Masters Degrees (Maritime Law)

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Liability for injuries to seafarers: a critical analysis of the extent of shipowner liability under the Maritime Labour Convention.
(2022) Joseph, Mikaela Jauden.; Lamb, Deepa.
The main aim of this dissertation is to determine whether the Maritime Labour Convention has been successful in ensuring the fair and equal treatment of seafarers in relation to shipowner liability. This dissertation aims to do this by analysing the national legislation in three different jurisdictions (The United States of America, United Kingdom and South Africa) before the implementation of the Maritime Labour Convention. The national legislation in the respective jurisdictions after the implementation of the Maritime Labour Convention will then be analysed to determine whether or not the Convention has been successful in protecting the rights of injured seafarers and whether they are treated fairly and equally in all three of the respective jurisdictions. The dissertation will comprise of desktop-based research and will make use of comparative research methodology. This dissertation will comprise of five chapters. Chapter one introduces the problem topic and provides the background to the problem. Chapter two examines the MLC, it provides information on the aims of the MLC, how it was developed, the implementation of the MLC and the provisions for shipowner liability in respect of injured seafarers. Chapter 3 examines the history of the national laws in the respective three jurisdictions before the implementation of the MLC and analyses the extent to which an injured seafarers’ rights were protected and where a shipowner’s liability ends. Chapter 4 examines the national laws in the respective three jurisdictions after the implementation of the MLC and analyses the extent to which an injured seafarers’ rights are now protected and examines exactly where a shipowner’s liability ends. Chapter 5 concludes the dissertation. It restates the key research questions and the resulting conclusions. After analysing the national legislation in the abovementioned jurisdictions, it is evident that the domestic legislation protecting seafarers, even prior to the implementation of the MLC in these jurisdictions, already extensively protected seafarers employed on board vessels registered in the UK and SA. The MLC will however have a substantial effect on the ability of port authorities in member states to inspect and take action against owners of substandard vessels. The MLC is not above criticism and its shortfalls have become apparent in the crew change crisis during the Covid-19 pandemic. Nevertheless, the MLC is still a great step forward in the consolidation and harmonisation of compliance and inspection procedures followed by flag states and port authorities, thus increasing the protection and enforcement of seafarers’ rights.
The enforcement of an arbitration award against an associated ship in South Africa. An analysis of MT Pretty Scene: Galsworthy Ltd v Pretty Scene Shipping S.A. and Another 2021 (5) SA 134 (SCA)
(2022) Phakathi, Siphosakhe.; Donnelly, Dusty-Lee.
Interpretation of the phrase 'when the maritime claim arose' has created ambiguity in relation to the claim of an arbitration award as defined in section (1)(aa) of the Admiralty Jurisdiction Regulation Act 105 of 1983 ("AJRA"). This is due to the fact that each matter is adjudicated based on different facts and circumstances presented before the admiralty courts for the determination of when the claim relating to an arbitration award arose and the applicability of enforcement procedures provided in AJRA. In MT Pretty Scene, the court provided clarity on the meaning of the phrase “when the maritime claim arose” and whether it relates to when the arbitration award is handed down or when the underlying claim under the charterparty arose. The court held that a claim under the arbitration award as defined in AJRA relates to the underlying claim and therefore does not arise when the award is made but it arises at the same time the underlying claim under the charterparty arose. MT Pretty Scene (SCA) further provided clarity on the drafting of the in rem arrest summons. In particular, the SCA, in great detail, provided guidance and clarity on the allegations that must be made by the arresting party in the summons, Rule 4(3) certificate, and clarified how the Uniform Rules of Court differ from Admiralty Rules – thereby guiding practitioners on how the provisions of AJRA should be applied and interpreted. This dissertation further focused on the proper interpretation of legal principles that were considered to reach a conclusion that an arbitration award is not an entirely separate claim, and hence cannot be detached from the underlying claim. The two are inseparable and are tied together. Thus, it is important to prove that the arbitration award is linked to an underlying maritime claim. The link between the procedure of arresting a ship and determining when a claim in relation to the arbitration award exists on the basis that the determination of when a ship may be arrested as an associated ship depends upon when the underlying claim arose.
"Fire on the seas! Fine by me?" Advancing an argument for the reform of the criminal liability incurred by corporates, under South African law, as a result of the misdeclaration of dangerous goods to be carried by sea.
(2022) Colvelle, Ndumiso Vuyani.; Donnelly, Dusty-Lee.
The carriage of dangerous goods by sea requires the utmost care and preparation. An essential part of preparing for such operations is a trail of documents evidencing the exact profile of goods to be carried and the hazards they may present. Carriers will generally have to rely on the descriptions of the goods provided by shippers in their preparations, as they are not in a position to have knowledge of the exact nature of the goods. The risks involved with the transport of dangerous goods are greatly heightened when carriers have not provided accurate information about the cargo. In recent years, there has been a steady rise seen in containership fires and incidents, like the Beruit Port explosion, all signifying the risks involved in the carriage of dangerous goods. These incidents often occur due to incorrect or insufficient information regarding the characteristics of the dangerous goods, being provided to carriers, this is also known as the misdeclaration of dangerous goods. This thesis seeks to serve as a guide to legislators and judicial institutions in South Africa in terms of dealing with the challenge posed by the misdeclaration of dangerous goods. It shall thoroughly examine the current liability incurred for the offence of misdeclartaion and the proposed changes to that liability found in the recently proposed pieces of legislation. The adequacy and proportionality of the current and proposed measures will be critically examined, with a particular focus on the ability of said measures to deter companies from misdeclaring dangerous goods. Companies are dominant in global international trade and regulations must accordingly regulate their activities because of the harm they are capable of causing. As the country seeks to reinvigorate its Maritime sector, legislation that adequately protects the ports and seafarers is essential. The sector ought to look at the controls adopted in different sectors for the regulation and punishment of dangerous corporate behaviours. This thesis puts forth the argument that the legislature ought to duly recognize the danger posed by misdeclaration and pre-emptively amend legislation, introducing harsher punitive measures aimed at deterring the occurrence of the offence.
A critical analysis of the seemingly contradictory principles of uniformity and party autonomy underlying the United Nations Convention on the International Sale of Goods (CISG) of 1980: the objectives behind these principles and the complexities arising from their application in the context of the main objectives of the Convention.
(2019) Mkhize, Zenande Thalente.; Lamb, Deepa.
The need for a uniform law governing the cross-border sale of goods, balancing the rights of importers and exporters as well as creating certainty and predictability in the application of international sales law rules, led to the creation of different international instruments and conventions that were enacted and adopted by different states to regulate international sales contracts. A notable example of such private international law instruments that have been adopted by some 85 states, is the United Nations Convention on Contracts for the International Sales of Goods (CISG). This study seeks to evaluate the question of whether the fundamental principles of promoting uniformity in the laws regulating cross border sales contracts, while still respecting the right to party autonomy, that underpins the CISG, is a workable reality. This question will be evaluated by analysing relevant provisions of the CISG, as well as court and arbitral decisions to see how these forums within diverse CISG member states are interpreting and applying these provisions of the Convention in the context of these seemingly contradictory general principles underpinning the CISG. Whether the extensive rights to party autonomy provided for under the CISG promotes or hinders its primary objective of achieving uniformity in international sales contracts. The writer will further analyse the compromises made in the drafting of the CISG in order to achieve this goal of international uniformity and the effects of these compromises on the interpretation and application of the Convention.
Unmanned and autonomous ships and cyber piracy: an analysis of international and national regulatory measures.
(2021) Simon, Emily.; Surbun, Vishal.
No abstract available.
Gone overbroad? Critically examining the classification of maritime claims by South African courts.
(2021) Harpur Gevers, Amy Garnett.; Surbun, Vishal.
South African courts are empowered, in the exercise of their admiralty jurisdiction, to provide ‘far-reaching and even revolutionary methods to prevent recalcitrant debtors from evading their legal debts’. These ‘revolutionary’ remedies are not reserved for South African claimants alone, but are potentially available to the ‘wandering maritime litigants of the world’. The catch, as it were, is that only certain types of claims qualify to benefit from this specialised jurisdictional regime. To qualify, a claim must fall within the definition of ‘maritime claim’ in s 1(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983. Through a critical analysis of the reasoning followed in Peros v Rose, The Mineral Ordaz and Kuehne & Nagel, this study will highlight the challenges and pitfalls of classifying a maritime claim under the Act, such as taking into account a future defence to a claim in the process of classifying a claim; conflating the process of classifying a maritime claim with the process of categorizing a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act; conflating the contents of an underlying ‘maritime agreement’ with the provisions of a ‘maritime topic’ set out in s 1(1) of the Act, and confusing the policy considerations that justify the exercise of admiralty jurisdiction. Having done so, this study will then propose the adoption of a three-stage approach to the maritime-claim enquiry; namely, (a) the clear identification of the claim, (b) the articulation of the relevant maritime topic and (c) the establishment of a maritime connection between the two. In particular, as to (b), this study will explore the factors that may be relevant to the categorisation of a settlement agreement as a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act. In addition, as to (c), a test for establishing a direct maritime connection will be formulated for borderline cases, and a modified version of the ‘legally relevant connection’ test developed in Kuehne & Nagel will be proposed as a tool to establish an indirect maritime connection, where appropriate.
A critical analysis of the legal framework to deter illegal, unreported and unregulated fishing in South Africa’s maritime zones.
(2020) Bhana, Sinduja.; Surbun, Vishal.
Illegal, unreported and unregulated fishing (IUU fishing) is a significant threat to marine biodiversity and ecosystems globally. Despite efforts to manage fishery stocks, including conservation efforts, IUU fishing undermines these efforts. It is predominantly in the instance of weak enforcement frameworks that makes room for exploitation of marine resources and the coastal State being prone to IUU fishing within their maritime zones. This dissertation examines IUU fishing in South Africa’s maritime zones. The analysis considers South Africa’s framework to deter IUU fishing which include global instruments to which South Africa holds obligations. These obligations include providing effective domestic legal and policy frameworks. South Africa’s framework is then compared to the Thailand’s effective fisheries framework. Thailand’s framework has been constituted as effective by the Ministry of Foreign Affairs of the Kingdom of Thailand due to the presence of four factors in the framework and due to the action taken in accordance with these factors: fishery and fleet management, monitoring, control and surveillance (MCS) and traceability, adequate law enforcement and international cooperation. This comparison considers these factors and aims to point out any shortcomings in South Africa’s framework. A brief analysis of Senegal’s ineffective fisheries framework is contrasted to point out what is needed to be worked on to ensure a successful framework for the deterrence of IUU fishing. Finally, considering the four factors in Thailand’s fisheries framework a discussion of the effectiveness of the South African framework for deterrence of IUU fishing is provided and recommendations to address the shortcomings that are identified in South Africa’s framework to deter IUU fishing, including MCS shortcomings, are proposed. This study ultimately seeks to determine whether South Africa's framework for deterrence of IUU fishing is effective. The analysis includes incidents of IUU fishing in South Africa’s maritime zones, discussion of challenges and provides concluding remarks of relevant global instruments, domestic legislation and initiatives. In this manner the analysis provides a breakdown of these instruments, incidents, domestic legislation and initiatives to provide a better understanding and determine effectiveness in accordance with the four factors.
The dawn of unmanned and autonomous vessels and the legal consequences of a M.A.S.S. collision.
(2019) Surian, Ivana Bianca.; Donnelly, Dusty-Lee.
Technology is developing at a rapid pace and the world is now faced with the introduction of unmanned and autonomous vessels. This dissertation analyses the attribution of legal liability for collision damage caused by such vessels where there was a defect or malfunction with its onboard software. Since there is no longer a crew and master on board, the question that arises is whether liability can be partly attributed to the manufacturer and partly to the shore-based control operator or, where there is no fault, whether the shipowner of the unmanned vessel can be held solely liable. This dissertation provides a detailed discussion of the current liability framework applicable to the conventional vessels of today (under both international maritime laws and South African national laws). It then presents a detailed analysis on the issue of collision liability for the unmanned and autonomous vessel. This includes an examination of the various permutations of liability (fault-based liability for personal negligence, vicarious liability and liability for the actions of independent contractors, as well as strict and product liability), as well as an analysis of where the current liability framework would apply to these new forms of vessels and where it will need to be clarified or amended in order to regulate safety at sea sufficiently. This dissertation finds that the introduction of these vessels will bring a change to the maritime legal framework as we know it today. For the most part, the shipowner’s identity and role will remain the same, as a shipowner can be held liable regardless of how his/her vessel is operated. It is in relation to the master’s role in the maritime industry that we can expect colossal changes, with new emerging entities such as the shore-based control operator and voyage programmer. Furthermore, the various collision and safety rules and regulations (both internationally and nationally) will need to be clarified and/or amended. The findings of this analysis are discussed in relation to the work already completed by the prominent international organisations and associations in the maritime industry (such as the IMO, CMI and BIMCO). It is recommended that the South African legislature consider bringing the South African national maritime and admiralty laws in line with international best practices.
A statutory analysis of ocean governance in South Africa with a focus on the Marine Spatial Planning Act 16 of 2018.
(2020) Nzimande, Thembalethu.; Donnelly, Dusty-Lee.
One of South Africa’s greatest assets has been its ocean and the business it brings with. The economic opportunities presented by the ocean are noted by legislatures by all coastal States alongside the need to coordinate planning in said ocean space and optimise sustainable economic growth. This is the focus of the Marine Spatial Planning Act, as it recognises that the ocean is being used more intensively than it has been in the past and has multiple usages that may conflict with one another. This dissertation will discuss key concepts underpinning the blue economy. Thereafter, the dissertation will look at the Marine Spatial Planning Act 16 of 2018, which seeks to outline the use of the ocean space among all the ocean users in a sustainable manner. This dissertation will focus on a legal analysis of ocean governance policy and does not consider other work areas of Operation Phakisa, or the economic, social or political impact of the programme.
Article IV rule II of the protocol to amend the International convention for the unification of certain rules of law relating to bills of lading: a critical analysis of the three most litigated maritime defences available to the carrier.
(2020) Debba, Sandhiya.; Lamb, Deepa.
The defences of negligent navigation; fire and heavy weather as a peril of the seas will be examined in this study as they have been identified as the most controversial and litigated defences contained in the Hague-Visby Rules. Articles III and IV of the Hague-Visby Rules which are the relevant provisions pertaining to the defences will be critically analysed in the study. Case law of the jurisdictions of the United States of America, the United Kingdom, Australia and South Africa pertaining to the defences will be examined in order to critically analyse and evaluate the defences. The aim of this study is to examine how these defences are interpreted and applied in different jurisdictions in order to draw conclusions on their relevance and whether they still have a place in modern maritime trade.
Maritime claims: gangway to ship arrest: a case study of South Africa and Nigeria.
(2020) Ayo-Ojo, Bayode Sunday.; Donnelly, Dusty-Lee.
The arrest of a ship cannot be granted in any court exercising its admiralty jurisdiction if the claimant/plaintiff cannot ascertain that he/she has a maritime claim. Arresting a ship is a unique concept. A maritime claimant who has a maritime claim against a ship could only arrest in an action in rem in a circumstance where the plaintiff can show that he/she has a maritime lien or can show that the owner of the vessel would be liable in personam (i.e. a statutory lien). However, there is more complication to what maritime claims entail in different countries of the world. Most shipping jurisdictions have adopted the International Convention on the Arrest of Sea-going Vessels 1952 definition and outline of maritime claims. However, some maritime claims under the 1952 Arrest convention differ in interpretation when used in the national court. On this note, the curial question is what type of maritime claims constitute maritime liens because the recognized maritime liens differ from jurisdiction to jurisdiction. Thus, Nigeria and South Africa as former colonies of Britain have adopted relevant principles from the English admiralty law. Africa’s seaports are seen as the gateways for Africa growing a thriving international trade business. However, there is a lack of literature comparing two African jurisdictions to each other. On this note, due to the underutilized and understudied legal systems in Africa, it is paramount to compare and understand what constitute maritime claims in both countries and how they are being interpreted.
Navigating the complex maritime cyber regime: a review of the international and domestic regulatory framework on maritime cyber security.
(2019) Mthembu, Sibusisiwe Nothando.; Surbun, Vishal.
Modern shipping companies are reliant on the proliferation of refined technological advancements such as Electric Chart Display and Information Systems (ECDIS), Automatic Identification System (AIS), Global Maritime Distress and Safety System (GMDSS), Compass (Gyro, fluxgate, GPS and others), Computerised Automatic Steering Systems, Voyage Data Recorders – “Black box” (VDR), Radio Direction and Ranging or Automatic Radar Plotting Aid (Radar/ARPA). These technological advancements are vulnerable to cyber security threats. The prevalence of maritime cyber security incidents is increasing worldwide therefore it is imperative for the maritime industry to have legal regime in place that adequately regulates these cyber security threats. This dissertation undertakes a critical analysis of the legal framework governing maritime cyber security and the adequacy in combating maritime cyber threats. The first chapter will provide an introduction and background to maritime cyber security. The second chapter focuses on the different threats and vulnerabilities to maritime cyber security. In addition to this reference will be made to the types of cybercrimes and their possible ramifications. The third chapter will analyse the International regulatory regimes in place, regional regulatory framework and South Africa’s domestic laws regulating maritime cyber security. In the fourth Chapter a determination will be made as to the existence and adequacy of the law in combating maritime cyber threats and crimes. A conclusion will be derived from the findings of this dissertation, and recommendation will be submitted The purpose of this study is to establish whether, (a) the existing law applies to maritime cyber security threats at all, and, if so, what is the extent of the existing laws applicability to maritime cyber security threats? (b) whether the domestic and international legal framework is adequate, in respect to enforcement and comprehensiveness, to address/respond to maritime cyber security threats? and (c) whether it is necessary to establish new regulations to address maritime cyber security or develop existing laws?
The presentation of the bill of lading, a necessary evil: an examination of the legal implications of the misdelivery of cargo, owing to the non-presentation of the bill of lading, on the rights and duties of carriers and indorsees under South African and English law, and the Hague-Visby rules.
(2019) Rousseau, Chantelle.; Lamb, Deepa.
The transferable nature and function as a document of title allow for bills of lading to be transferred from one consignee to another and for its use as security. The transferring of the bill of lading down a chain of buyers often results in the bill not reaching the final consignee in time to collect the cargo at the port of discharge. The late arrival of bills of lading coupled with the traditional requirement of presentation thereof to obtain delivery of the cargo causes significant practical problems for carriers. In response to these practical problems, carriers have implemented practices to circumvent the presentation rule, such as delivering the cargo without the production of the bill of lading or delivering against a letter of indemnity. These practices have become quite common amongst carriers notwithstanding the possible legal consequences. A carrier that misdelivers the cargo owing to the non-production of the bill of lading will be in breach of its contractual duties and this will affect its rights to rely on the limitations and immunities provided for in the contract of carriage. This study aims to determine whether the presentation rule is a necessary evil and to examine the legal implications on the rights and duties of carriers and endorsees of the misdelivery of cargo owing to the non-presentation of the bill of lading. To determine the necessity of the presentation rule, the effect of the misdelivery of cargo owing to the non-production of the bill of lading on a carrier and endorsee’s rights and duties are considered in the context of the provisions in The Hague-Visby Rules. The enforceability of letters of indemnity under South African and English law is examined. Likewise, the relevant South African and English legislation is examined to determine a bank’s right as the holder of the bill of lading to institute an action against a carrier for the misdelivery of cargo. The effect of an electronic alternative on the presentation rule is also considered. This study was conducted through a literature review which included an analysis and review of legal sources such as legislative provisions, court judgments and academic opinions on the subject. This study concludes that notwithstanding the practical difficulties caused by the presentation rule, it is a well-established admiralty practice that serves a valuable purpose and should be adhered to as far as possible. The use of letters of indemnity to remedy the practical problems caused by the presentation rule is not a viable solution and a more modern and long term solution is needed. One such solution may be the implementation of electronic alternatives such as blockchain technology. However, in order to realise the use of blockchain technology the necessary legal reforms need to first take place.
A critical analysis of the effectiveness of the regulatory regime under the Polar Code and its application to the South African National Antarctic Programme.
(2019) Ncanini, Thuthukani Kenneth.; Surbun, Vishal.
A Critical Analysis of the Effectiveness of the Regulatory Regime under the Polar Code and Its Application to the South African National Antarctic Programme. The Polar Regions, the Arctic and Antarctic, have been experiencing severe ice melts which have resulted in the predictions that new shipping routes would open for vessels to navigate these regions. This proved to be disconcerting because, given the resultant ease with which the vessels would navigate the Polar Regions; this would invite more vessels and human presence to the Polar Regions. This would put the Polar environment at risk of pollution. The laws of the Artic Coastal states were applicable in the Arctic, whereas, the Antarctic Treaty System (ATS) governs the Antarctic region. However, these laws did not adequately regulate the protection of the Polar environment from pollution. In 2017, the International Maritime Organisation (IMO) responded to the threat on the Polar environment by introducing the International Code for Ships Operating in the Polar Waters (the Polar Code). The Polar Code brings uniformity to the laws that govern the Polar Regions, and it aims to provide for safe ship operation and protection of the Polar environment by addressing risks present in the Polar waters that are not adequately mitigated by other instruments of the IMO. The Polar Code seeks to achieve its goal by proposing the structural standards for every ship that would navigate the Polar waters. This dissertation will investigate the structural requirements of the Polar Code. The Polar Code differentiates between categories A, B, and C ships, and different requirements apply to these vessels. This dissertation will investigate the provisions of the Polar Code to determine whether they are sufficient in protecting the Polar environment. The study will then ascertain whether they apply to a South African vessel, S.A Agulhas II that frequently navigates the Antarctic waters for the purposes of the South African National Antarctic Programme (SANAP). This dissertation will discuss the development of the Polar Code, the provisions thereof that deal with safety of ship operation, the provisions that aim at protecting the Polar environment, and the shortcomings of the Polar Code. The discussion will then culminate on the implications of the Polar Code to the SANAP and make recommendations.
Irregular migration across the Mediterranean Sea: an analysis of safety and security regulatory measures.
(2018) Khan, Sharkirah.; Surbun, Vishal.
The phenomenon of ‘irregular migration’ by sea or ‘boat migration’ is not new, however, it has only recently caught the public’s attention since the Mediterranean ‘migration crisis’ in 2015. Historically, travelling by sea has been a dangerous journey for migrants and today, images of gruesome scenes of death in the Mediterranean Sea reveal the risks of ‘irregular migration’. This study was prompted by the need to provide insight into irregular migration at sea from the viewpoint of the irregular migrant by focusing on the perils and risks that are faced by irregular migrants on their journeys across the Mediterranean Sea. The aims and objectives of this study were to critically analyse the current legal framework that seeks to protect irregular migrants from the risks faced on their voyage across the Mediterranean Sea and to evaluate the gaps and shortcomings in this respect. The study shows that although the crisis of 2015 led to spikes in the death toll, the Mediterranean Sea is still a deadly route for irregular migrants today. This fact is followed by findings of all the safety and security risks faced by irregular migrants. Having identified all the safety and security risks faced at sea, the study goes on to discuss and analyse the legal framework in place that offers protection to irregular migrants from these risks. The protection available is then critically analysed and protection gaps as well as other shortcomings are identified. Following the findings and protection gaps, recommendations are made that creating a new binding legislation may be necessary and if not, then the existing legal framework should be amended. The existing legal framework should be amended so that it is more comprehensive and clarifies the definitions and content of certain key terms that adversely affect the protection available to irregular migrants.
The application of foreign law to South African marine insurance contracts: a critical analysis of the case of The Representatives of Lloyds & Others v Classic Sailing Adventures (Pty) Ltd, in reference to section 6 of the Admiralty Jurisdiction Regulation Act 105 of 1983.
(2018) David, Jesse.; Donnelly, Dusty-Lee.
It is trite that the development of marine insurance law in South Africa has been heavily influenced by its English counterpart. While English law and precedents may not be binding on South African courts, they do hold certain persuasive authority, especially in the realm of marine insurance. This dissertation aims to provide an analysis on the application of section 6 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and the manner in which it has been utilised by South African courts. In the case of The Representatives of Lloyds & Others v Classic Sailing Adventures (Pty) Ltd., the decision concerned a complex conflict of laws owing to the existence in the contract of insurance of a choice of law clause which provided for the application of English law within South African jurisdiction. Reference will also be made to the manner in which the court in the above case approached the conflict of laws, illustrating that South African law provisions and, in particular, mandatory provisions of domestic statutes, were formulated to be applicable; and that to the extent that English law was inconsistent with the domestic law, it was not applied.
The role of the demise clause in identifying the carrier under bills of lading.
(2017) Naidoo, Terina Simone.; Donnelly, Dusty-Lee.
No abstract available
Examining the rights of consumers who may have purchased defective vehicles.
(2019) Maharaj, Pranisha.; Woker, Tanya Ann.
My topic deals with the rights that consumers have if they are concerned that they may have purchased a defective vehicle. The main focus of my paper is to discover whether there is anything that consumers can do if they are in possession of vehicles which they suspect are defective, but where the defects have not yet manifested themselves. When vehicles are defective it becomes a great concern for consumers as the vehicles may pose a danger to their lives and also because many of them have taken out credit agreements in order to purchase their vehicles. There are various remedies under the common law and in terms of the Consumer Protection Act 68 of 2008 (CPA). The CPA provides certain rights to consumers who purchase defective vehicles. However, there are limitations when utilising these remedies. It is also often the case that consumers do not want their vehicles any longer. However, they are unable to dispose of them because there is no re-sale market for such vehicles. A vehicle recall is the best option for consumers under such circumstances. The recall can be issued by the National Consumer Commission (NCC) if the manufacturer does not do so. However once the recall is issued there is no guarantee that consumers would be relieved of their vehicles completely. Sometimes the manufacturer may only repair the vehicles and return it back to consumers. This would depend on the seriousness of the defect in the vehicle. The aim of this paper is to assist consumers and make them aware of what options are available to them if they may be in possession of a vehicle which they suspect is defective but where the defects have not yet arisen. This has become a major issue recently as there have been many reports of certain models of vehicles having defects and where a man had even lost his life a result of those defects.
Seaman’s lien: a South African perspective on seaman’s lien post the Supreme court of appeals decision in the Asphalt Venture Windrush Intercontinental SA v UACC Bergshav Tankers as 2017 (3) SA 1 (SCA)
(2019) Nzimande, Nompumelelo Noluthando Surprise.; Zondi, Khulekani Khetha.
The seaman’s lien is a well-recognised maritime lien. The advancement of the lien may have been swayed by public policy and the need to protect the seaman. The premise of the lien is that a service was rendered to the ship rather than acknowledging the seaman’s contract of employment. Affording seamen the right to approach the courts based on an action in rem, affords seamen the opportunity to speedily recover their claims. Of importance to us in this thesis will be the discussion around the seaman’s wages lien with a focus on the case that came before the Supreme Court of Appeals namely The Asphalt Venture Windrush Intercontinental SA and Another v UACC Bergshav Tankers AS (“Windrush”) 2017 (3) SA 1 (SCA). In this case the second appellant, the Asphalt Venture, was arrested at the Durban port by the respondent for wages that had been ceded and assigned to the respondent by the seamen’s families who had not had the seamen’s wages paid out by the previous owners of the Asphalt Venture. During the employment contracts between the previous owners and the seamen, the Asphalt Venture and her crew were held hostage by Somali pirates which caused great financial difficulties for the previous owners. Although the employment contracts terminated whilst the crew were held hostage, the previous owners continued to pay the hostages families the wages until they could no longer afford to. The crisp issue facing the court was whether a seaman’s lien existed in terms of the employment contracts between the seamen and the Asphalt Venture. Secondly whether a maritime lien can be ceded or assigned to another person. Further, whether the attack by the Somali pirates constituted a supervening impossibility with regards to the employment contracts. This research paper will focus provide on maritime liens, providing the historical background on liens and the seaman’s lien internationally in South Africa. Thereafter our focus will be the decision of the court a quo and the Supreme Court of Appeal in the Windrush decision. Finally, a discussion on piracy and the applicability of the doctrine of impossibility in contracts of employment for seamen, and the findings and recommendations of the writer.
The basis of the carrier’s liability and the burden of proof in cargo claims arising under contracts for the carriage of goods by sea evidenced by bills of lading.
(2018) Chetty, Nivani.; Donnelly, Dusty-Lee.
The burden of proof in maritime law has proven to be an issue in some of the cases that pertain to cargo claims. It is therefore important to analyse and compare the basis of liability and the burden of proof in the various international maritime regimes, being the Hague/Hague-Visby rules, the Hamburg rules and the Rotterdam rules. The Hague/Hague-Visby rules were formed in order to aid in the operations of international maritime trade and to create a balance in the risks between the carrier and the cargo owner. The Hamburg rules were then drafted as its drafters were of the view that the Hague/Hague-Visby rules had failed to create a balance between the carrier and cargo owner’s interests. It was hoped that this regime would lead to uniformity within maritime trade, however, the regime has not been widely adopted. The Hamburg rules is said to have further frustrated the laws relating to maritime trade, however it did change the fault based system from proved fault to presumed fault. This change in the system of fault requires an analysis to determine whether or not it impacts the outcome of the cases. The latest regime that was drafted with the object of reaching uniformity and creating a modernised multimodal regime which no other regime has ever done, is the Rotterdam rules. The Hague/Hague-Visby rules are therefore regarded as outdated as they do not take the modern technologies into consideration. The proponents of the Rotterdam rules take the view that this regime will in fact reach its objective whilst the detractors believe that it will only fragment the laws of maritime trade further. The incidence of the burden of proof and the basis of the carrier's liability is an important question and given the impact on cargo claimants (who may be South African shippers or consignees) it is a consideration that may assist in determining whether it would be in the interests of South Africa to retain the Hague/Hague-Visby rules or consider ratifying either the Hamburg rules or the Rotterdam rules.

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