Maritime Law

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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.
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 .
An analysis of five of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) that are most at risk of divergent interpretation by tribunals within diverse nations and a brief overview of the implications of South Africa's choice not to ratify the convention.
(2018) Preamduth, Sarisha.; Lamb, Deepa.
This study provides a critical analysis of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in light of five aspects of the Convention, namely provisions dealing with usage of trade, the need for written contracts, open price terms, the notice requirement for non-conforming goods and force majeure that are most at risk of divergent interpretation by courts and tribunals globally. Such an analysis would also require a brief discussion on the background of the CISG, its objectives as well as the structure and scope of application of the Convention. The study aims to create awareness of the CISG in South Africa even though it is not a member state of the Convention, considering the wide international acceptance of the Convention and the fact that it has been adopted by many of South Africa’s major trading partners. In addition to a critical analysis on the provisions most at risk of divergent interpretation, this study also outlines the advantages and disadvantages of the Convention in order to assess South Africa’s current position as a non-member state and the pros and cons of any future ratification of the CISG.
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.
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 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.
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.
The associated ship and South African admiralty jurisdiction.
(2010) Wallis, Malcolm John David.; Staniland, Hilton.
The associated ship and the jurisdiction to arrest such a ship created in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 is a unique legal institution in the world of maritime law and jurisdiction. The sister ship arrest envisaged by the Arrest Convention, 1952 is encompassed by the associated ship but the concept of an associated ship goes considerably further than the sister ship in going behind the separate corporate personality of ship-owning companies to their controlling interests and, on the basis of common control, providing that ships are associated. This status subjects them to arrest both in order to obtain security for court proceedings or arbitration, usually elsewhere than in South Africa, and arrest in actions in rem against the associated ship. This is in respect of claims arising in respect of other vessels in separate ownership. Although tentative consideration was given to a similar innovation when the Australian Law Commission undertook a review of admiralty law in Australia their legislation is confined to a surrogate ship arrest substantially along the lines of the sister ship arrest of the Arrest Convention. A proposal to introduce a similar institution by way of the revision of the Arrest Convention has not yet resulted in anything similar being introduced elsewhere. In South African maritime practice the associated ship jurisdiction has proved to be an important innovation, especially in conjunction with the power to arrest a ship for the purpose of obtaining security for proceedings in a foreign court or arbitration tribunal, and a substantial amount of maritime work involves associated ships. As an institution it has not hitherto been subjected to close scrutiny and the overall purpose of this work is to do that. It takes as a starting point the revision of South African admiralty procedure and jurisdiction leading to the enactment of the Admiralty Jurisdiction Regulation Act and the introduction of the associated ship. This task has been undertaken against the background of the general development of maritime law, the attachment ad fundandam et confirmandam jurisdictionem under the Roman Dutch common law of South Africa and the action in rem available in South Africa under the Colonial Courts of Admiralty Act 1890. The study reveals the common roots of these institutions in the Roman Law and the practice in maritime courts around Europe from the Middle Ages onwards and forms a part of the foundation for the proposition in the final analysis that South Africa has created an institution that is distinct from the English action in rem and having its own particular features derived from both its English and Roman Dutch forebears. The central analysis explores from a critical standpoint the justifications advanced at the time for the introduction of the associated ship jurisdiction and finds these wanting notwithstanding that they have tended to linger in statements in the judgments of the courts. Instead a policy-based justification is advanced that it is submitted provides a proper justification for the associated ship jurisdiction in the South African context. Being based upon policy considerations it is not suggested that this justification is universally applicable or demands the same response from all nations, as each will be influenced by different factors depending on the nature of the maritime interests of the country considering such an institution. This is likely to hamper attempts to obtain international agreement on a similar jurisdiction to arrest vessels going beyond the provisions of the Arrest Convention. In the light of the suggested justification of the associated ship jurisdiction the Act itself is analysed and various difficulties of interpretation are addressed. These include a critical analysis of certain controversial decisions and a consideration of the constitutional implications of the associated ship. Finally the different threads are brought together in an analysis of the nature and consequences of the arrest of an associated ship and the action in rem against the associated ship. The fact that the jurisdiction has been harnessed to two distinct purposes having entirely different features is highlighted. Although maritime law always has a significant international dimension the fact that the associated ship is a uniquely South African institution means that the analysis is largely driven by the underlying principles of South African law and principles. The view is taken that the statute is a South African statute governing matters of the jurisdiction of South African courts and as such falls to be construed in the light of South African legal principles. The too ready resort on questions of interpretation (as opposed to substantive law where it is mandated as being the
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 analysis of the carrier’s liability under the Hague Visby and Rotterdam rules.
(2016) Naidu, Mitisha.; Lamb, Deepa.; Singh, Annette.
This study provides a historical overview of the development of the carrier’s obligation to maintain a seaworthy vessel in contracts of carriage by sea, as well as a comparative analysis of the extent and duration of this obligation under the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1968 (the Hague Visby Rules) and the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2008 (the Rotterdam Rules). The comparative analysis of the two carriage regimes undertaken in this study is of importance from a South African perspective as it examines whether the country should ratify the Rotterdam Rules in accordance with the recommendation made under the ‘Operation Phakisa’ project. The writer will briefly elaborate on the background and objectives of this governmental project in the study. This study briefly examines good shipping practices under the International Safety Management Code, 1994 (the ISM Code) and International Ship and Port Facility Security Code, 2002 (the ISPS Code) in the context of whether the extension of the duration of the carrier’s obligation to provide a seaworthy vessel under the Rotterdam Rules, imposes any additional duties on the ship owner. The study also explores the requirements that the parties to a cargo claim have to meet by analysing the burden of proof under both the Hague Visby and Rotterdam Rules. This examination includes an overview of the commonly invoked exceptions contained in both carriage regimes, particularly the negligent navigation exception and the reasons and possible cost implications of excluding this exception from the list of exceptions contained in the Rotterdam Rules.
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.
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 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.
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.
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.
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.

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