KUEHNE & NAGEL (PTY) LTD V MONCADA ENERGY GROUP SRL

Case no 40214/2014, Republic of South Africa, Gauteng Local Division, Johannesburg, Van der Linde J, 19 February 2016

Admiralty jurisdiction - Maritime claims - Claim "relating to" the remuneration of a forwarding agent - Demand guarantee by parent company for the performance of a freight forwarder - Whether a maritime claim - Admiralty Jurisdiction Regulation Act 105 of 1983, section 1

This was a jurisdiction case under South African law, where the issue was whether the claim was a maritime claim under the Admiralty Jurisdiction Regulation Act. South Africa is not a party to the 1952 or 1999 Arrest Conventions. If the claim were a maritime one, the court had no jurisdiction under the Act, not being adjacent to the territorial waters of the Republic. Maritime claim was defined in the Act, for present purposes, as any claim arising out of or relating to the remuneration of any person who acted as a forwarding agent. The contracts at issue were two "Parent Company Guarantees" issued by the respondent, a Milan company, in respect of the punctual performance of its subsidiary, a freight forwarder. The guarantees were governed by the laws of South Africa and subject to the jurisdiction of its courts. They did not permit any defences arising from the underlying agreement, except fraud, to be raised. The applicant argued that while the underlying claim against the subsidiary arose out of or related to the remuneration of a forwarding agent, the applicant's claim against the respondent did not. The respondent argued that it did, and as a maritime claim was outside the jurisdiction of the court.