Maritime Law

Permanent URI for this communityhttps://hdl.handle.net/10413/8382

Browse

Now showing 1 - 20 of 49

The arrest of ships in German and South African law.
(1988) Schlichting, Mathias Peter.; Staniland, Hilton.; Trappe, Johannes.
This thesis compares the arrest-of-ship proceedings of the Republic of South Africa and the Federal Republic of Germany. In German law the more than a century old provisions of the Code of Civil Procedure (as amended) are applicable, in South Africa the major statute is the Admiralty Jurisdiction Regulation Act of 1 November 1983. South Africa has special Admiralty Courts having jurisdiction in arrest matters. When issuing the arrest in Germany, jurisdiction is vested in the court dealing with the principal matters, as well as in the Magistrate Court (Amtsgericht) in which district the property (such as the ship which is to be arrested) is located. Both German and South African law provide that a creditor who wishes to arrest a ship must have a "claim for an arrest." In South African law such a claim is called a "maritime claim." South African admiralty law contains some special and even unique provisions such as those regarding the arrest of an "associated ship." These provisions attempt to defeat the strategy against sister-ship-arrests and enable the courts to arrest ships owned by the person who was the owner of the ship concerned at the time the maritime claim arose. The court can also arrest a ship owned by a company in which the shares were controlled or owned by a person who then controlled or owned the shares in the company which owned the ship concerned. Ships will be deemed to be owned by the same Persons if all the shares in the ship are owned by the same persons. A person furthermore will be deemed to control a company if he has the power to control the company directly or indirectly. Deviating from common law principles which require the physical presence of the property to be arrested, the South African courts can order anticipated arrests of a ship not yet within the area of jurisdiction of the court at the time of application. Such an order may be brought into effect when the property (in this case, the ship) comes within the area of jurisdiction of the court. The same principle is applicable in German law and does not contravene para 482 HGB because this provision only prohibits placing a ship under distraint and not the order for an arrest. In German law an action in personam is only directed against a person whereas in south African law a res, eg a ship or her bunkers, is the object of the admiralty action in personam. The Admiralty Jurisdiction Regulation Act of 1983 attempts at uniformity with international law as it is based on several existing laws and international conventions, for example the International Convention for the Unification of Certain Rules Relating to Arrest of Seagoing Ships of 1952. Unlike Germany, South Africa is not, however, a signatory to the International Arrest Convention of 1952. When applying German law, it has to be noted that Germany has ratified the Convention on Jurisdiction and the Enforcement of Judgments in CiviI and Commercial Matters of 1968 (the EEC-Convention) - this is particularly so when trying to enforce the arrest of ships. Regulations Concerning the limitation of liability in South Africa can be found in ss 261 to 263 of the Merchant Shipping Act of 1951. In German law limitation of liability is codified in paras 486 to 487e of the Commercial Code (HGB) with reference to the International Convention on Limitation of Liability for Maritime Claims of 1976 (the 1976 Convention). This thesis shows that in certain fields South African and German provisions do not deviate or are at least substantially similar. This fact makes the application of both laws easier for litigants and lawyers, either for South Africans in Germany or Germans in South Africa.
The nature of the action in rem.
(1986) Jeffrey, Alexander Gordon.; Staniland, Hilton.
No abstract available.
A review of developments in the nature and law of maritime piracy.
(2008) Surbun, Vishal.; Jeffrey, Alexander Gordon.
No abstract available.
A comparative analysis of the civil liability and fund conventions, Tovalop and Cristal, the U.S. Federal Oil Pollution Act and U.S. state legislation, as legal mechanisms regulating compensation for tanker- source oil pollution damage as of February, 1994.
(1994) Hunt, John Edward Vere.; Staniland, Hilton.; Glavovic, Peter Dusan.
The purpose of this thesis is to explain and evaluate the law concerning compensation for tanker-source oil pollution damage under three different liability regimes: (a) the International Convention on Civil Liability for Oil Pollution Damage, 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 including the Protocols of 1976, 1984 and 1992 to these Conventions. (b) the Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution (TOVALOP) and the Contract Regarding a Supplement to Tanker Liability for Oil Pollution (CRISTAL) as at the 20th February, 1994. (c) the United States Oil Pollution Act of 1990 and U.S. State Legislation. In this context the thesis explains inter alia the evolution of law from fault to no-fault liability and from limited to increasingly limitless liability. The thesis examines the notion of damage eligible for compensation, for example, ecological and pure economic damage. Conclusions are reached as to the role increasingly stringent liability provisions may have on the quality of the tanker-process. The impact that the U. S. Oil Pollution Act 1990, and associated U.S. state legislation may have on the international pollution regimes covered by the various international Conventions and associated voluntary agreements is also discussed.
The recognition, transfer and extinction of maritime liens in South African law.
(1994) Barge, Robert James.; Staniland, Hilton.
No abstract available.
Analysis of the provisions of the Environmental Conservation Decree no.9 of 1992 (Transkei) for the conservation of marine resources with specific reference to patterns and problems of exploitation.
(1995) Sobekwa, Aurelia Nosipo.
Abstract not available.
Abandonment in marine insurance law : an historical comparative study.
(1996) Marnewick, Christiaan Georg.; Staniland, Hilton.
This study follows upon an LLM thesis in which the writer submitted that South African marine insurance law should be allowed to develop by way of a codification process which co-ordinates research of the principles of Roman-Dutch law . Abandonment is defined as a special remedy available to the assured under a marine insurance policy in in special circumstances. It is related to the indemnity principle and subrogation and , operates as a method of transferring real rights. The reasons for the research are examined and the historical-comparative method is proposed as the appropriate rearch method. An historical review of the origins and early history of indemnity insurance is undertaken . It reveals that abandonment is an original institution of marine insurance which has been imported into to the legal systems of the countries of western Europe and England . After recounting the historical developments in customary and statute law pertaining to abandonment spanning the period from the birth of marine insurance to the end of the eighteenth century, the principles of abandonment currently applicable in Dutch, German, French, English and American law are analyzed and compared in order to determine what the basic rules of abandonment are. In this process certain common principles of abandonment are identified and arranged into a set of basic rules. The theoretical implications of abandonment and its relationship with the indemnity principle and subrogation are considered in order to arrive at some conclusions with regard to the origins of abandonment, its functions as a servant of the indemnity principle and its links with economic loss as a species of indemnifiable loss. It is concluded that the purpose of abandonment is to compensate for a loss which is wholly or partially economic in nature. Abandonment as a means of transferring real rights without formal delivery of the abandoned things is discussed against criticism by others that abandonment does not have the effect of transferring real rights in South African law. The development of abandonment principles in South Africa after 1652 is investigated against the background of the original customary law which applied in Europe, the local ordonnances which were promulgated in the towns of Holland between 1563 and 1744, the writings of the most important Roman-Dutch authors and developments in South African statute and case law. This allows the basic principles of abandonment in the law of the countries used for comparison and arrived at by the historical-comparative method to be compared to the principles of abandonment in the Roman-Dutch law of the seventeenth and eighteenth centuries and to current South African law. It is concluded that, whilst there are unimportant differences, the South African common law recognizes the same basic rules of abandonment as the classic Roman-Dutch law, recent Dutch law and current German, French, English and American law. In the- discussion of South African case law it is pointed out with reference to Roman- butch, English, French and Dutch authorities that an injustice has been done in the case of the 'Morning Star' . Three general recommendations are made with regard to the future development of South African law, namely that total loss should be recognized as a separate category of loss, that it is unnecessary to import the concept of a constructive total loss into South African law, and that the insurer should be allowed to decline receiving transfer of ownership of the abandoned ship or goods. The principles of abandonment are also stated on three different bases, allowing the South African legislature to choose its own model, namely: those which apply in South African law as the inherited Roman-Dutch principles; those which apply in English law, firstly as they applied prior to codification in 1906 and secondly as they now apply under the Marine Insurance Act 1906; and lastly those which the writer recommends should be taken up in a proposed South African marine insurance act . Case law is stated as at 31 December 1995. In the case of English law the wealth of material has made it necesary for the author to use his own discretion on the question whether any particular case or work was worthy of a mention .
"A review of measures to combat illicit drug trafficking and trade : a domestic maritime perspective"
(2012) Dedekind, Amy Paula.; Surbun, Vishal.
From a survey of media reports and other documentary sources, illicit drug trafficking and trade seems to be a prevalent problem in South Africa today. Drugs are being shipped undetected in containers, which poses a significant threat to maritime security. The drug trade is also having a negative impact upon one of South Africa's valuable resources, abalone. It appears that there is a substantial nexus between the poaching of abalone and the illicit drug trade in South Africa. Abalone is considered to be a delicacy in the East and research shows that a substantial amount of drugs in South Africa has originated from the illicit trade of abalone. v This dissertation will examine illicit drug trafficking and trade with particular reference to the maritime industry which facilitates this illicit trafficking and trade through ineffective security measures governing containerisation; and also through the abalone trade. A survey of media reports, articles, reviews, Institute for Security Studies papers, books and the World Drug Report 2012 set the scene of illicit drug trafficking and trade in South Africa as being prevalent and damaging to the country's security measures. A review of South Africa's domestic legislation and the international conventions to which it is party is necessary to determine whether the law governing illicit drug trafficking and trade is adequate to address the issues highlighted above. The focus of this dissertation will then shift to wards the issues surrounding implementation and enforcement of these laws. The enforcement and implementation of the law seems tainted by corruption, lack of skills and morale and inexperience and therefore these issues need to be addressed in order to fully combat illicit drug trafficking and trade in South Africa's maritime industry.
Maritime piracy : a critical analysis of current prosecutorial challenges and shortcomings of international and domestic law.
(2012) Pillay, Rohini.; Surbun, Vishal.
Modern maritime piracy is cause for major concern around the world. Although there have been preventative measures deployed by maritime nations to counter the crime, there is a need to develop an efficient regime to prosecute pirates. The general modus operandi that is employed by arresting-vessels is a 'catch-and-release' procedure, which means that there are no further steps taken to bring these pirates to account for their crimes. The purpose of this dissertation is to analyse the main challenges that face domestic judicial systems in prosecuting pirates of the high seas. Chapter 1 of this Dissertation sets out the parameters of the study, followed by Chapter 2 which will detail current international instruments that specifically relate to the crime of maritime piracy. This would include an examination of the successes and shortcomings of the piracy provisions of UNCLOS Articles 1 00 - 107, the recent UNSC Resolutions, SUA, and the IMO as well as discuss the 1MB PRC and other Regional Agreements in place to counter piracy and provide for the successful prosecution of suspected pirates. Chapter 3 will focus on the prosecutorial problems dealing with the crime of piracy that face judicial bodies around the world. The Chapter will highlight and discuss the various political and human rights issues that have discouraged the majority of states from prosecuting suspected offenders of this crime, as well as their reluctance to exercise universal jurisdiction over piracy. In addition, the recent Kenyan ad hoc piracy tribunal decisions will be discussed in order to assess the lack of uniformity in the interpretation and application of international law piracy provisions as against domestic law. Chapter 4 examines the South African Law and Policies in place that counterpiracy, and also considers whether South Africa could exercise jurisdiction over piratical matters. Thereafter, Chapter 5 proposes recommendations that may be employed in order to bring about a much needed uniform approach to the successful prosecution of suspected pirates. Lastly, Chapter 6, shall comment and conclude on the findings of the previous chapters.
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.
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.
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.
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.
The regulation of the removal of hazardous shipwrecks in South African waters and a discussion on the adoption of the Nairobi International Convention on the Removal of Wrecks, 2007.
(2013) Ramsakkan, Yinita.; Surbun, Vishal.
International trade in large amounts of commodities resulted in the recent growth of the shipping industry. With larger ships being constructed to meet land based demands for various types of commodities combined with the unpredictable and often perilous conditions at sea, the risk of a shipwreck arising becomes more likely. Not only do these wrecks pose a danger to the environment and to navigation but also, in the event of the shipowner escaping liability by abandoning the wreck for instance, the state affected by the wreck finds itself financially burdened by the costs involved in having the wreck removed. Moreover, an affected state cannot intervene and impose conditions to the shipowner to have a wreck removed if it occurred in its exclusive economic zone because the state’s jurisdiction is limited to preserving natural resources. Thus, despite drifting cargo and the ship itself posing a hazard to coastal states, they had no authority to intervene and issue a wreck removal notice. Recognising these safety concerns and lacunae in international law, the International Maritime Organisation formulated the Nairobi International Convention on the Removal of Wrecks, 2007, (“Nairobi Convention”) which was aimed at governing the regulation of removing wrecks whilst imposing strict liability on the shipowner, subject to the other liability Conventions and limitation of liability. However, after a survey was conducted by the Comitè Maritime International it was also established that national laws of many states such as the United Kingdom (“UK”) and South Africa were inadequate to enforce liability claims for costs incurred in removing a wreck. As a result, the Convention allows contracting states to apply the provisions of the Convention to their territorial sea. This dissertation will discuss relevant provisions of the Nairobi Convention and illustrate how it has been implemented and consequently reformed the law of the United Kingdom. The dissertation will then analyse the implementation strategy which enforces the Convention in the UK, with the aim of providing a suggestion of how South Africa should enforce the Convention into its national laws. This will lead to an assessment of the current legislative framework governing wreck removal in South Africa with the aim of establishing whether the law is need of reform and how this should be facilitated.
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.
15 years on, has the legal Pandora's Box yet to be sealed? : a critical analysis of the majority in the Heavy Metal case and determination of the correct interpretation of the concept of 'control' as it relates to associated ship arrests.
(2015) Mohamed, Faried.; Gevers, Christopher Carl.
In respect of company law, there are two main principles that govern it. The first principle is that a company is a juristic person, having a separate legal identity and thus existing separately from the individuals who stand behind the corporate veil and enjoy the benefits of the company. The second principle is that of limited liability. Collectively, these two principles aim to promote capital investment whilst limiting the liability of potential investors. In the maritime industry however, these two principles serve an entirely different purpose. Ship-owners form ‘one-ship’ companies where each vessel within the same fleet is registered under the name of a different shipping company. Hence due to the separate legal identity of companies, claimants could only proceed against the guilty ship. In 1983 South Africa enacted its reform legislation by introducing the Admiralty Jurisdiction Regulation Act with the aim to provide consistency and certainty within the legal sphere of the maritime industry. In doing so, the legislature saw the opportunity to remedy the mischief created by ‘one-ship’ companies by introducing the associated ship provisions which based the central enquiry in such arrests on ‘common-control’ rather than ‘common ownership’. Thus, the purpose of the provision was to provide claimants with a mechanism to penetrate complex corporate structures so as to locate and hold the true debtor in a maritime dispute liable. The general understanding therefore in associated ship cases was that the provisions concerned themselves with the ultimate or actual control of a shipping company. The leading case in interpreting the term ‘control’ is the Heavy Metal wherein the SCA adopted a restrictive and narrow understanding of ‘control’ which centralised the enquiry on the registered shareholder of a ship-owing company and in doing so, allowed for the existence of two repositories of control. It therefore allowed an association to be formed on the basis that the companies in question shared a common majority nominee shareholder without considering the fact that such a person may hold the said shares for two different entities. In this manner, the judiciary opened a ‘legal Pandora’s box’ in the sense that it created confusion and uncertainty in respect of the meaning to be acquainted to the term ‘control’. This dissertation will trace the background and history of the associated ship provisions so as to determine its nature, scope and underlying purpose. It will also conduct an investigation of the provisions and the relevant case law in order to determine what is meant by the term ‘control’. Lastly the dissertation will determine the correctness of the Heavy Metal case and its legal impact on courts applying its ratio.
Understanding the international ship and port facility security (ISPS) code : an examination of the implementation and effectiveness of the ISPS code.
(2016) Ramsaroop, Shantal.; Lamb, Deepa.
It all started with a bang! Maritime security drastically evolved due to the tragic events of 11 September 2001(9/11), when a series of coordinated terrorist attacks were made on the United States of America. This unprecedented and catastrophic incident of terrorism shocked the world but more importantly drew the attention of the international maritime security authorities to the vulnerabilities of the seaports to acts of terrorism and other criminal threats. The most significant international agreement relating to maritime safety and security is the 1974 International Convention for the Safety of Life at Sea (SOLAS), and this agreement was amended in 2002 in London, to include a new provision, that is the International Ship and Port Facility (ISPS) Code. The ISPS Code is in essence a framework of maritime security measures designed to enhance the security of ships and port facilities. This dissertation is a study of the ISPS Code, an analysis of the regulatory provisions of the ISPS Code, its implementation and impact. The ISPS Code was implemented on 01 July 2004 and currently applies to 162 States that are contracting governments to SOLAS. This study has four chapters, chapter one sets out the background to the development of maritime security and it includes a regional perspective on maritime security as well as a status update on the main commercial ports in South Africa. Thereafter, chapter two is dedicated to providing the reader with an understanding of the provisions of the ISPS Code, describing its purpose, objectives and key elements. Chapter three focuses on maritime security and terrorism. It provides the reader with summaries of maritime incidents that occurred prior to the implementation of the ISPS Code as well as incidents that took place after its implementation in order to assess its success in achieving its objectives of enhancing international maritime security. Finally chapter four provides a detailed analysis of the implementation and impact of the ISPS Code in South Africa as well as it implementation in other signatory countries of SOLAS such as Singapore, Iran and the United Kingdom. This chapter then concludes with recommendations made to the International Maritime Organisation to enable it to improve on its mandate of maritime security.
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.
The Rotterdam rules : to what extent do they provide appropriate solutions to the shortcomings of the Hague-Visby rules and the Hamburg rules with regard to multimodal transportation, the carrier’s seaworthiness obligation and the nautical fault defence?
(2016) Andrews, Michelle Debbie.; Lamb, Deepa.
Modern international carriage of goods by sea is largely regulated by various international conventions. Such regimes include the Hague Rules, the Hague-Visby Rules and the Hamburg Rules. We may also look to national and regional hybrid regimes that incorporate various elements of these international conventions. These international conventions, however, have significant shortcomings and are considered outdated in modern times. The Hague Rules, although widely accepted, were drafted over ninety years ago, and the Visby amendments only made slight changes. They do not cater for modern trade practises such as containerisation (which allows for multimodal transportation) and door-to-door transport. The Hague and Hague-Visby Rules are considered outdated in this regard as they only apply to sea carriage (‘tackle-to-tackle’). Due to developments in technology and communications, it is also argued that there is no reason why the carrier should only be required to exercise due diligence to make the vessel seaworthy before and at the beginning of the voyage, and not throughout the entire sea voyage. Furthermore, in the modern shipping environment it is questionable why the carrier should still benefit from the nautical fault defence, a contentious defence that exonerates the carrier from liability due to the faults of its employees in the navigation or management of the ship. The Hamburg Rules were an attempt to address the shortcomings of its predecessors, for example, it removed the nautical fault defence from the list of exceptions available to the carrier and extended its scope of application to ‘port-to-port’. However, the Hamburg Rules did not achieve widespread success and have not been ratified by major maritime trading nations. The result of such a multiplicity of rules on the international carriage of goods by sea is that uniformity is undermined, creating legal uncertainty. These challenges are further heightened by the fact that the current sea conventions in force have significant shortcomings, which will be further discussed in this study. The international maritime community responded to these shortcomings by adopting the Rotterdam Rules in 2008. These Rules are intended to serve as a uniform and modern legal regime setting out the rights and obligations of the shipper, carrier and consignee. In attempting to achieve their goals of uniformity and modernity, the Rules have introduced significant changes. The three major changes introduced by the Rotterdam Rules, and which form the basis of this study, are the provision for multimodal transportation, the extension of the carrier’s seaworthiness obligation and the removal of the nautical fault defence. Accordingly, the purpose of this study is to critically analyse the three major changes introduced by the Rotterdam Rules and to determine the extent to which they have provided appropriate solutions to the alleged shortcomings of its predecessors, the Hague-Visby Rules and the Hamburg Rules. This study engages in a comparative analysis of the Rotterdam Rules with the Hague-Visby Rules and the Hamburg Rules in relation to the above three major changes. It will be a literature based study (desk-top research) and will analyse relevant international conventions, legislation, case law, journal articles, foreign and South African academic opinion.
Sea-level rise and ambulating maritime zones : an analysis of the legal implications for coastal and island states.
(2017) Guy, Kyra Leah.; Surbun, Vishal.
As a result of climate change and the rising of sea levels worldwide, maritime baselines along Coastal and Island States are starting to shift. There are many legal consequences that arise as a result of this shift in maritime baselines. Maritime baselines play an important role in delineating maritime territory for the purposes of the United Nations Convention on the Law of the Sea (UNCLOS). When a baseline shifts due to sea level rise, so too does the maritime territory that is measured from it. Therefore, this dissertation aims to undertake an in-depth analysis of the consequences of this shift and methods to curb these consequences. In order to provide an in-depth analysis on this issue, the dissertation includes an examination of the current legal regimes that govern maritime baselines. This includes an analysis of: The relevant provisions of UNCLOS; international and municipal judicial decisions; reports by the International Law Association Committee on Baselines under the Law of the Sea; as well as academic scholarly views. The dissertation then aims to provide and critique possible solutions to the legal complications outlined. The solutions provided focus on the fixing of baselines this provides certainty to maritime nations worldwide.

Browse

Browsing Maritime Law by Date Accessioned