The owner and underwriters of the MSC Susanna, and the demise charterer which, due to s.232(2) of the Merchant Shipping Act (“MSA”)2 is deemed for purposes of these proceedings to be the owner of the MSC Susanna, initiated limitation of liability proceedings in terms of MSA, s.261(1)(b). The first respondent is the National Port Authority of South Africa (“NPA”), a Division of Transnet Ltd.

This application seeks to join the Ministère Des Armees, the ministry having responsibility for the French Navy, as the second respondent to an action already instituted by the applicants against the first respondent, NPA.3 A third party, which claimed to bear the risk in certain cargo loaded upon the MSC Susanna, was also subject to the joinder application, but did not take part in the proceedings. The action against NPA is for a declaration that the plaintiffs are entitled to limit their liability in respect of all claims arising from the incidents in respect of the MSC Susanna in accordance with MSA, s.261(1)(b). As such, the applicants are not merely seeking to join the Ministère Des Armees in the pending litigation, but are in fact seeking a declaratory order that the second respondent is bound by the provisions of the MSA, especially s.261, such that there is a limitation in the claim it may institute for the damage to the FNS Floreal caused by the MSC Susanna.

The Ministère Des Armees opposes the application on the basis that MSA, s.3(6) provides that the MSA does not apply to ships belonging to the defence forces of the Republic or of any other country. As such, since the FNS Floreal is a French naval vessel, the provisions of MSA, s.261 does not apply to it.