Windrush Intercontinental SA v UACC Bergshav Tankers AS

The MT Asphalt Venture was bareboat chartered by Windrush Intercontinental SA. In September 2010 the vessel was hijacked by Somali pirates. A ransom was paid in April 2011, but only eight of the fifteen Indian crew members were released; seven remained hostage for several years. Their fixed-term employment contracts, governed by Indian law, expired by April 2011. Concord, which had employed the crew, initially continued making ex gratia payments to the hostages’ families but later stopped. The hostages’ families arrested a different vessel, the UACC Eagle, in India. UACC Bergshav Tankers AS settled those claims and received an assignment of any maritime liens for unpaid wages. Relying on that assignment, Bergshav caused the Asphalt Venture to be arrested in rem in Durban to enforce an alleged maritime lien for unpaid crew wages. Windrush applied to set aside the deemed arrest.

The appeal was upheld with costs. The deemed arrest of the MT Asphalt Venture was set aside, the security furnished for its release was ordered to be returned to Windrush, and Bergshav was ordered to pay the costs of the application and related proceedings.

The case clarifies South African admiralty law on when a maritime lien for crew wages arises and subsists, confirming that such a lien depends on the existence of accrued unpaid wages. It affirms that supervening impossibility or frustration of employment contracts can terminate wage obligations, thereby extinguishing any potential maritime lien. The judgment is important for actions in rem and arrests of vessels under the Admiralty Jurisdiction Regulation Act.