Owners and Underwriters of the MV 'MSC Susanna' and Another v Transnet (SOC) Ltd and Another

On 10 October 2017, during a substantial storm in the port of Durban, the MV MSC Susanna broke her moorings and drifted in the port. While drifting, she collided with several vessels including the FNS 'Floreal', a French naval vessel under the control of the Ministère des Armées of the French Republic. The MSC Susanna also allided with cranes and other infrastructure owned by the National Ports Authority of South Africa (NPA), causing approximately R23 million in damages. The Ministère des Armées counterclaimed for damages amounting to nearly €10 million. The owners and underwriters of the MSC Susanna sought to limit their liability in terms of s 261(1)(b) of the Merchant Shipping Act 57 of 1951 and applied to join the Ministère des Armées to the limitation action. The Ministère resisted the joinder, arguing that s 3(6) of the MSA, which provides that the Act does not apply to ships belonging to defence forces, excluded their claim from the limitation provisions.

• Whether the owners and demise charterers of a merchant ship may invoke tonnage limitation under s 261 of the Merchant Shipping Act 57 of 1951 in respect of a claim by a foreign defence force for damage to a naval vessel
• Whether s 3(6) of the Merchant Shipping Act, which excludes application of the Act to ships belonging to defence forces, prevents the invocation of limitation of liability under s 261 against claims by such defence forces
• The proper interpretation of ss 261(1)(b) and 3(6) of the Merchant Shipping Act 57 of 1951

The appeal was upheld with costs, including costs of two counsel. The order of the high court was set aside and replaced with an order confirming the rule nisi by: (1) joining the Ministère des Armées as a defendant in the limitation action; (2) granting the appellants leave to amend the pleadings to plead their cause of action against the Ministère des Armées; and (3) ordering the Ministère des Armées to pay the costs occasioned by its opposition to the application, including costs of two counsel.

Section 261(1)(b) of the Merchant Shipping Act 57 of 1951 confers a clear right on ship owners to limit their liability in respect of loss or damage to 'any property of any kind' without qualification. Section 3(6) of the MSA, which provides that the Act does not apply 'to ships' belonging to defence forces, does not exclude the invocation of limitation by owners of merchant ships against claims by defence forces. Section 3(6) is concerned with the application of the MSA to ships themselves (particularly in relation to registration, operation, crew, and safety), not with preventing owners of merchant ships from invoking rights conferred by the Act. The right to limit liability under s 261 is concerned with the legal liability of ship owners to third parties, which is a commercial matter distinct from the regulation of ship operations. The language of s 3(6) applies 'to ships', not 'to owners of ships' or 'to defence forces', and is therefore not apt to exclude limitation claims by ship owners against defence forces.

The Court made several non-binding observations: (1) The question of whether a defence force as owner of a naval vessel could itself invoke limitation under s 261 was not before the court and was left undecided, though the Court noted this could easily arise in a collision between a South African naval vessel and a merchant ship. (2) The Court noted that the provisions of ss 255, 256 and 257 of the MSA dealing with division of loss in collisions, personal injury liability, and contribution between joint wrongdoers were not argued and their application to naval vessels was not determined. (3) The Court observed that if naval personnel were killed or injured in an incident, their claims would be subject to limitation under s 261, making it incongruous to allow the Ministry as employer to escape limitation. (4) The Court noted the incongruity that other state-owned vessels (such as the polar research ship SA Agulhas II) would be subject to limitation but naval vessels under the Ministry's interpretation would not. (5) The Court commented that there was no discernible policy reason supporting a construction that would exclude limitation against claims by defence forces, and that such an exclusion would be inconsistent with international maritime practice.

This case establishes an important precedent in South African maritime law regarding the scope of tonnage limitation under the Merchant Shipping Act. It clarifies that the exclusion of defence force vessels from the application of the MSA in s 3(6) does not prevent ship owners from invoking limitation of liability against claims brought by defence forces. The judgment aligns South African law with international maritime practice under conventions such as the 1976 Limitation Convention, which contains no exemption from limitation for claims involving naval vessels. The case also provides important guidance on statutory interpretation, particularly the distinction between provisions applying 'to ships' and those applying to 'owners of ships'. The decision ensures that merchant ship owners can benefit from internationally recognized limitation rights even when claims arise from incidents involving naval vessels, promoting certainty and consistency in maritime commerce.