MLA Site Additions


SAVE THE DATE – MLA AGM & CONFERENCE @ THE DRAKENSBERG SUN (16-18 AUG 2019)




MLASA ANNUAL CONFERENCE 2018 – PAPERS PRESENTED


Below are links to the papers presented at the recent MLASA 2018 conference at the Le Franschoek Hotel and Spa in Cape Town from the 31st of August – 2 September 2018. A full report on the conference together with photos of the weekend will be posted to the Associations homepage shortly. We trust that the papers will illustrate the high level of presentations that we were privileged to experience at the conference:

  1. Betrayal of the promise – How South Africa is being stolen – Professor Haroon Bhorat;
  2. Is there an international rule of law? – Honourable Mr Justice Richard Goldstone;
  3. “Automated Ships” – Harmenhoek, Managing Partner Hoek ten Katen;
  4. “Bribery and Corruption, money laundering and sanctions: understanding financial crime risks and their impact on shipping” – Michelle Linderman and Cari Stinebower, Partners at Crowell and Moring LLP;
  5. “Innovation in Court Practice: Experts in the hot tub” – Angus Stewart SC;
  6. “Cyber Crime in Shipping – Part 2” – Julian Clark, Partner and Global Head of Shipping at Hill Dickenson LLP;
  7. “Accurate Reporting: An illustrated guide on oft misunderstood, obscure historical and contractual terms” – Captain John L David, Marine Professionals, Master Mariner;
  8. “SAMSA an update” – Sobantu Tilayi CEO of SAMSA;
  9. “The use of Electronic Navigation Data in the Incident Investigation” – Ken Ellam, General Manager, Master Mariner – Solis Marine Consultants.


MLASA ANNUAL CONFERENCE & AGM (1-3 SEPTEMBER 2017) – PAPERS PRESENTED


Another successful MLASA conference was held at Selborne Golf Estate Kwa-Zulu Natal from the 1 – 3 September 2017. A full report back together with photos will be posted to this page shortly. In the interim below are links to some of the excellent presentations made at the conference:

  1. Changing the Economics of Salvage – J Hines;
  2. Courts of Marine Enquiry – Nigel Campbell;
  3. Cyber Crime in shipping – Julian Clark;
  4. Sea level rise and maritime zones – Kyra Guy;
  5. Seismic surveys and marine animals – Jennifer Olbers;
  6. Unlocking Panama – Trevor Jones; and
  7. LNG imports – Gary Mocke.


MV Cleopatra Dream: The Supreme Court of Appeal confirms the approach to salvage operations undertaken within the scope of statutory duties – April 2011


The Supreme Court of Appeal has confirmed the judgement handed down in the Western Cape High Court with respect to the mv Cleopatra Dream.

The matter revolved around the issue of voluntariness in salvage, and more particularly whether salvage services, rendered by an authority in the course and scope of a statutory or common law duty, qualify for a salvage reward.

The appellant, Transnet Limited (“Transnet”) the national port authority, had claimed salvage against the defendant, the mv “Cleopatra Dream” for coming to her aid in a time of distress.  At the time of the distress, the vessel was within port limits and under the direction of a pilot employed by Transnet. She had suffered an engine breakdown and was drifting towards shallow water when the pilot requested harbour tug assistance.

The court a quo had found that Transnet had rendered the relevant services to the vessel pursuant to, and within, both a statutory and common law duty and thus not voluntarily as that term is understood in the law of salvage. As a result, the court had found the Transnet was not entitled to claim a salvage reward.

On appeal, Transnet denied that the services were rendered in the performance of either a statutory or common law duty and were therefore voluntary. Alternatively, Transnet claimed, that should the court find it had acted in accordance with a duty, it was nonetheless entitled to a salvage reward by virtue of the provisions of the International Convention on Salvage (“the Convention”).

The appeal court agreed with the court a quo that if a service is rendered under a pre-existing obligation to work for the benefit of property and life at risk, then it is prima facie not a salvage service. Even in the absence of a duty, where the services performed are ordinarily to be expected of the claimant in the capacity in which it performs them, it will usually be barred from recovering salvage.

Furthermore, the appeal court found that the Convention does not exclude voluntariness in respect of salvage operations performed by a public authority acting under a duty.  Each case involving a claim by a public authority for salvage, in consequence of operations carried out by it, must begin with a determination of how the domestic law regulates a claim by it for salvage. Once that is determined, one will know the limitations of its entitlement to a salvage reward.

In the circumstances of the case, Transnet had no right to a salvage reward because the whole scope of its operation was carried out subject to, and within, the normal limits of its duty and not voluntarily.

This judgement is in keeping both with the relevant national legislation and the Salvage Convention, incorporated into South African law by the Wreck and Salvage Act.



The End of the Bounty of “Rule B” – The Shipping Corporation of India Ltd v Jaldhi Overseas PTE Ltd


On 16th October 2009, The Shipping Corporation of India Ltd v Jaldhi Overseas PTE Ltd the United States Court of Appeal for the Second Circuit with the consent of all judges of the Court in active service, overruled the infamous decision of  Winter Storm, Ltd v TPI 310 F.3d 263, 278 (2d Cir. 2002) .

Both decisions were concerned with Rule B(1)(a) of the Admiralty Rules which states:

“If a defendant is not found within the district, when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant’s tangible or intangible personal property-up to the amount sued for- in the hands of a garnishee named in the process.”

By emphasizing the “tangible or intangible” nature of the property The Winter Storm decision had vested the United States District Court of the Southern District of New York with jurisdiction when an electronic fund transfer (“EFT”) momentarily passed through an intermediary New York bank electronically. An EFT is simply an instruction to transfer funds from one account to another. An intermediary bank is used when the originator and beneficiary have accounts in different banks. In theses circumstances, the  EFT is completed when the intermediary bank debits that account of the originator’s bank held by it and credits the account of the beneficiary’s bank held by it.

The result of The Winter Storm decision was a flood of Rule B attachments from foreign claimants seeking security for their claims. The Court of Appeal for the Second Circuit gave an example of the “unforeseen consequences” by stating that a total of $1.35 billion had been sought to be attached by maritime plaintiffs who had filed 962 lawsuits in the preceding four months of the hearing which added to the burden of the 800 to 900 writs already served daily on the District’s banks.

The Court of Appeal for the Second Circuit readily accepted that such activity “has threatened the usefulness of the dollar in international transactions” and introduces “uncertainty into the international funds transfer process”. Although acknowledging that the overturning of The Winter Storm would dramatically affect maritime attachments in the jurisdiction it noted earlier decisions which attempted to limit the scope and application of The Winter Storm decision.

In addition to these policy considerations, the Court of Appeal for the Second Circuit identified the salient question as being “whose assets (ETA) are they while in transit?” The Court found the question of ownership to be critical because “as a quasi in rem , the validity of a Rule B attachment depends entirely on the determination that the res at issue is the property of the defendant at the moment the res is attached.” By analysing state law the Court concluded that EFT’s are neither the property of the originator nor the beneficiary while briefly in the possession of the intermediary bank and are therefore not subject to attachment.

The Court of Appeal for the Second Circuit decision is confined to EFTs where the Defendant is the beneficiary, as the question of whether an EFT where the Defendant is the originator was remanded to the District Court. However it is suggested that the District Court will readily follow suit and reach a similar decision.

With the advent of the Jaldhi Overseas judgment, traditional “arrest- friendly” jurisdictions may become more attractive which in theory should lead to  increased arrest activity in South Africa.



The MV “Ioannis NK” – Taking of Crew Evidence on Commission in South Africa


The MV “Ioannis NK” sank some 98 nautical miles off Cape Columbine on her way to a port in India. The MV “Ioannis NK” was Panamanian and her crew where employed by Greek ship managers. The applicant was the owner of the 22 500 tons of raw sugar cane on board the vessel valued at $ 8 572 500.00.

On 6th August 2009, the Cape Town High Court confirmed a rule nisi granted earlier which was the first to grant leave for evidence to be taken on commission in terms of section 5(5)(a)(i) and (iv) coupled with an order restraining the prospective witnesses from leaving the jurisdiction of the court until their evidence was taken.

Section 5( 5) of the AJRA reads:

“(a) A court may in the exercise of its admiralty jurisdiction at any time on the application of the interested person or on its own motion-

if it appears to the court to be  necessary or desirable fro the purpose of determining any maritime claim, or any defence to any such claim, which has been or may be before a court, arbitrator or referee in the Republic, make an order for the examination, testing or inspection by any person of any ship cargo, documents or any other thing and for taking if the evidence of any person;…

in exceptional circumstances, make such order as it is contemplated in subparagraph (i) with regard to a maritime claim which has been or brought before any court, arbitrator, referee ot tribunal elsewhere than in the Republic, in which case sub-paragraphs (ii) and (iii) shall then mutatis mutandi apply.

The applicant believed that the vessel’s side plating had parted and the most probable cause for this was the corrosion of the side plating and underlying structure. The applicant sought to commence arbitration proceedings in London against the owner for breach of his obligation to exercise due diligence to provide a seaworthy vessel.

The owners stance from the onset was that the South African Maritime Safety Authority (“SAMSA”) did not have the authority  to commence a preliminary enquiry by virtue of the fact that the vessel was foreign flagged and had sunk 98 nautical miles off the South African coast.

In order for the provisions of section 5(5)(a)(iv) to operate there must be “exceptional circumstances” and the Court must elect to exercise it’s discretion in favour of the applicant. This was identified by Cleaver J as the “crisp issue” of the matter.

Cleaver J  referred to the judgment of “The Urgup” in which Thring J described that the purpose of section 5(5) was to provide a litigant or prospective litigant with relief which is more akin to an Anton Piller order. He dismissed the suggestion that Thring J’s comments in “The Urgup” inferred that a claimant must first meet the requirements of the Anton Piller order or that an application under section 5(5)(a)(iv) should be equated with an Antol Piller application.

Cleaver J approved the dictum of “The Ais Mamas”2002 (6) SA 150(C) in which Thring J concluded that “to be exceptional within the meaning of the subparagraph the circumstances must be ‘markedly unusual or specially different’, and that applying the test must be carefully examined.”

In doing so Clever J rejected the judgment of “The C Tashin” which proposed that the need to preserve evidence may constitute the very exceptional circumstances required by the section. Cleaver J required that the applicant should show that there is a real possibility that the specific evidence may be lost.

Clever J confirmed the approach by Jones J in “The Askania Nova” that in deciding whether there are “exceptional circumstances” each case must be considered on its own merits and that in deciding the issue the Court must have regard to a whole series of events which lead to the application.

The circumstances that Cleaver J noted was that the vessel sank rapidly without any explanation, the scarcity of evidence as to the cause of the sinking other than evidence of the crew and the uncooperative conduct of the owner and crew.

Clever J approved of the approach adopted in “The C Tashin” in respect of the invasion of crew members’ rights to freedom of movement, dignity and privacy. In this regard the Judge in that case said:

There is no indication on the papers when their evidence will be heard, who will hear the evidence, in which manner it will be heard and how long the process will take. In the absence of these particulars and more detailed allegations to justify the invasion of the crew members’ rights for the convenience of litigation, I am of the view that the crew should not be restrained from going home to their families and friends as soon as possible to recover from what must have been a rather frightening experience at sea.

In the case at hand Cleaver J found that the appellant had taken heed of the Courts concern in the “The C Tashin”.

The respondents further argued that evidence of the sinking was available from third parties and that at the time of contracting the parties would have contemplated that it would be necessary for witnesses residing outside of the English jurisdiction to be available at an arbitration.

However, the Court took notice that the crew and owner had not indicated any willingness to attend the arbitration proceedings and that the owner did not allow the crew members to be interviewed in the presence of the applicant’s representatives prior to the application.

In conclusion Cleaver J found that there had been exceptional circumstances. He further concluded that the conduct of the owner and crew members after the sinking of the vessel made it likely that the crew members would not give evidence at the arbitration and that the applicant had satisfied the Court that the evidence would be lost if it was not taken on commission .



MLASA Launch New Website


It is with pride that the Maritime Law Association of South Africa announces the launching of its brand new website.  Our site remains on the same web address being www.mlasa.co.za.

One of the main features of our website will be the Home Page which features the MLASA’s period newsletter which has been named the “MLA Scene”.  The intention of the “MLA Scene” is to highlight  important events, occurrences and legislation relevant to the maritime legal fraternity and to the shipping industry as a whole.  The goal is to keep our members as up to date as possible.

Regarding the balance of the website, we have tried to make it as user friendly as possible for our members in order to add value to membership of the MLSA.  With updated information posted on our site regularly, the site will also lead to better interaction with its members.

Other than the legal and technical content of our Newsletter, we will also report on recent social events in the shipping and maritime industry which are of interest.  In this regard, we invite members to forward to us via our secretary any newsworthy items.

As the site is brand new and in anticipation of any teething problems please could members and other users of the site report any errors or difficulties with the site.

We hope you enjoy the use of our site and look forward to any comments that you may have in this regard.