Introduction
The Western Cape High Court handed down a novel and potentially far-reaching decision in March 2025 in Ti Ya Toivo Limited and Others v mv “Grey Fox” and Others, that appears to extend the jurisdiction of South Africa’s admiralty courts well beyond the conventional understanding of its limits.
The Court decided that section 3(1) of the Carriage of Goods by Sea Act, 1986 (COGSA) empowers cargo interests – those carrying on business in South Africa, or any holder or consignee under a bill of lading or waybill – to bring any action relating to the carriage of the cargo in South Africa even where the action is brought against a foreign carrier with no assets in South Africa, and even where the contract of carriage contains an exclusive jurisdiction clause stipulating that only a foreign court has jurisdiction.
Section 3(1) of COGSA reads as follows:
“Notwithstanding any purported ouster of jurisdiction, exclusive jurisdiction clause or agreement to refer any dispute to arbitration, and notwithstanding the provisions of the Arbitration Act, 1965 (Act No. 42 of 1965), section 7(1)(b) of the Admiralty Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983) and the International Arbitration Act, 2017, any person carrying on business in the Republic and the consignee under, or holder of, any bill of lading, waybill or like document for the carriage of goods to a destination in the Republic or to any port in the Republic, whether for final discharge or for discharge or for discharge for further carriage, may bring any action relating to the carriage of the said goods or any such bill of lading, waybill or document in a competent court in the Republic” (emphasis added).
Historically it was assumed that this provision of COGSA only operated to overrule exclusive jurisdiction clauses, and that the normal jurisdictional requirements set out in the Admiralty Jurisdiction Regulation Act, 1983 (AJRA) still applies. This would mean that to institute proceedings against a foreign carrier, assets or a vessel belonging to the carrier would need to be attached or arrested within the jurisdiction of the South Africa court to found jurisdiction.
Background
In this case, the carrier had no such assets nor vessel within South Africa.
The applicants, including the consignee, issued summons against a number of parties after a generator, planned for use on a diamond-mining vessel, was damaged when it was dropped into the hold of the Grey Fox in the port of Cape Town. One of those parties was the carrier under the bill of lading.
The carrier indicated that in its view the South African court had no jurisdiction over a claim against it, because the bill of lading contained an exclusive jurisdiction clause in favour of the Hamburg court, and the carrier is a foreign carrier without South African assets. The applicants therefore brought an application for a declaratory order that the court did in fact have jurisdiction, and in the alternative asked for the joinder of the carrier in terms of section 5(1) of the AJRA.
In practice, joinder would have been the usual way to proceed, as the court would almost certainly have allowed the carrier to be joined at this stage, with a final decision on the carrier’s liability to be given at the conclusion of the proceedings.
In this instance, however, the consignee was concerned about the lapsing of a contractual time bar, and wanted clarity on the jurisdiction point at an early stage so that, if necessary, the time bar could be protected by instituting proceedings in Germany as well. We understand that there are now related ongoing proceedings in Germany.
Issue
Both parties and the court acknowledged that section 3(1) of COGSA has never before been used for a self-standing conferral of jurisdiction.
The carrier argued that COGSA should be read with the AJRA, and that the reference in section 3(1) to a “competent court” means one which has jurisdiction. The jurisdiction of admiralty courts is set out in the AJRA.
This aligns with the views of Professor Hare, the only academic author (we are aware of) to deal with section 3(1) of COGSA specifically. Professor Hare takes the stance that section 3(1) exists to prevent the contractual ousting of jurisdiction by an exclusive jurisdiction clause, but that the jurisdiction must already exist under the AJRA.
The applicants’ position was that section 3(1) of COGSA itself confers jurisdiction for cargo claims. The court read s3(1) of COGSA as conferring jurisdiction over foreign parties regardless of whether or not the jurisdictional requirements in the AJRA are met.
While the court’s judgment is primarily concerned with the effect of the exclusive jurisdiction clause in the bill of lading, it leaves unresolved the precise scope of section 3(1) of COGSA as an independent jurisdictional gateway. The reasoning appears to endorse a broad, protective approach toward local cargo interests—particularly in circumstances involving foreign carriers with no assets in South Africa. However, the interaction between section 3(1) and the framework of the AJRA is not fully explored. The judgment stops short of offering a coherent framework for how these provisions should operate together. This will create a degree of uncertainty for litigants and practitioners, and it is hoped that the pending appeal will provide a clearer articulation of the principles at play.
Impact
It is difficult to underplay the scope of jurisdiction this judgment, if upheld, will afford to the admiralty courts.
South Africa is already regarded as having remarkably wide jurisdiction for admiralty claims, as one of the only countries in the world to provide for associated ship arrests in order to widen the potential routes for maritime claims to proceed in South Africa.
Moreover, while the judgment makes reference to protecting “local” cargo interests, the consignee in question is registered in Malta. The impact of the judgment is that any person carrying on business in South Africa andany holder of or consignee under a bill of lading or waybill (regardless of where they are registered or operate) will be able to institute proceedings in South Africa against any party based anywhere in the world over a dispute concerning the carriage of cargo to South Africa.
To our knowledge, this is an unprecedented scope of jurisdiction.
Conclusion
For many in the maritime industry, this decision is both a source of opportunity and uncertainty. On the one hand, it offers a powerful new tool for claimants seeking redress; on the other hand, it raises concerns about forum shopping. The fact that the court’s approach diverges from established views and longstanding practice has only heightened the sense of anticipation surrounding the pending appeal to the Supreme Court of Appeal. The outcome of that appeal will be watched closely, as it will determine whether this new approach to jurisdiction becomes settled law—or whether traditional boundaries are reaffirmed.
Until then, both cargo interests and carriers must navigate a period of real uncertainty and protect time-bar provisions, as they wait to see how the law will ultimately take shape.