Seaman’s lien: a South African perspective on seaman’s lien post the Supreme court of appeals decision in the Asphalt Venture Windrush Intercontinental SA v UACC Bergshav Tankers as 2017 (3) SA 1 (SCA)
Loading...
Date
2019
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
The seaman’s lien is a well-recognised maritime lien. The advancement of the lien may have
been swayed by public policy and the need to protect the seaman. The premise of the lien is
that a service was rendered to the ship rather than acknowledging the seaman’s contract of
employment. Affording seamen the right to approach the courts based on an action in rem,
affords seamen the opportunity to speedily recover their claims. Of importance to us in this
thesis will be the discussion around the seaman’s wages lien with a focus on the case that came
before the Supreme Court of Appeals namely The Asphalt Venture Windrush Intercontinental
SA and Another v UACC Bergshav Tankers AS (“Windrush”) 2017 (3) SA 1 (SCA).
In this case the second appellant, the Asphalt Venture, was arrested at the Durban port by the
respondent for wages that had been ceded and assigned to the respondent by the seamen’s
families who had not had the seamen’s wages paid out by the previous owners of the Asphalt
Venture. During the employment contracts between the previous owners and the seamen, the
Asphalt Venture and her crew were held hostage by Somali pirates which caused great financial
difficulties for the previous owners. Although the employment contracts terminated whilst the
crew were held hostage, the previous owners continued to pay the hostages families the wages
until they could no longer afford to. The crisp issue facing the court was whether a seaman’s
lien existed in terms of the employment contracts between the seamen and the Asphalt Venture.
Secondly whether a maritime lien can be ceded or assigned to another person. Further, whether
the attack by the Somali pirates constituted a supervening impossibility with regards to the
employment contracts.
This research paper will focus provide on maritime liens, providing the historical background
on liens and the seaman’s lien internationally in South Africa. Thereafter our focus will be the
decision of the court a quo and the Supreme Court of Appeal in the Windrush decision. Finally,
a discussion on piracy and the applicability of the doctrine of impossibility in contracts of
employment for seamen, and the findings and recommendations of the writer.
Description
Masters Degree. University of KwaZulu-Natal, Durban.