The associated ship and South African admiralty jurisdiction.

Abstract

The associated ship and the jurisdiction to arrest such a ship created in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 is a unique legal institution in the world of maritime law and jurisdiction. The sister ship arrest envisaged by the Arrest Convention, 1952 is encompassed by the associated ship but the concept of an associated ship goes considerably further than the sister ship in going behind the separate corporate personality of ship-owning companies to their controlling interests and, on the basis of common control, providing that ships are associated. This status subjects them to arrest both in order to obtain security for court proceedings or arbitration, usually elsewhere than in South Africa, and arrest in actions in rem against the associated ship. This is in respect of claims arising in respect of other vessels in separate ownership. Although tentative consideration was given to a similar innovation when the Australian Law Commission undertook a review of admiralty law in Australia their legislation is confined to a surrogate ship arrest substantially along the lines of the sister ship arrest of the Arrest Convention. A proposal to introduce a similar institution by way of the revision of the Arrest Convention has not yet resulted in anything similar being introduced elsewhere. In South African maritime practice the associated ship jurisdiction has proved to be an important innovation, especially in conjunction with the power to arrest a ship for the purpose of obtaining security for proceedings in a foreign court or arbitration tribunal, and a substantial amount of maritime work involves associated ships. As an institution it has not hitherto been subjected to close scrutiny and the overall purpose of this work is to do that. It takes as a starting point the revision of South African admiralty procedure and jurisdiction leading to the enactment of the Admiralty Jurisdiction Regulation Act and the introduction of the associated ship. This task has been undertaken against the background of the general development of maritime law, the attachment ad fundandam et confirmandam jurisdictionem under the Roman Dutch common law of South Africa and the action in rem available in South Africa under the Colonial Courts of Admiralty Act 1890. The study reveals the common roots of these institutions in the Roman Law and the practice in maritime courts around Europe from the Middle Ages onwards and forms a part of the foundation for the proposition in the final analysis that South Africa has created an institution that is distinct from the English action in rem and having its own particular features derived from both its English and Roman Dutch forebears. The central analysis explores from a critical standpoint the justifications advanced at the time for the introduction of the associated ship jurisdiction and finds these wanting notwithstanding that they have tended to linger in statements in the judgments of the courts. Instead a policy-based justification is advanced that it is submitted provides a proper justification for the associated ship jurisdiction in the South African context. Being based upon policy considerations it is not suggested that this justification is universally applicable or demands the same response from all nations, as each will be influenced by different factors depending on the nature of the maritime interests of the country considering such an institution. This is likely to hamper attempts to obtain international agreement on a similar jurisdiction to arrest vessels going beyond the provisions of the Arrest Convention. In the light of the suggested justification of the associated ship jurisdiction the Act itself is analysed and various difficulties of interpretation are addressed. These include a critical analysis of certain controversial decisions and a consideration of the constitutional implications of the associated ship. Finally the different threads are brought together in an analysis of the nature and consequences of the arrest of an associated ship and the action in rem against the associated ship. The fact that the jurisdiction has been harnessed to two distinct purposes having entirely different features is highlighted. Although maritime law always has a significant international dimension the fact that the associated ship is a uniquely South African institution means that the analysis is largely driven by the underlying principles of South African law and principles. The view is taken that the statute is a South African statute governing matters of the jurisdiction of South African courts and as such falls to be construed in the light of South African legal principles. The too ready resort on questions of interpretation (as opposed to substantive law where it is mandated as being the