ARMAMENTS ON MERCHANT VESSEL

SOUTH AFRICAN REQUIREMENTS

Due to the upsurge in piracy activity in the Indian Ocean region, there has been a large increase in the number of merchant vessels that are carrying security guards, guns and ammunition. Often, the security guards disembark the vessel after the vessel has transited the "hotspot" area off East Africa but the guns remain on board, only to be removed at final destination.

 

The issue of guns and ammunition remaining on board vessels is creating problems for Owners and this week, in South Africa, two masters were arrested and charged under the South African Firearm Control Act.

 

The South African Police require that 21 days before a vessel arrives at a South African port that an application must be made to the relevant authority for a permit. This application must be duly accompanied by a number of documents.

 

The application must be made on the South African Police (SAP 520) form:

-   Copy of the applicants passport on which the photo and passports details are reflected.

-   Copy of the legal licence, permit, authorization or any other documentary proof confirming lawful possession of the firearm.

-   Documentary proof of knowledge of safe use and handling of a firearm, i.e training certificate.

-   Written authorization, which permits the export of the firearm from the country of origin.

-   Equipment list, firearm description and serial numbers and number of ammunition.

-   Equipment list, firearm description and serial numbers and number of ammunition.

Once the permit has been granted and the vessel berths in South Africa, the master can make arrangements for the guns and ammunition to be removed from the vessel and taken to a police locker for safekeeping and then these will guns and ammunition will be returned to the vessel one hour before departure.

 

It is now very clear that the South African Police will arrest the master and charge him with an offence and non conformance under section 120 and section 73 of Firearm Control Act, Act 6 of 2000.

 

The question which we have addressed to the South African police is the why one has to make an application prior to 21 days before arrival in South Africa. One of the points that we have made, is that South African ports are often used as bunkering ports as vessel transit the South African coast and that this period appears to be excessive when one considers that the sailing time from Mombasa, Kenya to Durban, is less than 7 days. We have also made the point that often Owners do not know that the vessel's will be stopping in South Africa and therefore if they have guns on board, will now have to wait 21 days  in order to make the application, before arrival.

 

The ISPS clearance period is 96 hours and we have made representations to the Police Colonel to questioning this 21 day period and whether this period can be reviewed.

We attach the letter received from the South Africa Police setting out their requirements. We are busy checking to see whether these are requirements derive from regulations attached to the Act and if so, were these regulations gazetted and therefore brought into force under South African law.

 

Please can you urgently circulate this notice amongst your members and advise them that at the moment, in South Africa, in order for a vessel to enter a South African port with guns and ammunition on board that the vessel has a permit from the South African police. If there are guns and ammunition but no South African permit, then the master will be arrested and charged resulting in delays to the vessel. The master will be charged and fined and may be imprisoned depending on the severity of the offence. The fines vary from R50,000 to over R100,000 and the master will be prosecuted and will have a criminal record.

 

As advised, we are busy researching whether the requirements set out by the police are a legal one and whether they have the legal rights to enforce these requirements.

 

Until we have obtained clarity, we suggest that your members act under the above requirements and if they have any doubts or concerns then they must please feel free to contact us.

 

Michael Heads

P&I Associates

Durban

South Africa

 

February 2011

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.

[S

 

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 

THEFT ON VESSELS

By Michael Heads

March 2010

We have noticed in Durban Harbor that the amount of crime occurring on board vessels is on the increase.  It is the requirement that in order to gain access to the port and in terms of ISPS one needs to be in the possession of a personal photo identity document and a vehicle permit which should correspond to your license disc and number plate.

If this is indeed the case and the rules being followed by the port then how are so many illegal immigrants and thieves gaining access to the port, either to stow away or commit crimes.

Recently, we removed a stowaway off a vessel in Durban who had gained access into the port using a port contractor's identity card. Clearly the card in question had been lost or stolen and it was quickly utilized in order for the stowaway to gain access to the port dressed as a contractor. It is therefore apparent that it is essential that any port user who has a port identity permit should understand and be aware that the identity document has value and the owner should take great care in looking after it and should that person lose their identity document that it is reported as soon as possible.

We are all mindful in Durban that access to the port through Maydon Wharf is far easier than gaining access through other terminals. We understand that the port is busy looking at security along those berths in order to improve security. Security, however, is not just a port problem. All port users should be mindful and should be vigilant when entering and exiting the port.

The same applies to the crews on ships. Crews are already mindful with regard to stowaways boarding vessels but they need to be mindful about crime too. Thieves are gaining access to vessels and are finding them to be easy and rich pickings. The thieves are not sneaking on board the vessels. They are actually walking up the gangway so therefore, it is imperative that the vessel has a proper gangway watch and that every visitor to the vessel should be identified and issued with the vessel's identity card. The purpose of their visit should be recorded together with the name of the person they are coming to see and the time that they boarded the vessel. These cards should be handed in as the visitor leaves the vessel and the visitor should be seen leaving the vessel.

Once the thief has gained access to the vessel it seems that he or she finds it quite easy to move around the accommodation of the vessel with relative ease.

In order to prevent this, crews have been reminded to keep their cabin doors locked including all port holes and windows. Crews have also been reminded to only have one door open on the main deck at the top of the gangway so that access to the accommodation section is strictly controlled. It is very easy for a thief to sneak on board the vessel acting like a stevedore and then once on board the vessel walk around the vessel looking for an open unguarded door. Once inside the accommodation section, it is just a matter of knocking and seeing who is in or out.

The thieves have been able to help themselves to watches, cameras, portable music players, laptops, and cash. These goods are easily disposed of to eager buyers.

We were called down to a vessel not too long ago where a thief was helping himself out to copper wire and anything else that was not bolted down. He was searched when he was leaving the vessel and in both pockets he had collection of metal bolts and nuts which he had carefully removed before hiding them in his pocket. These items were destined for the scrap metal market.

Defeating crime has to take various forms and the easiest form that anyone can take is to be mindful and not to make oneself an easy victim. The crews should not rely on the port security to be their defence against crime. They need to rely on their own security first and to make their vessels unattractive for thieves. Theft is often a crime of convenience. A door left open and unguarded is an easy entrance for any thief. We all know that crime in South Africa is still on the increase and that we all take measures at home to protect our personal property. A house with a security system, electric fence and dogs is less of an attraction than a house with no such system or dogs. The same rationale applies to a ship. A ship with a good gangway watch and observant crew who maintain control over their vessel is less likely to be a victim of crime than a ship whose crew easily allows access to strangers to their vessel.

Michael Heads

Durban March 2010

 

22 August 2008

 

South Africa  - We will tow you away

 

By Michael Heads, P&I Associates (Pty) Ltd, Durban, South Africa

 

The South African Maritime Safety Authority has powers to order the towage of vessels that anchor on the South African coastline without permission from the authorities.

 

Casualty

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 carry out repairs and the owners entered into a Lloyd's Open Form (LOF) agreement with a team of international salvors.

 

The weather on the South African coast is notoriously unpredictable; the weather conditions changed and the vessel began to drag her anchor. The salvors in all likelihood had already dispatched a tug pursuant to the LOF agreement. However, the weather conditions became 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 because he had been advised that LOF had been signed and was concerned that by taking it perhaps he would be contravening the terms of 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 have the power to order any vessel anchored "illegally" along the South African coast to either leave immediately or take a tow.

 

Marine Traffic Act

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 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.[1]

 

Powers of SAMSA

Accordingly, should any vessel decide to anchor on the South African coastline without permission 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 to be taken away from the coast. The Merchant Shipping (Maritime Security) Regulations 2004, which incorporate Regulation XI-2/9 of SOLAS, provides that no vessel can anchor without first obtaining security clearance.

 

The position, therefore, is that no vessel can anchor along the South African coast to carry out repairs without first obtaining permission from SAMSA. SAMSA 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.

 

One of the main reasons for SAMSA to exercise these powers is to protect the coastline from the risk of pollution should a vessel run aground. [2]

 

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 it 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 that operate the ports of South Africa have rendered assistance to vessels and have, after having rendered assistance successfully, claimed salvage under common law. South African common law mirrors English Law on this point.

 

No more simply stopping and anchoring

Shipowners should be made aware that they can not simply stop and anchor on the South African coastline to carry out ship repairs, as they may have done in the past. Owners need to immediately contact the local authorities and obtain permission for the anchorage and disclose the problem the vessel is facing. SAMSA will then study the application and either agree to the anchorage, perhaps subject to various requirements, or refuse it, in which case one can safely assume that SAMSA will issue an order that the vessel leave the anchorage. If the vessel fails to comply with the order, then SAMSA have the power to order the vessel to take a tow. As stated, owners may face a common law salvage claim once the vessel is brought safely into port, for even if the vessel were for example 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.

Ports and Places of Refuge

The issue of ports and places of refuge around the world became a topic of debate as a result of the breaking of the mt "Prestige". There were many issues at stake at the time and one view of thought believed that if the vessel had been taken into a port or place of refuge, the resultant oil spill could have been controlled. This would have been possible because the vessel would have been in a controlled space and not at the mercy of the sea and the weather.

South Africa is surrounded by 2,800 km of coastline and it can be at certain times, one of the most dangerous stretches of coastline in the world, especially when one takes the weather into account. It is for this reason that it is important that there are ports and places of refuge available for a vessel in the case of an emergency. Fortunately, there are places of refuge available in South Africa for deep draft vessels, together with certain ports, provided various requirements can be met.

The Marine Traffic Act, Act 2 of 1981, sets out South Africa's position when a vessel is seeking a port or a place of refuge. It is an offence under the act, for any vessel to lay-up on the South African coastline, without the permission. Permission to lay-up a vessel must be given by the relevant minister through the South African Maritime Safety Authority (SAMSA) who may demand, inter alia, that a tug be made fast to the vessel at all times throughout the duration of the lay-up. The tug would therefore be able to move the vessel in case of emergency. If she is made fast, then there is little delay in moving or relocating the vessel.

SAMSA have the authority to prevent a vessel coming towards the coast to seek refuge and this authority stretches to all bays and anchorage areas. Although the ports are operated by the Transnet National Ports Authority (TNPA), they will often turn to SAMSA for advice and assistance.  Before a vessel can seek refuge at a place or port in South Africa, SAMSA must first give their authority so if it is a port, then, TNPA would also have to be consulted and give their approval. SAMSA will always consider the saving of life as being paramount and the MRCC in Cape Town co-ordinates all rescue activities with the harbor master at the nearest port. The next priority is the environment. Once the above factors have been taken into account, then one would then give consideration to the saving of property.

South Africa has always taken an excellent approach to the subject of vessels seeking a port or place of refuge and in this regard, SAMSA, should be commended for their role in such matters. SAMSA have a difficult function to fulfill and it has always been our advocacy that ship owners looking to utilize South African waters as a place of refuge should act with utmost good faith when dealing with SAMSA. A failure to disclose a particular aspect may lead to a vessel being barred from seeking refuge. Where a vessel's structure has been compromised, SAMSA, will want to inspect the vessel and assess the problem before granting permission for the vessel to close the coast.

Once permission has been granted, it may be subject to the fulfillment of certain conditions, for example:

1. Vessel may be requested to produce a valid Hull and Machinery insurance certificate.

2. Vessel may be requested to produce a valid P&I insurance certificate of entry

3. All fuel bunkers and black oil (including contents of engine sumps) are to be removed from the vessel

4. Vessel must be attended to by an adequately powerful salvage tug that has to be made fast

5. A salvage contractor to be appointed by owners (should be an ISU) member

6. An operational plan must be prepared and approved by SAMSA

7. A suitable guarantee to be in place

The inclusion of valid insurance certificates is a new development and an essential one. If vessel's want to make use of our coast, then the Owners must understand so South Africa needs to protect itself from having to incur and bear the costs of removing a vessels which may eventually be abandoned. By having reputable insurance in place provides a level of comfort should an unfortunate event or risk arise during the period of refuge.

Alan Reid and Michael Heads

 

Marine Insurance Contracts

There are 4 main types of marine insurance contracts with each contract covering a particular subject matter within the marine insurance industry, namely

 

1. Hull and Machinery

2. Cargo policies

3. Freight Insurance

4. Protection and Indemnity

People often get confused between the terms of a P&I policy and the Hull and Machiney policy.

A P&I club's cover is in respect of the liability of the individual member (owner or charterer) to a third party.  In order for a liability insurance claim to be made by a member against his club, there must first be a legal liability on the part of the member to pay a claim. Once this legal liability is proven, the club will then entertain the claim, subject to the clubs rules.

P&I clubs generally cover the following risks:

-   Liabilities for loss of life, personal injury and illness.

-   Repatriation expenses in respect of crew.

-   Liabilities in respect of the loss of the crew's affects.

-   Diversion expenses (charges incurred for the purpose of landing or disposing of stowaways or refugees).

-   Collision liability (the one fourth not covered under the marine hull policy).

-   Liability in respect of damage to fixed and floating objects (cranes and buoys).

-   Liability for damage to vessels other than by collision.

-   Liability under towage contracts.

-   Wreck removal.

-   Quarantine expenses.

-   Liability for loss or shortage of cargo or other property and liability for damage to or responsibility in respect of cargo or other property.

-   Liabilities in respect of oil pollution.

 

Every time a ship puts to sea (a maritime adventure) there is a risk that something could happen to the ship. Since marine perils are a risk that the shipowner assumes at the commencement of each maritime adventure, the shipowner can take out Hull and Machinery cover to protect against such losses that may occur to the ship and her equipment during the adventure. Hull and Machinery insurance, covers all risks (perils) subject to the normal exclusions for wear and tear and similar causes such as lack of maintenance. The insurance covers damage to the vessel, machinery and appurtenances (such as fixtures and fittings and nautical equipment) caused by all perils, for example:-

-   Storms.

-   Collision's with other ships.

-   Running aground and shipwrecked.

-   Fire.

-   Explosions.

-   Theft.

In order to avoid instances whether a peril is one that is insured against, most shipowners simply insure their vessels in respect of "all risks". Such a provision would cover the shipowner against any peril that my arise.

There has been much debate with regard to the recent rise in piracy whether the shipowners claim is a P&I claim or a Hull and Machinery one. It is common opinion that it is the latter since it is the theft of a vessel and not a third party claim.

May 2009

 This insurance covers damage to the vessel, machinery and appurtenances - such as fixtures and fittings and nautical equipment - caused by all navigation peril and external contingencies. Think, for example of storms, collision and shipwreck, but this insurance also covers fire, explosion and theft. This insurance also covers collision damage to third parties.

ILLEGAL PORNOGRAPHIC MATERIAL

Michael Heads

P&I Associates (Pty) Ltd

Durban

South Africa

January 2010

 

In May 2009, five Filipino seafarers from two separate vessels were arrested and detained in Liverpool, England, following the discovery of pornographic material on personal laptops and mobile phones by HM Custom officers. In December 2008, HM Custom officers had also caught a Filipino seafarer with child pornographic material and it was reported that he was the second seafarer to have been caught that month being in possession of such illegal material.

It has also been reported that in New Zealand, 2 seafarers were convicted in the North Shore District Court having been prosecuted by the Customs Service for the importation of objectionable material involving sexual exploitation of children.

We can now report that in South Africa, a seafarer has now also been arrested and successfully prosecuted for being in possession of illegal material involving the sexual exploitation of children.

In terms of South African law, it is quite legal for the South Africa Police Services to carry out a search of any vessel within South Africa's territorial waters. In our experience, such searches are on the increase and are now taking place regularly on vessels shortly after they berth in a South African port.

Masters should be advised, that in South Africa between 20-30 police officers will attend on board the vessel, and the master will be presented with a letter by the senior police officer. This letter sets out the rights and under which statutory legislation the South African Police Services can rely on to carry out the search. The letter also states that the master or any seafarer on board a vessel who interferes with a police officer in the execution of his duties will be arrested and prosecuted for such interference.

If the police feel that the vessel may have sailed from a port or country that is associated with illegal substances then they may also use dogs to assist them in the carrying out and executing the search.

In this regard, we have already reported on one major case of a vessel being detained by the South African Custom Services after an illegal substance, namely 250kg of cocaine, was found on board the vessel. The owners of the vessel concerned were charged with breaching various statutory offences. One of the issues arising out of the above case, which the owners faced, was that the custom services argued that the owners had breached the provisions of the ISPS code, in that they had failed to adequately check what was being brought on board their vessel by the crew and other third parties.

Recently, during the execution of one of the above searches, the South African Police Services, found illegal material involving the sexual exploitation of children. The seafarer concerned was immediately arrested and charged with various criminal offences. The vessel, thankfully, sailed without being detained or the owners fined. The seafarer was clearly acting outside the scope of his employment and had to cover his own legal expenses but the cost to the owners and the P&I Club could have been far greater had the seafarer been an officer and the need to call for a replacement in terms of the vessels safe manning certificate and watch keeping requirements.

The issue that should also be highlighted is whether the vessel could have been detained and the owner fined along with the seafarer for having such illegal material on board their vessel. It is quite plausible that the South African Custom Services and/or the South African Police Services could take the arguments raised in the drug ship case and argue that the owner of the vessel failed to enforce the provisions of the ISPS code in that they allowed illegal material to be carried onto and on board their vessel. The owners would be expected to demonstrate what efforts they had implemented to prevent such events occurring and in this regard, such steps could be interpreted as carrying out searches of cabins, checking mobile phones and lap tops and also checking at the gangway to see what is being carried onto the vessel by crew and visitors, for example, surveyors, stevedores, and agents.

We will of course keep monitoring such cases but in the meantime, owners should be advised to continue with their efforts to remind seafarers that they should not be in possession of illegal material whether in publication form or on their mobile phones and laptops and that regular reports are maintained of such searches and checks at the gangway, in cabins or other spaces. These written reports would then be available for inspection by the authorities and would thus serve as evidence and act as supporting demonstration of the shipowners efforts in terms of ISPS at curbing such events.

 

If in doubt report it

In terms of local legislation, the South African Maritime Safety Authority (SAMSA) should be notified of any accident on board a vessel that results in personal injury or even death to anyone on a vessel.

We have noted over the last six months that there has been a marked increase in the number of accidents occurring on board vessels in our harbors and that many people are unfamiliar with the reporting requirements of such incidents.

If an accident does occur on board a vessel  then SAMSA need to be advised immediately and they also have an accident report form which should be completed and submitted to them as soon as possible and at the latest within 24 hours.

The information on the reports serves many purposes and one of the most important uses is that the information can be used to educate people working in the harbor on personal safety issues.  Many  of the accidents which take place could easily have been avoided by the parties simply being vigilant and recognizing potential dangerous situations.  For example, we often notice people failing to be aware of objects moving overhead and waiting for the load to pass before moving on.

We have noticed that local agents often forget to advise ship masters that there is a duty to report accidents on board their vessels to local authorities. The master, in terms of ISM, will complete a report on the vessel and send the same to their head office  and the head office then contacts ourselves to advise on the incident and what precautions can be taken to safe guard against future such incidents. When we contact SAMSA, we are often surprised to learn that the incident has not been reported.

Ships agents should therefore, in their introductions to the master, make it known to the master that all accidents must be reported to the local authorities and that an accident report form will need to be completed and delivered to the relevant authority.

If an accident does occur on board a vessel the best option is to immediately contact one of our offices and we will assist the master in the completion of the SAMSA accident report and we will contact SAMSA and alert them to the incident and assist them in investigating the incident.

Prevention has always been a better cure and knowledge is a very powerful tool provided it is used and implemented effectively. The more we understand and recognize danger and in particular, being aware of dangerous situations, so we can reduce the number of avoidable accidents. 

Counting the Costs of a Spill

By

Michael Heads

P&I Associates (Pty) Ltd

 

We have investigated a number of incidences where bunker fuel has been spilled into the harbor. Many of these cases could have been quite easily avoided had the various parties in the bunker stem process exercised greater vigilance.

There are a few recorded cases where an oil spillage has occurred due to equipment failure and although some may consider these incidences to be non-negligent acts, one has to probe further and consider whether the failure was due to either the vessel or the bunker barge failing to maintain their equipment. Failure to maintain equipment would in the writers view, be negligence and would render the party involved guilty of an offence under the oil pollution legislation.

As soon as a spill has occurred, the various parties concerned must notify Port Control and must also notify the South African Maritime Safety Authority ("SAMSA").

The vessel or barge should take immediate proactive steps to minimize the spill and to control the spill. This action is particularly important for if one of the parties is found to be liable, SAMSA, will look at the manner in which the parties responded to mitigate the spill and to control the spill.

The maximum fine that a vessel can currently be penalized under the oil pollution legislation is R500,000.00. This figure equates to be about USD70,000.00. Many operators are unhappy about the extent of the fine but when you consider the level of fines across the world, the fine in South Africa is quite small. In the United States, for example, the fine can run into millions of dollars.

The writer is aware that SAMSA are busy looking at the level of the fine and is of the view that the fine level will be adjusted to bring South Africa in line with the oil pollution fines in European waters.

The fine is not the only cost that a guilty party will have to bear. The cleaning costs, depending on the amount of oil spilt and the extent of the spillage, can be very high. For example, if other vessels in the vicinity of the spill are tainted with oil then these vessels will also have to be cleaned. If any of these vessels were to sail with oil on them, then they themselves could be fined if they arrived at another port with oil on them. Loading operations of these stained vessels may also have to stop since the oil stain may disappear under water level and as a result these vessels could be placed off hire depending on the facts.  The financial repercussions can easily increase quite rapidly.

SAMSA will consider all the facts of the matter once they have collected all the evidence before deciding on the level of the fine to be imposed. 

In this regard, if the crew on the vessel or barge were quick to respond to the incident and chose to handle the matter diligently then  these factors will persuade SAMSA to be more lenient on the guilty party when setting the level of the fine to be imposed.

The guilty vessel will be detained and the detention fee is currently  R24,000.00

SAMSA will look at the reaction and manner of the crew in dealing with the oil spills. They will also look at the extent of the spill and whether by their actions, the crews were able to control the spill. Further, SAMSA will also look at the clean up procedures, the use of dispersants. It is therefore imperative that the vessel carries anti-pollution equipment and that the crew are equipped and trained in how to react to oil spills. The use of dispersants is very strictly controlled in South Africa by the Department of Environmental Affairs and Tourism ("DEAFT") and dispersants should only be used with prior authority from DEAFT and/or SAMSA.

One should bear in mind that whilst South African harbors are commercial ports, they are also recreational areas and they are frequented and used by fisherman and private boat owners.

It is against this background and caring for the marine environment that SAMSA is looking to increase the level of fines.

In many of the cases that we have seen, the actual clean up costs often exceed the level of the combined fine and the detention fee and these costs may run into millions of Rands. So whilst guilty parties may complain at the level of fines handed out by SAMSA they should note the cleanup costs could be significantly greater.

 

Michael Heads

Durban

January 2009

 

 

 

 

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