Liisa Lahti was part of the legal team that has successfully resisted South Africa's claims of state immunity in respect of a cargo of silver bars (current value: £32 million) in Argentum Exploration Limited v The Silver  EWHC 2323 (Admlty).
The silver was being carried on the SS Tilawa - a privately-owed
merchant ship - during World War II. The Tilawa was sunk in
international waters by Japanese torpedoes as she made the crossing
from Mumbai to Durban, carrying (among other cargo) the silver for
use by the South African Mint. The silver sank to depths
which until recently had precluded salvage.
Argentum salved the silver in 2017 and brought it to Southampton, where it was declared to the Receiver of Wreck. Argentum also commenced proceedings in rem claiming salvage from the owner of the silver. South Africa claimed ownership of the silver but argued that it was immune from the proceedings in rem due to sovereign immunity. Resolution of the matter hinged on whether, for the purposes of s 10(4)(a) of the State Immunity Act 1978 ("SIA"), the silver and the Tilawa could be said to be "in use, or intended for use for commercial purposes" in 2017, being the time at which Argentum's cause of action against South Africa arose.
Judgment was handed down on 16 December 2020. Sir Nigel Teare (sitting as a judge of the High Court) held that (for the purposes of s 10(4)(a) SIA) the Tilawa and the silver were in commercial use when the wreck was salved, noting that, on sinking, the ship was a merchant vessel and its cargo was being shipped under a commercial contract of carriage and that nothing had happened between 1942 and 2017 to alter the status of either. Therefore s 10(4)(a) applied and South Africa was not immune from proceedings in rem claiming salvage in respect of the silver.
Argentum v The Silver is the first case ever to consider SIA s 10(4)(a) – and only the second in which SIA s 10 has been considered.
Liisa was instructed by Stephen Askins of Tatham & Co. She
was led by Stephen Hofmeyr QC (7KBW). The other members of
the counsel team were Cameron Miles (3VB) and Tom Nixon (Quadrant
Chambers). An article in The Times on the case can be
found here (paywall).
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