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)

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.