OWNERS AND UNDERWRITERS OF THE MV “MSC SUSANNA” AND ANOTHER V TRANSNET (SOC) LTD AND ANOTHER (THE MV “MSC SUSANNA”)

[2021] ZASCA 135, Supreme Court of Appeal of South Africa, Navsa, Wallis, Schippers, Mbatha and Gorven JJA, 6 October 2021

Admiralty – Collision – Limitation of liability – Right of owner of merchant vessel to limit liability against claim by defence force – Merchant Shipping Act 1951 (South Africa), sections 3 and 261

This litigation arose from a collision between the appellants’ vessel MSC Susanna and the second respondent’s vessel FNS Floréal in the port of Durban, South Africa. During a storm, MSC Susanna had broken her moorings and drifted into several other vessels, including FNS Floréal which was a French naval vessel controlled by the second respondent, the Ministère des Armées of the French Republic. When action was commenced by the first respondent against the appellants, they responded by applying to limit liability under the Merchant Shipping Act 1951, section 261(1)(b) and by seeking to join the Ministère des Armées to the limitation action. The Ministère des Armées resisted the application, arguing that section 3(6) of the same statute had the effect of excluding the right to limit as against foreign naval vessels such as FNS Floréal. Section 3(6) read: “The provisions of this Act shall not apply to ships belonging to the defence forces of the Republic or of any other country”. At first instance, the judge agreed with the second respondent, but gave leave to appeal.