Owners and Underwriters of the MV ‘MSC Susanna’ and Another v Transnet (SOC) Ltd and Others

During a severe storm in the Port of Durban on 10 October 2017, the merchant vessel MV ‘MSC Susanna’ broke free from her moorings and drifted, colliding with several vessels and port infrastructure. One of the vessels damaged was the FNS ‘Floreal’, a French naval ship under the control of the Ministère des Armées of the French Republic. Damage was also caused to port infrastructure owned by Transnet (SOC) Ltd, acting through the National Ports Authority. Transnet instituted a claim of approximately R23 million against the owners, underwriters, and demise charterers of the MSC Susanna. The French Ministry counterclaimed for damages of nearly €10 million in respect of damage to the Floreal. Given the magnitude of the claims, the appellants instituted limitation proceedings under s 261(1)(b) of the Merchant Shipping Act 57 of 1951 (MSA) and sought to join the French Ministry to the limitation action. The Ministry opposed the joinder, contending that s 3(6) of the MSA excluded the application of the Act in respect of ships belonging to foreign defence forces. The High Court upheld this objection, prompting the appeal to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The High Court’s order was set aside and replaced with an order confirming the rule nisi, joining the Ministère des Armées as a defendant in the limitation action, granting the appellants leave to amend their pleadings to include a cause of action against it, and ordering the Ministry to pay the costs occasioned by its opposition to the joinder application.

This judgment authoritatively clarifies the scope of tonnage limitation under South African maritime law and confirms that the right to limit liability under s 261 of the Merchant Shipping Act may be invoked against claims by foreign defence force owners. It draws a clear distinction between the non-application of regulatory provisions of the MSA to naval vessels and the continued applicability of the limitation regime to claims involving such vessels. The decision aligns South African law with international maritime practice and provides certainty for shipowners facing high-value claims involving state or naval property.