Windrush Intercontinental SA and Another v UACC Bergshav Tankers AS (556 of 2015) [2016] ZASCA 199 (6 December 2016)

This case dealt with a claim for wages of a ship’s crew members for having been kept hostage by Somali pirates. This case illustrated the similarities between Indian and South African maritime law.

The crisp issue before this court was whether at the time of the second appellant’s arrest at the respondent’s instance, there existed a maritime lien for crew’s wages entitling the respondent to arrest the second appellant by way of an in rem arrest in terms of s 3(4)(a) of the Admiralty Jurisdiction Regulation Act. The court held that a maritime lien is a maritime claim that constitutes one of the bases upon which a claimant may found an action in rem. It also confers a certain preference in ranking of claims.

The court considered the two-pronged enquiry into the existence of a maritime lien, Firstly, on a prima facie basis, whether the respondent had established the existence and nature of the claims sought to be enforced in rem against the second appellant. Secondly, the court had to determine whether the respondent prima facie established claims which, by reason of their nature and character, were protected by maritime lien in South African law.

The court was satisfied that there was no obligation on the second appellant to pay crew’s wages as these payments. The court reasoned that there had been a supervening event that caused the fulfillment of the crew’s employment contracts impossible. Therefore, there was no claim for unpaid wages giving rise to a maritime lien enforceable by an action in rem. Accordingly, the court upheld the appeal and ordered that the deemed arrest be set aside.