Transnet Ltd v The Owner of the MV 'Alina II'

The MV Alina II, a bulk carrier, berthed at the Langebaan Iron Ore Terminal operated by Transnet at Saldanha Bay on 29 October 2009 to load iron ore. After loading, it was discovered that the vessel had a port list and was down by the head due to water ingress from a fractured ballast tank. The vessel remained at the berth until cargo was transhipped, finally leaving on 27 March 2010. On 13 January 2010, Transnet arrested the vessel in two actions in rem based on the owner's personal liability, claiming damages for the vessel's occupation of the berth. The owner delivered notice of intention to defend on 27 January 2010. On 19 March 2010, the vessel was arrested again in another action. On 23 March 2010, Transnet obtained an ex parte attachment order ad fundandam et confirmandam jurisdictionem to commence an action in personam against the owner for the same claims. The owner opposed confirmation, arguing that it had already submitted to the jurisdiction by defending the in rem actions and that the attachment constituted an abuse of process.

• Whether a plaintiff who has commenced an action in rem by arresting a vessel can subsequently obtain an attachment ad fundandam et confirmandam jurisdictionem to commence an action in personam against the owner for the same claims
• Whether the owner of a vessel, by entering appearance to defend an action in rem, submits to the jurisdiction of the court for purposes of an action in personam
• The effect of Admiralty Rule 8(3) on the principle established in The Dictator [1892] P 304 regarding submission to jurisdiction
• Whether the commencement of the in personam action by attachment in these circumstances constitutes an abuse of process

The appeal was dismissed with costs, including costs consequent on the employment of two counsel. The attachment order ad fundandam et confirmandam jurisdictionem was not confirmed.

Entry of appearance to defend an action in rem by a party who is personally liable on the underlying maritime claim constitutes a submission to the jurisdiction of the court in respect of that claim. Admiralty Rule 8(3) does not affect this principle; it merely provides that entering appearance does not create or impose personal liability on a claim where such liability did not previously exist. The rule is silent on the question of submission to jurisdiction, which is to be determined according to ordinary principles. Where a party has submitted to the jurisdiction of the court before an attachment order ad fundandam et confirmandam jurisdictionem is obtained, such attachment is impermissible and should not be confirmed. The distinction between actions in rem and in personam relates to forms of procedure for enforcing maritime claims, not to separate jurisdictions of the court.

The Court noted that it may be possible in some circumstances for a plaintiff to pursue both an action in rem and an action in personam simultaneously without oppression or abuse, particularly where it is clear the claim will not be satisfied in full from the vessel's value. The Court did not finally decide whether the Admiralty Jurisdiction Regulation Act precludes simultaneous pursuit of both forms of action in all circumstances. The Court left open questions about: (i) the full implications of the decision in The Dictator in South African law; (ii) the true nature of the action in rem in South African admiralty procedure; (iii) whether the judgment of Lord Steyn in The Indian Grace (No 2) should be followed in South Africa; and (iv) whether there may be circumstances in which a party can enter appearance to defend an action in rem on terms that avoid submitting to the court's jurisdiction regarding personal liability. The Court noted that under South African admiralty rules, unlike English practice, the summons in rem does not cite the owner or other interested persons, which means that even after submission to jurisdiction, procedural steps (amendment or separate action) may be needed to reflect the party entering appearance as a party to any judgment.

This judgment is significant in South African admiralty law as it clarifies the relationship between actions in rem and in personam, and the effect of Admiralty Rule 8(3). It confirms that entry of appearance to defend an action in rem constitutes submission to the jurisdiction of the court in respect of the underlying claims, following the English principle in The Dictator. The judgment clarifies that Rule 8(3) does not alter the law on submission to jurisdiction but merely addresses the separate question of whether entering appearance creates personal liability that did not previously exist. It establishes that ordinary principles governing submission to jurisdiction apply in admiralty proceedings. The case provides important guidance on when attachment ad fundandam et confirmandam jurisdictionem is permissible in the context of existing admiralty proceedings, and reinforces the principle that such attachment cannot be obtained where a party has already submitted to the court's jurisdiction.