. The high court held that this precluded the appellants from
relying on their right to limit their liability as against the French Defence
Ministry and dismissed the application for joinder.
The SCA held that the exclusion in s 3(6) applies to ships and not the owners
of ships. This was in accordance with the language of the section.
Section 261(1) clearly affords ship owners facing extremely large claims the
right to limit their liability if the claims arose from a single incident and was not
due to the owner's fault or privity. The international conventions relating to the
limitation of liability of the owners of ships do not provide an exclusion as
contended by the Defence Ministry and there is no international jurisprudence
supporting such an exclusion. It would also give rise to several anomalies.
Accordingly the appeal was upheld and an order for joinder made in place of
the high court's order.