We will tow you away

By Michael Heads

P&I Associates (Pty) Ltd

Durban

South Africa

In June 2005, a vessel passing north on the South African east coast experienced main engine problems. The vessel stopped and anchored off the coast whilst the crew attempted to carry out repairs.

Whilst the vessel was at anchor, the South African Maritime Safety Authority (SAMSA) maintained a close watch on the situation. The crew were unable to effect repairs and the Owners entered into LOF with a team of international salvors.

The weather on the South African coast is notoriously unpredictable and the weather conditions changed and the vessel began to drag her anchor. The salvors in all likelihood already dispatched a tug in anticipation of the LOF agreement.

The weather conditions grew increasingly worse and the vessel was in danger of running aground. SAMSA ordered that a harbour tug from a nearby port tow the vessel into deeper water.

The master of the casualty declined to take the line for he had been advised that LOF had been signed and was concerned that by taking it he would, perhaps be contravening the LOF.

The vessel subsequently grounded prior to the salvage tug arriving.

As a result of this incident, SAMSA came under political pressure and were accused of failing to take action sufficiently quickly, the local view being that SAMSA has the power to order any vessel anchored “illegally” along our coast to either leave immediately or take a tow.

Section 5 of the Marine Traffic Act, Act 2 of 1981 provides the following:

5. Immobilizing, laying-up, stopping or anchoring outside harbours or fishing harbours

(1)     Except with the permission of the Minister and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case, no person shall within the territorial waters or internal waters immobilize or lay-up a ship outside a harbour or fishing harbour.

(2)     The Authority may require the master or owner of a ship immobilized or laid-up or to be immobilized or laid-up to find security to the satisfaction of the Authority in an amount determined by the it for the recovery of any costs incurred by the Authority in enforcing any condition applicable to the immobilizing or laying-up of the ship, or in the exercise of its powers under this Act.

(3)     No person shall stop or anchor a ship for repairs within the territorial waters or internal waters outside a harbour or fishing harbour except with the main engine thereof kept in readiness for immediate use and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case.

(4)     Any person who contravenes the provisions of subsection (1) or (3) shall be guilty of an offence.

Section 11 of the Act provides the penalties for contravention of the Act as follows:

11. Penalties

(1)  Any person shall be liable on conviction of -

(a)     any offence in terms of section 3 (2), to a fine or to imprisonment for a period not exceeding twelve months;

(b)     any offence in terms of section 4 (2) or 5 (4), to a fine or to imprisonment for a period not exceeding two years;

 (c)    any offence in terms of section 6 (2) or 7 (3), to a fine or to imprisonment for a period not exceeding three months;

any offence in terms of section 8B (1), to a fine not exceeding R200 000, or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

(2)  If any person -

(a)     admits to the Authority that he has contravened or failed to comply with any provision of this Act, which contravention or failure constitutes an offence;

(b)     agrees to abide by the decision of the Authority; and

(c)     deposits with the Authority such sum as may be required of him, but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question,

the Authority may, after such enquiry as it deems necessary, determine the matter summarily and may, without legal proceedings, order by way of penalty the whole or any part of the said deposit to be forfeited.

(3)  There shall be a right of appeal to the Minister from a determination or order by the Authority under subsection (2) whereby a penalty exceeding R2 000 is imposed, provided such right is exercised within a period of three months from the date of such determination or order.

(4)  The imposition of a fine under subsection (2) shall be deemed not to be a conviction for an offence, but no prosecution in respect of the offence in question may thereafter be instituted.

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Accordingly, should any vessel decide to anchor on the South African coastline without permission, which permission needed to be obtained from the Minister of Transport who is responsible for SAMSA, then that Minister (for which read SAMSA) has the powers to order the vessel to leave the area, or, demand that the vessel accepts a tow so that the vessel is taken away from the coast.

One of the main reasons for SAMSA exercising these powers, is to protect our coastline from the risk of pollution should a vessel run aground.  The powers of SAMSA to protect the coastline are included in section 4 of the Marine Pollution (Control and Civil Liability)Act 6 of 1981 and section 18 of the Wreck  and Salvage Act 94 of 1996.

Further, SAMSA, are quite quick to point out that in terms of our Merchant Shipping (Maritime Security) Regulations 2004, which incorporate Regulation XI-2/9 of Solas 74 Convention no vessel can anchor without first obtaining security clearance.

The position therefore, is that no vessel can anchor along the South African coast to effect repairs without first obtaining permission from SAMSA, who may order that various preventative measures are to be taken first, for example, by having a tug of sufficient bollard pull standing by to render assistance should assistance be required in an emergency.

SAMSA have confirmed that they have exercised these powers and they have already used a tug to escort a vessel to a port. They indicated that they were quite prepared to arrest the vessel in order to obtain security for costs however, the owners settled the claim before an arrest was made.

The question which begs to be answered, is what form of towage contract would be forced on a vessel should a vessel be ordered by SAMSA to take a tow. This has not been tested and neither has the question whether the tug or vessel rendering the tow has the right to proceed with a salvage claim under South African common law.

The National Port Authority who operate the ports of South Africa, have rendered assistance to vessel’s and have, after having rendered assistance successfully claimed for salvage under our common law. In this regard, the South African common law closely mirrors English Law on this point.

We shall have to watch closely has future events unfold however, Owners should be made aware, that they cannot simply, as they may have done in the past simply stop and anchor on the South African coastline to effect repairs.

Owners need to immediately contact the local authorities and obtain permission for the anchorage and will need to disclose the problem facing the vessel. SAMSA, will then study the application and either agree to the anchorage perhaps subject to various requirements. If the application is denied, then one can safely assume that SAMSA will issue an order that the vessel leave the anchorage and if the vessel fails to comply with the order, then SAMSA have the powers to order that the vessel to take a tow. As stated, Owners can expect, in my view to face a common law salvage claim once the vessel is brought safely into port for I believe, that even if the vessel were say brought to the Durban anchorage, SAMSA may feel that the vessel is still a risk to other vessels and the environment and therefore the tow should only end in port.

Michael Heads

Durban

July 2007

Counting the Cost of Bagged Rice in

Southern African Ports

Loss Prevention

By Michael Heads

P&I Associates (Pty) Ltd

Durban

South Africa

I have noted in the last year that there has been a steady increase in the number of bagged rice shortage claims in Durban and from Nacala, Beira and Maputo in Mozambique. I was always used to receiving the odd claim from time to time for a few bags missing from an entire shipment but I have now recorded a marked increase in claims especially from certain quarters of the market. It appears to me that claims were arising far too frequently and felt it was important that members were made aware of the situation.

In Mozambique, I used to receive the odd claim but I never used to receive demands for security. I have now noted the strong presence of French cargo underwriters in the Mozambique market who are insuring rice cargoes into Mozambique and they have become quite forceful with their demands for security in respect of shortage and damaged cargo claims.

About a year ago, I was first introduced to the phrase “extrapolation”. I had never heard the phrase being used in a shipping context. I had studied mathematics to A levels. I immediately reached for the dictionary in order to confirm my understanding of the term since the term is generally used in a mathematics environment. For the benefit of those who have not encountered the word, the word “extrapolation” means according to the dictionary “extend (a graph) by inferring unknown values from trends in the known data”. In layman’s terms, this means that a surveyor, can stand at the hatch coaming and looking down into a cargo hold, he can estimate that there will be a shortage. He is able to do so because there is “always” a shortage on every bagged rice shipment and the extrapolation, is the term for the number of bags, which the surveyor estimates will be short.

This is, in my view, is an incredible surveying technique, which has really left me in awe as to how a surveyor can achieve this amazing feat.

I have taken up this extrapolation survey technique with the French cargo underwriters, who are a strong supporter of the method, and I have even proven to them on many occasions that the extrapolation methodology is not based on any sound surveying principles. Unfortunately, this method of surveying does not appear to be on the decline and therefore members need to be prepared that should they be carrying bagged rice to East Africa, they can expect to receive shortage claims based on the “extrapolation” methodology. In order to defeat the claim, I recommend that the members appoint their own surveyor to be in attendance throughout the discharge, and that the members arrange for a private tally to be carried out on their own behalf in order to have evidence to reflect that the full consignment was landed. Further, if members have a surveyor present at the start and during the discharge in order to gather evidence then this will protect the members in respect of damage/shortage claims.

The “extrapolation” methodology has yet to arrive in South Africa but I am sure, since I understand that it is very common in West Africa, and now in East Africa, that its migration south cannot be to far off.

In South Africa, I have noted the increase in shortage claims on those vessel’s where the members did not have a surveyor present during the discharge and especially when members did not have their own tally. It would appear to me, that as soon as the receiver is aware that the vessel is not carrying out their own tally, that the receiver will then lodge a claim for a shortage.

The port used to carry out a tally on bagged cargo but most vessels are now discharging rice cargoes at leasehold berths and therefore, the port no longer carries out such tallies. This means that the cargo is palletized on board the vessel and landed directly on to road transport and taken to a private warehouse for distribution. The claims that I have seen, seem to be, and not surprising, equivalent to a truckload or two. I therefore recommend that members have a surveyor in attendance at the start and during the discharge and carry out a tally in order to defend any claims for shortages.

I am hopeful that South African surveyors, are experienced enough to realize that  “extrapolation” is “guestimation”. It is a surveying technique not based on any sound marine surveying principles. It is a methodology based on fear of loss rather than actual loss and as we all know, shortages in bag cargo are generally a paper loss, which can be attributed to the cargo being incorrectly tallied at the load port or the discharge port. I have never seen a crew eat 400 bags (20mt) of rice between India and Durban.

It is interesting to note, that when all the holds of a vessel have been sealed, following loading, the “extrapolation” surveying technique appears not too work. 

The question, which begs to be answered, is whether the “extrapolated” surveyor, is a surveyor for his own account, or a surveyor who is essentially a puppet, in the hands of a dictator.

Michael Heads

Durban

June 2007

 Requirements to disembark Stowaways at Durban

1. Ships arriving in Durban from a foreign port will require to give 96 hours notice of stowaways onboard providing the ship is ISPS compliant. If the ship is not compliant with the ISPS code then this could hinder the disembarkation of stowaways.

2. Ships arriving at Durban, whose last port of call was a South African port, will be allowed to disembark stowaways without giving notice provided that they meet with the National Port Authorities requirements.

3. Ships arriving at Durban Roads from a South African port that wish to disembark stowaways at the outer anchorage will be allowed to do so, provided they meet with the National Port Authorities requirements.

4. Ships leaving Durban harbour where stowaways are found onboard after the ship has left the anchorage will be allowed to disembark the stowaways, provided they meet with the National Port Authorities requirements.

National Ports Authorities require the following:-

In all cases where stowaways have been found onboard a ship from either a foreign port or a South African port, a pre-arrival form from the National Ports Authority of South Africa must be completed by the ship’s local agent and forwarded, prior to the stowaway or stowaways disembarkation, to:-

        (a)     Maritime Rescue Coordinating Centre, Cape Town

        (b)     Durban Port Control

        (c)     Port Security Officer, Durban

The above is the situation as of 28 July 2004 however maybe subject to change.

Ron Evans

P&I Associates, Durban

SOUTH AFRICA - ADMINISTRATION FEE AND DEPOSITS FOR SHIPS ARRIVING WITH STOWAWAYS

In April 2003 we posted a message advising that the the South African Immigration Authority would be imposing a handling fee for all vessels arriving at ports in South Africa with stowaways.  The fee was set at SA Rands 2,500 but has now been increased to Rands 5,000 per stowaway and unlike the deposits that have in the past been requested by some ports in South Africa, to cover detention and repatriation costs, the money is a pure administration fee and non refundable.

There would appear to be some misconception about the abovementioned administration fee as on the occasions when the Immigration Authority request a deposit to cover detention and repatriation expenses it is presumed that this deposit is a fine or part of the administration fee.  The deposit, when requested, is usually SA Rands 10,000 per stowaway (currently about USD 1,500) and is fully refundable providing the stowaway leaves South Africa without any expense to the State, in other words if the Shipowner or their agent pays all the relevant costs then the full deposit will be refunded. The administration fee is however not refundable.       

Notwithstanding the above the South African Immigration Authorities appear not to have any immediate plans to change their present stance on stowaways inasmuch as they will permit the majority of stowaways to land from vessels provided always that the ship owner pays all expenses of detention and subsequent repatriation to the stowaway’s home country.  We say the majority of stowaways, as on the rare occasion, where documentation and repatriation of a particular nationality of stowaway is known to be very difficult, the authorities may not grant the permission for the stowaway to be disembarked from the vessel.

We would take this opportunity of cautioning Shipowners that they must advise their masters to be extremely vigilant for the presence of stowaways not only in South Africa but also in the whole sub-Saharan region.  In our view all ports are high-risk areas and proper and effective gangway and deck watches need to be maintained together with a properly organised stowaway search prior to the vessel departing. In ports in South Africa the Immigration Authority deem the vessel to have departed once the harbour pilot is disembarked and any stowaways found after this time are the responsibility of the Shipowner.

P&I Associates (Pty) Ltd.

Durban,

South Africa.

12 January 2004    

NEW PANDI SITE LAUNCHED

Our new look website was officially launched on 15 April 2003.