Browsing by Author "Donnelly, Dusty-Lee."

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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 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.
Civil liability for damage caused by oil pollution from off-shore platforms : a comparative analysis of international and domestic instruments.
(2013) Blom, Karl.; Donnelly, Dusty-Lee.
This dissertation addresses the question of liability for oil spills emanating from offshore installations, beginning with an analysis of international law, specifically international customary law, global conventions and regional agreements. Following the analysis of the present international law, a number of proposals are considered in motivation of a global convention specifically addressing offshore platforms. Key areas addressed are the scope of the proposed convention, the standard of liability imposed, the quantum of liability suggested, financial security measures, dispute resolution proceedings and alternatives to a global convention. Legal instruments discussed in this portion include the United Nations Law of the Sea Convention, the International Convention on Civil Liability for Oil Pollution and a number of global and regional legal instruments. This discussion will also draw analogies with the nuclear compensation regime in motivation for strict liability between States. The domestic legal framework of the United States of America and South Africa are discussed and contrasted. The primary federal marine pollution legislation of the USA, the Oil Pollution Act of 1990, is compared to South Africa’s Marine Pollution (Control and Civil Liability) Act 6 of 1981 in order to determine which provisions are successful and which ought to be amended or supplemented. Other sources of South Africa law considered include the National Environmental Management Act 107 of 1998, the Maritime Zones Act 15 of 1994, the Admiralty Jurisdiction and Regulation Act 105 of 1983 as well principles of South African common law. The objectives of this research are to identify all the international and domestic legal instruments that are applicable to offshore platforms, critically evaluate their provisions and propose realistic amendments and instruments that resolve any lacunae or weaknesses that are identified.
A comparative study of the paper and electronic bill of lading under South African law.
(2017) Ngcobo, Sanelisiwe Princess.; Donnelly, Dusty-Lee.
A bill of lading is a document which is acknowledged as a cornerstone in any sea contract of carriage. It is the most significant document facilitating transportation in international sale contracts. The court recognise it as a document of dignity and integrity demanding judicial protection. The paper bill of lading is used world-wide to document and effect international trade. Due to its characteristics of being utilized as a receipts, as evidence of contract and as document of title, traders have scrutinised the capabilities of an electronic bill of lading to replicate these functions. The purpose of this study is to compare the extent to which an electronic bill of lading might be recognised as legally valid under South African law. In so doing, firstly, the functions of the paper and electronic bill of lading will be considered. Relevant legislative and case law issues will also considered where appropriate. Secondly, private registries which have been approved by International groups of P & I clubs governing will be discussed. Finally, the issue of whether an electronic bill is sufficiently competent to replicate the major functions of a paper bill, with specific reference to the document of title function will be discussed.
A critical discussion of the enforceability of maritime liens against bona fide purchasers.
(2013) Hadebe, Thandeka B.; Donnelly, Dusty-Lee.
The law of maritime liens has been a subject of great uncertainty for a long period of time and there has not been any unanimity in terms of certain aspect of this concept. Domestic law vary with regards to the recognition and enforcement of maritime liens. In an attempt to settle some of the uncertain aspects of maritime liens, three international conventions have been adopted to set out a universal list of maritime liens as well as to make uniform the mode of enforcing those maritime liens. The first attempt to achieve uniformity in the law of maritime liens was the International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1926. However this convention did not receive acceptance in most jurisdictions. In 1967, a similar convention was formulated but like its predecessor, it was also not a success. The latest Convention was formulated in 1993 but despite the inclusion of seemingly attractive provisions in terms of ranking and classification of maritime claims, it also failed to get the required accessions and ratifications. This persistence by the international community in trying to regulate maritime liens serves as proof to show that admiralty law is faced with many challenges and inexplicable principles when it comes to maritime liens. This dissertation will grapple with what some may call a very old and distinct aspect of maritime liens, that is, its enforcement against buyers for value without notice. This aspect may very well be common with other types of liens but taking into consideration some of the reasoning behind its existence, perhaps the time has come to look into this issue.
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.
The development of Environmental Salvage and the 1989 Salvage Convention: the proposed amendments to the 1989 Convention and the issues regarding the assessment of Environmental Salvage Awards.
(2017) Cele, Sheila.; Donnelly, Dusty-Lee.
The International Salvage Union (ISU) believes that it is time to reconsider its provisions and amend the 1989 Salvage Convention to create a separate and distinct environmental salvage award. ISU is of the opinion that the present systems under the 1989 Salvage Convention and SCOPIC do not provide proper recognition of the salvor’s efforts in protecting the environment. For a long time, salvage was concerned with the principle of no cure no pay. In order to overcome this the 1989 Convention introduced the salvor’s skill and effort to minimize or prevent damage to the environment as a criteria for fixing rewards in terms of Article 13; and Article 14 which allows for a special compensation to be paid even where no property was saved provided there were efforts to protect the environment. Due to difficulties with Article 14 SCOPIC was introduced, which is a clause that can be incorporated under the LOF. This dissertation will critically analyze the ISU’s proposed amendments of the 1989 Salvage Convention and to consider whether this should be incorporated into the South African Wreck and Salvage Act, 1996.
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.
An examination of the application of the Sea Transport Documents Act 65 of 2000 to title to sue under contracts of carriage evidenced by sea waybills and straight bills of lading.
(2013) Donnelly, Dusty-Lee.; Wallis, Malcolm John David.
The Sea Transport Documents Act, 65 of 2000, was a remedial statute intended to provide a solution to the problem of title to sue under the contract of carriage evidenced by sea transport documents. At common law a contract of carriage is not transferable. The contract of carriage is ordinarily concluded between the shipper and the carrier. The consignee lacks title to sue yet in terms of international sale contracts on C.I.F and F.O.B terms the consignee would be the person who stood to suffer the loss as risk in the goods passes from seller to buyer when the goods are loaded on board at the port of shipment. The Act provides a mechanism to transfer the contractual rights and liabilities with the transfer of the sea transport document. However section 2(2) restricts the application of the relevant provisions to documents that are ‘transferable or negotiable’. By custom of merchants bills of lading made out ‘to order’, and bearer bills of lading, are transferable and negotiable. However, straight bills of lading and sea waybills are made out to a named consignee only. These modern forms of sea transport document are increasingly popular and offer many advantages to traders and ocean carriers. Yet they are both regarded as non-negotiable. The dissertation examines the interpretation of the terms ‘transferable’ and ‘negotiable’ as they came to be applied to both negotiable instruments and bills of lading, and considers current academic and judicial opinion on the meaning of these terms. The provisions of the Sea Transport Documents Act are analysed, and compared to the remedies provided in the Carriage of Goods by Sea Act, 1992 (United Kingdom), similar legislation in other commonwealth countries and the law in the United States and Europe. Finally alternative means of establishing title to sue, including the stipulatio alteri, are considered.
"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.
An investigation of the liability of transnet national ports authority and ship-owners for the conduct of pilots in the compulsory pilotage ports of South Africa.
(2013) Kaye, Geraldine Rosemary.; Donnelly, Dusty-Lee.
South African ports are regulated by a compulsory pilotage system. This means that when a vessel enters or leaves any of the South African Ports regulated by Transnet National Ports Authority, this vessel is obliged by law to utilize a pilot to navigate the vessel safely into and out of the port. The reason for doing so is to reduce the risk of incidents that occur within the ports due to the fact that the pilots have specialized knowledge of the port’s specific conditions. However, collisions may still occur in these ports. One such incident is the collision of the MV Stella Tingas. The case of the MV Stella Tingas brought to light the unacceptable situation created by the lacunae in the Legal Succession To The South African Transport Act of 1989, where the innocent vessel that was involved in a collision with a vessel under compulsory pilotage could not get satisfaction for damages from either the ship-owner of the guilty vessel or from the Port Authority. In order to resolve this position, the Legislature enacted the National Ports Act 12 of 2005, specifically section 76, to resolve this problem. Section 76(2) states that the ship-owners of vessels under compulsory pilotage will be liable for all actions of a pilot, whilst section 76(1) provide that the Port Authority will not be liable for actions of the pilot done in good faith. The National Ports Act has however not defined good faith and the courts have not interpreted this concept since the commencement of the Act. This dissertation will investigate what good faith is, by examining exclusionary clauses and by exploring the concepts of gross negligence and intention in order to ascertain whether good faith excludes these concepts. Thereafter the dissertation will seek to discover a test that can be used in order to assess whether the actions of the pilot were done in good faith or not. The dissertation will trace the history of compulsory pilotage from its origins in English Law to South African law. It will also examine the relationship between the master and the pilot as well as the circumstances where the master can intervene in the affairs of the pilot, by ascertaining what an emergency is, as contemplated by the National Ports Act.
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.
Piracy and privately contracted armed security personnel : a comparative analysis of the global response to the deployment of armed guards on board merchant vessels and South Africa's policy as a port and coastal state.
(2014) Courtois, Gareth.; Donnelly, Dusty-Lee.; Bellengere, Adrian Hugh.
This study examines the policies adopted by flag and port states to govern the use of armed guards on board merchant vessels. The International Maritime Organisation and a number of member states’ responses to the use of armed guards on board ships are discussed. The focus of this study is the South African policy on privately contracted armed security personnel intending to embark or disembark in a South African port with arms and ammunition. The question of whether South Africa allows armed guards in its territory is addressed, as well as the requirements and conditions attached to such permission. The dissertation concludes by recommending that the Regulations to the South African Firearms Control Act 60 of 2000 should be amended in order to give effect to and streamline the permit process for foreign security firms.
Privacy by (re)design: a comparative study of the protection of personal information in the mobile applications ecosystem under United States, European Union and South African law.
(2020) Donnelly, Dusty-Lee.; Thaldar, Donrich Willem.
The dissertation presents a comparative desktop study of the application of a Privacy by Design (PbD) approach to the protection of personal information in the mobile applications ecosystem under the Children’s Online Privacy Protection Act (COPPA) and the California Consumer Protection Act (CCPA) in the United States, the General Data Protection Regulation (GDPR) in the European Union, and the Protection of Personal Information Act (POPIA) in South Africa. The main problem considered in the thesis is whether there is an ‘accountability gap’ within the legislation selected for comparative study. This is analysed by examining whether the legislation can be enforced against parties other than the app developer in the mobile app ecosystem, as it is theorised that only on this basis will the underlying technologies and architecture of mobile apps be changed to support a privacy by (re)design approach. The key research question is what legal approach is to be adopted to enforce such an approach within the mobile apps ecosystem. It describes the complexity of the mobile apps ecosystem, identifying the key role players and the processing operations that take place. It sets out what is encompassed by the conceptual framework of PbD, and why the concept of privacy by (re)design may be more appropriate in the context of mobile apps integrating third party services and products. It identifies the core data protection principles of data minimisation and accountability, and the nature of informed consent, as being essential to an effective PbD approach. It concludes that without strengthening the legal obligations pertaining to the sharing of personal information with third parties, neither regulatory guidance, as is preferred in the United States, nor a direct legal obligation, as created by article 25 of the GDPR, is adequate to enforce a PbD approach within the mobile apps ecosystem. It concludes that although a PbD approach is implied for compliance by a responsible party with POPIA, legislative reforms are necessary. It proposes amendments to POPIA to address inadequacies in the requirements for notice, and to impose obligations on a responsible party in relation to the sharing of personal information with third parties who will process the personal information for further, separate purposes.
The role of the demise clause in identifying the carrier under bills of lading.
(2017) Naidoo, Terina Simone.; Donnelly, Dusty-Lee.
No abstract available
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.
Title to sue under contracts of carriage of goods by sea: a comparative analysis of transfer of contractual rights and liabilities under a bill of lading in English and South African law.
(2016) Malangu, Emmanuel Kangolo.; Donnelly, Dusty-Lee.
In carriage of goods by sea the bill of lading is the document through which third parties acquire contractual rights and liabilities. The bill of lading is thus the document which provides title to sue to third parties. Having said that, the bill of lading is very important in determining when and under what circumstances such rights and liabilities are acquired. It is therefore important in cargo claims that either the consignee or the carrier ascertains their rights and liabilities under the bill of lading before instituting legal action. A claim instituted against the wrong party will not be entertained by the Court. South African maritime law was based on the English Bills of Lading Act, 1855. That Act has been replaced by the Carriage of Goods by Sea Act 1992 c.50 (COGSA 1992), which is the Act regulating title to sue in the United Kingdom. The enactment of the South African Sea Transport Documents Act 65 of 2000 (STDA) was inspired by COGSA 1992. Many other countries like New Zealand and Australia have adopted provisions similar to the COGSA 1992. The purpose of this study is to critically analyse the concept of title to sue in cargo claims under a negotiable bill of lading. The focus shall be on the relevant provisions of the South African Sea Transport Document Act 65 of 2000 and the UK Carriage of Goods by Sea Act (C.50) of 1992.