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)
Nzimande, Nompumelelo Noluthando Surprise.
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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.