MLA Site Additions

  • The Maritime Law Association of South Africa was established in February 1974 as a result of concern among maritime lawyers and the shipping industry that legislation in South Africa regulating maritime affairs did not appear to be keeping pace with developments elsewhere in the world.

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 Rotterdam Rules – A Brief Summary of the current position taken from the UNCITRAL website

The General Assembly on 11 December 2008 adopted, the “Rotterdam Rules” officially known as the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. The Rotterdam Rules establish a uniform and modern legal regime governing the rights and obligations of shippers, carriers and consignees under a contract for door-to-door carriage that includes an international sea leg. The Convention builds upon, and provides a modern alternative to, earlier conventions relating to the international carriage of goods by sea, in particular, the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Brussels, 25 August 1924) (“the Hague Rules”), and its Protocols (“the Hague-Visby Rules”), and the United Nations Convention on the Carriage of Goods by Sea (Hamburg, 31 March 1978) (“the Hamburg Rules”).

The basic premises of the Rules is a “Door-to door regime”, to make provision to allow for carriers to subcontract obligations; to cover all transport documents, covers all goods and  impose general carriage obligations for all carriers and specific obligations for maritime performance parties.

The Rotterdam Rules provide a legal framework that takes into account the many technological and commercial developments that have occurred in maritime transport since the adoption of those earlier conventions, including the growth of containerization, the desire for door-to-door carriage under a single contract, and the development of electronic transport documents. The Convention provides shippers and carriers with a binding and balanced universal regime to support the operation of maritime contracts of carriage that may involve other modes of transport.

Sixteen nations indicated their intent to ratify the treaty by signing the Rules at the signing ceremony on 23rd September 2009. Signatories include major maritime and trading nations such as the U.S., Norway, Greece, France and the Netherlands. Other signatories were Congo, Denmark, Gabon, Ghana, Guinea, Nigeria, Poland, Senegal, Spain, Switzerland, and Togo. Together the signatories account for approximately one-third of world trade.

The Rules will come into force one year after it has been ratified by 20 nations. Within the first month of the Rules this threshold was met when Armenia, Cameroon, Madagascar and Niger signed the convention.

Ship-owner groups have generally  welcomed the Rotterdam Rules whereas European shippers and freight forwarders, supported by the European Shippers’ Council, have attacked the new rules for being too complicated and favoring ship owners at the expense of the cargo owning interests.