Lloyd's Maritime and Commercial Law Quarterly
THE HALCYON ISLE REVISITED: A SOUTH AFRICAN PERSPECTIVE
Hilton Staniland*
1. Introduction
Few, if any, admiralty decisions have, and continue to attract, as much attention as the decision of the Privy Council in The Halcyon Isle.1 Readers of this Quarterly are bound to be familiar with much of the commentary evoked by the case.2 Is there anything new to be said about the decision, and generally about the recognition, enforcement and ranking of foreign maritime liens? I think so, especially within the South African context.
Whether to follow the majority opinion in The Halcyon Isle and to apply the lex fori to the recognition of a foreign maritime lien is proving to be the most difficult and internationally significant decision that the South African Admiralty Court has ever had to deliver. Douglas Shaw, Q.C., one of the country’s most eminent counsel, warns that it would be “unwise”3 to suggest whether the court should follow the minority or majority, although he takes the view that the majority has been “very cogently criticized”.4 Indeed, in The Khalij Sky,5 Munnik, J.P., followed the minority opinion and decided a question of law in terms of Rule 71 of the rules of court in favour of the applicant. He held that a maritime lien is a right of property which, if validly conferred by the lex loci, travels with the claim, and that the claim travels with the ship. In The Fidias,6 Nienaber, J., remarked that to reconcile the majority with the views expressed by the Court of Appeal in The Colorado
7 was “well nigh impossible”. He said, however, that a foreign maritime lien may be
* Professor of Law, University of Natal, Durban. I am grateful to Professor D. C. Jackson for having read this paper. Its shortcomings are entirely my own responsibility.
1. Bankers Trust International Ltd. v. Todd Shipyards Corp. (The Halcyon Isle) [1981] A.C. 221.
2. See T. A. G. Beazely, “Maritime Liens in the Conflict of Laws” (1978) 20 Malayan L.R. 111; D. C. Jackson, “Foreign maritime liens in English courts—principle and policy” [1981] 3 LMCLQ 335; Australian Law Reform Commission, Refernce on Admiralty Jurisdiction Research Paper No. 1: An Australian Admiralty Act the Ambit of Admiralty Jurisdiction (1984), 173; David R. Owen, “U.S. maritime liens and the new arrest and attachment rules” [1985] 4 LMCLQ 424, 427; W. Tetley, Maritime Liens and Claims (1985), 545–550; D. C. Jackson, Enforcement of Maritime Claims (1985), 221–223, 344–349; N. J. Healy and J. Scowcroft, “United States admiralty and shipping law—recent developments” [1986] 3 LMCLQ 350, 352–353; Michael Marks Cohen, “In Defense of the Halcyon Isle” [1987] 2 LMCLQ 152; D. J. Shaw, Admiralty Jurisdiction and Practice in South Africa (1987), 86; Staniland, “The recognition of an American maritime claim for service disbursements” (1986) 103 S.A.L.J. 542. See also Tetley, “In Defence of The Ioannis Daskalelis” [1989] 1 LMCLQ 11.
3. Supra, fn. 2, at p. 23.
4. Ibid., 87.
5. Southern S.S. Agency Inc. v. M. V. Khalij Sky, 1986 (1) S.A. 485 (C).
6. Oriental Commercial & Shipping Co. Ltd. v. M.V. Fidias, 1986 (1) S.A. 714 (D), 719. See generally Staniland, “The Admiralty Jurisdiction Regulation Act and the maritime claim of a Saudi Arabian necessaries man” (1986) 103 S.A.L.J. 350.
7. [1923] P. 102. See infra, section 3.
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