IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

DATE:						30 APRIL 2008

In the matter between
MT "FOTIY KRYLOV"					Applicant
and
THE OWNERS OF THE 
"RUBY DELIVERER"					Respondent
JUDGMENT
			(Application for Leave to Appeal)

[1] This is an application for leave to appeal to the Supreme Court of Appeal against a judgment of this Court of 12 February 2008.

[4]	The test that I have to adopt is whether there is a reasonable prospect that, in this case, the Supreme Court of Appeal may either read the relevant English law differently to the way I have adopted, or indeed, give it a different content. Debates about a foreign system makes the exercise of leave to appeal even more problematic than is ordinarily the case.

even weaker position.

company because the remedy against the company was not co-extensive with the remedy against the owners.

[7]    This decision was upheld by the Court of Appeal on a rather more narrow basis that, before the passing of the Judicature Act there were only causes in the Admiralty Court and  not actions.    The statute referred only to
actions in the UK courts of law and the Admiralty Court had not been such a court at the time the statute was
enacted.

	think   proper,   in   defence   of  their   property  but 	whether or not they will do so is a matter for them
	to  decide  and   if they  do  not  decide  to  make 	themselves party to the suit in order to defend their
	property, no personal liability can be established 	against them in that action.   It is perfectly true that
	the action indirectly affects them.   So it would if it 	were an action against a person whom they had
	indemnified... I do not think that we are entitled to 	suppose that there has been a change in the nature

	unsuitable    for   what    I    think   the    authorities 	established to be its real manner", (at 428)

[12]   That  passage  affords,   in  my view,  authority for the proposition   of   Hofmeyr,   namely   that   if   there   is   a contractual provision which excludes the owner's liabilitythen somebody who steps into the shoes of the owner and is treated for the purposes of liability as the owner, should have the same benefit of the contractual provision as do the owners.

[13]	In my view, on this ground I cannot see how applying the law as it was put to me by counsel and as I have analysed it in the judgment, could give rise to a conclusion different to this Court.