South Africa: Maritime Claims In South Africa

What constitutes a "maritime claim" for purposes of admiralty jurisdiction? The most recent decision on the interpretation of the phrase "relating to" by the High Court of South Africa

A maritime claim is defined in the Admiralty Jurisdiction Regulation Act 105 of 1983 (hereafter "the Act") as "any claim for, arising out of or relating to" (emphasis added) those grounds of jurisdiction listed in section 1(1) of the Act.  The characterisation of a claim as a "maritime claim" is crucial to the determination of whether a South African court of law has admiralty jurisdiction or not: only a court exercising its admiralty jurisdiction will have the competency to determine a maritime claim.  With this in mind, and therefore also unsurprisingly, the phrase "relating to" (as it appears in the definition of "maritime claim") has been the subject of a number of South African court cases, the most recent being Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL (GSJ) unreported case no 40214/2014 of 19 February 2016.  

In 1990 Page J was confronted with this issue in the matter of Peros v Rose 1990 (1) SA 420 N.  Peros had entered into a contract with Rosa Marine CC (hereafter "Rosa Marine") for the construction of a yacht.  The parties agreed to a series of payments on agreed dates with no particular milestones in the construction of the yacht.  Rose, the sole member of Rosa Marine, provided a personal written guarantee to Peros that "in the event of the BUILDER not completing the construction of the yacht up to stage...'installation of engine, completion of plating' within a period of six months from 'laying of the keel' I shall....repay to the OWNER and amount equal to the aggregate of such sums as shall have been paid by the Owner" as at defined dates.  Rose filed a special plea in defence of the claim against him under the guarantee that the claim is a "maritime claim" as defined in section 1(1)(ii)(m) of the Act, which provides that a "maritime claim" means inter alia "any claim in respect of the design, construction, repair or equipment of any ship..." (see the current section 1(1)(q) of the Act).  The Plaintiff replicated to the effect that he was seeking to enforce a contractual guarantee, that is a contractual obligation to pay a sum of money and therefore not a claim in respect of the design, construction, repair or equipment of any ship.  The court concluded that, with regard to matters arising out of English Admiralty claims as recognised under English Admiralty law as at 1983 (this idiosyncrasy in the Act is a debate for another day), the intention of the legislature in using expressions such as "relating to", "in respect of", "for", "arising out of", "in the nature of" and "with regard to" in the definitions of maritime claims "was to convey a relationship between the claim and the maritime topic to which it is related, sufficiently intimate to impart to the claim a maritime character which would render it appropriate for the claim to be adjudicated in accordance with maritime law".  The court went on to conclude that whilst there was a connection between the construction contract and the contractual guarantee, the connection was not sufficient to render a claim for specific performance of the guarantee, a claim for the construction of the yacht. The special plea therefore failed.  Page J declined also to view the claim as being ancillary to a maritime claim (see the current section 1(1)(ee) of the Act), partly because the claim was not so framed, but also on his own accord.  It has since been remarked by Hare (Shipping Law & Admiralty Jurisdiction in South Africa at page 53), quite correctly, that the decision by Page J in Peros results in an unnecessary narrow view of the extent to which the Act extended South African admiralty jurisdiction and sought to draw an unnecessary distinction between old and new jurisdiction, interpreting the former more restrictively than the latter.

Until recently, however, Peros was the accepted position in Admiralty law in South Africa.

Kuehne & Nagel concerned an application for edictal citation and substituted service.  Both parties appeared before the court in the exercise of its ordinary common law (i.e. non-admiralty) jurisdiction.  The respondent challenged the court's jurisdiction, contending that the claim brought by the applicant was a "maritime claim" and that, as a result, the matter fell within the exclusive jurisdiction of the High Court in Admiralty.  

In brief, the applicant sought payment under two demand guarantees (or "Parent Company Guarantees") that were issued by the respondent, a peregrinus of the court and of the country.  It appears from the judgment that on 13 November 2012 and 13 November 2013 respectively the respondent's subsidiary, a local company trading under the name and style of Construczioni Moncada South Africa (Pty) Ltd (hereafter "the subsidiary"), concluded two Forwarding Services Agreements (being the underlying contracts) with the applicant.  Pursuant to the foregoing, on 13 November 2012 and 27 February 2013 respectively the respondent issued two demand guarantees in favour of the applicant, in each instance expressly guaranteeing as principle obligator "the due and the correct and punctual performance by [the subsidiary] of all its payment obligations to [the applicant]" under the Forwarding Services Agreements.  The demand guarantees further provided that should the subsidiary fail to make payment under the Forwarding Services Agreements, the respondent undertakes and will become obliged to make payment in terms thereof within seven days of receipt of a written demand from the applicant and will not contend the validity of the demand or the correctness of the amount demanded or become party to any claim or dispute of any nature which any party may allege.  The demand guarantees contained both choice of law and jurisdiction clauses: the law and jurisdiction being that of South Africa.  The subsidiary defaulted on its payment obligations to the applicant, thus prompting the applicant to seek payment under the demand guarantees from the respondent.  

The applicant argued that (i) in line with established legal principles, the demand guarantees were wholly independent and autonomous of the underlying contracts, meaning that the respondent was not entitled to raise the subsidiary's possible defences to the underlying claim in terms of the Forwarding Services Agreements as defences against the applicant's claim against the respondent under the demand guarantees; and (ii) as a result of the independent and autonomous nature of the underlying contracts, the applicant's claim under the demand guarantees could not be characterised as a maritime claim.  The respondent took the opposite view: it argued that the applicant's claim is a "maritime claim" for purposes of the Act. Therefore the court had no jurisdiction to hear the matter to begin with.  

The court, by way of Van der Linde J, held that the claim based on the demand guarantees constitutes a maritime claim as it relates to the remuneration of a forwarding agent, as envisaged in the Act.  In doing so, the court appears to have watered down the interpretation applied in Peros  in determining whether or not the relevant claim is covered under section 1(1) of the Act.  Van der Linde J first determined the precise ambit and nature of the claim.  This was done by having regard to not only the ordinary grammatical meaning of the phrase "relating to" but also the relevant context (or "milieu"), which may include the historical background of the claim in question.  The court also confirmed that there must be a relationship between the claim and the maritime topic to which it relates, which is sufficiently intimate to impart to the claim a maritime character which would render it appropriate for the claim to be adjudicated in accordance with maritime law.  However, the court here came to a very different conclusion.  The conclusion may, with respect be justified on the basis that the claim for freight forwarding obligations did not constitute a claim under English Admiralty law in our law prior to 1983, interpreting the obligation as a contractual obligation under Roman Dutch law, and thereby determining the intimacy of the relationship between the maritime contract and the alleged maritime claim.

The court distinguished the present matter from the decision by Lopes J in MFV El Shaddai, Oxacelay and Another v MFV El Shaddai and Others 2015(3) SA 55 (KZD), a case wherein it was held that the underlying contract did not give rise to a maritime claim.  The purpose of the underlying loan agreement in the El Shaddai case was to finance a company, a transaction far removed from any of the grounds of jurisdiction listed in the definition of "maritime claim" in the Act.  Despite arguments to the contrary, Lopes J held that the nature and purpose of the underlying loan agreement cannot be altered by the fact that the recipient of the loan was to repay the loan out of the proceeds of its continued fishing operations.  As the underlying loan would not constitute a "maritime claim" in terms of the Act, because there was no legally relevant connection between the claim (being the repayment of the loan) and the fishing venture, it thus followed that the applicants in El Shaddai could not rely on a previous foreign judgment to establish a claim in terms of section 1(1)(aa) or section 1(1)(ee) of the Act.  


The difficulty for any court tasked with deciding whether or not a claim relates to one of the grounds of jurisdiction listed in section 1(1) of the Act is that the phrase "relating to" (as used in the Act) is not capable of precise definition.  As noted by Van der Linde J in Kuehne & Nagel, despite the wide meaning attributable to the phrase "relating to", there should at least be a legally relevant connection between the claim being made and the object to which the claim is required to relate for purposes of the definition of "maritime claim".  Failing such a connection, the claim should not be classified as constituting a "maritime claim" for purposes of the Act, as was the case in El Shaddai.  In making such a determination, our courts may have regard to the context which may include the historical background of the claim under consideration.  For the moment there appears to be a divergence between the bench in KwaZulu-Natal and Gauteng on this issue.

To view the original article please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions