Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE ARREST OF SHIPS IN GERMAN AND SOUTH AFRICAN LAW
THE ARREST OF SHIPS IN GERMAN AND SOUTH AFRICAN LAW. Mathias P. Schlichting, LL.B., LL.M., Associate of Ohle Hansen Ewerwahn, Hamburg, Attorneys at Law. Peter Lang GmbH, Frankfurt am Main (1991, xlviii and 228 pp., plus 159 pp. Appendices and 11 pp. Index). Paperback DM38.
This work is published as part of Series II of European University Studies. It is written by a German lawyer as the thesis for a postgraduate degree at the University of Natal. In the Preface the author summarizes the work as “a legal comparison which tries not only to reproduce the similarities but also the whole of the law of arrest of ships in German and South African law”. Its aim is to enable “the lawyer whether familiar with German or South African law to quickly recognise when the arrest proceedings are equivalent or similar” or when to pay attention to the national peculiarities of the other country. A caveat for non South African lawyers must be that, as the law is stated as of December 1988, it must be read subject to the amendments in 1992 to the Admiralty Jurisdiction Regulation Act 1983.
The expressed target is the German or South African lawyer seeking information as to the other legal system and this goes some way to explaining why the comparisons are by no means the focus of the work. There is hardly any reference to South African law in that part of the book setting out the German law, and references to German law in the context of South African law appear almost as asides. The conclusion is short, dwelling on principal dissimilarities.
As the author says, the danger of a work of this kind is undue repetition but comparisons of the specific aspects could well have been highlighted either in the relevant chapters or through lengthening the conclusion. As it is, the South African lawyer reading the German law is left largely to work out the comparison from his knowledge or refer to the discussion of the South African law. That said, the author is perhaps a little too modest in his aim. The study provides a valuable review in English of arrest in the two legal systems and perhaps the comparisons provide less of a focus for the work than the statement of the principles and practice of the two legal systems. In this context the book should be of use to lawyers of whatever national base concerned with arrest of ships in either of the two systems.
The work is divided into four parts—the German law, the South African law, the Conclusion and a considerable collection of original Code, statutory and Convention material. That the latter occupies more than a third of the book is probably justified by the need to refer to materials of two countries with a large measure of translation. The setting out of the law of the two countries is comprehensive in scope. It includes not only the substance and procedure relevant to arrest but discussion of the connection between arrest and limitation of liability and arrest and insolvency. There is an interesting comparison of the use of “in rem” “in personam” and discussions of maritime liens, forced sale, the districution of the sale fund and ranking of claims. The work is therefore not restricted to arrest as such but happily treats arrest as the part of the process of enforcement of claims that it is.
In sum—a book well worth having but rather for its guidance as to the two systems than any truly comparative analysis. But it is after all the national details that will be the primary aim of most of those interested in the topic.
David Jackson
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