Characteristics of the Admiralty Action in rem: The Alina II

• Author: Angus Stewart
• Position: BA LLB (Natal) BCL (Oxon) SC (South Africa), Barrister at 12 Wentworth Selborne Chambers, Sydney, and Honorary Research Fellow, University of KwaZulu-Natal. The author appeared for the ship owner in the case which is the principal subject of this article
• Pages: 237-239

(2011) 25 A&NZ Mar LJ

CHARACTERISTICS OF THE ADMIRALTY ACTION IN REM: THE ALINA II

Ang us Ste wa rt*

Intro duction

In September 2011 South Africa’s Supreme Court of Appeal, the country’s highest court in non-constitu tional

matters, handed down judgment in Transnet Ltd v The Owner of the mv Alina II (The Alina II).1 The judgment

might have had South Africa coming down on one side or the other of the debate about the soundness and

domestic applicability of the reasoning of Lord Steyn in The Indian Grace on the nature of the admiralty action

in rem.2 Courts in New Zealand,3 Australia 4 and Singapore5

have all questioned or differed with The Indian

Grace, but the South African court avoided the controversy by deciding the case on a narrower basis.

The Alina II is nevertheless an important confirmation for South Africa, in line with other former English

admiralty law jurisdictions, of a fundamental aspect of the action in rem. It is that when the owner of a vessel

which is the defendant in an action in re m in respect of a claim which asserts the personal liability of that owner

(i.e. excluding maritime lien and other claims that are not founded on the personal liability of the present owner)

enters an appearance to the defend the action in rem, it thereby submits in personam to the jurisdiction of the

court.

The Facts

The facts were straightforward. The Alina II had entered the port of Saldanha Bay, some 150 km north-west of

Cape Town, and loaded approximately 180,000 metric tonnes of Sishen iron ore fines. On being loaded the

vessel listed to port and went down by the head. Investigations revealed that the Alina II was fractured in the

hull and was taking water into a ballast tank. It was nearly five months later before the vessel ultimately left the

berth after its cargo had been laboriously transshipped. The port authority, Transnet Ltd, claimed damages of

some US$ 6m in contract and delict (tort) for the vessel’s extended occupation of the berth.

Transnet’s claims were initially pursued by the arrest of the vessel in actions in rem. Under that procedure in

South Africa, and elsewhere, the plaintiff is entitled to security only up to the value of the vessel even if the

claims exceed that amount. Crucially, the owner of the vessel entered appearances to defend those actions.

When it became apparent that Transnet’s claims taken together with other claims against the vessel – which

were asserted at US$275m – might exceed its value, Transnet sought to commence an in personam action

against the owner of the Alina II. Under South Africa’s Roman-Dutch common law, such an action against a

foreigner can be commenced by the attachment of an asset of the foreigner’s to found or confirm the jurisdiction

of the court. The plaintiff in the action would then be entitled to security for the full value of its claim before

the asset could be released from attachment, even if that exceeded the value of the asset. That is the advantage

that Transnet sought to achieve by attaching the vessel in the in p ersonam proceedings.

The Conte ntio ns

The owner challenged the attachment on two grounds. The first was that the actions in rem were in substance

also actions in personam against the owner, either from the time of service of the writ of arrest (as held in The

* BA LLB (Natal) BCL (Oxon) SC (South Africa), Barrister at 12 Wentworth Selborne Chambers, Sydney, and Honorary Resea rch Fellow,

University of KwaZulu-Natal. The auth or appeared for the ship owner in the case which is the principal subject of this article.

1 Transnet Ltd v The Owner of the mv Alina II [2011] ZASCA 129 .

2 Republic of India v India Steamship Co (The Indian Grace) (No 2) [1998] AC 878.

3 Raukura Moana Fisheries Ltd v The Ship Ir ina Zharkikh [2001] NZLR 801.

4 Comandate Marine Corporation v Pan Australia Shipping (Pty) Ltd (2006) 157 FCR 45 (FCAFC).

5 Kuo Fen Ching v Dauphin Offshore Engineering & Trading Pte Ltd [1995] 3 SLR 721.

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