Lloyd's Maritime and Commercial Law Quarterly
SOUTH AFRICA
Craig Forrest*
308. MS “Bonanza” Schiffahrtsgesellschaft mbH & Co KG v Durban Coal Terminal Co (Pty) Ltd1
Limitation of liability—declaratory order as to characterisation
Whilst docking in Durban Harbour, the MV Julian collided with the quayside, causing damage to the quayside, owned by Transnet (Soc) Ltd (“Transnet”) and a bulk loading appliance owned by Durban Coal Terminal Co (Pty) Ltd (“DCT”). The vessel, owned by MS “Bonanza” Schiffahrtsgesellschaft mbH & Co KG (“Bonanza”), was also damaged. At the time of the incident, the MV Julian was under pilotage and assisted by two tugs. Transnet owned the tugs, and the crew and pilot were employees of Transnet. The damage to the bulk loader appliance is estimated at R269 million, the damage to the ship at US$328,993.28 and to the quayside at R250,000.
Transnet initiated proceedings in South Africa against Bonanza for damage to the quayside and for an indemnity in respect of claims brought against it by DCT, whilst Bonanza has claimed against Transnet for damage to the MV Julian and for an indemnity in respect of any claims DCT may have against Bonanza. DCT, however, initiated claims in Germany and Hong Kong with respect to the damage caused to its bulk loading appliance.
Bonanza applied for a declaratory order confirming their entitlement to limit liability in accordance with the provisions of the Merchant Shipping Act 57 of 1951 (“MSA”). DCT had initiated proceedings in Germany and Hong Kong, as the limitation of liability in those jurisdictions was significantly higher than in South Africa. The maximum liability of Bonanza in South Africa would be approximately R45.5 million (approximately US$3.5 million), whereas in Germany, in terms of the Convention on Limitation of Liability for Maritime Claims 1976 as amended by the Protocol of 1996, it is approximately R431.5 million (approximately US$32.5 million).The purpose of the declaratory order was to force or persuade the foreign courts to apply the South African limitation as an issue determined by the South African court and that it is part of the South African substantive law to be applied as the lex loci delicti in the foreign court.
Decision: Application denied.
Held: (1) MSA, s.261(1) provides that the owner of a ship shall not, if any loss or damage to any property or rights of any kind, whether movable or immovable, is caused without
* Professor and Director of the Marine and Shipping Law Unit, TC Beirne School of Law, University of Queensland, Australia.
1. (29 Mar 2018) Case No: A50/2017 (High Court of South Africa (KwaZulu Natal)).
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