IN THE SUPREME COURT
OF NAMIBIA

In the matter between:

Coram: Mainga, JA,
Chomba, AJA, et Mtambanengwe, AJA

Heard on: 23/06/2010

Delivered on: 05/11/2010

APPEAL JUDGMENT

CHOMBA, AJA:

1. 
   This is an
   out-of-the-ordinary suit by reason of the fact that the cause of
   action occurred beyond the territorial jurisdiction of the courts of
   this country and that the parties involved are all peregrine.
   The first appellant, International Underwater Sampling Ltd (IUS
   Ltd), is a limited company which has its registered office in the
   Bahamas, West Indies, and is the owner of the second appellant (“The
   Explorer”), which flies a flag of St. Vincent and the
   Grenadines, while the cause of action occurred in Singapore. The
   respondent, MEP Systems Pte Ltd (MEP Pte Ltd), is a private company
   with its registered office in Singapore. The action was, however,
   commenced in the court a quo because that court was
   conferred with jurisdiction by virtue of an interaction of three
   English enactments, namely the Colonial Courts Admiralty Act, 1890
   (53 & 54 Vict.) (the 1890 Act), the Admiral Court Act, 1840 (3 &
   4 Vict. c. 65) (the 1840 Act) and the Admiralty Court Act, 1861,
   (24 Vict. c. 10) (the 1861 Act). (see Freiremar SA v
   Prosecutor-General of Namibia and Another 1996 NR 1 (HC);
   Namibia Ports Authority v MV “Rybak Leningrada”
   1996 NR 355).

   
   

2. 
   The brief circumstances
   which triggered the appeal to this Court were the following. The
   respondent, the plaintiff in the court a quo, issued a
   summons in rem against “The Explorer” and the IUS
   Ltd. as owners of the vessel, and in consequence thereof caused “The
   Explorer” to be arrested under warrant. The plaintiff’s
   claim was for a sum of US$644,503.00, being the alleged unpaid
   balance of the price of goods sold and delivered to IUS Ltd. The
   institution of that action prompted the IUS Ltd to launch an
   application by notice of motion by which it prayed that the summons
   in rem be set aside and the vessel be released from arrest,
   or that the court a quo grant such other alternative relief,
   including a stay of the proceedings in rem and release of the
   vessel from arrest. The motion proceedings before Parker, J,
   resulted in the motion being dismissed with costs. It was from that
   decision that this appeal emanated.

   
   

Brief Facts Giving
Rise to the Dispute

3. 
   It is common ground that
   the parties entered into a written contract on 21 September 2007 in
   Singapore. The contract is evidenced by the document titled “Sales
   Contract for MET Deck Machinery”, marked “NTP-1”
   in the Court below. By virtue thereof the respondent delivered to
   the first appellant equipment described by the respondent as deck
   machinery, but those acting for the defendants in the Court a quo
   preferred to describe it as equipment designed to convert the
   vessel to undertake seabed mineral sampling. However, the contract
   document reflects the equipment as consisting of the following:

   
   

1 set of Constant Tension
Main Hoist Winches, each set consist of: 2 x Hoist Winches equipped
with spooling gear; 2 x Local Control; 2 x Remote Control; 2 x Load
Pin 200T; 1 x Power Pack.

1 set Constant Tension
Guide Winches, each consist of: 2 x Constant Tension Guide Winches;
2 x Local Control; 2 x Remote Control; 2 x Tension meter; 1 x Power
Pack.

1 set Slurry Hose
Constant Tension Spooler, each set consist of: 1 x Slurry Hose
Spooler; 1 x Local Control; 1 x Remote Control; 1 x Power Pack.

Vertical sheaves.

Galvanized Lubricated
Steel Wire Rope.

In respect of each set of
equipment there are shown the necessary specifications as well as
ancillary requirements. Despite initial misunderstanding, it is
common cause that the equipment was delivered to the vessel while it
was in Singapore. The equipment having been fitted to the vessel, it
thereafter left the shores of Singapore, sailed to Cape Town in South
Africa and thereafter to the west coast of Namibia where the vessel
was to be used to undertake seabed mineral sampling. It was while
“The Explorer” was engaged in the mineral sampling that
the action in rem was instituted and the vessel arrested.

4. 
   In the affidavit to lead
   warrant, Mr. Ng Tock Ping (Mr. Ping), the Managing Director of MEP
   PTE Ltd, deposed that his company had paid the supplier of the
   aforementioned equipment which he described as necessaries in terms
   of section 5 of the 1861 Act. However, in seeking the setting aside
   of the summons in rem and release of the vessel, Mr. Peter
   Looijen (Mr. Looijen), the Mechanical Engineer and Technical
   Director of IUS Ltd, by his founding affidavit, disputed the
   “necessaries” description tagged to the equipment. That
   was one of the moot points in the Court a quo. Unfortunately
   for the first appellant, that argument did not find favour with the
   learned trial judge, who determined that the goods afore listed
   were, according to the relevant law, necessaries. This point will
   be discussed at length later as it was relied on even during the
   hearing before this Court. Two other issues in dispute will be
   introduced presently.

   
   

The Issues in the
Appeal

5. 
   This whole appeal
   revolves around three issues and these were hotly canvassed before
   us. They are the following:

   
   

1. 
   Whether or not the
   equipment supplied by the respondent to the appellants and on which
   the summons in rem and the arrest of “The Explorer”
   were premised were, in terms of admiralty law, necessaries.

   
   

2. 
   Whether or not the
   action in rem was instituted for the sole purpose of
   obtaining an award as security for arbitration proceedings to which,
   according to the contract subsisting between the parties, they had
   contractually agreed to have recourse in order to resolve any
   disputes arising from the contract.

   
   

3. 
   Whether or not, before
   instituting the action in rem, the respondent had elected to
   go for, or had in fact commenced, arbitration proceedings.

   
   

I now intend to consider
and resolve these issues individually and will do so starting with
the third.

Whether the respondent
had elected to initiate or had actually initiated Arbitration
Proceedings before instituting the action in rem.

6. 
   As already stated, the
   parties entered into a contract of sale and purchase of the goods
   enumerated in paragraph [3] hereof. The contract contained an
   arbitration clause which provided as hereunder:

   
   

“16. Arbitration: All
disputes in connection with this contract or the execution thereof
shall be settled friendly (sic) through negotiation within 60
days. In case no settlement can be reached within 60 days, the case
shall then be submitted to Singapore International Arbitration Centre
for arbitration in accordance with its rules and procedure of
arbitration. The arbitration shall take place in Singapore and the
arbitral award of the said arbitration commission is final and
binding on both Parties. The arbitration fee shall be borne by the
losing party.”

7. 
   On April 21, 2009, that
   is before the institution of the action in rem and the arrest
   of the vessel, a letter emanating from the respondent’s
   solicitors was sent to IUS Ltd marked for the attention of Mr.
   Looijen. Its text was framed in the following terms:

   
   

8. 
   “NOTICE OF ARBITRATION:
   SALES CONTRACT DATED 21 SEPTEMBER 2007 FOR DECK
   MACHINERY SAMPLER SETTLER

   
   

We are solicitors in Singapore, and we
act for MEP Systems Pte Ltd.

We are instructed that by Sales
Contract for MEP Deck Machinery dated 21 September 2007, our client
agreed to sell and you agreed to purchase a number of deck machinery
as particularized in the contract.

We are further instructed that
disputes have arisen between our client and you in relation to the
contract. In particular, our client has claims against you for
payment of machinery amounting to about US$600,000.00 already
delivered to you. On the other hand, you have alleged that our
client has not delivered the machinery in accordance with the
specifications/description.

Clause 16 of the Contract states as
follows:

Arbitration: All disputes in
connection with this contract or execution thereof shall be settled
friendly through negotiation within 60 days. In case no settlement
can be reached within 60 days, the case shall then be submitted to
Singapore International Arbitration Centre for arbitration in
accordance with its rules and procedure of arbitration. The
arbitration shall take place in Singapore and the arbitral award of
the said arbitration commission is final and binding on both Parties.
The arbitration fee shall be borne by the losing party.

In view of the above, we are
instructed to notify you that our client intends to refer the
disputes to arbitration to the Singapore International Arbitration
Centre. Please acknowledge receipt of this notice.”

9. 
   Mr. Van Eeden, who
   appeared for the appellants in this court, presented a number of
   arguments the effect of which was that the respondent had made an
   election to go for arbitration in Singapore pursuant to the
   arbitration reproduced hereinbefore. His main pillar of argument in
   this regard was headlined thus: THE COURT HAS NO JURISDICTION IN A
   CLAIM FOR SECURITY AND THE ACTION IN REM CONSTITUTES AN ABUSE
   OF PROCESS UNDER CIRCUMSTANCES WHERE ARBITRATION PROCEEDINGS HAVE
   BEEN INITIATED. He then went on to submit that in paragraph 36 of
   the answering affidavit in the motion proceedings, it had been
   conceded on the respondent’s behalf that the Court a quo
   had no jurisdiction to entertain an arrest for security in respect
   of arbitration proceedings which were to be carried on elsewhere.
   In aid of his contention Mr. Van Eeden cited the dictum of
   Robert Goff, L J, in “The Tuyuti” [1984] 2 All ER
   545, and he quoted it comprehensively as follows:

   
   

“I turn then to the central
point in the case, which is concerned with the principle enunciated
by Brandon, J, in The Rena K. The question of the Admiralty Court’s
jurisdiction to arrest a ship or to continue such an arrest in
relation to arbitration proceedings was recently considered by this
court in The Andria [1984] 1 All ER 1126, [1984] 2 WLR 570.
It may help to put the principle in The Rena K in its context if I
first refer to the judgment in The Andria. In that case it
was held that, although the only prerequisite to the court’s
jurisdiction to issue a warrant for arrest is that a writ must have
been issued in an action in rem, nevertheless the court should
not exercise that jurisdiction for the purpose of providing security
for an award which may be made in arbitration proceedings. The
relevant passage in the judgment of the court in The Andria
[1984]1 All ER 1126 at 1134 – 1135, [1984] 2 WLR 570 at 579 –
580 reads as follows: ‘The mere fact that the dispute between
the parties falls within the scope of an arbitration agreement
entered into between them does not of itself generally preclude one
of them from bringing an action. Accordingly, the mere existence of
an arbitration agreement will not of itself prevent a party from
issuing a writ, or serving the writ and (in the case of an action in
rem), procuring the arrest of the ship, or otherwise proceeding
with the action. But the arbitration agreement can, of course, have
certain consequences. For example, if an action is begun, the other
party may apply for a stay of proceedings. Generally speaking, the
court’s power to grant a stay in such a case is discretionary;
though of course in cases falling within s 1 of the Arbitration Act,
1975 the court is bound to grant a stay. Again, if a party
actively pursues proceedings in respect of the same claim both in the
court and in arbitration, his so proceeding may be regarded as
vexatious and an abuse of the process of the court; if so, the court
may, in the exercise of its inherent power, require him to elect in
which forum he will pursue his claim: see The Cap Bon (1967) 1
Lloyd’s Rep 543. Next, let it be supposed that, before the
court has granted a stay of the proceedings under the Arbitration
Acts, the plaintiff has obtained security by the arrest of a ship in
an action in rem. If the stay is granted in the exercise of
its discretionary power under s 4 of the Arbitration Act 1950, the
court may require, as a condition of granting a stay, that
alternative security should be made available to secure an award made
in the arbitration proceedings: see The Golden Trader. If a
mandatory stay is granted under s 1 of the Arbitration Act, 1975, no
such term can be imposed. But it has been held by Brandon, J, that,
where it is shown by the plaintiff that an arbitration award in his
favour is unlikely to be satisfied by the defendant, the security
available in the action in rem may be ordered to stand so
that, if the plaintiff may have thereafter to pursue the action in
rem (possibly using an unsatisfied arbitration award for the
purpose of an issue estoppel) the security will remain
available in that action: see The Rena K. (We have not had to
consider the principle in that case, and we have not heard arguments
on the point; however, we proceed on the basis that that principle is
sound.) However, on the law as it stands at present, the court’s
jurisdiction to arrest a ship in an action in rem should not
be exercised for the purpose of providing security for an award which
may be made in arbitration proceedings. That is simply because the
purpose of the exercise of the jurisdiction is to provide security in
respect of the action in rem, and not to provide security in
some other proceedings, e.g. arbitration proceedings. The time may
well come when the law on this point may be changed: see s 26 of the
Civil Jurisdiction and Judgments Act 1982, which has however not yet
been brought into force. But that is not yet the law. It follows
that, if a plaintiff invokes the jurisdiction of the court to obtain
the arrest of a ship as security for an award in arbitration
proceedings, the court should not issue a warrant of arrest.’”
(The underlining is mine)

10. 
    The learned counsel for
    the appellants consequently proceeded to argue that the Court a
    quo fell into error by not upholding the appellants’
    application to set aside the respondent’s action in rem and
    to release “The Explorer”. His reasoning for that
    assertion was that this was not a case where the court was asked to
    exercise its discretion to stay the action in rem by virtue
    of the arbitration clause. According to him this was neither a case
    where the court a quo needed to put the respondent to an
    election as to whether it should proceed in the arbitration or
    attempt to proceed in court. He asserted that this was a case where
    the respondent had already elected to proceed to arbitration
    proceedings, but was merely using the court below in order to obtain
    security for those proceedings. In the event, so he contended, that
    court was precluded from arresting the vessel pursuant to the
    purported action in rem. In that vein he further submitted
    that there was no provision in the 1840 Act or 1861 Act for the High
    Court to exercise such jurisdiction in any event. In support of his
    standpoint in this regard, he cited “The Andria”,
    supra, to which, as shown in the above quoted dictum, Goff, L
    J, made reference in delivering his judgment in “The Tuyuti”,
    supra.

    
    

11. 
    Before I ventilate my
    opinion on this argument by the appellants’ counsel, it is
    opportune to reproduce paragraph 36 from Mr. Ping’s answering
    affidavit in the aforementioned motion proceedings. The following
    is what he deposed:

    
    

“36 AD SUB-PARAGRAPH 21.10

In-as-much as the last sentence of
paragraph 16 of the affidavit to lead warrant is unclear, what I
meant to convey was that by reason of the fact that the plaintiff has
no security for any award that it might obtain in the arbitration
proceedings, it had no alternative but to bring an action in rem
against the vessel by its arrest and thereby obtain security for its
claim. The plaintiff accepts that this court does not have the power
to grant an order directing that any security furnished in the
proceedings in rem before it should stand as security for an
award in the arbitration proceedings in Singapore. Such security may
only stand for a judgment given on the cause of action described in
the action in rem made by this honourable court.”

For a better appreciation
of the above paragraph, it is necessary to also reproduce paragraph
16 mentioned therein. It is contained in the affidavit in support of
the summons in rem. In that paragraph the following is what
Mr. Ping had to state:

“16. The plaintiff is ready and
willing to refer this claim to arbitration in Singapore. No
guarantees or undertakings have been given to the Plaintiff in
respect of the liquidation or securing of the debt. In the event
that the vessel sails for the High Seas, Plaintiff may lose the
opportunity of enforcing its claim against the Defendant vessel in
the Republic of Namibia. I respectfully submit that it is
important to Plaintiff that the vessel be arrested as a matter of
urgency. The action against the Defendant vessel is brought to
obtain security for the said claim held by Plaintiff.” (The
italics are mine)

12. 
    To my understanding, all
    that was expressed in the opening sentence of the preceding
    quotation was an intent and willingness to take the route of
    arbitration which was in the roadmap of the arbitration clause. The
    signal sentences regarding the opted venue for seeking relief for
    the claim in respect of the dispute that arose out of the contract
    are the ones I have italicised in the reproduction of paragraph 16.
    In parenthesis I must mention that it is a settled rule of law that
    the existence of an arbitration clause in a contract does not
    operate as an ouster of the High Court’s jurisdiction to
    entertain litigation in relation to the same contract. In this
    context therefore, the “said claim” in the latter of the
    italicised sentences was, in my understanding, clearly referable to
    the claim mentioned in the earlier italicised sentence. There was
    need for clarification as stated in paragraph 36, supra, because
    the drafter of paragraph 21.10 of the founding affidavit in the
    motion proceedings appeared to have taken the last sentence of
    paragraph 16 out of its context when he stated that “(I)t is
    submitted that it is clear from the last sentence of (paragraph 16)
    that the action is not an action which falls within the jurisdiction
    of the above Honourable Court and it is simply an action to obtain
    security for an arbitration award to be obtained elsewhere.”

    
    

13. 
    Moreover, and with due
    respect to the appellants’ counsel, the pertinent principle in
    “The Tuyuti”, supra, does not support his
    argument. Granted that that principle does not countenance the
    practice of concurrently proceeding in arbitration and in court for
    the same cause, however, in delivering his judgment in that case
    Goff, L J, reaffirmed the dictum in “The Andria”,
    supra, where it was stated, inter alia, “(A)gain,
    if a party actively pursues proceedings in respect of the claim both
    in the court and in arbitration, his so proceeding may be regarded
    as vexatious and an abuse of the process of the court; if so, the
    court may, in the exercise of its inherent power, require him to
    elect in which forum he will pursue his claim; see The Cap Bon
    (1967) 1 Lloyds REP 543.” I, therefore, cannot appreciate
    counsel’s reasoning when he submits that the present “is
    not a case where the court needs to put the respondent to an
    election as to whether it will proceed to arbitration or attempt to
    proceed in this court. In this case the respondent has already
    elected to proceed to arbitration...” Surely if a party is
    “actively pursuing the same claim in both the arbitration and
    in court,” it means that that party has at one point in time
    elected to go for arbitration. In such event, Goff, L J, does not
    say that that party is to be unsuited, but he says that in the
    exercise of its inherent power, the court may put that party to an
    election. Nor is the learned Lordship declaring that in such event
    the court “is accordingly precluded from arresting the vessel
    in an action in rem”. It is evident to me that the
    party will only be precluded from arresting the vessel if, upon
    being put to an election, he or she chooses to go to arbitration, a
    situation which does not obtain in the present case.

    
    

14. 
    What is more, in the
    instant case the respondent cannot be said to have elected to go for
    arbitration, let alone initiated arbitration proceedings. The
    language in which the “Notice of Arbitration” was
    couched is a far cry from the suggestion that arbitration
    proceedings were to be instituted. The opening sentence of the last
    paragraph thereof put it quite clearly, viz “...we are
    instructed that our client intends to refer the dispute to
    arbitration...”. It did not state that the instruction given
    was that the client will, or has elected to, go for
    arbitration, nor did the writer of the letter use words suggestive
    of initiating such proceedings. Instead there was only an
    expression of intent. Moreover the learned counsel for the
    appellants did not place before us any positive pointer, other than
    the notice of arbitration letter, to support his assertion that
    arbitration proceedings had been commenced, or that an election to
    proceed thereto had been made.
    

    
    

15. 
    In the final analysis,
    it is with firm confidence that I reject the argument, submitted
    with great verve, regarding the third issue. I hold that the
    respondent never actively pursued its claim both in
    arbitration proceedings and in the Court a quo. In other
    words, the argument that the respondent had elected to initiate, or
    that it had actually initiated, arbitration proceedings, was without
    substance. It, therefore, follows, in my view, that the respondent
    never acted vexatiously or abused the process of the Court.

    
    

Whether the action in
rem was intended for obtaining security for Arbitration
Proceedings in Singapore.

16. 
    This issue is
    intertwined with the third one which I have just resolved. The
    short answer to the present issue would, therefore, be that since no
    arbitration proceedings existed either in prospect or in esse, it
    can hardly be expected that the respondent would commence the action
    in rem so as to obtain security for non-existent arbitration
    proceedings. However, it is necessary to give a more detailed
    resolution to the poser presented by the subheading hereof because,
    just as on the other two issues, the appellants’ counsel
    espoused it with vehement arguments.
    

    
    

17. 
    In the appellants’
    heads of argument their counsel has submitted that, in paragraph 16
    of its affidavit to lead warrant, the respondent had in effect
    stated “that the action against the vessel is brought ‘to
    obtain security for the said claim held by the plaintiff’”.
    Further, he effectively argued that the respondent had conceded
    that neither the 1840 nor of 1861 Acts vested jurisdiction in the
    Admiralty Court to arrest a ship solely to grant security for
    arbitration proceedings. According to the learned counsel that
    concession was made in paragraph 36 of the answering affidavit in
    the motion proceedings. I have had the opportunity of poring over
    the respondent’s affidavits relating to both the action in
    rem and the motion proceedings and have not found any averment
    declaring that the respondent had brought the action solely in order
    “to obtain security for the said claim held by the plaintiff”.
    It is obvious that counsel quoted a portion of paragraph 16,
    earlier referred to, out of its context. I have dealt with that
    point in considering the third issue and I find it otiose to
    reiterate it here. As for the provisions of the 1840 and 1861 Acts,
    it is unarguable that neither of them vests in the Admiralty Court
    power solely to grant security for arbitration proceedings.
    Averring that as a statement of fact, as the respondent did through
    Mr. Ping, is never the equivalent of conceding that one has
    instituted an action in rem in order to obtain security for
    arbitration proceedings.

    
    

18. 
    If I understood counsel
    for the appellants correctly, he also contended that the respondent
    had initially deposed that it had caused the arrest of “The
    Explorer” so that the vessel could serve as security for
    arbitration proceedings in Singapore, and that it was only later,
    after it had been advised that its claim for security for
    arbitration proceedings in Singapore was not a claim that fell
    within the Admiral Court’s jurisdiction, that it retracted its
    earlier position in order to assert that the arrest was for
    obtaining security for the action in rem. It is because
    under the settled rules of procedure a party is not allowed to do
    that that the appellants’ counsel cited Plascon-Evans
    Paints v Van Riebeeck Paints, 1984 (3) 623 at 634E – 635C
    in aid of his contention on this point.
    

    
    

19. 
    In reaction to his
    argument I can only reiterate what I have already held,
    namely that it is not my understanding that the respondent had at
    any time declared that the arrest was designed to serve as security
    for arbitration proceedings in Singapore. I accordingly find no
    merit in the spirited arguments made on behalf of the appellants on
    this issue and would similarly reject them.
    

    
    

Whether the equipment
supplied by the respondent to the First Appellant were necessaries

20. 
    This was the most hotly
    debated issue in this appeal. The basic contentions on behalf of
    the appellants are captured in paragraphs 30, 32, 33 and 34 of
    their heads of arguments, viz:

    
    

“30. The origin of the
(admiralty) jurisdiction to entertain claims for necessaries is set
out in the judgment of the Right Honourable Dr. Lushington in The
Comtesse De Fregeville, a copy of which is attached hereto. Although
this judgment has been criticised and overtaken in a number of
respects, the portion of the judgment relied on in the case of
Weissglassm NO v Savonnerie Establishment
1992 (3) 928 (A) at 942B has, it is submitted, not been so
overtaken.

32. It is submitted that the
jurisdiction was conferred to enable a vessel in a foreign port or a
port which is not its home port to obtain necessary supplies and
which were of immediate necessity for the ship (or for its voyage).
That an element of this urgency of supply has remained part of
the interpretation of the term is demonstrated by the reference in
the Weissglass case, supra. (Underlining supplied.)

33. It is submitted that where the
contract is for supply of equipment generally necessary for the
vessel to enable it to conduct a certain type of operation for which
it is suitable amongst a number of operations for which it is
potentially suitable, but where such equipment is to be supplied
within 6 months of deposit in terms of an agreement directly between
the owner and the supplier of the equipment, such a claim retains no
component of urgency or immediate necessity and accordingly lacks the
original rationale behind a necessaries claim.

34. It is submitted further that to
consider the claim in casu as a necessaries claim would make
nonsense of the distinction drawn in the English Admiralty Court Act,
1861 in sections 4 and 5. It would be difficult to imagine what
would be considered as a claim for the equipping of any ship that
would under such circumstances not have to be considered as a
necessaries claim. If all claims for equipping of a ship were to be
considered as necessaries claims, it is submitted, the distinction
drawn between the heads of jurisdiction in sections 4 and 5 would not
have been made.”

21. 
    In summary, Mr. Van
    Eeden’s tripartite contentions on this issue centre on the
    following: (1) that the Court a quo gave the term
    “necessaries” an anachronistic interpretation; (2) that
    the original rationale of necessaries claims was that there should
    be urgency for the requirement of the goods or services; and (3)
    that the goods wherewith the current case was concerned were for
    equipping “The Explorer” in terms of section 4 of
    the 1861 Act, and, therefore not necessaries as provided in
    section 5 of the said Act.

    
    

22. 
    On the basis of the
    foregoing contentions, it was submitted on the appellants’
    behalf, that the Court a quo had misdirected itself in
    adopting the dictionary definition of the term “necessaries”.
    Mr. Van Eeden, argued that it was erroneous for that court to have
    had recourse to a 2006 edition of the dictionary to interpret a
    “term of art” (as he tagged it) which had its origin in
    statutes enacted in 1840 and 1861. In his view, the term had to be
    construed within the spirit prevailing during the period when the
    statutes were enacted, and, as I understood him, that spirit was
    incapsulated in the dictum of The Right Honourable Dr. Lushington
    in the “Comtesse De Fregeville” (1861)
    Lush 329. Let me straightaway quote that dictum as it
    appears on pages 331 – 333 of the report:

    
    

“I have to determine whether the
demand made in this suit can be maintained within the statute of 3 &
4 Vict. c. 65, s 6, and this question wholly turns upon the proper
legal meaning to be affixed to the word ‘necessaries’. I
have no hope of finding the means of solving this difficulty from
resort to any other part of this, or to any other statue; neither has
the question ever been submitted directly to the Court of Appeal. In
former times and up to a late period, up to the decision in the case
of The ‘Neptune’ (a), by the Judicial Committee, the
Court of Admiralty was accustomed to allow material creditors to sue
against the proceeds when in Court; material men were those who
repaired a vessel, or furnished materials to enable her to proceed to
sea, it was a technical term, the meaning of which was well
understood. I do not think, as my former decisions shew, that the
term ‘necessaries’ in this statute should receive so a
circumscribed a meaning. On the other hand, it had been urged that
the term ‘necessaries’ ought to receive the same liberal
construction as in cases of bottomry. This construction would
include every requisite for a voyage, for there are many articles
allowed to be covered by a bottomry bond, which would be very
difficult to comprise within any ordinary meaning attached to the
word ‘necessaries’. Unless enabled by superior
authority, I cannot venture to adopt so comprehensive a meaning for
this enactment. It appears to me that the most convenient course I
can follow is to take an intermediate one, to make a distinction
between the ship and the voyage. I shall hold that ‘necessaries’
means primarily indispensable repairs, – anchors, cables,
sails, when immediately necessary; and also provisions: but, on the
other hand, does not include things required for the voyage, as
contradistinguished from necessaries for the ship. Were I to hold
otherwise, I might be led into allowing expensive outfits, and
expenses of many kinds, far removed from any proper meaning of the
term ‘necessaries’ – indeed, some articles for
speculative purposes, outfit for passengers, accommodation for troops
or special cargoes. The principle upon which I apprehend the statute
to have been founded, requires me to draw this line. It was not
intended, I conceive, to do more than meet an emergency frequently
occurring. Before the statute, foreign ships could not be subjected
to actions in rem under any circumstances for necessaries
supplied; it therefore happened that great inconvenience and
sometimes danger to ships took place, by the want of anchors or
cables, or of provisions. It was to remedy those evils that the
statute passed, to remove on the one hand the pressure of immediate
want, and on the other to give the British merchant or broker his
remedy for such advances. But it would be dangerous to hold that the
master could, in all cases, for the commencement of a voyage for
instance, bind the property of his owner, even if all was done bona
fide. There must be a necessity. True it is that by an extended
construction of the statute the expense of a bottomry bond might
sometimes be saved, but on the other hand it is most dangerous to
enlarge the discretionary power of the master to bind the property of
his owner. I have looked to see what has been the practice in other
countries, especially in the United States, but the practice so
differs, and there are so many distinctions, that I cannot derive
much assistance from such considerations. I regret exceedingly that
I cannot attempt a more clear and decided definition or lay down any
general rule beyond what may be understood from the observations I
have made. I am unable to do so, and it may be from this difficulty
that all the decisions of this Court may not be strictly uniform. I
must form the best judgment I can, on each individual case.”

23. 
    As a corollary to the
    argument that the court below had not appropriately defined the term
    “necessaries”, Mr Van Eeden also contended that the
    goods supplied to the first appellant, as described above, were
    intended to equip “The Explorer” in as much as the
    equipment was designed to enable the said vessel to do under sea
    mine sampling off the Namibian coast. To that end he submitted that
    if such equipment were to be construed as necessaries, then it would
    make nonsense of the distinction drawn between goods for equipping
    ships and necessaries as respectively provided in sections 4 and 5
    of the 1861 Act.

    
    

24. 
    For a better
    appreciation of the latter contention it is opportune to quote the
    two sections:

    
    

“4. AS TO CLAIMS FOR
BUILDING, EQUIPPING OR REPAIRING OF SHIPS

The High Court of Admiralty shall have
jurisdiction over any claim for the building, equipping, or repairing
of any ship, if at the time of the institution of the cause the ship
or the proceeds thereof are under arrest of the Court.

5. AS TO CLAIMS FOR NECESSARIES

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: Provided always, that if in any such
cause the plaintiff do not recover twenty pounds, he shall not be
entitled to any costs, charges, or expenses incurred by him therein,
unless the judge shall certify that the cause was a fit one to be
tried in the said Court.”

25. 
    While the learned
    appellants’ counsel was advocating for a restrictive meaning
    of the term “necessaries”, Mr. Wragge SC, representing
    the respondent, argued that the Judge in the Court a quo was
    right in construing the term in a more liberal and wider manner. He
    urged this Court to uphold the Judge’s adoption of the term’s
    ordinary meaning which was consistent with the decision in the local
    case of Namibia Ports Authority v “Rybak Leningrada”
    1996 NR (HC) at 359A in which Gibson, J, had followed the
    decision on the point arrived at in The “Riga”
    (1872) LR 3A & E 516 and Weissglass NO v Savonnerie
    Establishment, supra. Before delving into the
    facts of The “Riga” and before making comments on
    Weissglass, I have brief remarks to make on the decision in The
    “Comtesse de Fregeville”, supra, which Mr.
    Van Eeden made the main pillar of his reliance on the restrictive
    construction of “necessaries”.

    
    

My Assessment of the
Submissions and Decided Cases Relied on

26. 
    Upon reading the dictum
    of The Honourable Dr. Lushington in the last mentioned case in the
    preceding paragraph, it is quite clear to me that he arrived at the
    restricted meaning with difficulty. After considering the divergent
    contentions made by counsel appearing for the parties in that case,
    Dr. Lushington was constrained to make the following remarks, “I
    regret exceedingly that I cannot attempt a more clear and decided
    definition or lay down any general rule beyond what may be
    understood from the observations I have made. I am unable to do so,
    and it may be from this difficulty that all the decisions of this
    Court may not be strictly uniform. I must form the best judgment I
    can, in each individual case. (The underlining and
    italics are mine).

    
    

27. 
    The foregoing remarks
    alert me to the fact that Dr Lushington’s definition of the
    term “necessaries” as expounded in The “Comtesse
    de Fregeville” was not intended to be anything more than
    one applicable in the circumstances of that particular case. He
    even cautioned that the definition he had come to was not intended
    to lay down a general rule; and that it was not a “more clear
    and decided definition.” Indeed, as Mr. Van Eeden himself
    conceded in the course of his submissions, Dr. Lushington’s
    definition was subjected to criticism in a number of later cases.
    In the ensuing paragraphs I shall show that the more liberal and
    wider meaning of “necessaries” has been preferred in
    later cases up to modern times.

    
    

28. 
    The case of Webster v
    Seekamp (1821) 4 Barn & Ald, 352 Vol. 23 Revised Reports,
    307, was, admittedly decided before Dr. Lushington’s
    decision in “The Comtesse de Fregeville”, but, as
    I shall show in due course herein, the thread of its pertinent ratio
    permeated through a chain of cases subsequent to “The
    Comtesse de Fregeville”.
    

    
    

29. 
    The short facts of
    Webster v Seekamp were that the plaintiffs, brass-founders at
    Liverpool, instituted an action to recover the amount of their bill
    for coppering a ship, of which the defendants, who resided at
    Ipswich, were the owners. In September, 1819, the vessel was at
    Liverpool, bound on a voyage to Newfoundland and the Mediterranean.
    The captain of the ship ordered the plaintiffs to copper her; and it
    was proved that, although it was extremely useful to copper vessels
    bound to the Mediterranean, it was not absolutely necessary, for
    many vessels went to the Mediterranean without being coppered. At
    the trial it was contended that the owner of the ship was liable
    only for contracts made by the captain in respect of stores or
    repairs that were absolutely necessary; and, therefore, that
    the defendants in this case were not liable in respect of the
    coppering. The judge left it to the jury to say whether the
    coppering was useful and proper for a vessel about to proceed on a
    voyage to Newfoundland and the Mediterranean, and whether it were
    such as a prudent owner himself, if present, would have ordered.
    The jury found that it was. In rule nisi proceedings which
    ensued therefrom, Abbot, Ch. J, made the following dictum in
    upholding the claim:

    
    

“The general rule is, that the
master may bind his owners for the necessary repairs done, or
supplies provided for the ship. It was contended at the trial that
this liability of the owners was confined to what was absolutely
necessary. I think that rule too narrow, for it would be extremely
difficult to decide, and often impossible, in many cases, what is
absolutely necessary. If, however, the jury are to enquire
only what is necessary, there is no better rule to ascertain that,
than by considering what a prudent man, if present, would do under
circumstances in which the agent, in his absence, is called upon to
act. I am of the opinion, that whatever is fit and proper for 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,” as
applied to those repairs done or things provided for the ship by
order of the master, for which the owners are liable. I think,
therefore, that the question in this case was properly left to the
jury, ....”

30. 
    As I have already
    stated, Webster v Seekamp was decided before “The
    Comtesse de Fregeville”, and, incidentally, it also came
    before the 1840 and 1861 Acts were enacted. Moreover, it is also
    important to underscore at this stage that the general rule followed
    in Webster v Seekamp reflected the common law doctrine. It
    was stated so to be by Sir R. Phillimore in The “RIGA”,
    to which case I shall presently advert. The liberal
    construction of the term “necessaries” was persisted in
    the post “The Comtesse de Fregeville” period.

    
    

31. 
    In The “RIGA”
    1872 LR 3A & E 516, the subject of claim as necessaries
    included monies advanced to the captain of the ship for insurance,
    for freight receivable in London and to pay charges for entering,
    reporting and piloting the vessel and for tonnage and for light
    dues, etc. Dealing with a claim for necessaries referable to the
    monies advanced to the defendants, Sir R. Phillimore, at an earlier
    stage of delivering his judgment, stated the following, “I am
    unable to draw any solid distinction (especially since the last
    statute) between necessaries for the ship and necessaries for the
    voyage; and I shall follow the doctrine of the common law as laid
    down by the high authority of Lord Tenterden in the case of Webster
    v Seekamp (4 B & Ald. 352). He then went on and stated:

    
    

“In that case he (that is Lord
Tenterden) says (p. 354): ‘The general rule is, that the master
may bind his owners for necessary repairs done, or supplies provided
for the ship. It was contended at the trial that this liability of
the owners was confined to what was absolutely necessary. I think
that rule too narrow, for it would be extremely difficult to decide,
and often impossible in many cases, what is absolutely necessary.
If, however, the jury are to inquire only what is necessary, there is
no better rule to ascertain that than considering what a prudent man,
if present, would do under circumstances in which the agent, in his
absence, is called upon to act. I am of the opinion that whatever is
fit and proper for the service on which a vessel is engaged, whatever
the owner of the vessel, as a prudent man would have ordered, if
present at the time, comes within the meaning of the term
‘necessary’, as applied to those repairs done or things
provided for the ship by the order of the master, for which the
owners are liable.”

The same common law
definition was followed by the Judicial Committee of the Privy
Council in Foong Tai & Co. v Buchheister & Co. 1908
AC 458. In that case the necessaries claim was in respect of
repairs done to, stores and equipment provided for, and disbursements
made on account of the vessel named Draco. The action in
rem was instituted under section 5 of the 1861 Act. Other cases
which followed suit in this regard include: “The Equator”
1921 Vol. 9 Ll. LR 1. In that case the necessaries claim was in
respect of stevedoring charges rendered to the vessel. In endorsing
the claim, the President of the court stated, inter alia, “The
true view of the matter is that the service of the stevedore was
necessary for the adventure upon which the ship was engaged, and the
master, as agent of the owners, concurred in procuring the service on
credit of the owners, and there is no reason in law why the owners
should not be held liable to pay for the service ........” The
case of Borneo Company v “Mogileff” and Freight
1921 Ll. List LR 528 (“The Mogileff”) concerned a
claim in respect of alterations, repairs and outfit, wages, stores,
provisions, coals, port charges, Suez Canal dues, etc. In “The
Flecha” 1854 Vol. 17 BMC 438, Dr. Lushington held that a
screw propeller fitted to “The Flecha” as a
replacement and designed to give the vessel added speed was a
necessary. The foregoing list of cases in which the common law
doctrine was applied is by no means exhaustive.

32. 
    There is no shadow of
    doubt that the more liberal and wider construction of the term
    “necessaries” is the predominant and acceptable one.
    There is no overt prominence given in that construction to urgency
    of necessity for the goods and/or services required. The critical
    part of it is “If, however, the jury are to inquire only
    what is necessary, there is no better rule to ascertain that than by
    considering what a prudent man, if present, would do under
    circumstances in which the agent, in his absence, is called upon to
    act. I am of the opinion that whatever is fit and proper for the
    service on which the vessel is engaged, whatever the owner of the
    vessel, as a prudent man, would have ordered if present at the time,
    comes within the meaning of the term ‘necessaries’…”.
    But even if such urgency is implicit, my opinion is that in the
    present case, the deck machinery, or under sea mine sampling
    equipment, was urgently required at the time they were ordered to be
    supplied and fitted to “The Explorer”. That was in
    order to prepare it for the service or adventure on which the vessel
    was expected to be engaged off the coast of Namibia. The fact that
    delivery of the equipment was to be made six months after payment of
    the deposit was, in my view, irrelevant. In my considered opinion,
    the timing factor is to be reckoned at the point of need for, and
    not at the usage of, the equipment.

    
    

33. 
    In the case of Webster
    v Seekamp, for example, the coppering was not of immediate
    necessity at the time of ordering it to be done, which was in
    Liverpool, while the coppering was going to be useful only when the
    vessel was to arrive in the Mediterranean. Moreover, the facts of
    that case show that it was not absolutely necessary to copper the
    vessel, because many vessels went to the Mediterranean without
    coppering.
    

    
    

34. 
    The next aspect which
    falls to be considered and resolved under this issue is whether the
    materials supplied in casu were equipment, as envisioned by
    section 4 of the 1861 Act, and not necessaries as
    contemplated by section 5 of the said Act. On a close perusal of
    the decided cases which I have cited hereinbefore and in which a
    variety of goods and services have been held to be necessaries, the
    impression I have derived therefrom is that there is no watertight
    compartmentalisation between goods and services dealt with in
    section 4 as against those in section 5 of the 1861 Act.
    Furthermore, the liberal and wider construction of the term
    “necessaries” is implicitly all inclusive. For instance
    it includes “all necessary repairs done, and supplies provided
    to the ship”. It then goes on and refers to “....whatever
    is fit and proper for the service on which the vessel is
    engaged....”.

    
    

35. 
    We have noted that
    section 4 of the Act embraces “building, equipping or
    repairing” as subjects of claims under that section. In
    Webster v Seekamp, supra, the vessel was coppered in
    order to enable it to operate viably in the Mediterranean. In my
    understanding the fact of coppering was in the nature of equipping.
    In “The Flecha”, also supra, a screw
    propeller was fitted to the vessel to enable it to gain extra speed
    than it was able to do on voyages in the past; that could be looked
    at as repairing. In “The Mogileff” the claim
    expressly included charges for repairs done to the vessel. In the
    Foong Tai & Co. v Buchheister & Co. case also repairs
    featured as necessaries. It would appear, therefore, that the
    inclusion of an item of a hybrid nature in a claim for necessaries
    is not inevitably fatal to an action in rem for necessaries.
    Furthermore it is an indisputable fact that the deck machinery which
    was fitted to “The Explorer” was material which was fit
    and proper for the service on which “The Explorer”
    was engaged, namely to travel to the Namibian coastal area to
    undertake seabed mineral sampling. I find this last mentioned fact
    to be a good parallel to the coppering in the Webster v Seekamp
    case, which had to be done in Liverpool in order to
    enable it to undertake a voyage to the Mediterranean where the
    coppering was to become useful.

    
    

36. 
    In the result, I feel
    satisfied and sure that the learned trial Judge cannot be faulted in
    his holding that the deck machinery supplied by the respondent to
    the first appellant fell in the category of necessaries. His
    holding falls in the scope of what Sir R. Phillimore called the
    common law doctrine as laid down by the high authority of Lord
    Tenderten in Webster v Seekamp, supra.

    
    

37. 
    The overall outcome,
    after considering the arguments and submissions of counsel on both
    sides, which arguments and submissions were, I must say,
    illuminating and indeed learned, is that this appeal fails.
    Thereupon I make the following order:

    
    

1. 
   The appeal is dismissed.

   
   

2. The appellants shall
jointly and severally bear the costs of the appeal, such costs to
include those consequent upon the employment of two instructed
counsel.

________________________

CHOMBA, AJA

I agree

________________________

MAINGA, JA

I agree

________________________

MTAMBANENGWE, AJA