The Maritime Prosperity and the Lash Atlantico twice collided off Port Said, Egypt, on 16 and 28 October 1990. Each collision caused damage to both vessels. Rosario Navigation Co Inc (Rosario) owned the Maritime Prosperity. Coastal Barge Corp (Coastal) owned the Lash Atlantico. Both parties were peregrini.

On 14 October 1992, Rosario commenced proceedings in rem against the Lash Atlantico, which was arrested at Durban, South Africa, on 10 November 1992, and released following provision of security.

On 20 August 1993, Coastal applied (without notice to Rosario) for an interim order for an extension of the two-year prescriptive period under s 344(1) of the South African Merchant Shipping Act 57 of 1951 (the MSA). Coastal requested to extend time until 27 October 1993 under MSA s 344(3). Coastal also sought an order that the Court Sheriff arrest the Maritime Prosperity in terms of s 5(3)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act) to obtain security for a claim-in-reconvention which Coastal intended to file in the action instituted by Rosario, in which Coastal proposed to counterclaim. Coastal accepted that the prescriptive periods terminated on 15 and 27 October 1992 for each of the two collisions respectively. Coastal's claim for damages exceeded Rosario's claim in quantum.

Coastal's application was allowed but Rosario opposed confirmation of the rule nisi on the return day. Thirion J made an order (a) dismissing the application for the extension of the period of prescription in terms of MSA s 344(3) and discharging the rule nisi in so far as it related to such extension; and (b) confirming that portion of the rule nisi relating to the arrest of the Maritime Prosperity in terms of s 5(3)(a) of the Act 'insofar as it relates to an action in personam by the applicant (Coastal) against the respondent (Rosario)': Owner of the MV Lash Atlantico v Owner of the MV Maritime Prosperity 1994 (3) SA 157 (D). Rosario appealed against portion (b) of the order. Rosario contended that Coastal has failed to establish that it has a prima facie claim due to extinctive prescription. The appeal hinged largely on the interpretation to be placed on MSA s 344, part of which resembles s 8 of the English Maritime Conventions Act 1911 (UK) (the MCA):

344 Prescription

(1) The period of extinctive prescription in respect of legal proceedings to enforce any claim or lien against a ship or her owners in respect of any damage to or loss of another ship, her cargo or freight, or any goods on board her, or damage for loss of life or personal injury suffered by any person on board her, caused by the fault of the former ship, whether such ship be wholly or partly in fault, or in respect of any salvage services shall be two years and shall begin to run on the date when the damage or loss or injury was caused or the salvage services were rendered.

(2) The period of extinctive prescription in respect of legal proceedings under this Act to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injury shall be one year and shall begin to run on the date of payment.

(3) Any court having jurisdiction to try proceedings referred to in ss (1) or (2) shall, before or after the expiry of such period, if it is satisfied that owing to the absence of the defendant ship from the Republic and its territorial waters and from the country to which the plaintiff's ship belongs or in which the plaintiff resides or carries on business and its territorial waters, the plaintiff has not during such period had a reasonable opportunity of arresting the defendant ship, extend such period sufficiently to give him such reasonable opportunity.

The provisions as to extinctive prescription contained in this section must be read together with the general law relating to prescription as set forth in Ch III of the South African Prescription Act 68 of 1969. Section 16(1), as amended, of the Prescription Act (which is to be found in Ch III) provides that:

Subject to the provisions of ss (2)(b), the provisions of this chapter shall, save insofar as they are inconsistent with the provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act.

The parties accepted that MSA s 344(1), which lay down a two-year prescriptive period as regards legal proceedings to enforce any claim or lien against a ship or her owners in respect of, inter alia, damage to another ship caused by the fault of the former ship, are inconsistent with, and therefore in terms of s 16(1) of the Prescription Act supplant, contrary provisions as to prescriptive periods which are to be found in the Prescription Act.

Coastal contended nevertheless that s 13(1)(b) of the Prescription Act of 1969 applied to these claims and that this provision saved them from prescriptive extinction. Section 13(1) provides that:

If … (b) the debtor is outside the Republic … and

(i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in para ... (b), … has ceased to exist,

the period of prescription shall not be completed before a year has elapsed after the day referred to in para (i).

Rosario's counter to this was that s 13(1)(b) was inconsistent with MSA s 344(3), read with MSA s 344(1), and that accordingly reliance thereon was precluded by s 16(1) of the Prescription Act.

Coastal's rebuttal was first, that MSA s 344(3) applied only to actions in rem and that, since Coastal's counterclaim would be in personam, there would not be any scope for inconsistency; and, secondly, that in any event even if MSA s 344(3) applied to both actions in rem and actions in personam, there was no inconsistency between MSA s 344(3) and s 13(1)(b) of the Prescription Act.

Held: Appeal dismissed.

This case involves a security arrest in terms of s 5(3)(a) of the Act. Leaving aside the matter of associated ships, an applicant for an order for the arrest of a ship in terms of s 5(3)(a) must satisfy the Court, among other things, that the applicant has a prima facie case in respect of its claim enforceable by an action in rem against the ship or by an action in personam against the owner of the ship: Cargo Laden and Lately Laden on Board the MV Thalassini Avgi v MV Dimitris 1989 (3) SA 820 (A) at 831E-833A; Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A) 578G-579D. To establish a prima facie case, all that the applicant need show is that there is evidence which, if accepted, would establish a cause of action.

The first issue concerns the scope of MSA s 344(3). It is whether the power to extend the prescriptive period conferred by it on the Court applies to both actions in rem and actions in personam or only to the former. These are the two procedures whereby a maritime claim may be enforced in a court exercising its admiralty jurisdiction. The former is instituted by the arrest of property, usually the ship. The latter is brought by the service of a summons on the defendant. There are certain jurisdictional requirements which limit the persons against whom the action may be brought. These include (s 3(2) of the Act): (i) residence or the carrying on of business by the defendant in the Republic; (ii) the attachment of property of the defendant within the area of the Court's jurisdiction in order to found or confirm jurisdiction; (iii) the consent of, or the submission by, the defendant to the jurisdiction of the Court; and (iv) in the case of a defendant company, the fact that it has its registered office in the Republic. The property which may be attached to found or confirm jurisdiction includes, but is not limited to, the ship against or in respect of which the claim lies.

Even prior to the Admiralty Act, the action in rem and the action in personam were already part of the law of admiralty when the MSA was passed: The Owners, Master and Crew of the SS Humber v The Owners and Master of the SS Answald 1912 AD 546, 556-7; Beaver Marine (Pty) Ltd v Wuest 1978 (4) SA 263 (A) 274H-275C.

The parties apparently accepted in the Court below that MSA s 344(3) deals only with a claim in rem. On appeal, however, Rosario reverted to the contention that MSA s 344(3) covers both forms of action. This was rejected. Section 344(3) must be construed as being confined in its application to actions in rem.

First, MSA s 344(3) twice refers to 'the defendant ship' which shows the intent to confine the ambit of the subsection to actions in rem. Such an action is regarded as being an action against the ship in respect of which the cause of action lies. The phrase is inappropriate to an action in personam against the owner of the ship. Moreover, this wording is clearly not unintended or fortuitous. This appears from s 344(1), which draws the same distinction between actions in rem and actions in personam when referring to 'legal proceedings to enforce any claim or lien against a ship or her owners'. The legal proceedings 'against a ship' clearly refer to an action in rem; whereas legal proceedings 'against her owners' refer equally clearly to an action in personam. This distinction is pursued in s 344(3); and there is plainly a correlation between proceedings 'against a ship' and 'the defendant ship'. The fact that s 344(3) speaks only of the defendant ship indicates that s 344(3) was intended to deal only with actions in rem.

Secondly, the grounds upon which an extension shall be granted under MSA s 344(3) point in the same direction. They are that owing to the absence of the defendant ship from South Africa and its territorial waters, and the absence of the defendant ship from the country to which the plaintiff's ship belongs or in which the plaintiff resides or carries on business and its territorial waters, the plaintiff has not during the prescriptive period had a reasonable opportunity of 'arresting the defendant ship'. These grounds are peculiarly pertinent to an action in rem, which depends upon the arrest of the defendant ship, or the ship in respect of which the claim lies, and which would be frustrated by the ship's absence from these countries and their respective territorial waters; but they are inapposite to an action in personam, which does not require ship arrest. A plaintiff bringing an action in personam should not qualify for the benefit of an extension of the prescriptive period on the grounds provided for in s 344(3), especially where during the two-year prescriptive period there would have been no practical or legal impediment to prevent him doing so.

Thirdly, the relief which is granted when a good case has been made out under MSA s 344(3) is an extension of the period of prescription 'sufficiently' to give the plaintiff a reasonable opportunity to arrest the defendant ship. This points to an action in rem only.

To support of Rosario's argument that MSA s 344(3) applied also to actions in personam, Rosario referred to s 8 of the MCA and to The Espanoleto [1920] P 223 (The Espanoleto). The MCA was passed to give effect to two Conventions signed at the Brussels Conference of 1910 dealing respectively with collisions between vessels and with salvage. It is required to be 'construed as one' with the Merchant Shipping Acts 1894-1907 (s 10). Section 8 of the MCA resembles MSA ss 344(1), (2) and (3). Although the proviso to MCA s 8 corresponds to MSA s 344(3), there is a significant difference: the former contains, in addition to the mandatory extension of the prescriptive period provided that certain facts are established (in terms similar to s 344(3)), provision for a discretionary power of extension to such extent and on such conditions as the court may think fit. Patently, MSA s 344(3) contains no such discretionary power.

The Espanoleto does not support Rosario's argument. The Espanoleto 225 observes that MCA s 8 relates to proceedings in personam and in rem. This observation is generally correct with reference to the part of s 8 which corresponds to MSA s 344(1). But this observation does not touch the question of the ambit of the mandatory power of extension contained in that portion of the proviso to s 8 which corresponds to s 344(3). The former (but not the latter) has a discretionary power of extension in the widest possible terms. This power relates to both actions in rem and in personam. But it does not follow that s 344(3), which contains no such discretionary power and the wording of which refers to actions in rem only, likewise applies as well to actions in personam.

The court was also aware of The Arraiz (1924) 19 Ll LR 235 (CA) and The Master and Crew of Steam Tug William Gray v Owners of Steamship Llandovery Castle (1920) 2 Ll LR 273. Both cases merely dealt with instances of the exercise of the discretionary portion of the proviso to MCA s 8. Neither assisted in the interpretation of s 344(3).

Given that s 344(3) applies only to actions in rem, it is not inconsistent with s 13(1)(b) of the Prescription Act for actions in personam, like Coastal's contemplated claim-in-reconvention. Therefore, there is no legal obstacle to Coastal's reliance upon s 13(1)(b) to overcome the time-bar. Rosario's objection to the security arrest of the Maritime Prosperity on the grounds of extinctive prescription is prima facie not well founded. The Court below was correct to confirm the arrest in so far as it relates to an action in personam.

The Court found it unnecessary to decide whether, assuming MSA s 344(3) applies to actions in personam, s 13(1)(b) of the Prescription Act and MSA s 344(3) were inconsistent. The Court also found it unnecessary to pronounce finally on the applicability of s 13(1)(b) to the facts of this case. Both questions were left open.