Tuesday 15 – Wednesday 16 March 2022
The Defendant appeals with permission paragraph 1 of the order of Sir Nigel Teare, sitting as a High Court Judge, dated 16 December 2020 by which he dismissed the Defendant’s application that the Claimant’s claim form be struck out or set aside or that the action be permanently stayed and paragraph 4 of the order which set out that the Defendant must pay the Claimant’s costs.
The Claimant is Argentum Exploration Limited, a UK company formed in 2012 for the purpose of locating and salving valuable shipwrecks. It claims to have salved the silver bars from the wreck of the SS TILAWA which was sunk in the Indian Ocean in 1942. The current value of the silver bars is said to be some US 43 million dollars. The Defendant is the Government of the Republic of South Africa, being the owner of the silver bars.
The alleged salvage was carried out in 2017 and the silver bars were taken to Southampton where they were declared to the Receiver of Wreck. They are now held to the order of the Receiver of Wreck pursuant to section 236 of the Merchant Shipping Act 1995. On 14 September 2018, the Defendant claimed to be the owner of the silver bars. On 1 October 2019 the Claimant commenced a claim, seeking a declaration that it was the owner of the silver bars or, in the alternative, salvage. The Claimant has since accepted that the Defendant is the owner but retains its claim for a salvage award.
The Defendant had applied for the Claimant’s claim to be struck out on the basis of sovereign immunity. Sir Nigel Teare found that the cargo of silver bars was not a non-commercial cargo and as such the Defendant was not entitled to sovereign immunity. However, he granted permission to appeal on the basis that there were arguments either way and that, given the size of the claim and the novelty of the point, it was appropriate to give permission.