& ADMIRALTY JURISDICTION IN SOUTH AFRICA JOHN HARE

Transcription

1 AW & ADMIRALTY JURISDICTION IN SOUTH AFRICA JOHN HARE B Comm LLB (Cape) LLM (Lond) Attorney and Notary of the High Court of South Africa Faculty of Law University of Cape Town PUBLISHED BY JUTA & CO, LTD 1999

2 TABLE OF CONTENTS PREFACE ACKNOWLEDGMENTS TABLE OF CONTENTS TABLE OF CHAPTERS TABLE OF APPENDICES TABLE OF STATUTES TABLE OF INTERNATIONAL CONVENTIONS TABLE OF CASES TABLE OF CASE CROSS-REFERENCES TO THE ADMIRALTY JURISDICTION REGULATION ACT, BY SECTION TABLE OF PRINCIPAL AUTHORITIES CITED TABLE OF WEBSITE URL'S RELATING TO SHIPPING LAW vii xi xiii xxvii xxix xxxi xxxiii xxxv lvii lxv lxvii PARTI ADMIRALTY JURISDICTION & PRACTICE CHAPTER I ADMIRALTY JURISDICTION THE JURISPRUDENCE OF ADMIRALTY IN SOUTH AFRICA 1-2 EARLY EUROPEAN MARITIME LAW THE ROMAN-DUTCH WRITERS EARLY ENGLISH MARITIME LAW THE RECEPTION OF ENGLISH MARITIME LAW INTO SOUTH AFRICA - THE ERA BEFORE THE 1983 ADMIRALTY JURISDICTION REGULATION ACT, MODERN SA ADMIRALTY JURISDICTION: TOWARDS THE ADMIRALTY JURISDICTION REGULATION ACT, THE UBIQUITOUS SEC 6: THE LAW APPLICABLE TO ADMIRALTY MATTERS IN SOUTH AFRICA Maritime claims subject to old English jurisdiction Novel South African jurisdiction THE SOUTH AFRICAN COURT STRUCTURE - MAGISTRATES COURT V HIGH COURT & ADMIRALTY V COMMON LAW JURISDICTION THE STATUTORY ACTION IN REM & THE MARITIME LIEN MARITIME ARBITRATION 36 CHAPTER 2 ADMIRALTY PRACTICE THE ADMIRALTY JURISDICTION REGULATION ACT, 1983 AND THE ADMIRALTY COURT RULES, MARITIME CLAIMS Judgements and arbitration awards Contribution, indemnity, damages or security Wrongful arrest ^ Ownership and possession Mortgages and other like charges Damage done by or to a ship Loss of life or personal injury Carriage of goods Salvage, towage and pilotage Necessaries supplies Remuneration of agents and brokers Shipbuilding and repair Port dues Master and seamen's wages General average and insurance

3 XIV TABLE OF CONTENTS Forfeiture Limitation of liability Distribution of a fund Maritime liens Oil pollution Piracy, sabotage or terrorism Prize ARRESTS & ATTACHMENTS OF MARITIME PROPERTY The procedure of the attachment in personam The Act and attachment - s 3(3)(a) Anticipatory attachments Essential averments for an attachment The onus in attachment applications The order of court and service Challenging the order The procedure of the arrest in rem The Act and arrests - ss 3(4) and (5) Essential averments for an arrest Service of an arrest warrant Challenging the arrest To arrest or to attach? Who may arrest or attach? What may be arrested or attached? Ship, cargo & freight Bunkers Associated ship arrests & attachments Charterers as maritime debtors Security arrests Security for costs & counter security The standard of proof in arrest & attachment applications summarised JOINDER: SECTION 5(1) DECLINING JURISDICTION & STAY OF PROCEEDINGS: SECTION 7(1) 91 Forum non conveniens 92 Onus in security applications 94 Exclusive jurisdiction and law clauses RELEASE UPON SECURITY & CAVEAT PROCEDURES Release upon Security Caveat Release MISCELLANEOUS POWERS OF THE COURT IN ADMIRALTY Appointment of Referee Awarding of Interest Judgements in foreign currency EVIDENCE, INSPECTION & DISCOVERY Hearsay evidence Inspection Discovery JUDICIAL SALE & THE FUND m COURT THE RANKING OF CLAIMS AGAINST THE FUND The legal effect of a judicial sale & lodging security The Admiralty Rules & the Uniform Rules 112

4 TABLE OF CONTENTS XV PART II MARITIME LAW CHAPTER 3 THE SHIP 3-1 THE SHIP IN LAW Definitions of a ship in law Shares in a ship Part (co-) owners Joint owners Corporate shipowners THE SHIP IN POLICY: THE FLAG Nationality of ships Flags of convenience The United Nations Convention on the Conditions for the Registration of Ships, APPLICABLE LAW OWNERSHIP & REGISTRATION OF SHIPS: THE SHIP REGISTRATION ACT, Ships entitled to be registered in South Africa Merchant vessels, neither small nor fishing boats 138 3^.1.2 Fishing vessels Non-fishing small vessels Dual registries: Chartering into & off the register Obligation to register Refusal by the Registrar to register Registration of South African ships The register Registration pre-requisites: marks, tonnage & name Certificates of registry Corrections & revisions Removal from the register Registered agents Offences, penalties & forfeiture Transitional provisions 150 3^.9 South Africa & its international obligations SMALL CRAFT REGISTRATION & LICENSING SHIP SALES, TRANSFER & TRANSMISSION OF OWNERSHIP Memorandum of agreement Bill of Sale Passing of title Change of ownership by transmission Disenutlement upon transmission Registering-in second hand tonnage SHIP'S MORTGAGES Historical origins of hypothecs & mortgages Applicable law Equitable & statutory mortgages Content of mortgage agreements - the collateral deed The Ship Registration Act: registration & deletion of mortgages Registration of a mortgage Transfer of a mortgage Transmission of a mortgage Deletion of a mortgage Rights of the mortgagee on default Arrest and sale Sale without court recourse Taking possession 165

5 XVI TABLE OF CONTENTS Foreclosure Priorities 166 Ranking on insolvency 167 Future ranking of the mortgagee 168 CHAPTER 4 WRECK 4-1 THE JURISPRUDENCE OF WRECK & APPLICABLE LAW Statute law Admiralty jurisdiction & applicable law POSSESSION OF WRECK AT COMMON LAW ABANDONMENT OF WRECK: OCCUPATIO OR SALVAGE? 'FINDING'OR OCCUPATIO OF ABANDONED WRECK TREASURE, WRECK & THE FISCUS HISTORICAL WRECK 189 The National Monuments Act and wreck 189 Wreck on the continental shelf and beneath the high seas WRECK REMOVAL CHAPTER 5 MASTER & CREW 5-1 JURISDICTION & APPLICABLE LAW THE MASTER The master's relationship with the owner Duties of the master at common law Powers of the master on board ship Common law disciplinary powers Statutory disciplinary powers Other statutory powers THE CREW Engagement of crew Cadets & apprentice officers Certification of master & crew Crew wages Termination of employment Desertion, absence without leave & discipline The distressed seaman Working conditions on board ship CREW WAGE CLAIMS UNDER THE ADMIRALTY JURISDICTION REGULATION ACT THE LABOUR RELATIONS ACT, 1995, & THE SEAMAN THE BASIC CONDITIONS OF EMPLOYMENT ACT, THE COMPENSATION FOR OCCUPATIONAL INJURIES & DISEASES ACT, CHAPTER 6 SAFETY AT SEA 6-1 THE MERCHANT SHIPPING ACT & REGULATIONS The safety conventions 227 The conventions listed Survey & certification 228 Certificates required The International Safety Management (ISM) Code Application of the ISM Code in South Africa Legal implications of the ISM Code 233

6 TABLE OF CONTENTS xvu ISM and limitation of liability 233 ISM and due diligence under the Hague-Visby Rules 233 ISM and breach of assurance warranty 234 Discovery of ISM documentation The Official Log THE SOUTH AFRICAN MARITIME SAFETY AUTHORITY [SAMSA] CLASSIFICATION SOCIETIES 238 Main societies listed 239 fn Liability of classification societies PORT STATE CONTROL Flag state control distinguished Coastal state control distinguished The nature & origins of port state control The role of international organisations Regional initiatives - the Memoranda of Understanding Domestic enabling measures The Merchant Shipping Act, The Merchant Shipping (ISM Code) Regulations, The Marine Traffic Act, _4.6.4 The Marine Pollution (Prevention & Control) Act, The SAMSA Act, Appeal, costs & wrongful detention NAVIGATION & COLLISIONS Applicable law Fault of both vessels: apportionment of damages Assessment of fault in collision cases The measure of damages The International Regulations for the Prevention of Collisions at Sea, Part A: General Rules 269 Part B. Steering & Sailing Rules 269 Sec 1 All visibility conditions 269 Sec 2 Vessels in sight of each other 270 Sec 3 Vessels in conditions of restricted visibility Formal requirements 273 CHAPTER 7 SALVAGE 7-1 THE HISTORY OF SALVAGE & ITS LAW APPLICABLE LAW Section 6 of the Admiralty Jurisdiction Regulation Act, The Wreck & Salvage Act, 1996 & The International Convention on Salvage, Definitions Application and interpretation of the Convention Assessors Statutory duty to assist vessels in distress Formalities No forfeiture of crew right to salvage The state and salvage GENERAL PRINCIPLES OF SALVAGE LAW: EQUITY & PUBLIC POLICY ESSENTIAL ELEMENTS OF TRADITIONAL SALVAGE Salvage circumstances of particular nature Voluntariness 292 Traditional law and voluntariness 292 No prior agreement 292

7 xvm TABLE OF CONTENTS No pre-existing duty 294 Not purely in self interest 295 The Convention & voluntariness -Art Danger 296 Traditional law and danger 296 The Convention and danger - Art Success 297 Traditional law and success 297 The Convention and success -Art Salved maritime property Traditional law and maritime property The Convention and salvagable property -Art ^.3 Salved Fund Traditional law and the reward The Convention and the award -Art ^.4 Salvor's misconduct Traditional law and salvor's misconduct The Convention and salvor's misconduct-art Salvors and pollution LIFE SALVAGE 309 The Convention and life salvage - Art THE TANKER PHENOMENON: FUNDAMENTAL CHANGES TO TRADITIONAL SALVAGE 312 The lessons of the Amoco Cadiz LLOYDS STANDARD FORM, LOF Principal terms of Lloyd's Standard Form, SPECIAL COMPENSATION: THE NEW REGIME 320 The Safety Net 320 Article 14 special compensation: No cure-some pay 321 SCOPIC Clause SUBMISSION & PREPARATION OF SALVAGE CLAIMS ENFORCEMENT, SECURITY, ARBITRATION & APPEAL 326 CHAPTER 8 TOWAGE 8-1 THE HISTORY OF TOWAGE & rrs LAW APPLICABLE LAW THE NATURE & TYPES OF TOWAGE Daily hire, lumpsum or fair rate Ordinary and extraordinary towage 333 8^t TOWAGE OR SALVAGE? MASTER'S AUTHORITY TO BIND HIS OWNERS & CARGO RELATIONSHIP BETWEEN TUG & TOW: COMMAND & RESPONSIBILITY COMMENCEMENT & CONCLUSION OF TOW DUTIES OF THE TOG Warranty of seaworthiness of tug & ability to perform the towage Supply a particular named tug or tug of particular capacity Skill of performance 343 Tug's expected performance DUTIES OF THE TOW Duty of disclosure: condition of the tow To be in convenient position Payment of towage fee LIABILITIES Damage to tug & tow 347

8 TABLE OF CONTENTS xix Damage to third party property Limitation of liability STANDARD TOWAGE CONTRACTS 349 CHAPTER 9 PILOTAGE 9-1 HISTORICAL PILOTAGE & APPLICABLE LAW 351 English Admiralty Court jurisdiction over pilotage 353 South African pilotage legislation VOLUNTARY & COMPULSORY PILOTAGE 355 The Legal Succession to the South African Transport Services Act, FUNCTIONS OF A PILOT DIVIDED COMMAND LIABILITIES FOR THE CONSEQUENCES OF PILOT ERROR 363 CHAPTER IO PORTS 10-1 THE OWNERSHIP & OPERATION OF SOUTH AFRICAN PORTS The Harbour Regulations, Regulations concerning ships outlined Regulations concerning cargo outlined STEVEDORES, LANDING & FORWARDING AGENTS SHIP'S AGENTS 375 CHAPTER II MARITIME CASUALTIES & LIABILITIES 11-1 UMITATION OF LIABILITY The history of limitation of maritime claims Tonnage limitation under s 261 of the Merchant Shipping Act, Actual fault or privity The limitation fund under s Section 261 Rand equivalent values compared Competing funds & forum shopping The Convention on the Limitation of Liability for Maritime Claims, Convention Rand equivalent values compared Limitation and wreck removal Limitation and the ISM Code Limitation for cargo claim liability under COGSA, Third party liability: The Himalaya Clause Statutory exclusion of liability for the consequences of fire on board ship SOUTH AFRICAN OIL POLLUTION CONTROL & LIABILITY Sources & types of marine oil pollution The freedom of the seas & dumping International control over the marine environment International oil pollution liability regimes The CLC The Fund Convention South African oil pollution legislation The Marine Pollution (Control & Civil Liability) Act, 1981 & the Marine Pollution (Intervention) Act, The International Convention for the Prevention of Pollution from Ships, 1973 ("MARPOL") Whither South African oil pollution legislation? Oil pollution liability & insurance CASUALTY INVESTIGATION & FORMALITIES Casualty reports 420

9 XX TABLE OF CONTENTS Shipping tribunals The Preliminary Enquiry The Court of Marine Enquiry The Maritime Court The Court of Survey SHIP'S PROTESTS 430 PART IH CARRIAGE OF GOODS BY SEA CHAPTER 12 THE BUSINESS OF CARRIAGE OF GOODS BY SEA 12-1 SHIPPING & INTERNATIONAL TRADE : The dramatis personae in carriage Carriage documents & their interaction The booking note The mate's receipt The bill of lading Sea waybills & non-negotiable receipts Charterparties Marine Insurance documents INCO TERMS, EXW 450 Seller's obligations 451 Buye's obligations FOB 452 Seller's obligations 452 Buyer's obligations OF 454 Seller's obligations 454 Buyer's obligations DDP UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS CARRIAGE & THE BANKING SYSTEM 458 Stoppage of goods in transitu MULTTMODAL TRANSPORT ELECTRONIC COMMERCE IN SHIPPING 467 CHAPTER 13 THE JURISPRUDENCE OF CARRIAGE AT SEA 13-1 APPLICABLE LAW THE COMMON CARRIER 4g2 The Praetor's edict 4g2 Exceptions INTERNATIONAL LIABILITY REGIMES & THE PENDULUM OF LIABILITY TheHarterAct The Hague Rules ZZZZZ".'."".'."'.'.' The Hague Visby Rules The Hamburg Rules "ZZZZZZZ" The future? IMPLIED UNDERTAKINGS Carrier's undertakings Seaworthiness 495

10 TABLE OF CONTENTS XXI Due despatch Geographic deviation Shipper's undertaking re dangerous cargo STATUTORY MEASURES The Merchant Shipping Act, The Carriage of Goods by Sea Act, Interpretation of the Hague-Visby Rules Application of COGSA Carrier's minimum liability Carrier's miscellaneous rights and obligations Shipper's obligations Receiver's obligations Time bar The Bills of Lading Act, The [draft] Sea Transport Documents & Title to Sue Bill Documents covered Transfer and negotiation Conclusive evidence provisions Presumption of delivery Mala fides EDI LIMITATION OF LIABILITY UNDER COGSA Interaction between Article III and Article IV Hague-Visby Rules incorporated voluntarily Hague-Visby Rules statutorily applicable The measure of damages The measure of limitation Package or unit PLEADING BOTH COGSA & SECTION 261 LIMITATION 536 CHAPTER 14 BILLS OF LADING 14-1 ORIGINS & NATURE OF THE BILL OF LADING APPLICABLE LAW THE FUNCTIONS OF THE BILL OF LADING Receipt for goods shipped Receipt as to quantity Receipt as to condition Receipt as to quality Receipt as to marks Evidence of the contract of carriage Document of title WHO MAY SUE? TITLE TO SUE WHOM TO SUE? THE DEMISE CLAUSE COMMON LAW RIGHTS & OBLIGATIONS OF THE SHIPPER, CARRIER & CONSIGNEE Delivery of the cargo by the carrier Payment of freight by the shipper or consignee Acceptance of delivery of the cargo by consignee COMMON CLAUSES IN BILLS OF LADING The Clause Paramount Freight & lien clauses Liberty clauses Deck cargo & live animals Substitution of another vessel 567

11 XX11 TABLE OF CONTENTS Departure from normal route EDI & THE BILL OF LADING 567 UNCITRAL Model Law for Electronic Commerce 568 CMI Rules for Electronic Bills of Lading 568 CHAPTER 15 CHARTERPARTIES 15-1 THE NATURE OF A CHARTERPAKTY IN LAW 574 Frustration of charterparties APPLICABLE LAW, TYPES OF CHARTERPARTIES Demise charterparties 580 Common consequences of demise Time charterparties 588 New York Produce Exchange form outlined Voyage charterparties 592 GENCON form outlined Hybrid charterparties CHARTERPARTIES & SEAWORTHINESS Demise charterparties and seaworthiness Time charterparites and seaworthiness Voyage charterparties and seaworthiness CHARTERPARTIES & BILLS OF LADING COMMON CLAUSES IN CHARTEKPARTTES Safe ports & always afloat Bunker procurement & ownership Cesser clause Offhire clauses in time charterparties Owner's right of withdrawal in time charters Laytime clauses in voyage charterparties 609 Historical origins 609 The 'arrived ship' 610 Notice of readiness 610 LAYCAN clauses 614 Calculation of laytime 614 CHAPTER I6 CARGO CLAIMS & THEIR DEFENCE UNDER COGSA: A SUMMARY 16-1 ONUS & STANDARD OF PROOF OF CARGO CLAIMS 620 Order of play for cargo claims 622 Essential averments for cargo claims MEASURE OF DAMAGES - SOUND ARRIVED MARKET VALUE DUE DILIGENCE, SEAWORTHINESS & THE EXCEPTIONS HEAVY WEATHER AS A PERIL OF THE SEAS RAIN & SWEAT NAUTICAL FAULT FIRE INSUFFICIENCY OF PACKAGING INHERENT VICE OF CARGO SHORTLANDING & PILFERAGE DELAY COLLISION DAMAGE TO CARGO ART 4 RULE 2(Q) 'ANY OTHER CAUSE' DECK CARGO TIME BAR

12 TABLE OF CONTENTS xxm PART IV MARINE INSURANCE CHAPTER 17 THE JURISPRUDENCE OF SOUTH AFRICAN MARINE INSURANCE 17-1 ORIGINS OF SOUTH AFRICAN MARINE INSURANCE LAW Early origins, the ius commune & Roman-Dutch Law English Law & the 1906 Marine Insurance Act APPLICABLE LAW South African Marine Insurance law pre The Admiralty Jurisdiction Regulation Act, STATUTORY PROVISIONS: THE SHORT-TERM INSURANCE ACT, DRAMATIS PERSONAE & THE TYPES OF INSURANCE THEY UNDERWRITE 660 CHAPTER 18 GENERAL PRINCIPLES OF MARINE INSURANCE 18-1 THE FORMATION OF THE CONTRACT The proposal The slip & the policy Cover notes The premium INSURANCE AGENTS & BROKERS Agents & Brokers Authority & mandate Agent's obligations Principal's obligations Termination of agency Liability of the agent Knowledge of agent: non-disclosure & misrepresentation INDEMNITY Over-insurance Double insurance Underinsurance & average Excess & deductible LNSURABLE INTEREST GOOD FAITH 687 Historical background & comparative analysis 688 Extent of the duty of good faith stante contractu 690 The utmost good faith: Mutual & Federal v Oudtshoorn Municality The duty of disclosure The test of materiality Actual & constructive knowledge Duration of duty to disclose Facts which need not be disclosed Misrepresentation Prevention of loss, suing & labouring WARRANTIES RISK Insured & excepted perils Attachment & duration of risk Risk in time policies Risk in voyage policies CAUSATION Proximate cause Multiple causes 716

13 XXIV TABLE OF CONTENTS 18-9 IMPLIED TERMS Legality 718 The common law 718 Effect of s 54 of the Short-Term Insurance Act, Due despatch, deviation & delay Seaworthiness Time policy on ship Voyage policy on ship Mixed policies on ship Voyage policies on goods Dangerous cargo LOSS, ABANDONMENT & PARTICULAR AVERAGE Total loss: actual & constructive Abandonment & notice of abandonment Partial loss & particular average CLAIMS & SUBROGATION INTERPRETATION OF INSURANCE POLICIES 733 CHAPTER 19 PERILS COVERED BY STANDARD MARINE POLICIES 19-1 STANDARD POLICIES 736 Lloyds of London: The SG & MAR Policies 736 The Institute of London Underwriters INSURED PERILS - H&M Perils irrespective of a want of due diligence by the assured Perils of the seas Fire & explosion Violent theft by persons outside the vessel Piracy Jettison Contact with objects &c Accidents in loading discharging or shifting cargo or fuel Earthquake, volcanic eruption or lightning Perils requiring due diligence [The Inchmaree Clause] Bursting of boilers, breakage of shafts or any latent defect in machinery or hull Negligence of Master, officers crew or pilots Barratry of master officers or crew Miscellaneous perils Pollution ths collision liability General average & salvage INSURED PERILS - CARGO 750 Institute clauses A & B 751 CHAPTER 20 MUTUAL INSURANCE 20-1 MUTUAL INSURANCE: PAST & PRESENT PROTECTION & INDEMNITY P& I Clubs P&I cover Human resource claims Damage liability claims Specific liabilities Premium calls Direct action against P&I Clubs ^M

14 TABLE OF CONTENTS XXV P&I Club letters of undertaking FREIGHT DEFENCE & DEMURRAGE 764 PARTV GENERAL AVERAGE CHAPTER 21 GENERAL AVERAGE 21-1 THE NATURE OF GENERAL AVERAGE HISTORICAL ORIGINS OF GENERAL AVERAGE APPLICABLE LAW THE YORK-ANTWERP RULES, Maritime adventure Fault Onus of proof Value of cargo Loss of ship Environmental losses GENERAL AVERAGE IN PRACTICE - THE NUMBERED RULES GENERAL AVERAGE & SALVAGE GENERAL AVERAGE DECLARATION GENERAL AVERAGE SECURITY & LIEN RANKING OF GENERAL AVERAGE CLAIMS 782 INDEX 1029