"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.
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Date
2022
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Abstract
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.
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Masters Degree. University of KwaZulu-Natal, Durban.