REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number: 653/2002
Reportable
In the matter between:

MT ‘ARGUN’
Appellant

(Defendant)
and

THE MASTER AND CREW OF THE MT ‘ARGUN’
CLAIMING UNDER CASE NO. AC127/99
First Respondent

(Plaintiffs)
THE FORMER CREW OF THE MT ‘ARGUN’
CLAIMING UNDER CASE NO. AC134/99
Second Respondent

(Plaintiffs)
THE MASTER AND CREW OF THE MT ‘ARGUN’
CLAIMING UNDER CASE NO. AC4/02

Third Respondent

(Plaintiffs)

CORAM:
MARAIS, FARLAM, NAVSA, CLOETE JJA  et
JONES AJA

HEARD:

16 MAY 2003

DELIVERED:
19 SEPTEMBER 2003
SUMMARY: Maritime law – admiralty – whether action in rem lapses when arrest by which it
was instituted lapses – whether judgment given in action in rem after lapse of arrest can be
executed against vessel under arrest in another action – date from and rate at which interest on
amounts adjudged to be due to be determined – whether sheriff’s preservation costs and
remuneration correctly included in costs order.
__________________________________________________________________

JUDGMENT
__________________________________________________________________
FARLAM JA

INTRODUCTION
[1] This is an appeal from judgments delivered on 13 August 2002 and 12
September 2002 by Foxcroft J in the Cape Provincial Division of the High
Court, sitting as a court of admiralty in terms of the Admiralty Jurisdiction
Regulation Act 105 of 1983 (to which I shall refer in what follows as ‘the
Act’). In the first judgment on appeal the learned judge dealt with two
admiralty cases which were heard before him. The first was case no
AC127/99, in which the master and crew who were serving on board the MT
‘Argun’ when she arrived in Cape Town on 25 May 1999 claimed various
amounts in an action in rem against the vessel in respect of wages due as at
various dates as well as interest and costs of repatriation. The master also
claimed an amount in respect of work done and expenses incurred. In what
follows the plaintiffs in case no AC127/99 will be referred to as ‘the first
respondents’.
[2] The second case was case no 134/99. This was also an action in rem
against the vessel. In this case the plaintiffs were the master and crew of the
MT ‘Argun’ who had served on board the vessel during the period 25 July
1995 to 31 January 1996. The main claim was in respect of unpaid wages
due as at 24 July 1996. They also had an alternative claim for an amount
allegedly due to them in terms of a settlement. In what follows I shall refer
to the plaintiffs in case no AC134/99 as ‘the second respondents’.

[3] In the second judgment on appeal the learned judge dealt with these
two cases as well as a third case, which was case no AC4/2002. The
plaintiffs in this case, also an action in rem against the vessel, were the first
twenty-one plaintiffs in case no AC127/99. Their claims were in respect of
wages due and unpaid for the period 1 July to 13 October 1999, being the
day before they were repatriated to Russia. In what follows I shall refer to
them as ‘the third respondents’.
[4] The arrest by which the first action in rem (case no AC127/99) was
instituted took place on 14 July 1999 and the arrest by which the second
action in rem (case no AC134/99) was instituted took place on 23 July 1999.
[5] On 30 July 1999 the Sheriff of Cape Town applied to the Cape
Provincial Division for an order inter alia declaring (i) that various parties at
whose instance the vessel had been arrested (the first and second
respondents and two other companies who are not parties to the present
appeal) were jointly and severally liable with such of the arresting parties to
the extent that the vessel was under the arrest at their instance during the said
period, for all the sheriff’s expenses reasonably incurred in the preservation
of the vessel as well as his reasonable remuneration in relation to such
expenses; in respect of the period during which the vessel was under arrest at
the instance of that party, and (ii) that the continued arrest of the vessel at the
instance of each of the arresting parties be made conditional upon that party

reimbursing the sheriff within 10 days of demand for his reasonable
expenses for the preservation of the vessel incurred during the period the
vessel was under arrest at the instance of that arresting party, as well as for
his reasonable remuneration in relation to such expenses.
[6] This application was dismissed by Cleaver J in the High Court but
succeeded on appeal to this Court. This Court’s judgment, which was
delivered on 1 June 2001, is reported as MT Argun; Sheriff of Cape Town v
MT Argun, Her Owners and All Persons Interested in Her and Another 2001
(3) SA 1230 (SCA).
[7] The first and second respondents did not reimburse the Sheriff of
Cape Town for the preservation expenses and remuneration referred to in
this Court’s order after he had demanded such reimbursement and on 21
June 2002 at the instance of the vessel’s owner Foxcroft J declared that the
arrests of the vessel at the instance of the first and second respondents had
lapsed by operation of the order made by this Court on 1 June 2001.
[8] The vessel had in the meantime been arrested on 21 February 2002 at
the instance of the third respondents in case no AC4/2002. Despite the fact
that the arrests at the instance of the first and second respondents had lapsed
Foxcroft J directed that the first and second actions proceed to trial together
with the third action. Special pleas to the effect that the first and second

actions had lapsed when the arrests in those actions lapsed were dismissed in
the first judgment on appeal and the actions then proceeded to trial.
[9] On 12 September 2002 Foxcroft J delivered the second judgment
which is now on appeal. He ordered the defendant vessel, which is the
appellant before us, to pay:
(a)
the capital amount of the plaintiff’s claims in all three actions
(amended in slight respects);
(b)
interest at the rate of 15.5% per annum with effect from the end of
each month for which each plaintiff had claimed wages;
(c)
the plaintiffs’ costs of suit on a party and party scale, including:

(i)
the necessary travel costs of the master;
(ii)
the sheriff’s reasonable and necessary costs incurred in
preserving the vessel and his reasonable remuneration
earned in respect thereof from the date of her arrest until:
(aa) in the first and second actions, the lapsing of each arrest;
and
(bb) in the third action, the release of the vessel from arrest;
and

(iii)
the costs of discovery.
He further ordered that the costs in each of the three cases be paid by the
defendant vessel and by her owner, the Russian Federation.

In addition he declared that the first and second respondents were entitled to
execute their judgments in rem obtained in respect of the vessel against the
vessel.
ISSUES ON APPEAL
[10] Six issues were argued on appeal, viz:
1.
Whether the first and second actions lapsed when the arrests by which
they were instituted lapsed;
2.
Whether the judge in the court below was justified in ordering that the
first and second respondents were entitled to execute against the
appellant their judgments in rem obtained against her;
3.
Whether he was correct in ordering the appellant to pay interest on the
amounts adjudged to be due to the respondents with effect from the
end of each month for which they had claimed wages;
4.
Whether he was justified in ordering the appellant to pay interest on
the capital amounts adjudged to be due to the respondents at the rate
of 15.5%;
5.
Whether he was empowered to order that the sheriff’s preservation
costs and remuneration in respect of the vessel during the period of
her arrest in each of the actions should constitute part of the
respondent’s costs of suit; and

6.
Whether the respondents should, irrespective of the outcome of the
appeal, be ordered to pay the costs of an additional volume of the
appeal record which the respondents prepared for inclusion therein
and to which the appellant objected, as well as the costs of perusal
thereof.
DID THE FIRST AND SECOND ACTIONS IN REM LAPSE WHEN
THE ARRESTS LAPSED?
[11] In regard to this issue Mr Wragge, who appeared on behalf of the
appellant, pointed out: that the first and second respondents’ claims arise
from contracts entered into, not with the owner of the MT ‘Argun’, ie the
Government of the Russian Federation, but with two companies, National
Pacific G.S.C. SA in the case of the first respondents and Inaqua Co. in the
case of the second respondents; that it is not alleged that the owner of the
vessel at the time of her arrest was personally liable to them; and that the
arrests by which the first and second actions in rem were instituted were
based upon the fact that the respondents had maritime liens over the vessel
in respect of their claims.
[12] Counsel submitted that in order to determine the nature of the first and
second respondents’ claims and the maritime lien which underpins their
actions in rem and the arrests by which they were instituted, it is necessary
to have regard to the relevant provisions of the Act and the rules

promulgated thereunder against the backdrop of English Admiralty law as it
was on 1 November 1983 when the Act was brought into operation. He
contended that this was so because the ‘matter’ or issue between the
appellant and the first and second respondents is the effect which the lapsing
of their arrests had on their actions in rem. This issue is a matter in respect of
which a Court of Admiralty of the Republic sitting pursuant to the
provisions of section 2(1) of the Colonial Courts of Admiralty Act 1890, 53
and 54 Vict, c 27, had jurisdiction before the commencement of the Act on 1
November 1983. This is because in terms of section 6 (1) of the Act the law
applicable is the law ‘which the High Court of Justice of the United
Kingdom in the exercise of its admiralty jurisdiction would have applied
with regard to such a matter’ at the commencement of the Act ‘insofar as
that law can be applied’. (The reference to ‘the High Court of Justice of the
United Kingdom’ was presumably intended to be a reference to the Supreme
Court of England and Wales as constituted by the Supreme Court Act, 1981:
see Brady-Hamilton Stevedore Co and Others v MV Kalantiao 1987 (4) SA
250 (D) at 253 D and MV Stella Tingas : Transnet Ltd v Owners of the MV
Stella Tingas and Another 2003 (2) SA 473 (SCA) at 479 G-H.)
[13] Mr Wragge dealt in his argument with various theories regarding the
origin of the concept of the maritime lien in English maritime law as well as
the ambit and effect of the maritime lien in English Admiralty law and in

particular with maritime liens for seamen’s wages and for master’s wages
and disbursements. On this part of his argument he relied heavily on the
judgment of this Court in The MV Andrico Unity 1989 (4) SA 325 (A). He
put particular emphasis on the following dictum of Corbett JA (at 332 B):
‘The lien is asserted by the arrest of the ship in a proceeding in rem and it then relates
back to the time when it first attached.’
[14] Counsel relied on a dictum of Lord Diplock in The Halcyon Isle:
Bankers Trust International Ltd v Todd Shipyards Corporation [1981] AC
221 (PC) at 234 F-G (which was approved in the court below in The MV
Andrico Unity 1987 (3) SA 794 (C) at 805 H – 806 G). The dictum reads:
‘... any charge that a maritime lien creates on a ship is initially inchoate only;
unlike a mortgage it creates no immediate right of property; it is, and will continue to be,
devoid of any legal consequences unless and until it is “carried into effect by legal
process, by a proceeding in rem”.’
[15] He contended further that proceedings in rem are made up of two
interdependent parts, the action in rem and the arrest of the maritime res and
that it is the arrest of the res which gives the action in rem utility and
effectiveness by affording the plaintiff pre-judgment security and a
potentially executable asset.
[16] In the course of his argument Mr Wragge traced the development of
the action in rem in England culminating in the decision of the House of
Lords in Republic of India and Another v Indian Steamship Co Ltd (No 2)

1998 AC 878 (HL(E)) (reported in Lloyds Reports as The Indian Grace (No
2) [1998] 1 Lloyds Rep 1 (HL)).  In that case, which arose under s 34 of the
Civil Jurisdiction and Judgments Act 1982 (c 27), it was held that the action
in rem brought by the Republic of India (Ministry of Defence) against the
Indian Endurance, a sister ship of the Indian Grace, in respect of damage to
the government’s cargo which was being carried on the Indian Grace, was
barred because the Indian Government had previously started an action in
the subordinate judge’s court in Cochin against the owners of the Indian
Grace for damages in respect of part of the cargo on the Indian Grace which
had been jettisoned and it obtained judgment on its claim some three and a
half months after the Indian Government’s writ in rem was issued.
[17] The House of Lords held, agreeing on this point with the Court of
Appeal, that the English action in rem was ‘between the same parties, or
their privies’, within the meaning of section 34 of the Civil Jurisdiction and
Judgments Act 1982, as the action in which the government obtained
judgment in Cochin; and that ‘for the purposes of section 34 an action in rem
is an action against the owners from the moment that the Admiralty Court is
seized with jurisdiction’. In coming to this conclusion Lord Steyn, with
whose opinion all the other law lords agreed, held that at least as far as an
action in rem based on a statutory right in rem (as opposed to a maritime
lien) is concerned, the procedural theory as to the origin of the action in rem

(in terms whereof the proceeding in rem is to be regarded as an exceptional
form of procedure employed in order to compel the defendant’s appearance)
is to be preferred to the personification theory (in terms of which the ship is
treated as a juridical entity endowed with a measure of personality and the
action in rem is seen as a proceeding against the vessel). Lord Steyn, in a
passage in his opinion to which Mr Wragge referred, made it clear that the
case before the House of Lords was not concerned with maritime liens.
‘That’, as he said (at 908H), ‘is a separate and complex subject which I put
to one side.’
[18] Mr Wragge submitted that before the Act came into force the
characteristics of the South African action in rem were the same as the
characteristics of the English action in rem as at 1 November 1983. He
submitted further that it was against this backdrop that the Act and the
Admiralty Proceedings Rules which were made pursuant to section 4 of the
Act and which came into operation on 1 December 1986 were drafted and
enacted. He argued that under the Act and the Rules, for a claim to remain
enforceable by an action in rem, there must be a co-existent arrest of the
defendant maritime res with the result that if an arrest lapses the action
instituted thereby lapses also because the utility and effectiveness provided
by the arrest has been lost.

[19] As far as the Act is concerned counsel referred to s 1(2)(b)(iv) which
made it clear that an action which commenced inter alia by the giving of
security, or an undertaking as contemplated in s 3(10)(a) (ie where there was
a deemed arrest), would lapse if the property were deemed to have been
released and discharged (because no further step was taken in the
proceedings within a year after the security or undertaking was given). In
other words, the Act makes it clear that an action commenced by a deemed
arrest will lapse if there is a deemed release. He contended that it cannot
have been contemplated by the legislature that there would be a different
result where there is an actual release following on the lapsing of an actual
arrest.
[20] As far as the rules are concerned Mr Wragge relied strongly on rule 6
(3) read with rule 6 (2), in terms of which a person who has an interest in the
property concerned and who has given notice of intention to defend an
action in rem:
‘shall not merely by reason thereof incur any liability and shall, in particular, not become
liable in personam, save as to costs, merely by reason of having given such notice and
having defended the action in rem.’
(Rule 6 of the Admiralty Rules which came into operation on 1 December
1986 has been replaced by Rule 8 of the Admiralty Rules which came into

operation on 19 May 1997 but the wording is the same. In what follows I
shall refer to this rule by its new number.)
[21] This subrule is important, so counsel submitted, because it reverses
for our practice the rule in the English case of The Dictator [1892] P 304 in
which Sir Francis Jeune P held that when in an action in rem the owners
enter appearance, judgment can be given against them for the full amount of
the claim (even if such amount exceeds the value of the res). This judgment
represented what Lord Steyn (at 908B) called ‘the breakthrough’ and
provided the particular characterisation of the action in rem which came to
be known as the procedural theory. Indeed Mr Wragge contended that it is
evident from the provisions of the Act and the Rules to which he referred
that there has been a departure in South African Admiralty law from a
general application of the procedural theory and an adoption of certain
material attributes of the personification theory.
[22] Mr Burger, who appeared on behalf of the respondents, submitted that
English law does not require a continuing arrest for an action in rem to be
able to proceed. He relied, inter alia, on the decision of the Probate, Divorce
and Admiralty Division in The City of Mecca (1879) 5 P 28. In this case it
was held by Sir Robert Phillimore that the admiralty division had
jurisdiction to entertain an action in rem to enforce what was regarded as
substantially a judgment in rem given by a Portuguese court in proceedings

instituted against The City of Mecca while she was in Lisbon, despite the
fact that she subsequently left Lisbon without giving security.
[23] Mr Burger submitted that this case indicates that the court did not
consider a continuing arrest of the vessel to be essential for the Portuguese
court to be able to give a judgment in rem enforceable in England and it
accordingly demonstrates, so he submitted, that a continued arrest of a vessel
(or substitute security) at all times was not necessary to pursue an action in
rem which had been commenced when the vessel was arrested.
[24] Mr Wragge’s answer to this argument was that The City of Mecca
indicated no more than that the English court was prepared to recognise and
enforce a foreign judgment in rem given after the vessel concerned was no
longer under arrest but that it did not follow from this that it would have held
that an English judgment in rem would have been given if the original action
in rem had been instituted in England and the vessel had then left the
jurisdiction without giving security. In my view Mr Wragge’s contention in
this regard is correct and The City of Mecca cannot be regarded as authority
for the proposition that in English law an action in rem will continue even if
the arrest by which it was instituted has lapsed.
[25] In regard to the present position in England it is clear that, as Lord
Brandon of Oakbrook put it in The August 8 [1983] 2 AC 450 (PC) at 456:

‘[b]y the law of England, once a defendant in an Admiralty action in rem has entered an
appearance in such action, he has submitted himself personally to the jurisdiction of the
English Admiralty Court, and the result of that is that, from then on, the action continues
against him not only as an action in rem but also as an action in personam ....’ (My
emphasis.)
[26] If the present case had been heard in England, therefore, on the
lapsing of the arrest of the vessel the actions would at the very least have
continued as actions in personam against the vessel’s owner. That that is not
our law is clear from rule 8(3), the material provisions of which are quoted
in para [20] of this judgment. In fact neither counsel was able to refer us to
authority directly in point on the issue to be decided.
[27] Mr Burger relied, by way of analogy, on the decision of this Court in
Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969
(2) SA 295 (A), a case involving an attachment to found jurisdiction at
common law where it was said that a valid attachment at the commencement
of the action is sufficient to establish jurisdiction and that, even if the
property attached is destroyed during the course of the proceedings, the court
retains jurisdiction. The applicable rule, which is based on civilian authority
cited in Voet, was formulated as follows (at 310 D-E):
‘Jurisdiction having once been established at such time [ie, the commencement of the
proceedings] it continues to exist to the end of the action even though the ground upon

which the jurisdiction was established ceases to exist. (see Voet, 5.1.64; R v de Jager,
1903 TS 36 at p38).’
[28] Mr Burger contended that the legislature clearly intended attachments
(to which the rule set out in Thermo Radiant applied) and arrests to be
treated in the same way and that if an additional jurisdictional requirement (a
continuing arrest) had been intended to apply in the case of an action in rem
instituted by an arrest, the legislature would have said so.
[29] The difficulty I have with the arguments of both Mr Wragge and Mr
Burger, which are based on what the legislature presumably intended, is that
there is no clear provision in the Act dealing with the point at issue. The
contentions advanced by Mr Wragge (in paragraph [18] above) and Mr
Burger (in paragraph [27] above) are both explicable on the basis, at best for
the side advancing them, that the legislature appears to have assumed that
the law was as counsel submitted it to be. But there is clear authority for the
proposition that the fact that Parliament appears to have enacted a provision
on a certain assumption as to what the law was does not make that
assumption correct: see, eg, Trivett & Co (Pty) Ltd v Wm Brandt’s Sons and
Co Ltd 1975 (3) SA 423 (A) at 435 B-C.
[30] I have a further problem with Mr Wragge’s submission in this regard.
If anything, Parliament appears to have thought that it is not enough that an
arrest has fallen away for the action to lapse. A specific provision to that

effect (s 1(2)(b)(iv)) appears to have been thought necessary, which
undermines the contention that the lapsing of an arrest automatically and
without more leads to the lapsing of the action.
[31] I think, however, that the answer to the problem is to be found in the
rule of the civil law to which reference was made in the Thermo Radiant
decision. That the rule in question was a general one appears from the
decision of the Transvaal Supreme Court in R v De Jager 1903 TS 36. In
that case a Transvaal court which had commenced hearing a criminal trial in
respect of an offence committed in the district of Vryheid, which was then in
the Transvaal, was held on the basis of the rule to have retained jurisdiction
in the case despite the fact that the district of Vryheid was excised from the
Transvaal after the commencement of the trial and added to Natal.
[32] Browne, in his classic treatise on the law of admiralty, A
Compendious View of the Civil Law and the Law of Admiralty, published in
1802, says at page 34 of volume 2 that the law ‘by which the proceedings of
the court of admiralty [were] governed [was] composed of those parts of the
civil law which treat of maritime affairs (as far as the decisions of the
Roman code upon those subjects have with us been deemed equitable),
blended with other maritime laws; the whole corrected, altered and amended,
by acts of parliament and common usage’.

[33] It must also be remembered that until the High Court of Admiralty
Act 1859, 22 & 23 Vict, cap 6, extended the right to practise in the High
Court of Admiralty, the civilian practitioners of Doctors’ Commons had the
monopoly of admiralty practice. I am satisfied that the rule of the civil law
applied in R v De Jager, supra, and referred to in the Thermo Radiant case
would have formed part of the law that would have been applied in the
admiralty court before 1859 if the point presently under consideration had
come up for decision and that nothing that happened thereafter, when
common lawyers gained the right of appearance in the court and the court
became part of the Supreme Court of the Judicature on the enactment of the
Judicature Acts 1873 – 1875, would have altered the position.
[34] It follows in my view that the court did not lose jurisdiction in the first
and second actions in rem when the arrests lapsed and those actions
continued. This conclusion renders it unnecessary to express an opinion on
the interesting questions raised by Mr Wragge regarding the procedural and
the personality theories in relation to the development of the action in rem,
particularly in a case such as this, which, unlike The Indian Grace (No 2),
supra, concerns a maritime lien. (For a useful discussion see Jonsson, ‘The
Nature of the Action in Rem’, (2001) 75 ALJ 105.) In the circumstances the
contentions raised by Mr Wragge in regard to the first issue must be
rejected.

ARE THE JUDGMENTS IN THE FIRST AND SECOND ACTIONS
IN REM EXECUTABLE AGAINST THE APPELLANT?
[35] I turn to deal with the issue as to whether Foxcroft J erred in ordering
that the first and second respondents were entitled to execute their judgments
in rem obtained in respect of the vessel against the vessel notwithstanding
that the arrests had lapsed.
[36] In arguing this part of the case Mr Wragge submitted that the
judgments in the first and second actions did not give rise to any personal
liability on the part of the owner and were therefore not enforceable against
the owner’s assets, such as the vessel.
[37] I do not agree with this contention. Once it is accepted that the
appellant must fail in respect of the first issue it follows that the judgments
given in the first and second actions in rem must stand. Indeed Mr Wragge
conceded that, if he failed on the first point, the judgments given in the first
and second actions could be sued on in an action in rem in a foreign
admiralty court if the vessel were found within such court’s area of
jurisdiction. He contended, however, that they could only be executed upon
against the vessel in the jurisdiction of the Cape admiralty court if further
actions in rem were instituted and judgments given thereon. The contention
cannot be upheld. It is of course necessary, in order to enforce a judgment in
rem given against a vessel in a foreign admiralty court, to ask a domestic

admiralty court in an action in rem to order that it be enforced because such
a judgment would not be executable without more in that domestic
jurisdiction. But it would be absurd if a litigant armed with a judgment of a
South African admiralty court against a particular vessel had to approach
that same court for a further order allowing its own earlier order to be
enforced against that very vessel while she is within its own area of
jurisdiction. I am accordingly satisfied that Mr Wragge’s contentions on the
point must also be rejected.
THE INTEREST ISSUES
[38] In my opinion the two issues relating to interest can be taken together.
Section 5 (2) (f) of the Act, which deals with the court’s powers in the
exercise of its admiralty jurisdiction, provides as follows:
‘(2)
A court may in the exercise of its admiralty jurisdiction ─

. . .
(f)
make such order as to interest, the rate of interest in respect of any sum awarded by it and
the date from which interest is to accrue, whether before or after the date of the
commencement of the action, as to it appears just’.
The section confers a wide and unfettered jurisdiction.
[39] No evidence was placed before the court a quo to enable it to decide
what rate would be just or what date should be fixed upon as the date from
which interest at that rate would be calculated.

[40] The approach to be adopted by this Court in deciding whether it
would be appropriate to interfere with the exercise by the court a quo of its
discretion in a comparable situation was set out in Adel Builders (Pty) Ltd v
Thompson 2000 (4) SA 1027 (SCA), a decision on section 2A of the
Prescribed Rate of Interest Act 55 of 1975. Section 2A (5) of that Act
provides as follows:
‘(5)
Notwithstanding the provisions of this Act but subject to any other law or an
agreement between the parties, a court of law ... may make such order as appears
just in respect of the payment of interest on an unliquidated debt, the rate at which
interest shall accrue and the date from which interest shall run.’
[41] At 1032 H – J of the Adel case Howie JA said:
‘Acting in terms of ss (5), it was open to the Court, in fixing the date from which interest
was to run, to give effect to its own view of what was just in all the circumstances. No
question of onus was raised then or in the notice of appeal. Nor could it have been. The
discretion afforded by s 2A(5) was of the nature referred to in a long line of cases in this
Court from Ex parte Neethling and Others 1951 (4) SA 331 (A) onwards. Plainly, if
parties wish certain facts and circumstances to be weighed in the exercise of such a
discretion they must establish them. But there are no facta probanda. No enquiry arises
as to whether a necessary fact has been successfully proved. Similarly, absence of proof
does not result in failure on any issue. Indeed, there are no evidential issues to attract any
onus.
[42] In terms of the decision in Ex parte Neethling and Others, supra, to
which reference was made in the Adel case, the Court is only entitled to

interfere with the exercise of a discretion of the kind here under discussion if
it comes to the conclusion that the court below did not exercise a judicial
discretion. The reason for this given in the Neethling case at 335 H is that:
‘in cases of this kind the Appeal Court, because of the nature of the case, has only a
limited power of correction’.
[43] In the present matter no basis was put before us for concluding that
Foxcroft J did not exercise his discretion judicially. It follows that the appeal
on these two issues must fail.
PRESERVATION COSTS AND EXPENSES
[44] The next issue to be considered is whether the judge erred in holding
that the costs incurred by the Sheriff of Cape Town in preserving the vessel
and his reasonable remuneration earned in connection therewith during the
period that the vessel remained under arrest should properly constitute part
of the respondents’ costs of suit in enforcing their claims.
[45] It will be remembered that the court a quo ordered that the
respondents’ costs of suit in all three actions were to be paid by the appellant
vessel and the Russian Federation. The effect of ordering that the sheriff’s
preservation costs and his reasonable remuneration in respect thereof are to
be included in the costs of suit therefore means that the burden of paying
such costs rests not only on the appellant but also on the vessel’s owner, the
Russian Federation.

[46] It is clear from rule 8 (3), the wording of which has been quoted in
paragraph [20] above (which enacts the rule laid down by Dr Lushington in
The Volant (1842) 1 W Rob 383, 166 ER 616, that although the liability of
an appearing owner in an action in rem is not in personam and  is limited to
the value of the res, he can also be held liable in personam for costs) that
Foxcroft J’s decision to order the owner of the vessel, which had appeared to
defend the actions in rem, to pay the respondents’ costs of suit therefore
cannot be faulted. The question for consideration, however, as has been
stated is whether he correctly included the sheriff’s preservation costs and
remuneration in the costs of suit.
[47] Mr Wragge submitted that a clear distinction is drawn in the Act
between preservation costs and costs of suit. He referred in this regard to ss
(4)(a) and (10) of s 11, which deals with the ranking of claims. Subs 4(a)
provides  that a claim ‘in respect of costs and expenses incurred to preserve
the property in question or to procure its sale and in respect of the
distribution of the proceeds of the sale’ ranks for payment as a first charge
against the proceeds of the sale of the vessel. Subs (10) deals, inter alia, with
the costs of enforcing a claim and provides that such costs ‘shall for the
purposes of this section [ie, s 10, the ranking section] be deemed to form
part of the claim’.

[48] While it is true that preservation costs and expenses are differentiated,
for ranking purposes, from the costs of enforcing the claim, this cannot
detract from the fact that a costs order covers not only the costs of instituting
a claim and prosecuting it to judgment but also the expense of (a) executing
against property belonging to a judgment debtor, (b) preserving it until the
execution sale and (c) the sale itself. I do not think that the fact that such
expenses were incurred in this case before judgment and not, as is usually
the case in non-maritime cases, thereafter can operate so as to deprive them
of their character as costs. It is true that where they are incurred before
judgment it is not clear at that stage that they will be subject to a subsequent
order that the defendant is to pay them; but where a costs order is given in
due course against the defendant there is no reason why they should not be
covered thereby. The fact that portion of such costs enjoys a higher ranking
than other portions cannot affect the position. It follows that Mr Wragge’s
contentions on this part of the case cannot be upheld.
COSTS OF THE ADDITIONAL VOLUME
[49] The last issue to be considered is the question whether the respondents
should bear the costs of an extra volume of the record which they caused to
be prepared. This volume included documents which were before the court
at an earlier stage in the proceedings as well as the judgment given by
Foxcroft J declaring that the arrest of the vessel at the instance of the first

and second respondents had lapsed by operation of the order made by this
Court in the Sheriff’s appeal.
[50] Mr Wragge conceded that on the authority of the judgment of the Full
Bench of the Transvaal Provincial Division in Anastassiades v Argus
Printing and Publishing Co Ltd 1955 (2) SA 349 (T) at 353 A – B the record
should contain all the documents which were before the court below and that
it is not for an appellant to decide unilaterally to omit what he or she thinks
is immaterial. (It is, of course, another matter if both or all parties agree that
certain documents are immaterial. If one party insists on unnecessary
documents being included or both do not agree on their exclusion an
appropriate costs order can be made.)
[51] In the present case the only argument advanced on behalf of the
appellant is that the documents in the additional volume were not before the
court below. The short answer to that contention is: they were. They related
not to different proceedings, as Mr Wragge argued, but to an earlier chapter
in the same proceedings. Moreover, included in the volume was the
judgment declaring the arrests to have lapsed to which Mr Wragge himself
referred in his argument. In the circumstances it is clear that the appellant’s
contentions on this point must fail.
COSTS ON APPEAL
[52] It remains to consider what costs order should be made on appeal.

[53] As has been pointed out earlier in this judgment, in terms of rule 8(3)
of the Admiralty Rules a costs order may be made against an owner who has
defended an action in rem brought against his ship. The bringing of an
appeal against an order made in such an action against a ship must be
regarded as an extension of the defending of the action. It follows that it is
competent for a costs order to be made against the Russian Federation in the
appeal.
[54] Marais JA, who was a member of the Court which heard the appeal,
was as a result of indisposition unable to participate in the finalisation of the
judgment. This judgment is accordingly the judgment of the court in terms
of s 12(3) of the Supreme Court Act 59 of 1959.
[55] The following order is made:
1.
The appeal is dismissed.
2.
The appellant and the Russian Federation are ordered, jointly and
severally, to pay the costs of the appeal.
……………..
IG FARLAM
JUDGE OF APPEAL
CONCURRING:
NAVSA

JA
CLOETE

JA
JONES

AJA