In this edition of the MLASA Scene:

1. Report on the 2011 MLASA  Conference and AGM in the Drakensberg;

1. 2012 – The Year Ahead:

• Amendments to AJRA
• Strengthening the bond with DOT
• Reviewing the Admiralty Rules
• A New Marine Insurance Act?
• The Stephen Wallace Maritime Trust – Launch and objectives
• CMI Meeting – China 2012
• 2012 MLASA Conference and AGM –  proposed  venue and date

1. Report on 2011 MLASA  Conference and AGM in the Drakensberg

The MLASA 2011 annual conference and AGM was successfully held at the Champagne Sports Resort in the Drakensberg from the Friday the 26 August to Sunday the 28 August 2011.

There was an excellent attendance by delegates with their partners and family. About 110 people attended the conference.

After registration the conference kicked off on the Friday afternoon with an inspiring welcome by Malcolm Hartwell Chairman of the MLA Durban Chapter. Johnathan Webb a maritime lawyer originally from South Africa but now practicing as a partner at Holman Fenwick and Willan Solicitors in London gave an excellent and informative presentation on what the “hot topics” in shipping law are from a London perspective. Johnathan gave an  overview of the London maritime scene touching on issues such as arbitration and mediation ,  litigation in the post credit crunch era, security and the demise of Rule B, piracy and the new Bribery Act .

A copy of Johnathan’s paper forms part of the conference and AGM documents which can be accessed on the MLA link below.

We were thereafter transported into the world of salvage from a P&I perspective and in particular Captain Alan Reid gave a very interesting and gripping account of  the relatively recent salvage operation on  the “Kiperousa”.

The last session on Friday was by Mr Riad Khan the CEO of the Ports Regulator of South Africa. His presentation focused on port regulation and development and in particular participatory democracy and the privatization of terminals. It was important for the conference to hear from the Port Regulators office as this office in our view is very important to the objectivity and fairness of the running of the port from both the Port’s  and the users’ perspective.

The last session was followed by pre-dinner drinks and a fantastic dinner in the hotel dining room where delegates, partners and family were able to mingle and make acquaintances or to catch up with scuttlebutt.

The first session on the Saturday was presented by Michelle Linderman of Ince & Co. Solicitors now a usual presenter at MLASA conferences. Her presentation considered the all important sanctions against Iran and the impact on shipping and insurance.

Session two was presented by Mr Karl Socikwa the CEO of Transnet Port Terminals. His presentation was an eye opener regarding port and terminal development in South Africa. It was inspiring for delegates to see what has been done and that the CEO was aware of and committed to dealing with the challenges that lay ahead.

After tea an old stalwart of MLA conferences Angus Stewart SC, now practicing at the Australian Bar, gave a summary of recent developments in maritime law in Australia and of particular interest to South Africa, the Australian approach to a Marine Insurance Act. As always Angus commanded our devoted attention with his knowledge and wit.

Thereafter, Andrew Robinson  a director at the newly formed Norton Rose South Africa presented a brief overview of the status of the South African Marine Insurance Act.

The final session before lunch was by Megan Harris of Shipscene – a South African website based vessel tracking facility reliant on AIS data. Megan presented the new version of the Shipscene . No longer is Shipscene limited to South African ports and their approaches, but has now opened up a worldwide tracking service for vessels. How times have changed for the South African maritime lawyer trying to keep abreast of the whereabouts of vessels locally and internationally.

After lunch it was with pride that we listened to the presentation of Dr. Janet Cotton of One Eighty (Pty) Ltd being an organization which specialises in the analyses of metallurgic failures with a particular focus on marine casualties. Her case study was fascinating and showcased the expertise available locally in this field .

The last session for the day was by another MLA stalwart Dr Henri Fouché of UNISA who presented on the issue of piracy prevention and investigation and in particular focused on a current investigation in which South African Police Services participated off the Southern African coast. It was very interesting to compare the previous presentation made by Mr Fouché in Franschoek 2010 to the current presentation and how matters have developed from a South African perspective.

The final session was followed by pre-dinner drinks and another wonderful dinner at the hotel restaurant (“Zunckels”).

At the dinner a tribute was given to Advocate David Gordon SC for his immense contribution to maritime law and its development in South Africa. It was fitting that the tribute should be given by his son Advocate Roy Gordon, and not unexpectedly both Gordons managed to keep the audience entertained with their natural wit and interesting memoirs.

Thank you David for your dedication, contributions and integrity over the years.

As usual the AGM of the MLASA was held on the Sunday morning and this particular AGM seemed to flow a much quicker than previous AGM’s – this may have been something to do with the previous night’s dinner party.

A touching moment at the commencement of the AGM was a tribute from Karen Shaw the wife of the late Phillip Shaw read out by Ms Helen Antoniou of a colleague at Pagdens Attorneys. A minute’s silence was observed for Phillip .

Minutes of the AGM including the President’s Report, Sub-Committee and Chapter Reports and Johnathan’s report are available on this link — MLA

Again, one of the main orders of business of the conference was agreeing the final proposed amendments to the Admiralty Jurisdiction Regulation. This leaves a further proposed draft of the AJRA to be finalized in the new year.

Just after twelve noon on the Sunday the conference closed and delegates again said their farewells and thank you’s to the Durban Chapter of the MLASA for hosting yet another successful conference.

1. 2012 The Year Ahead

• Amendments to AJRA

Following the work shopping of the final proposed changes to the Admiralty Jurisdiction Regulation Act which occurred at the 2011 MLASA AGM, an amended draft of the AJRA has now been made available to the relevant sub-committee save certain wording in respect of associated ship provisions which is to be finalized shortly.

• Strengthening the bond with DOT

A goal of the MLASA for 2012 is to create a closer working relationship with the Department of Transport (DOT) and in particular the officials dealing with marine legislation. In furtherance of this goal a meeting was held with the Director General of the DOT at the offices of the DOT in Pretoria where Advocate Mike Wragge (president of the MLASA), Brian Watt and Frank Ponnen representing the MLASA met with Hamida Fakier the Deputy Director General of the DOT and Ms Karen Naidoo also of the DOT.

The main purpose of the meeting was to inform the DDG about the MLASA and to create an ongoing channel with DOT to discuss pending legislation and other matters which may be important to MLASA membership. A report on the meeting is also to be found on the MLASA website.

• Reviewing Admiralty Rules

Now that the Admiralty Jurisdiction Regulation Act has been scrutinized in detail and proposed changes agreed on with a draft proposed new Act to be shortly finalized by the MLASA, the focus going forward for 2012 will also be on amending where necessary the Admiralty Rules promulgated in terms of such Act. Rules 4 and 21 in particular need to be reviewed.  Rule 21 has been the subject of attention again following letters addressed by the Sheriff of the Court for Cape Town and the Association of Maritime Sheriff’s highlighting what they perceive as deficiencies in the current legislative position.

• A New Marine Insurance Act?

Discussions regarding drafting a Marine Insurance Act for South Africa have again surfaced and it is envisaged that discussions will be held at AMUSA level (The Association of Marine Underwriters of South Africa) and with the Financial Services Board in this regard.

• The Stephen Wallace Maritime Trust – Launch and objectives

The above Trust has been formed and the relevant trustees have been appointed. The object of the Trust of course is to:

A formal introduction to the objects and goals of the Trust will be formulated and sent out to all members shortly with a proposed launch and fundraising drive to be held thereafter.

• CMI Meeting – China 2012

The 2012 CMI is to be held in Beijing China and it is proposed that representatives from South Africa are to be put forward as official representatives at the conference.

• 2012 MLASA Conference and AGM – proposed venue and date

The MLASA 2012 conference and AGM is currently being organised with the proposed venue being Shelly Point on the West Coast of South Africa and the proposed date to be  late in August 2012.

1. Pictures from the 2011 MLASA conference and AGM .
2. Conclusion

In conclusion the EXCO of the MLASA wishes its members and those in the maritime industry and related sectors a productive and enjoyable 2012.

As the MLASA has been formed to serve its members and generally the maritime law profession/related industries, we would value any input and comments regarding current issues and events.

Yours faithfully

MLA SA EXCO

The MLASA wishes Captain Roy Martin all the best in his recovery.

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 Maritime Law Association of South Africa (“MLA”) recently held its annual conference and AGM from the 20^th to the 22^nd August 2010 at the Le Franschoek Hotel and Spa in the winelands of the Western Cape.  The hotel was previously known as the Swiss Farm Excelsior and certainly the venue and conference lived up to “Excelsior” – “Ever Higher”.

The conference attracted one of its biggest attendances in recent years with close to 100 persons in attendance.  Among those participating, were Justices Ian Farlam, Douglas Scott, Lee Bozalek, Patric Gamble and Ashley Binns Ward.

[Click here for the conference program and discussion documents distributed beforehand].

Day One

After lunch on day one the conference kicked off with two vigorous sessions on wide ranging proposed amendments of the Admiralty Jurisdiction Regulation Act (“AJRA”), with an extra session on the afternoon of day two which was utilised particularly in respect of the debate on Section 6.

It is safe to say that following excellent input from members, including invaluable comments from Judges Scott and Farlam, these sessions dealt comprehensively with the proposed amendments with the highlight being an almost complete redraft of the infamous Section 6.

Day one ended on a high note with a cocktail party followed by a formal dinner.  Gavin Fitzmaurice, the Cape Chapter Chairperson, welcomed all those attending and delegates were then treated to an excellent keynote address by Justice Doug Scott dealing with recent developments in our law relating to the effect of the Constitution and Bill of Rights on the privacy of contracts.

Day Two

On this day we were privileged to have the working sessions dominated by foreign lawyers.  Chris Swart, a partner at Holman Fenwick Willan Solicitors in London (an old Capetonian), enlightened members on mediation and its use in modern day alternative dispute resolution.

Thereafter, Simon Gault. and renowned maritime arbitrator, explained very thoroughly the ins and outs of the London arbitration procedure and focused on certain aspects.  A panel discussion followed with further input from Michelle Linderman, a partner at Ince & Co, Andrew Nicholas, a partner at Clyde & Co and holding up the South African corner, Matt Ash, a director of Deneys Reitz attorneys in Cape Town.

Although arbitration is certainly an avenue to pursue further in the South African context, in the last working session, Adv. David Gordon S.C. reminded members, in his usual frank manner, that arbitration should not be seen as the be all and end all, but rather as complimentary to the current Court process.

The festivities of day two were sparked by a unique wine tasting and chocolate pairing presentation by Kevin Arnold, the winemaker at the Waterford Wine Estate in Stellenbosch.  As one taster commented, the combination of wine and chocolate, started “a party in the mouth”.

The least said about the South African vs. New Zealand rugby test the better.  Save to say that the biltong was sent down the line very efficiently and the beer certainly defended well.

The MLA gala dinner found all delegates and their partners “shipwrecked” at the “Excelsior Room”, wet and cold from the Cape winter rains.  Adv. Mike Fitzgerald S.C. warmed the hearts with a fitting yet entertaining tribute to MLA founder member, Noel Tunbridge.  Unfortunately Noel could not be present, but an award was accepted on his behalf by colleague Craig Cunningham.

Dinner and dancing – in a spectacularly decorated venue – with a few glasses in between, took us through to the early hours of day three.  The pictures will tell this story best!

[Click here for Gala Dinner photographs]

Day Three

The morning on day three came too soon for some, but it appeared as though the storm was weathered admirably by all members.

The Rotterdam Rules were dissected in the first session of the day by Harmen Hoek, a Partner at Schipper Noordam of Rotterdam.  This presentation spurred constructive dialogue on the pro’s and con’s of the Rules, with insightful comment from Andrew Nicholas from Clyde & Co.

The last paper presented was by Michelle Linderman of Ince & Co (“Winner of the fancy dress competition for the second year running”).  Her talk dealt with the wide ranging effect of the sanctions against Iran, and in particular how they affect the shipping industry.

Clearly these sanctions could potentially  affect all export nations but their ramification will no doubt depend on the level of enforcement by the USA, in particular, as well as the extent to which other nations feel obliged to recognise such sanctions.  They are already proving to be a challenge for global institutions who are conscientious when it comes to good corporate governance.

The conference closed on the third day with the Annual General Meeting of the MLA.

Although, the AGM illustrated the substantial workload of the MLA and its committees throughout the year, the AGM will best be remembered for saying farewell to Andrew Robinson as Chairman and Andrew Clark as Treasurer, both of whom had reached the end of their tenure in terms of the MLA Constitution Articles.  The “Andrews” are to be congratulated for their thorough, consistent and inspiring contributions over the years.

Congratulations to the elected EXCO with new President Adv. Mike Wragge S.C. and new Vice-President, Capt. Roy Martin.

[Click here for the new EXCO details]

A strong administrative and intellectual foundation has been laid for the EXCO and its sub-committees to follow through on ongoing tasks and to advance its input further in the ever changing and challenging maritime sector.

[Click here to access minutes of the MLA 2010 AGM including sub-committee and related reports]

Finally, congratulations to Gavin Fitzmaurice and Adv. Mike Wragge and their organising committee as well as to the organiser, Alexi Price for what was arguably one of the best MLA conferences to date.

Executive Committee

The Maritime Law Association of South Africa

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 23^rd 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.

]]> http://www.mlasa.co.za/2010/01/the-rotterdam-rules-%e2%80%93-a-brief-summary-of-the-current-position-taken-from-the-uncitral-website/feed/ 0 http://www.mlasa.co.za/2010/01/professor-john-hare%e2%80%99s-second-edition-of-shipping-law-and-admiralty-jurisdiction-in-south-africa-published/ http://www.mlasa.co.za/2010/01/professor-john-hare%e2%80%99s-second-edition-of-shipping-law-and-admiralty-jurisdiction-in-south-africa-published/#comments Fri, 22 Jan 2010 13:21:46 +0000 admin http://fullstopmedia.co.za/mla/?p=140 The Second Edition of Professor John Hare’s Shipping Law and Admiralty Jurisdiction in South Africa  Textbook was published in 2009 and is a thoroughly updated and more comprehensive version of his first edition.  Below is the foreword written for this book by the Honourable Mr Justice Ian Farlam, Judge of the Supreme Court of Appeal of South Africa.