THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

Case no:   898/10

In the matter between:

TRANSNET LTD

Appellant
and
THE OWNER OF THE MV ‘ALINA II’                            Respondent

Neutral citation: Transnet Ltd v The Owner of the Alina II (898/10)
[2011] ZASCA 129 (15 September 2011)
Coram:
BRAND, PONNAN, MALAN, THERON and WALLIS
JJA.
Heard:
29 August 2011
Delivered: 15 September 2011
Summary: Vessel arrested in actions in rem – thereafter plaintiff
seeking an attachment ad fundandam et confirmandam jurisdictionem
of vessel in respect of same claims – whether permissible – whether
owner of vessel had submitted to jurisdiction of the South African
court for purposes of an action in personam in respect of claims.

ORDER

On appeal from: Western Cape High Court, Cape Town (Griesel J
sitting as court of first instance in the exercise of the court’s admiralty
jurisdiction) it is ordered that:
The appeal is dismissed with costs.

JUDGMENT

WALLIS JA (BRAND, PONNAN, MALAN AND THERON JJA
CONCURRING)
[1] This appeal raises a short but important question of admiralty law
and practice. A plaintiff commences an action in rem by way of the arrest
of a vessel on the basis of the owner’s personal liability for the claim. The
owner of the vessel delivers notice of intention to defend the action in
order to contest its liability for that claim. Can the plaintiff then obtain the
attachment of the vessel to found and confirm jurisdiction1 in separate
proceedings in personam against the owner in respect of the same claims?
The appellant, Transnet Ltd, says that it can, but the respondent, the
owner of the Alina II, disputes this. The question arises in the following
circumstances.

[2] Transnet is the port authority at Saldanha Bay and trades as
Transnet Port Terminals and Transnet National Port Authority. It is
responsible for the operation of the Langebaan Iron Ore Terminal at
Saldanha Bay. On 29 October 2009 the Alina II, a bulk carrier, berthed at

1 Ad fundandam et confirmandam jurisdictionem.

one of the two berths at the terminal and commenced loading a cargo of
about 175 902 mt of Sishen iron ore fines. The vessel completed loading
on 31 October 2009. It was then observed that it had taken on a port list
and it was down by the head by about 50cm. Investigations revealed that
this was due to the ingress of water into the No 2 Double Bottom port
ballast tank caused by a fracture at frames 227-228.

[3] After this discovery the vessel remained at the berth until her cargo
had been transhipped. This took time and it only left Saldanha Bay on
27 March 2010. Transnet contends that it has suffered damages in
consequence of the vessel’s occupation of the berth during this period. On
13 January 2010 Transnet caused the Alina II to be arrested in two actions
in rem with a view to recovering those damages. There is no significant
difference between the two and henceforth I will treat them as a single
action. The owner of the vessel caused a notice of intention to defend to
be delivered on 27 January 2010 and on 19 February 2010 Transnet
delivered its particulars of claim. It suffices for present purposes to note
that it advances claims in both contract and delict. The contractual claim
is said to arise from a contract between Transnet and the owner of the
vessel. The delictual claim is based on a legal duty allegedly owed by the
owner to Transnet and a negligent breach of that duty by the owner, either
personally or acting through the master and crew for whom the owner is
said to be vicariously liable. Accordingly Transnet’s claims are squarely
based on the personal liability of the owner and are pursued in rem by
virtue of the provisions of s 3(4)(b) of the Admiralty Jurisdiction
Regulation Act 105 of 1983 (the Act).

[4] On 19 March 2010 the vessel was again arrested in an action by
four companies in the Kumba Mining group advancing claims of nearly

$275 million. This prompted the attorney acting for the owner2 to send an
e-mail to all the other parties having actual or potential claims against the
vessel saying:
‘Please be advised that:
1.
Any security which the owners may put up should be limited to the value of
vessels;
2.
Let us know what you need in order to make a valuation of the vessel before
she departs;
3.
Be informed that any security which we provide to enable the vessel to depart
is without prejudice to our rights to apply in due course to (1) reduce the security
and/or (2) substitute it for security to cover all the claims against the vessel.’
This stance precipitated the application by Transnet for an attachment of
the vessel ad fundandam et confirmandam jurisdictionem. The reason, as
explained by Transnet’s attorney in the founding affidavit, was that it
believed that if it attached the vessel to commence an action in personam
against its owner the vessel could only be released against the provision
of security for the full amount of Transnet’s claims.3 The application was
brought ex parte and without notice to the owner or its attorney in order
to forestall a submission to the jurisdiction. The attachment order was
made on 23 March 2010 and served on the master of the vessel the same
day, the sheriff recording in his return of service that he explained ‘the
contents, nature and exigency thereof’ to the master. He also affixed a
copy to the windscreen of the superstructure of the vessel.

[5] On 26 March 2010 the vessel’s P & I club provided a letter of
undertaking in respect of the full amount of Transnet’s claims and in

2 Presumably in reliance on admiralty rule 4(7)(a)(ii).
3  As held in Yorigami Maritime Construction Company Limited v Nissho-Iwai Co Limited 1977 (4) SA
682 (C). It is unnecessary to consider whether that judgment remains good law. See Malcolm Wallis
The Associated Ship & South African Admiralty Jurisdiction (2010) at 348, fn 25.

respect of both the in rem and the in personam actions. This allowed the
vessel to sail. Thereafter the owner opposed the confirmation of the
attachment order. It did so on essentially two grounds. The first was that
the attachment constituted an abuse of the process of the court. The
second was that such an attachment was impermissible because, prior to
the grant of the order or at least prior to the vessel being attached
pursuant to that order, the owner had submitted to the court’s jurisdiction
and such submission precluded an attachment ad fundandam et
confirmandam jurisdictionem.4 It advanced this second contention on
three bases. First it said that there had been an express submission in a
letter of undertaking (‘LOU’) relating to potential pollution and wreck
claims drafted and agreed between the owner’s P & I club, Transnet, the
South African Maritime Safety Association and the Department of
Environmental Affairs, but never implemented because the need for it fell
away. Second it relied on its having entered appearance to defend the
in rem actions and the procedural steps it had taken pursuant thereto.
Third it contended that, whilst the sheriff served the attachment order, he
did not attach the vessel and there was a clear submission to the
jurisdiction immediately the owner learned of the existence of the order.

[6] In the high court Griesel J upheld both the abuse of process and
submission to the jurisdiction arguments, the latter on the footing that the
submission was embodied in the LOU. Transnet appeals with his leave. It
contends that the Act specifically contemplates and countenances a
plaintiff pursuing its claims both by an action in rem and by an action
in personam. These are said to be two totally distinct forms of

4 In those circumstances an attachment is impermissible. Jamieson v Sabingo 2002 (4) SA 49 (SCA);
Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522
(SCA); Tsung v Industrial Development Corporation of SA Limited 2006 (4) SA 177 (SCA) paras 6
and 13.

proceedings so that the actions of the owner in relation to the in rem
actions cannot amount to a submission to the jurisdiction in relation to the
in personam claims against it. In advancing this argument submissions
were made in regard to the nature of the action in rem and the effect of
admiralty rule 8(3). In regard to the service of the attachment order it was
said that the owner was incorrect in contending that in addition to service
of the order it was necessary for the sheriff to serve a writ of attachment
and accordingly service of the order sufficed to effect the attachment.

[7] In his heads of argument, counsel for the owner dealt with the
effect of the owner defending the in rem actions under the rubric ‘abuse
of process/lis pendens’. The argument was that by defending those
actions the owner had submitted to the jurisdiction of the court and in
substance had become the defendant. Accordingly it was contended that,
as there were already in existence actions against the owner to recover the
same claims as were being pursued in the in personam action, the
commencement of the latter action by way of the attachment was an
abuse of process. It was a situation where there was a pending action
involving the same parties, the same subject matter and the same causes
of action (lis pendens) and this provided a proper basis for concluding
that to permit a further action was an abuse of process.5

[8] These conflicting approaches resulted in a considerable debate in
the heads of argument and before us about the true nature of the action
in rem in South African admiralty procedure; the application in this
country of what was said to be the principle laid down in The Dictator;6
and the impact of admiralty rule 8(3) on that decision, so far as our

5 Hudson v Hudson and another 1927 AD 259 at 268.
6 The Dictator [1892] P 304.

admiralty law is concerned. Interesting though these issues are, the
dispute between the parties is capable of being resolved on a narrow
footing, without resolving all of them, and it is preferable to do so and to
leave the remaining questions to be dealt with when they more pertinently
arise.

[9] It is generally accepted that a claimant whose claim has not been
satisfied after proceeding in rem is entitled thereafter to pursue a claim
in personam for the balance. (This is of course only so if the owner is
personally liable on the claim.) Put differently the judgment in rem does
not merge in a judgment in personam.7 This illustrates the point that it is
possible to conceive of circumstances in which resort may be had to both
forms of action, without oppression or abuse and for entirely legitimate
reasons. Thus, for example, if the owner as the person liable in personam
on the claim does not defend the action in rem and it is perfectly clear
that the claim will not be satisfied in full, because it exceeds the value of
the vessel (or the fund arising from its sale), the claimant may wish to
pursue the claim in personam against the owner and to that end attach an
asset to found the jurisdiction of the court. I am not satisfied that the Act
precludes the claimant from doing that.8 Certainly it seems an odd result
to say that the in personam action can be pursued once the in rem action
is complete, as is undoubtedly the case, but cannot run simultaneously.
Accordingly for present purposes, I assume without deciding, that

7 The Cella (1888) 13 PD 82 at 85; The Rena K [1979] 1 All ER 397 (QBD (Adm Ct)) at 416; Republic
of India & another v India Steamship Co Ltd (The “ Indian Grace”)(No 2) [1996] 2 Lloyd’s Rep 12
(CA) at 23.
8 There are textual indications in the Act and the admiralty rules that this is permissible. In s 3(4) it is
said that the right to institute proceedings in rem exists ‘without prejudice to any other remedy that may
be available to a claimant’. Rule 22(5) provides that the heading of documents in admiralty
proceedings shall reflect whether the proceedings are in rem or in personam or in rem and in personam.
Whilst one does not normally construe a statute by reference to the rules made under it the admiralty
rules were drafted at the same time as the Act by the same person (Mr D J Shaw QC), albeit that for
reasons unconnected with their contents they were not promulgated until three years after the Act came
into force. As such the rules may be a guide to the thinking underlying the Act.

Transnet is correct in saying that the Act recognises two forms of
procedure, namely the action in rem and the action in personam, and
contains no prohibition on a person having resort to both in order to
recover its claims.

[10] The mere fact that the Act does not prohibit a party from pursuing
its claims by both forms of procedure is not decisive of the question of
abuse of process. However, the power of the court to prevent a party from
pursuing an otherwise legitimate course on the grounds of abuse of
process is one to be exercised with caution.9 That being so, it is preferable
in the first instance to consider the arguments based on submission to the
jurisdiction, because if there was such a submission in respect of these
claims prior to the attachment being effected then the attachment order
was correctly set aside. That is accepted by both parties.10

[11] Transnet’s action in rem commenced with the arrest of the Alina II
on 13 January 2010. On 27 January 2010 notice of intention to defend
was delivered. The notice reflects that ‘the Defendant’ – ostensibly the
ship – ‘hereby gives notice of its intention to defend’ and the attorneys
described themselves as ‘Defendant’s attorneys’. However, that
nomenclature arises from the manner in which the defendant in an action
in rem is cited under admiralty rule 2(4). The instructions to give this
notice could only have come from a natural or juristic person. In this case
they came from the owner of the vessel. Had there been any confusion
over this – and there is none, the allegation that the instructions came
from the owner being admitted – it was open to Transnet to clarify this by
invoking admiralty rule 22(4)(b)(i) in order to ascertain the identity of the

9 As illustrated by the decision of the House of Lords in Ashley & another v Chief Constable of Sussex
Police [2008] 3 All ER 573 (HL).
10 See the authorities in fn 4.

party giving the notice of intention to defend. Although there was a
submission that in this form it was unclear who had given the notice it is
plain on the facts of this case that there was no confusion and Transnet
was well aware that the notice was given on behalf of the owner of the
vessel.

[12] By giving notice of intention to defend the action the owner of the
Alina II came to the South African court to resist allegations that it was in
breach of contractual obligations or alternatively guilty, directly or
vicariously, of negligence for which it was liable in delict. The issues to
be determined in the action were issues concerning the liability of the
owner. The notice of intention to defend was given because the owner
intended to defend itself against those allegations and to resist the claim
that it was legally liable to compensate Transnet for the damages that it
alleges it suffered in consequence of the Alina II being delayed in
Saldanha Bay.

[13] It is of fundamental importance to the proper resolution of this case
to recognise that the issue is whether the owner of the Alina II submitted
itself to the jurisdiction of the South African court in respect of these
claims and that such a submission may occur without any proceedings yet
having been brought against the owner. That is an entirely different
question from whether the entry of appearance to defend entitles the
owner to challenge the jurisdiction of the court in the action in rem. Thus
the plea in the action in rem places in issue whether the claims advanced
by Transnet are maritime claims. The consequences of that point being
upheld depend upon matters such as the proper interpretation of s 7(2) of
the Act. It is unnecessary for those matters to be considered here, because
we are not concerned with whether a judgment in rem can be granted

against the Alina II or even with whether the court has jurisdiction in the
in rem actions. All we are concerned with is whether the owners have
submitted to being sued in personam in South Africa.

[14] In Mediterranean Shipping Co v Speedwell Shipping Co Ltd &
another11 Van Heerden J said:
‘Submission to the jurisdiction of a court is a wide concept and may be expressed in
words or come about by agreement between the parties. Voet 2.1.18. It may arise
through unilateral conduct following upon citation before a court which would
ordinarily not be competent to give judgment against that particular defendant.
Voet 2.1.20. Thus where a person not otherwise subject to the jurisdiction of a court
submits himself by positive act or negatively by not objecting to the judgment of that
court, he may, in cases such as actions sounding in money, confer jurisdiction on that
court. Herbstein and Van Winsen The Civil Practice of the Superior Courts in South
Africa 3rd ed at 30; Pollak The South African Law of Jurisdiction at 84 et seq.’
It follows that the question of submission depends on the facts. It may be
constituted by the terms of an agreement prior to litigation commencing.
Thus, nominating a South African domicilium citandi et executandi in a
contract, in conjunction with a choice of South African law, was held to
constitute a submission to the jurisdiction in respect of any claims
flowing from that contract.12 Submission may arise from conduct in
litigation commenced against a person before a court that lacks
jurisdiction in respect of that person or that claim.13 In the Mediterranean
Shipping case it was said that:

11  Mediterranean Shipping Co v Speedwell Shipping Co Ltd & another 1986 (4) SA 329 (D) at 333E-
G. The passage was approved by this court in Purser v Sales; Purser & another v Sales & another
2001 (3) SA 445 (SCA) para 13.
12 Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd, supra, paras 14 and
15.
13  See the examples in Du Preez v Philip-King 1963 (1) SA 801 (W) at 803H-804G. In some of those
cases participation in litigation up to the stage of litis contestatio was seen as crucial. That does not
apply in a case where the question is whether the owner of a ship, by conduct in relation to an action
in rem in which it has not been cited, has submitted to the jurisdiction of the court. In such a case the
question is simply whether the conduct amounts to a submission, whatever stage the proceedings
in rem have reached.

‘Anyone who invokes the jurisdiction of this Court for relief under the Act must be
taken – and can hardly be heard to contend otherwise – to have submitted to that
jurisdiction …’14
There it was held that the attachment of a ship constituted a submission
by the attaching party to the court’s jurisdiction in respect of a claim for
damages flowing from that attachment.

[15] The conduct of the owners in entering appearance to defend the
in rem action unequivocally proclaimed their willingness to submit to the
judgment of the South African court on the claims raised by Transnet.
Their entry of appearance was not qualified or limited in any way. There
is nothing in it to suggest that they were entering appearance for any
purpose other than disputing the claims on their merits and that, as
already noted, meant that they were entering into the question of their
own liability to Transnet in respect of those claims. Thereafter (and
before the application for attachment) they insisted on strict compliance
with the time limits in respect of the filing of the particulars of claim;
gave an undertaking to preserve documents; asked what security Transnet
required in order to secure the release of the vessel; gave a notice under
the rules requiring the production of documents; and, when this was not
complied with, gave notice of their intention to apply to compel delivery,
alternatively to strike out Transnet’s claim. On the ordinary principles
applied by our courts in regard to submission to jurisdiction the owners
submitted themselves to the jurisdiction of the South African court in
relation to these claims.

[16] What is said to make a difference is that all this occurred in
proceedings in rem against the Alina II where, according to the contention

14 At 334A.

on behalf of Transnet, the ordinary principles are inapplicable, because of
the special character of such an action. This proposition encounters an
immediate difficulty in that in English admiralty law, from which South
Africa first acquired the action in rem, it was held in 1892 in
The Dictator15 that the effect of the owner of a ship entering appearance
to defend an action in rem, where the owner is personally liable on the
claim, is that the owner submits to the jurisdiction of the court in respect
of that claim and any judgment given thereafter is capable of being
executed against the owner personally. The plaintiff is not confined to the
ship or execution against the bail given to secure the release of the vessel.
Cognisant of this difficulty it was submitted in heads of argument on
behalf of Transnet that the:
‘… purpose of Admiralty Rule 8(3) was to reverse in its entirety the English rule
originally formulated in The Dictator that once a defendant in an admiralty action
in rem has entered an appearance in such action, he has submitted himself personally
to the jurisdiction of the English Admiralty Court and the result is that the action
thereafter continues against him not only as an action in rem, but also as an action
in personam’.

[17] In order to consider this submission it is necessary to have regard
to what was decided in The Dictator. It was a case concerning a claim for
salvage. The owners of the ship and its cargo put in an appearance to
defend the action and put up bail for £5 000, which was the full amount
of the claim. Thereafter judgment was granted in an amount of £7 500.
The issue was whether the plaintiff could simply proceed to execution
against the owners on this judgment or whether they were restricted to
executing against the bail for £5 000 and proceeding in a fresh action
against the owners for the balance. The argument for the owners was that

15 Footnote 6, supra.

in an action in rem judgment could not be given for more than the value
of the vessel. At the outset Sir Francis Jeune said that:
‘It is necessary to consider whether in an action in rem, where a personal action
would lie against the owners, judgment can be enforced for more than the value of the
res; because, if it can, no doubt it can be enforced for more than the amount of the
bail.’16 (Emphasis added.)
The stress on the existing personal liability of the owner is repeated
throughout the judgment, which concerns only the effect of an
appearance to defend being given by such an owner. The argument that
the judgment could not be executed against the owner and that the
balance of the claim should be pursued by a separate action in personam
against the owners was based solely on the alleged admiralty practice.
That practice, so it was said, precluded the engrafting of an action
in personam on to an action in rem. Jeune J responded to this suggestion
by saying:
‘I cannot help thinking that the fallacy lies in considering that to enforce a judgement
beyond the value of the res against owners who have appeared and against whom a
personal liability enforceable by Admiralty process exists, is the grafting of one form
of action on to another. The change, if it be a change, in the action is effected at an
earlier stage, namely, when the defendant by appearing personally, introduces his
personal liability.’17 (Emphasis added.)
The conclusion he reached was that when owners defend an action
in rem, in circumstances where they are personally liable on the claim,
the judgment is one that can be enforced against the owners personally.
That was based on the owner’s existing personal liability and the
submission to the jurisdiction of the court involved in entering
appearance to defend the action, as well as on the form of process then

16 At 310.
17 At 319.

applicable in admiralty proceedings, which cited the vessel and all parties
interested therein.

[18] The decision by Jeune J was challenged in the Court of Appeal in
The Gemma.18 That was a case of a claim for damages arising from a
collision. After the vessel was arrested the owners entered appearance to
defend and in due course put in a defence and a counterclaim. Smith LJ
said of this:
‘That the defendants then submitted to the jurisdiction of the Court I cannot doubt
…’19
It is plain from a later reference to persons, whose ship has been arrested,
appearing to fight out ‘their liability’20 that the court was concerned only
with the position of the owner who was personally liable on the claim and
who entered appearance to defend it. On that basis the court held that the
judgment in the action could be enforced against the owners directly. In
doing so it expressly approved the decision in The Dictator.

[19] These two cases were decided on the basis that the owners were
personally liable on the claim. Their entry of appearance was taken as a
submission to the court’s jurisdiction. From that submission, and the
mode of citation in admiralty, flowed the consequence that the judgment
was against them personally and could be enforced to its full extent
against all their property. There is no suggestion in either judgment that a
party who entered appearance for the purpose of defending their interest
in the vessel, but who was not personally liable in respect of the claim,
thereby undertook liability for anything beyond the costs of the litigation.

18 The Gemma [1899] P 285.
19 At 291.
20 At 291.

In other words it was not suggested that entering appearance created a
liability for the claim that did not otherwise exist.

[20] Whilst these decisions were subjected to criticism in Williams and
Bruce’s Admiralty Practice21 they have been uniformly followed in
England.22 Nearly 100 years later Lord Brandon of Oakbrook said that:
‘By the law of England, once a defendant in an Admiralty action in rem has entered
an appearance in such action, he has submitted himself personally to the jurisdiction
of the English Admiralty Court, and the result of that is that, from then on, the action
continues against him not only as an action in rem but also as an action in personam
…’23 (Emphasis added.)

[21] In English admiralty law therefore, after entry of appearance to
defend an action in rem, the action proceeds as both an action in rem and
as an action in personam against the party giving the notice. Fletcher-
Moulton LJ said that the decisions in The Dictator and The Gemma treat
the entry of appearance as introducing the characteristics of an action
in personam and described the position of the owner entering appearance
in the following terms:
‘It is an action in which the owners may take part, if they think proper, in defence of
their property, but whether or not they will do so is for them to decide, and if they do

21 Mr Justice Bruce and Charles Fuhr Jemmett, assisted by George Grevill Phillimore, A Treatise on the
Jurisdiction and Practice of the English Courts in Admiralty Actions and Appeals being a Third
Edition of Williams’ and Bruce’s Admiralty Practice 3 ed (1902) at 18-26.
22  The Dupleix [1912] P 8 at 15; The Jupiter [1924] P 236 at 242; The Banco: Owners of the motor
vessel Monte Ulia v Owners of the ships Banco & others [1971] 1 All ER 524 (PDA and CA) at 531f-g.
The position is the same in Australia. Caltex Oil v The Dredge Willemstad (1976) 136 CLR 529 at 539.
After appearance in an action in rem ‘the action proceeds as if it were an action in personam (without
ceasing to be an action in rem) against that person. Once a relevant person files an appearance, the
plaintiff will file a statement of claim "on each party who has entered an appearance" and the relevant
person becomes liable to have judgment entered against it personally and to the full extent of the claim,
not limited by the value of the ship …’ per Allsop J in Comandate Marine Corp v Pan Australia
Shipping Pty Ltd 2006 FCAFC 192 para 109, (2006) 238 ALR 457, (2006) 157 FCR 45. The position
in Singapore is the same. Kuo Fen Ching v Dauphin Offshore Engineering and Trading Pte Ltd [1995]
3 SLR 721 at 726, 1999 SGCA 95.
23 The August 8 [1983] 2 AC 450 (PC) 456.

not decide to make themselves parties to the suit in order to defend their property, no
personal liability can be established against them in that action.’24

[22] In a later case it was said that, when the owner who is personally
liable enters an appearance, the action in England has a hybrid form, both
in rem and, as against the owner, in personam.25 It is important to note
that in part at least this conclusion flowed from the form of the writ under
which actions in rem were and still are instituted in that jurisdiction. The
writ was addressed to the vessel and ‘all persons claiming an interest in’
the vessel. Accordingly when a person claiming such an interest entered
appearance to defend they submitted to the jurisdiction in relation to a
writ in which they were already cited. As Lord Wright put matters in The
Cristina:26
‘… under the modern and statutory form of a writ in rem, a defendant who appears
becomes subject to the liability in personam. Thus the writ in rem becomes in effect
also a writ in personam.’

[23] Lastly in this review of the English position, Hobhouse J in The
Nordglimt27 dealt with the position in the following terms:
‘Unless and until anyone appears to defend an action in rem, the action proceeds
solely as an action in rem and any judgment given is solely given against the res …
An action in rem may be defended by anyone who has a legitimate interest in resisting
the plaintiff’s claim on the res. Such a person may be the owner of the res but equally
it may be someone who has a different interest in the res which does not amount to
ownership, or again it may be simply someone who also has a claim in rem against
the res and is competing with the plaintiff for a right to the security of a res of

24 The Burns [1907] P 137 at 149. There is of course nothing to prevent that personal liability from
being established in other proceedings
25 The “Maciej Rataj” [1992] 2 Lloyd’s Rep 552 (CA) at 559 and 561.
26 Compania Naviera Vascongado v Steamship “Cristina” and Persons Claiming an Interest Therein
[1938] AC 485 (HL) at 505.
27 The Nordglimt [1988] 2 All ER 531 (QBD) at 545e-g. Although that case was overruled in Republic
of India & another v India Steamship Co Ltd (The “Indian Grace”)(No 2) [1998] 1 Lloyd’s Rep 1
(HL) the correctness of this passage was not questioned.

inadequate value to satisfy all the claims that are being made on it. It will also be
understood from what I have said and from a general understanding of the law of
maritime liens that the owner or other person defending the action may be under no
personal liability to the plaintiff.
… Unless and until a person liable in personam chooses to defend an action in rem,
the action in rem will not give rise to any determination as against such a person of
any personal liability on his part, nor will it give rise to any judgment which is
enforceable in personam against any such person.’

[24] There is thus a consistent stream of authority in English admiralty
law, commencing with The Dictator, that holds that the entry of
appearance to defend an action in rem is a submission to the jurisdiction
of the court and that thereafter any judgment given is one both against the
res and in personam against the person entering appearance, where that
party is personally liable for the claim. That authority was undoubtedly
binding on South African courts sitting as Colonial Courts of Admiralty
prior to 1 November 1983, where they were required to apply the law as
applied by the High Court of Justice of the United Kingdom in the
exercise of its admiralty jurisdiction. Had any such issue arisen,28 they
would have been bound to apply the decision in The Dictator. Transnet’s
case is, however, that this is no longer so.

[25] The first stage at which South African admiralty law could have
departed from the position in England and The Dictator was when the Act
was passed. Whether that occurred would depend upon the terms of the
Act itself. The question can be disposed of shortly as it is not a contention
that Transnet advanced. When the Act was passed the action in rem was
maintained because it was internationally recognised as a mode of
bringing proceedings in maritime cases. Other than the introduction of the

28 I am not aware of any case where the issue arose nor is there a reported judgment dealing with it.

associated ship there is nothing to suggest that the Act was intended to
bring about a fundamental alteration in the nature and effect of the action
in rem. Nor is there anything in the language of the Act itself to indicate
that this was its purpose. As one commentator pointed out it would have
been impractical to abandon the jurisprudence that created the concept of
the action in rem whilst retaining the action.29 That is plainly correct.

[26] Transnet’s argument is that the departure from The Dictator arises
from the provisions of admiralty rule 8(3), as it now is, formerly
admiralty rule 6(3).30 The case was presented on the footing that this
change occurred when the Act came into operation on 1 November 1983,
but that overlooked the fact that for the first three years of the Act’s
operation, up until 1 December 1986, the rules applicable to admiralty
proceedings were the Rules of the Vice-Admiralty Courts,31 which
applied also to the Colonial Courts of Admiralty. Those rules followed
the rules and forms applicable in admiralty proceedings in England in the
High Court of Justice sitting in the exercise of its admiralty jurisdiction.
A writ of summons32 was addressed:
‘To the owner and all others interested in the ship [her cargo and freight &c., or as the
case may be].’
Under rule 19 a party entering appearance would file the appearance at
the place directed in the writ. The appearance had to be signed by the
party appearing and state his name and address and an address for
service.33 If the party appearing had a set-off or counterclaim against the
plaintiff he was entitled to endorse on the appearance a statement of the

29  Gys Hofmeyr ‘Admiralty Jurisdiction in South Africa’ 1982 Acta Juridica 30 at 47.
30 The two are in the same terms. The original rules came into force on 1 December 1996 and they were
repealed and replaced on 18 April 1997. For most present purposes it suffices to refer to rule 8(3) as if
it applied throughout the relevant period.
31 Promulgated under an Order in Council dated 23 August 1883.
32 Form 4.
33 Rule 22.

nature thereof and of the relief or remedy required, and of the amount if
any of the set-off or counterclaim.34 It is plain from the rules dealing with
parties35 that the ‘party’ referred to in these rules is not the ship but the
person, such as the owner, charterer, mortgagee and insurer, who had
entered appearance to defend an action.

[27] Bail for the release of the vessel was to be given by sureties.36
Under rule 55 actions would ordinarily be heard without pleadings37 but if
pleadings were required the plaintiff and the party defending the action,
who was referred to in the rule as the defendant, filed them. All the rules
dealing with the conduct of proceedings refer to a ‘party’ and this is
always a reference to the plaintiff or the party defending the action, not
the vessel. In other words, the rules in force under the Act, from the date
it came into force on 1 November 1983, were entirely consistent with the
continued application in South Africa of the approach adopted in
The Dictator that the entry of appearance to defend by an owner
personally liable for a claim amounted to a submission to the jurisdiction
and the action would thereafter continue as both an action in rem and an
action in personam against the owner.

[28] The argument that when rule 6(3) came into force on
1 December 1986 it altered the position, raises certain major difficulties.
It is however unnecessary to address these as I am satisfied that on a
proper construction of rule 8(3)38 it does not have the suggested effect.
The rule reads:

34 Rule 21.
35 Rules 23 to 26.
36 Rules 39 to 46.
37 As was the case of Incorporated General Insurances Ltd v Shooter t/a Shooter’s Fisheries 1987 (1)
SA 842 (A).
38 This rule replaced rule 6(3) with effect from 19 May 1997 but is in identical terms.

‘A person giving notice of intention to defend an action in rem shall not merely by
reason thereof incur any liability and shall, in particular, not become liable
in personam, save as to costs, merely by reason of having given such notice and
having defended the action in rem.’
On its plain language the rule is concerned only with whether the effect
of entering an appearance to defend and defending an action in rem is to
attract liability in respect of the claim. It provides that such liability will
not arise ‘merely’ in consequence of the entry of appearance to defend. It
says nothing about the position of the person whose liability in respect of
the claim arose before the commencement of the action out of the
circumstances giving rise to the claim. That was the view of Douglas
Shaw QC, who wrote about the rule that:
‘This rule does not affect any liability which might otherwise exist, a subject which
has been dealt with. It merely provides that the procedural step of giving notice of
intention to defend and defending the action is not to subject anyone to the greater
liability.’39

[29] The reference in that passage to the question of liability is a
reference to an earlier statement by Shaw that the entry of appearance to
defend is ‘a submission to the jurisdiction, not an acceptance of
liability’.40 That statement gives a clue to the problem that the rule
addresses. It is the perception – I believe an erroneous perception – that
the judgment in The Dictator held that a person who enters appearance in
an action in rem thereby, and without more, attracts personal liability for

39 D J Shaw QC Admiralty Jurisdiction and Practice in South Africa at 112.
40 At p 31. The same view appears to be held by Gys Hofmeyr SC in the draft of the relevant chapter of
the second edition of his work Admiralty Jurisdiction Law and Practice in South Africa, a copy of
which was made available to us by counsel, with his consent. In fn 74 he writes: ‘A person who
intervenes and defends the action – whether personally liable in respect of the claim or not – submits to
the jurisdiction of the court to make orders relating to that defence, such as an order as to costs.’ Where
the person intervening is personally liable in respect of the claim there is no apparent reason why that
should not be treated as a submission to the jurisdiction in respect of the claim. Whether the plaintiff
wishes to take advantage of that or is content to pursue the matter in rem alone is for the plaintiff to
decide.

the claim.41 It is true that in a number of cases in England and elsewhere
there are statements that, by entering appearance to defend, the owner
introduces its personal liability, or statements to similar effect. In my
view those statements are misleading insofar as they are taken to suggest
that this is a liability arising from the fact of entering appearance to
defend, as opposed to a pre-existing liability that can be enforced against
the owner in those proceedings, by virtue of the owner’s submission to
the jurisdiction. In my view The Dictator is authority for only two
propositions. The first is that, as Shaw says, entering appearance to
defend (and, I would add, thereafter defending) an action in rem is a
submission to the jurisdiction of the court. The second is that where the
person entering appearance to defend is personally liable on the claim,
under the forms of procedure then applicable in the English courts
exercising admiralty jurisdiction, that person has been cited and
submitted to the court’s jurisdiction, and any judgment thereafter will be
enforceable as a judgment in personam against that person.

[30] Under the present admiralty rules in South Africa the second of these
consequences would not flow from the entry of appearance to defend and
the defence of the in rem action. The reason is that in terms of
admiralty rule 2(4), read with form 1 to the admiralty rules, the summons
in rem is not addressed to and does not cite the owner or other persons
having an interest in the vessel or other res arrested in order to commence
the action. In this our rules have departed from the forms that applied in
England, as referred to by Lord Wright in The Cristina, supra, and the
forms previously applicable in South Africa, both when our courts sat as
Colonial Courts of Admiralty and in the first three years of operation of

41 There are passages in some academic writing as well as in certain judgments that suggest that some
maritime lawyers held this view.

the Act.42 One may therefore have a submission to the court’s jurisdiction
by a person not cited as a party.43 However the problem, if it be one, is
readily overcome by amending the summons to join that person and to
reflect, as rule 22(5) contemplates, that the action will proceed as an
action both in rem against the vessel and in personam against that person,
with such consequential amendments as the circumstances may require.
Alternatively a separate action in personam can be commenced on the
basis of the submission to the court’s jurisdiction. Some such procedural
step seems to be necessary in this country in order that the action (and
ultimately any judgment) reflects the party entering appearance as a party
to the judgment. However, that is immaterial to the outcome of this case,
where the only issue is whether the owners of the Alina II submitted to
the jurisdiction of the South African court before the attachment order
was granted.

[31] If, which I don’t think is the case, The Dictator is authority for the
further proposition that a person entering appearance in an action in rem
thereby incurs personal liability on the underlying claim, irrespective of
whether it is otherwise personally liable on that claim, that would not
affect the understanding of rule 8(3). The only difference would be that it

42 In England in terms of Practice Directive 61.3.3 issued under CPR 61 the defendant must be
described in the claim form. This requirement is satisfied by describing the defendant as ‘the owners or
demise charterers of the ship’. Nigel Meeson Admiralty Jurisdiction and Practice 3 ed (2003) para 4.5,
p 126. In Australia admiralty rule 15(1) requires that process initiating an action in rem must specify a
relevant person in relation to the maritime claim. The definition of relevant person in s 3(1) of the
Admiralty Act 1988 (Cth) provides that it means a person who would be liable on the claim in
proceedings in personam. Liability attaches by virtue of the express provisions of s 31(1) of the
Admiralty Act 1988 (Cth). In New Zealand a notice of proceeding in rem under form 69 to the
admiralty rules is addressed to ‘the owners and all others interested in’ the vessel or property to be
arrested. The form of a summons in rem in Singapore and Hong Kong is similar. The relevant statutes,
rules and forms are to be found in the appendices in Damien J Cremean Admiralty Jurisdiction Law
and Practice in Australia, New Zealand, Singapore and Hong Kong 3 ed (2008). The difference in
procedural forms between these countries and South Africa enables the action in them to continue as
both an action in rem and an action in personam after the entry of appearance to defend, without the
need for an amendment of the summons or the issue of some other form of process commencing action.
43 Admiralty rule 8(4) provides for notice of intention to defend to be given by a person on whom the
summons has not been served or even where there has been no service at all of the summons.

would then be addressed to a real rather than a perceived issue arising
from that judgment. Whether the rule could validly have the effect of
reversing this would then arise. That is no reason for treating the rule as
affecting the question of submission to the jurisdiction.

[32] We were referred to three judgments in support of the contention
that rule 8(3) reversed the decision in The Dictator in its entirety and is
not limited to making it clear that entering appearance to defend and
defending an in rem action does not create or impose a liability on the
person entering the appearance. The first in point of time is that in
SA Boatyards CC (t/a Hout Bay Boatyard) v The Lady Rose (formerly
known as the Shiza44 and reliance is placed upon a comment by Scott J
that:
‘The effect of the Rule would seem to be to re-establish the position which prevailed
in England prior to The Dictator (cf Thomas Maritime Liens para 92) and the rule is
probably the result of criticism levelled at the extension of the owner’s liability which
has occurred since the last decade of the previous century (cf Jackson Enforcement of
Maritime Claims at 59;45 Shaw (op cit at 31))’46
However that overlooks the next sentence where the learned judge said:
‘It does not follow, however, that merely because the owner defending an action
in rem does not incur personal liability (save for costs) he is necessarily to be
regarded as a stranger to the suit and not entitled to counterclaim.’

The issue in that case was whether an owner defending an action in rem
was entitled to raise a counterclaim. Scott J held that he could, thereby
recognising that the effect of entering appearance to defend is to bring
before the court the party entering appearance.47 The tentative comment
that prefaced this lends no support to Transnet’s contentions.

44 SA Boatyards CC (t/a Hout Bay Boatyard) v The Lady Rose (formerly known as the Shiza 1991 (3)
SA 711 (C).
45 Later editions of Professor Jackson’s work do not contain any such criticism.
46 At 715F-H.
47 This was the position under the Vice-Admiralty Rules and is the present position under rule 10.

[33] The most pertinent judgment is that of Farlam J in Bouyges
Offshore & another v Owner of the MT Tigr & another.48 The issue in
that case was the same as that in this case, namely whether an attachment
to found and confirm jurisdiction should be confirmed in a case where
there was already an action in rem against the Tigr that was being
defended by its owners. Confirmation of the attachment was opposed on
the grounds that the owner was liable in rem because its asset would be
sold in order to satisfy any judgment and that English law as expressed in
The August 8, supra, applied, so that after entering appearance to defend
the action in rem proceeded also as an action in personam.49 Having
rejected an argument that the rule is invalid, the key to Farlam J’s
decision lies in the following passage:
‘By our procedure, as set forth in the Rule, such an owner is not regarded as having
submitted to the in personam jurisdiction of the Court. It follows further that first
respondent did not, by taking the steps to which I have referred, submit to this Court’s
in personam jurisdiction.’50

[34] With great respect I cannot accept this as a correct statement of the
law. First the rule does not say anything about the question of submission
to the jurisdiction or about procedure. Its focus is solely and expressly on
the liability of the person who enters appearance to defend and defends an
action. That is an entirely separate issue from any question of submission
to the jurisdiction. Second the distinction drawn between the in rem and
the in personam jurisdiction of the court is fallacious. The jurisdiction
conferred on our courts under the Act is set out in s 2 of the Act and is a
jurisdiction to hear and determine maritime claims as defined in s 1 of the

48 Bouyges Offshore & another v Owner of the MT Tigr & another 1995 (4) SA 49 (C).
49 As pointed out in para 30, that could not be the case without an amendment to join the owner as a
party in personam.
50 At 67J-68B.

Act. The action in personam and the action in rem are dealt with in s 3 of
the Act under the heading ‘Form of proceedings’. They are the modes by
which maritime claims can be enforced before a court having jurisdiction
but it is erroneous to treat the court as exercising two separate and distinct
jurisdictions, one in personam and the other in rem. The question is
simply whether there has been a submission to the jurisdiction of the
court in respect of those claims. That question is to be addressed in
accordance with ordinary principles governing submission to the
jurisdiction of the courts. In this case there clearly was such a submission.

[35] The third judgment is MT Argun: MT Argun v Master and Crew of
the MT Argun & others.51 That dealt with the effect of the lapsing of an
arrest. After quoting the passage from The August 8 cited in para 20,
Farlam JA said:
‘If the present case had been heard in England, therefore, on the lapsing of the arrest
of the vessel the actions would at the very least have continued as actions in personam
against the vessel's owner. That that is not our law is clear from Rule 8(3), the
material provisions of which are quoted in para [20] of this judgment.’52
Our law on this differs from English law because in English law the form
of citation in an action in rem requires the identification and citation of
the defendant, so that procedurally, once there is a submission to the
jurisdiction by the defendant, that person is fully before the court. In our
procedure only the vessel is cited so that, until there is an amendment of
the summons, the party entering appearance to defend is not as such
before the court. The difference is not ascribable to the provisions of
rule 8(3) and the dictum to that effect is not correct.

51 MT Argun: MT Argun v Master and Crew of the MT Argun & others 2004 (1) SA 1 (SCA).
52 Para 26.

[36] For those reasons the proposition that admiralty rule 8(3) reverses
that aspect of the decision in The Dictator that held that, when a person
enters an appearance in an admiralty action in rem, that is a submission to
the jurisdiction of the court, is incorrect. The rule is silent on the question
of submission to the jurisdiction and there is no reason why that should
not be dealt with in admiralty proceedings in the same way in which our
courts deal with it in the exercise of their ordinary jurisdiction. On the
facts set out in para 15 the owner of the Alina II had submitted to the
court’s jurisdiction in respect of the claims by Transnet prior to the order
for attachment being obtained. That order should not therefore have been
granted and the high court was correct not to confirm it.

[37] In arriving at that conclusion it is unnecessary to express any final
view on any other aspect of the decision in The Dictator, or the nature of
the action in rem, or to consider whether the judgment of Lord Steyn in
The Indian Grace (No 2)53 should be followed in South Africa. It is also
unnecessary to decide whether there may be circumstances in which a
party may enter appearance to defend an action in rem on such terms as to
avoid submitting to the court’s jurisdiction in respect of that person’s
personal liability on the claim. It suffices to say that on all the facts of this
case there was a submission to the court’s jurisdiction. That conclusion
renders it unnecessary to consider the other points debated in argument.

[38] The appeal is dismissed with costs, such costs to include those
consequent on the employment of two counsel.

53 Footnote 27 ante.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
R W F MacWilliam SC (with him D J Cooke)
Instructed by
Bowman Gilfillan, Cape Town
Matsepes Inc, Bloemfontein

For respondent:

A M Stewart SC (with him M Steenkamp)

Instructed by

Shepstone & Wylie, Cape Town

Honey Attorneys Inc, Bloemfontein.

Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  15 September 2011

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

TRANSNET LTD V THE OWNER OF THE ALINA II

After the Alina II had loaded its cargo at the Langebaan terminal in
Saldanha Bay it was found to have hull damage allowing the ingress of
water. The cargo had to be discharged and the vessel only left the berth
and the port some 6 months later. Transnet advances substantial claims
against the owner of the vessel arising out of this incident. It arrested the
vessel in an admiralty action in rem and then sought to attach it in order
to obtain greater security for its claim. The high court set aside the
attachment and the Supreme Court of Appeal dismissed an appeal against
that order. It did so on the narrow ground that by defending the action in
rem the owner of the vessel had already submitted to the jurisdiction of
the South African courts in respect of these claims and accordingly an
attachment was both unnecessary and impermissible.