South Africa - We Will Tow You Away

February 2008

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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.

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 contact the local authorities immediately 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 the writer believes, 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. 

With thanks to Michael Heads of P&I Associates (Pty) Ltd, Durban, for preparing this article