The enforcement of an arbitration award against an associated ship in South Africa. An analysis of MT Pretty Scene: Galsworthy Ltd v Pretty Scene Shipping S.A. and Another 2021 (5) SA 134 (SCA)
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Date
2022
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Abstract
Interpretation of the phrase 'when the maritime claim arose' has created ambiguity in relation
to the claim of an arbitration award as defined in section (1)(aa) of the Admiralty Jurisdiction
Regulation Act 105 of 1983 ("AJRA"). This is due to the fact that each matter is adjudicated
based on different facts and circumstances presented before the admiralty courts for the
determination of when the claim relating to an arbitration award arose and the applicability of
enforcement procedures provided in AJRA. In MT Pretty Scene, the court provided clarity on
the meaning of the phrase “when the maritime claim arose” and whether it relates to when the
arbitration award is handed down or when the underlying claim under the charterparty arose.
The court held that a claim under the arbitration award as defined in AJRA relates to the
underlying claim and therefore does not arise when the award is made but it arises at the same
time the underlying claim under the charterparty arose.
MT Pretty Scene (SCA) further provided clarity on the drafting of the in rem arrest summons.
In particular, the SCA, in great detail, provided guidance and clarity on the allegations that
must be made by the arresting party in the summons, Rule 4(3) certificate, and clarified how
the Uniform Rules of Court differ from Admiralty Rules – thereby guiding practitioners on
how the provisions of AJRA should be applied and interpreted.
This dissertation further focused on the proper interpretation of legal principles that were
considered to reach a conclusion that an arbitration award is not an entirely separate claim, and
hence cannot be detached from the underlying claim. The two are inseparable and are tied
together. Thus, it is important to prove that the arbitration award is linked to an underlying
maritime claim. The link between the procedure of arresting a ship and determining when a
claim in relation to the arbitration award exists on the basis that the determination of when a
ship may be arrested as an associated ship depends upon when the underlying claim arose.
Description
Masters Degree. University of KwaZulu-Natal, Durban.