Gone overbroad? Critically examining the classification of maritime claims by South African courts.

Abstract

South African courts are empowered, in the exercise of their admiralty jurisdiction, to provide ‘far-reaching and even revolutionary methods to prevent recalcitrant debtors from evading their legal debts’. These ‘revolutionary’ remedies are not reserved for South African claimants alone, but are potentially available to the ‘wandering maritime litigants of the world’. The catch, as it were, is that only certain types of claims qualify to benefit from this specialised jurisdictional regime. To qualify, a claim must fall within the definition of ‘maritime claim’ in s 1(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983. Through a critical analysis of the reasoning followed in Peros v Rose, The Mineral Ordaz and Kuehne & Nagel, this study will highlight the challenges and pitfalls of classifying a maritime claim under the Act, such as taking into account a future defence to a claim in the process of classifying a claim; conflating the process of classifying a maritime claim with the process of categorizing a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act; conflating the contents of an underlying ‘maritime agreement’ with the provisions of a ‘maritime topic’ set out in s 1(1) of the Act, and confusing the policy considerations that justify the exercise of admiralty jurisdiction. Having done so, this study will then propose the adoption of a three-stage approach to the maritime-claim enquiry; namely, (a) the clear identification of the claim, (b) the articulation of the relevant maritime topic and (c) the establishment of a maritime connection between the two. In particular, as to (b), this study will explore the factors that may be relevant to the categorisation of a settlement agreement as a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act. In addition, as to (c), a test for establishing a direct maritime connection will be formulated for borderline cases, and a modified version of the ‘legally relevant connection’ test developed in Kuehne & Nagel will be proposed as a tool to establish an indirect maritime connection, where appropriate.