When is a guilty ship not “guilty” for the purposes of an associated ship arrest?

In the  “Bavarian Trader”, the applicant asked the court to  interpret the ambit of the associated arrest provisions contained in the Admiralty Jurisdiction Regulation Act (“the Act”)  to allow the ship in respect  of which a maritime claim arises (the so-called “guilty ship”)   to be regarded as a ship associated with itself.

The unusual factual matrix in this matter had resulted in a situation where the deemed “guilty ship”, the “Bavarian Trader”, could not be arrested by way of a straight forward arrest in rem, because the respondents, who were prima facie liable in personam to the applicant, were in fact not the direct registered owners of the  “Bavarian Trader”. Notwithstanding this, any other  ship owned or controlled by the respondents would in terms of the Act be regarded as an associated ship of the “Bavarian Trader” and, so it was argued, this should extend to and include the “Bavarian Trader”, being the deemed guilty ship. It was further contended that to permit the arrest of the other vessels owned or controlled by the Respondents, but to exclude the “Bavarian Trader” from susceptibility to arrest, would give rise to an absurdity.

The court found for the respondents (represented by Bowman Gilfillan Inc) who had countered the applicant’s argument by pointing to the clear and unambiguous wording of the Act. In terms of section 3(6) of the Act an arrest in rem can be brought by the arrest of “an associated ship instead of the ship in respect of which the maritime claim arose”. Furthermore, section 3(7)(a) defines an associated ship as a ship “other than the ship” in respect of which the claim arose.

Although in certain circumstances this might give rise to anomalies, the Court held that the legislation does not give rise to an absurdity. The fact that anomalies may arise in certain circumstances does not mean that the actual language used by the legislature can be disregarded, particularly because in the present circumstances doing so would arrive at an interpretation with a much wider effect than provided for by an interpretation of the plain meaning of the words of the Act.

The court found that, when seen in the light of the overall context, the considerations highlighted by the applicant did not justify a departure from the statutory requirement that the associated ship must be a ship other than the ship concerned.

Craig Cunningham Graham Charnock
Director Director
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Jeremy Prain Ryan Reddy
Director Associate
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Gavin Brown
Associate
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Email g.brown@bowman.co.za