Lloyd's Maritime and Commercial Law Quarterly
Guilt by association in South African admiralty law
Graham Bradfield *
There are divergences between the statutory ‘‘veil piecing’’ under the ‘‘associated ship’’ arrest provisions of the South African Admiralty Jurisdiction Regulation Act 105 of 1983 and the South African common law ‘‘veil piercing’’ principles in relation to corporations generally. These are noted in the light of a proposal to extend the ‘‘associated ship’’ arrest provisions to other forms of property, or at least ‘‘maritime property’’ as defined in s 3(5) of the Act. The extension is proposed for the purpose primarily, if not solely, of achieving consistency in the treatment of all forms of, at least, maritime property. This article argues for circumspection in extending such provisions to other forms of property on the grounds that such extension would be at the cost of exacerbating inconsistencies between the statutory ‘‘veil piercing’’ under the Act and the common law ‘‘veil piercing’’ principles in relation to corporations generally, would be without the particular justification for the ‘‘associated ship’’ arrest provisions, and may be of limited practical value
.
INTRODUCTION
It is over 20 years since South Africa introduced its ‘‘associated ship’’ arrest provisions, in the Admiralty Jurisdiction Regulation Act of 1983 (‘‘the Act’’).1
The implementation of these, at the time, ‘‘novel, unusual and at times far-reaching provisions’’,2
earned South Africa a reputation in shipping circles as an ‘‘arrest friendly’’ jurisdiction.3
Since their
* Lecturer in the Department of Commercial Law, Faculty of Law, University of Cape Town.
The following abbreviations are used in the footnotes:
the Act: Admiralty Jurisdiction Regulation Act of 1983.
ALRC 33: Australian Law Reform Commission: Report 33: Civil Admiralty Jurisdiction
(1986).
Blackman: Blackman et al.
, Commentary on the Companies
Act (2002), vol 1.
SALC 32: South African Law Commission, Report on the Review of Admiralty Law
: Project 32 (15 September 1982).
1. These provisions are contained in ss 3(6) and (7) of the Admiralty Jurisdiction Regulation Act 105 of 1983, as amended (‘‘the Act’’). The Act came into operation on 1 November 1983.
2. Katagum Wholesale Commodities Co Ltd
v. The MV Paz
1984 (3) SALR 261 (N), [263B]. See National Iranian Tanker Co
v. MV Pericles GC
1995 (1) SALR 475 (A), [479]; H. Staniland, ‘‘The Implementation of the Admiralty Jurisdiction Regulation Act in South Africa’’ [1985] LMCLQ 462; D.B. Friedman, ‘‘Maritime Law in the Courts after 1 November 1983’’ (1983) 100 SALJ 678.
3. H. Staniland, ‘‘Ex Africa semper aliquid novi
: Associated ship arrest in South Africa’’ [1995] LMCLQ 561; J. Dyason, ‘‘South African Maritime Law—An Overview of Some Developments’’ (2001) 32 JMLC 475, 482; M. Wallace, ‘‘The Associated Ship Jurisdiction in South Africa: Choice assorted or only one bite at the cherry?’’ [2000] LMCLQ 132.
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