Court name
High Court
Case number
AC 11 of 2009
Title

International Underwater Sampling Limited and Another v Mep Systems (Pty) Ltd (AC 11 of 2009) [2010] NAHC 10 (12 January 2010);

Media neutral citation
[2010] NAHC 10





CASE NO

















REPORTABLE







SUMMARY











CASE
NO.: AC 11/2009











IN
THE HIGH COURT OF NAMIBIA



(In
the exercise of its Admiralty Jurisdiction)







NAME
OF VESSEL: MV ‘THE EXPLORER’







In
the matter between:







INTERNATIONAL
UNDERWATER SAMPLING First Applicant



LIMITED



THE
MOTOR VESSEL “THE EXPLORER” Second Applicant







vs







MEP
SYSTEMS (PTY) LTD Respondent







PARKER
J







2010
January 12



____________________________________________________________________________







Statute - Section
6 of the Admiralty Court Act, 1840 (3 & 4 Vict. C. 65) and s. 5
of the Admiralty Court Act, 1861 (24 & 25 Vict. C. 10) –
Meaning of ‘necessaries’ in terms of the legislation –
Court finding that ‘necessaries’ not defined in the 1840
and 1861 statutes – Consequently, the term ought to be
understood in its ordinary sense – Court finding therefore that
judicial definitions of ‘necessaries’ not to be raised to
the level of legislative definition and accepted without questioning
– Court holding that in its ordinary sense ‘necessaries’
is understood to mean things that are required for a given or
particular purpose in respect of the ship or vessel or for the voyage
– Court finding that the respondent’s claim
in
casu

is a necessaries claim.







Arbitration - Arbitration
clause in contract of sale – Effect of on civil proceedings in
the Court respecting claim under the contract of sale – Court
finding that respondent has not unequivocally elected to pursue claim
in arbitration in terms of the contract of sale – Court finding
further that in the circumstances of the case the Court’s
jurisdiction has not been ousted by the arbitration clause.







Held,
that if in a statute a word or phrase has not been defined in that
statute, such word or phrase should as a rule be understood in its
ordinary sense.







Held,
further, that in terms of the Admiralty Court Act, 1840 and the
Admiralty Court Act, 1861, ‘necessaries’ ought to be
understood in its ordinary sense as meaning things that are required
for a given or particular purpose in respect of the ship or vessel or
for the voyage.







Held,
further, that whether or not an arbitration clause is capable of
ousting the jurisdiction of the Court will depend upon the
circumstances of the particular case.















































































CASE NO.: AC
11/2009











IN THE HIGH
COURT OF NAMIBIA



(In the
exercise of its Admiralty Jurisdiction)







NAME OF VESSEL:
MV ‘THE EXPLORER’







In the matter
between:







INTERNATIONAL
UNDERWATER SAMPLING First Applicant



LIMITED



THE MOTOR
VESSEL ‘THE EXPLORER’ Second Applicant







vs







MEP SYSTEMS
(PTY) LTD Respondent











CORAM: PARKER
J







Heard on: 2009
December 15



Delivered on: 2010
January 12



_________________________________________________________________________







JUDGMENT



_________________________________________________________________________






PARKER
J
: [1] On 23 November 2009, the
respondent (i.e. plaintiff) brought an action
in
rem
against the 2nd
applicant, her owners and all others interested in the 2
nd
applicant by the issuance of a writ of summons
in
rem
and the arrest of the vessel (i.e. the
2
nd applicant) in
virtue of a warrant of arrest issued out of this Court pursuant to an
affidavit to lead warrant. In the said action the applicants were the
defendants and the respondent, the plaintiff. The plaintiff’s
(i.e. the respondent’s) claim in the action is for the balance
of the purchase price payable for deck machinery sold and delivered
to the 2
nd
applicant under a contract of sale entered into with the 1
st
applicant. As far as the respondent is concerned the claim is one for
necessaries supplied to a foreign ship within the meaning of s. 5 of
the Admiralty Court Act, 1861 (24 & 25 Vict. c. 10) and s. 6 of
the Admiralty Court Act, 1840 (3 & 4 Vict. c. 65). It is not
disputed that these English legislation are applicable in Namibia;
see
Freiremar SA v Prosecutor-General of
Namibian and another
1996 NR 1 (HC); Namibia
Ports Authority v MV ‘Rybak Leningrada’

1996 NR 355.





[2] By
Notice of Motion issued from the Court on 3 December 2009, the 1
st
applicant and the 2
nd
applicant made application to the Court on Notice of Motion, moving
the Court to make an order in the following terms:






(1) That the Applicants’
non-compliance with any provisions of the rules of the above
Honourable Court be condoned and the matter be heard as a matter of
urgency.







(2) That the Respondent’s
writ of summons issued out of the above Honourable Court under case
AC 11/2009 be set aside.







(3) That the warrant of arrest
in respect of the Second Applicant issued on the 23
rd
of November 2009 be set aside and the vessel released from arrest
forthwith.







(4) That the Court grant such
alternative relief as is appropriate under the circumstances
including a stay of the proceedings
in
rem
and releasing the
vessel from arrest.







(5) Costs of suit.







(6) Further and/or alternative
relief.





[3] On
what grounds do the applicants rely in moving the Court to make the
aforementioned order? The first ground is this: the arrest is merely
a ‘security arrest’. Why do the applicants say so? Their
reason is that it is for the respondent to obtain security for an
order that may be made in the respondent’s favour in
arbitration proceedings which, the applicants contend, the respondent
has ‘already instituted in Singapore’ and further that
there is no legal basis, in terms of the aforementioned 1840 and 1861
legislation, entitling this Court to order such arrest of the 2
nd
applicant. In respect of this ground the applicants contend that the
respondent made an election to go the route of arbitration
proceedings before it issued the writ of summons
in
rem
.





[4] The
second ground is this. The claim that is set out in the writ of
summons and the Affidavit to Lead Warrant is not a ‘necessaries
claim’ within the meaning of s. 5 of the Admiralty Court Act,
1861 (24 & 25 Vict. c. 10) and s. 6 of the Admiralty Court Act,
1840 (3 & 4 Vict. c. 65).





[5] The
short and narrow compass within which the present application falls
is that the burden of this Court in these proceedings is to decide
these two crisp questions that arise from the papers: (1) Is the
respondent’s claim a ‘necessaries’ claim? (2) Has
the respondent elected to refer the claim to arbitration in terms of
Clause 16 of the aforementioned contract of sale?





[6] I
will treat the second question first. Section 6 of the Admiralty
Act, 1840 provides that the High Court has jurisdiction –






To decide all claims and demands
whatsoever … for necessaries supplied to any foreign ship or
seagoing vessel, and to enforce payment thereof, whether such ship or
vessel may have been in the body of a country, or upon the high seas,
at the time when the … necessaries were furnished, in respect
of which such claim is made.





And s.
5 of the Admiralty Act, 1861 provides –






The High Court of Admiralty
shall have jurisdiction over any claim for necessaries supplied to
any ship elsewhere than in the port to which the ship belongs, unless
it is shown to the satisfaction of the Court that at the time of the
institution of the cause any owner or part owner of the ship is
domiciled in England or Wales …





[7] In
determining the second question, I keep it firmly in my mental
spectacle that the word ‘necessaries’ is not defined by
the ‘Interpretation of terms’ (i.e. definitions) section
of the aforementioned 1861 Act or 1840 Act. It has been said that in
legislation the principal function of a definition section ‘is
to shear away some of the vagueness and ambiguities which would
otherwise surround the terms defined.’ (Thorton,
Legislative
Drafting
, 3rd
edn. (1987): p. 56). And according to Devenish (
Interpretation
of Statutes
(1992): p. 242), the purpose of a
definition section in a statute ‘is to demarcate and define
certain seminal terms or phrases in legislation.’ And in his
work
The Interpretation of Statutes
at p. 112, Du Plessis writes:






In a statute where such a
definition clause occurs, the words and phrases it contains acquire,
for purposes of that particular statute, a “technical”
meaning which often deviates from their ordinary meaning in
colloquial speech. It therefore follows that such words and phrases
are as a rule not to be understood in their ordinary sense, but in
accordance with the meaning ascribed to them by the definition
clause.





[8] Thus,
it follows inexorably from the textual authorities that if in a
statute a word or phrase has not been defined, such word or phrase
should as a rule be understood in its ordinary sense.






[9] I
have taken some time to discuss the aspect of statute law concerning
the definition of words and phrases in the definitions section of a
particular statute in order to make these points. The word
‘necessaries’ is not, as I have mentioned previously,
defined in the Admiralty Court Act, 1840, or the Admiralty Court Act,
1861, and so the word must be understood in its ordinary sense. That
being the case, I for one do not intend to adopt without question the
definitions of the term ‘necessaries’ in the authorities
referred to me by counsel on both sides of the suit. To do so is to
catapult, without justification, these judicial definitions to the
level of legislative definitions; that is, as if those judicial
definitions have been enacted by the Parliament in the Acts. In my
opinion, those judicial definitions must be seen merely as guides to
assist in understanding the word ‘necessaries’ in its
ordinary sense: see the definition of ‘necessaries’ in,
for instance,
The
Riga
(1872) LR 3 A &
E 516, 1 ASP MLC 246;
The
River Rima
(1987) 3
All ER 1, CA; affd. [1988] 2 All ER 641, [1988] 1 WLR 758, HL;
Weissglass NO v
Savonnerie Establishment

1992 (3) SA 928 (A);
Namibia
Ports Authority v MV ‘Rybak Leningrada’

supra.







[10] The
Shorter Oxford
English Dictionary
,
6
th
edn. (updated 2006) defines ‘necessaries’ as ‘that
which is indispensable’; ‘an essential, a requisite’;
‘that which is required for a given purpose’ –
among other definitions that are not apropos for our present
purposes; for example, ‘a basic requisite of life, as food and
warmth (freq. in the necessaries of life)’. In his
authoritative work
A
Dictionary of Modern Legal Usage,

2
nd
edn. (1995), Bryan A Garner defines ‘necessaries’ as
follows: ‘In legal sense, necessaries is the usual term for
“things that are indispensable ...’ The common thread
that lies at the interiority of these dictionary meanings is that in
its ordinary sense necessaries is that which are required for a given
or particular purpose.







[11] I
discern a clear intention on the part of the Parliament not to give a
technical meaning to necessaries; otherwise the Parliament would have
defined the word in the legislation. I do not therefore think it
would be right or proper, or that the Court is entitled, to ascribe a
technical meaning to necessaries in the 1840 and 1861 legislation.
That being the case, I fail to see where the notion of ‘immediate
necessity’ mentioned by Rt. Hon. Dr. Lushington in
The
Comtesse de Frégeville

4 L.T. Report NS 713; Lush, 329; 1 Mar. L.C. (Crockford) 106, which
Mr Van Eeden, counsel for the applicants, was so much enamoured with,
jumped from. In the
Riga
1872, 26 LT 202; Mar. L.C (Aspinali) 246 at p. 249, Sir Robert
Phillimore expressed the opinion that –







What
is fit and proper to the service on which a vessel is engaged,
whatever the owner of that vessel, as a prudent man would have
ordered, if present at the time, comes within the meaning of the term
‘necessary’ ...







[12] In
Namibia Ports
Authority v MV ‘Rybak Leningrada’

supra at 359D-H, Gibson J approved the
Riga
definition of ‘necessaries’. So did the learned Judge
approve the dictum by Nestadt JA in
Weissglass
NO v Sovonnerie Establishment

1992 (3) SA 928 (A) at 359C-D that, ‘The term (necessaries) has
been given a wide meaning by the English Courts. It is not confined
to what is absolutely necessary. Nor is any distinction, drawn (as it
used to be) between necessaries for the ship and necessaries for the
voyage.’ It is my view that the
Riga
definition and the
Weissglass
NO v Sovonnerie Establishment

definition of necessaries correspond to the ordinary sense of
necessaries. The deck machinery supplied to the applicants was
machinery supplied to enable the 2
nd
applicant to be used as a seabed sampling vessel: the machinery was
required by the applicants for a given purpose; it was fit and proper
to the service on which the 2
nd
applicant was engaged, namely seabed sampling.







[13] For
the aforegoing conclusion and reasoning, I hold that the respondent’s
claim is a necessaries claim. The fact that the 1
st
applicant disputes the respondent’s allegations that the
problems experience by the 1
st
applicant as to the machinery supplied cannot for the purposes of
these proceedings take the applicants’ case any further. I
accept the submission by Mr Wragge, counsel for the respondent, that
the fact that the 1
st
applicant disputes those allegations cannot provide an acceptable
ground for setting aside the writ of summons and the warrant of
arrest.







[14] I now proceed
to consider the first question, which resolves into this: in taking
the step that the respondent confirms it has taken so far thereanent
arbitration, can it be seriously argued that the respondent, by its
own choice, ‘has elected to proceed to arbitration and has
initiated such proceedings in Singapore’ in terms of the
contract of sale, as the applicants contend and Mr Eeden submits? I
think not. From the papers I am satisfied that the respondent merely
intimated to the applicants its willingness to go to arbitration in
pursuit of a choice open to it in terms of the contract of sale;
intimation, which the applicants chose to ignore. It is now too late
in the day for the applicants to disingenuously – I think –
throw that intimation in the face of the respondent and contend that
the respondent has elected to go to arbitration and has already
instituted arbitral proceedings.







[15] The
further question respecting the issue of arbitration is this: is the
1
st
applicant entitled at this stage and on the strength of the averments
made on the papers to the alternative relief in paragraph 4 of the
Notice of Motion? I accept Mr Wragge’s submission that an
arbitration clause cannot oust the jurisdiction of this Court. In my
view, it will take something more than just an arbitration clause in
a contract of sale to oust the jurisdiction of this Court. This
proposition is so elementary that there is no need to cite any
authority in support thereof. In an appropriate case, the Court must
be satisfied that in the circumstances of the particular case,
justice demands that the dispute be referred to arbitration first in
line with the arbitration clause in the contract. The applicants
have not pointed to any such circumstances. It follows that in my
judgment the applicants are not entitled to the alternative relief in
paragraph 4 of the Notice of Motion. To hold otherwise will be
unjust and unreasonable. The applicants, as I have mentioned
previously, decided to ignore the respondent’s intimation to
refer the dispute to arbitration; and so as matters now stand the
claim is not before any arbitrator.











[16] What
all these mean, in my opinion is this. The applicants now say to
the respondent, we did not cooperate with you to submit the claim to
arbitration. Now that you have succeeded in moving the Court to grant
the warrant of arrest in respect of the 2
nd
applicant in virtue of the action already instituted by you, we now
wish to persuade the Court to set aside the warrant and release the
2
nd
respondent from arrest so that we can escape the jurisdiction of this
Court. And if we fail by going that route (as we have) then we ask
the Court to stay the proceedings
in
rem
and release the
2
nd
applicant from arrest because there exists an arbitration clause in
the contract of sale. I have sketched this scenario to demonstrate
that it would be unjust, unreasonable and unsatisfactory to grant the
applicants’ prayers on the basis of the arbitration clause in
the contract of sale.







[17] Accordingly,
I hold that the respondent has established that the respondent’s
claim is a necessaries claim within the meaning of the aforementioned
applicable legislation in respect of which this Court has admiralty
jurisdiction. I conclude that no grounds exist for this Court to
grant an order setting aside the writ of summons
in
rem
and the warrant
of arrest. Additionally, I hold that no ground exists to stay the
proceedings
in rem
and to release the 2
nd
applicant from arrest.







[18] In the
result, I make the following order:








  1. The applicants’
    non-compliance with the Rules of Court is condoned and the matter is
    heard on urgent basis.













  1. The applicants’
    application in respect of prayers (2), (3) and (4) of the Notice of
    Motion is dismissed with costs; such costs to include costs
    consequent upon the employment of two instructed counsel.
















______________________



PARKER J

















COUNSEL ON
BEHALF OF THE APPLICANTS:







Adv. P A Van Eeden







Instructed
by:
Fisher, Quarmby
& Pfeifer















COUNSEL ON
BEHALF OF THE RESPONDENT:



Adv. M Wragge SC



Adv. Jan Strydom







Instructed
by:
Engling,
Stritter & Partners