1 INTRODUCTION

As far back as the 17

century, South Africa has been

a well-known station for bunkering and the provision

of necessaries for passing ships. Since those early

trading days, it has grown considerable to become a

major trading and shipping hub boasting of modern

ports with world class infrastructure. Durban is the

busiest port in Africa, and the South African ports

also service the economies of most of the countries in

the Southern African Development Community

(SADC) region. As a result, a number of ships calling

at its ports has substantially increased in the recent

times causing high volume of shipping traffic. This

situation is further compounded by the fact that South

Africa is located on a major international shipping

route jam packed with ships passing through its

coastline destined for eastern and western economies

alike (Hare, 1997; Devine, 1986; Holloway, 2005).

The South African coastline is one of the most

dangerous stretches of coastline in the world,

especially if one takes the weather, currents and

rugged rocks into account (Reid and Heads, 2013;

Hare, 1997). It is notorious for the number of ships

that have met their demise in its waters.

In consequence of the above circumstances, South

Africa has a heightened level of exposure to maritime

casualties and risks. In recent times, 3 of the 10 largest

oil spills in history took place along the South African

coastline. The second largest crude oil spills to have

occurred took place off Saldanha Bay when a Spanish

registered tanker MV Castillo de Bellver broke in half

and sank with 224 000 tons of light crude oil on board.

More recent spills have involved the release of heavy

bunker fuels from dry cargo vessels.

South Africa plays significant strategic role to the

shipping world in terms of ensuring safety of life and

property at sea, preventing and combating pollution

of the marine environment by ships. In particular,

South Africa, with its location on a major

international shipping route, serves the shipping

industry through response to maritime emergencies,

Places of Refuge for Ships in Distress: The South

African

Approach and Challenges

S. Seti

University of Fort Hare, East London, Eastern Cape Province, Republic of South Africa

ABSTRACT: The South African Maritime Safety Authority (“SAMSA”) responds to emergency calls from

distressed ships. SAMSA, as a coastal authority, operates in terms of the South African maritime regulatory

framework and its approach used to be robust. For example, South Africa is the first country to recognize the

need to have a tug solely for the purpose of assisting ships in distress. However, close examination of the recent

maritime incidents shows that SAMSA’s approach is falling short of keeping up with the ever changing

challenges of places of refuge for ships in distress. This paper seeks to critically assess SAMSA’s approach to

ships in distress as informed by the South African regulatory framework. The paper will further examine the

possible solutions to identified shortcomings.

http://www.transnav.eu

the

International Journal

on Marine Navigation

and Safety of Sea Transportation

Volume 14

Number 1

March 2020

DOI:

10.12716/1001.14.01.07

granting of places of refuge to distressed vessels,

prevention of marine pollution, provision of

necessaries and bunkers to passing ships. Moreover,

the oil traffic route around South Africa is one of the

most important in the world (Devine, 1986). It is

essential to super tankers which are unable to transit

the Suez Canal, and some of which are the largest

tankers and bulk carriers ever constructed (Holloway,

2005; Devine, 1986). As indicated above, the bulk of

oil supplies from the Middle East to Europe and the

Americas rounds the Cape (Hare, 1997). Accordingly,

it is crucial for the benefit of the whole shipping

world that the South African approach towards ships

in distress and general safety at sea remain robust and

keep up with international standards.

On the backdrop of the above introductory

background, this paper seeks to consider the extent to

which the South African approach to places of refuge

is deficient and therefore contributes to the

unsatisfactory state of affairs displayed in various

marine incidents. The paper further examines the

possible most pragmatic solutions to the identified

deficiencies.

This paper is structured into five sections. The

present section gives the introduction setting out the

background and objectives of this article. In section 2,

of this article sets out a brief regulatory framework on

places of refuge and marine pollution. In section 3, the

paper deals with the South African approach to places

of refuge and marine pollution from a practical point

of view. Section 4 examines the assessment of the

South Africa’s approach to places of refuge for ships

in distress and prevention of marine pollution.

Section 5, deals with recommendations. Section 6

contains concluding remarks.

2 OVERVIEW OF THE SOUTH AFRICAN

REGULATORY FRAMEWORK ON PLACES OF

REFUGE FOR SHIPS IN DISTRESS AND MARINE

POLUTION

In most cases, the problems relating to places of

refuge have more to do with regulation and could be

solved through adequate regulation. Accordingly, in

this section an overview of the South African

regulatory framework on places of refuge and marine

pollution will be provided.

The Constitution of the Republic of South Africa

(“the Constitution”) sets the broad parameters for

maritime safety, prevention of marine pollution,

safety of life and property at sea. In particular, the

constitution provides that everyone has a right to an

environment that is not harmful to their health or

wellbeing and to have the environment protected for

the benefit of present and future generations. It

empowers parliament to enact legislative and other

measures in order to prevent pollution and

degradation, promote conservation and secure

ecologically sustainable development (Section 24 of

the Constitution). The South African constitution

sets out the procedure for the application of

international law and customary international law,

and the adoption of international conventions.

(Sections 231, 232 and 233 of the Constitution)

South African legislations concerning places of

refuge, safety at sea and marine pollution control are

fragmented and contained in a variety of

parliamentary acts, provincial ordinances, local by-

laws and ministerial regulations such as Merchant

Shipping Act, Marine Traffic Act 2 of 1981, Marine

Pollution (Control and Civil Liability) Act 6 of 1981,

Marine Pollution (Prevention of Pollution from Ships)

Act 2 of 1986, Marine Pollution (Intervention) Act 64

of 1987, Maritime Zones Act 15 of 1996, and Wreck

and Salvage Act 94 of 1996. In addition to domestic

regulatory framework, South Africa is a member state

of many international conventions relating to

maritime safety, marine pollution and the related

matters. All these regulatory instruments have to be

consistent with the constitution which is the supreme

law of the land.

The Department of Transport (“DOT”) and the

Department of Environmental Affairs (“DOEA”)

share the responsibility of administering the above

mentioned pieces of legislations. In terms of Section

2(1) of the South African Maritime Safety Authority

Act 5 of 1998 (‘SAMSA Act’), the powers of the

Ministry of Transport are transferred to the South

African Maritime Safety Authority (‘SAMSA’) in

relation to most of the statutes falling under its

jurisdiction.

SAMSA is the South African coastal authority

which is established in terms of the SAMSA Act with

the express objective of promoting South African

maritime interests, ensuring safety of life and

property at sea, preventing and combating pollution

of the marine environment by ships. Sections 3, 4, 5

and 6 of the SAMSA Act authorises SAMSA is

authorized to deal, among the other things, with

issues of access to places of refuge. Legislation and

regulations aimed at preventing and limiting marine

pollution, and oil pollution specifically, is the

background against which the SAMSA personnel

make their decisions in relation to ships in distress

and determine whether or not to allow them to enter

South African internal waters for the purpose of

refuge (Holloway, 2005).

Moreover, the Harbour Master is also empowered

by the National Ports Act 12 of 2005 and Port Rules to

grant or refuse access to place of refuge for ship in

distress. Sections 74(1) & (3) and 80(2) of the National

Ports Authority read together with Rule 60 of the Port

Rules also empowers the Harbour Master of a port

from which a place of refuge is requested to either

grant or refuse such request from a ship in distress. In

particular, Rule 60 (1) and (2) of the Port Rules

provides that if a vessel is in need of assistance and

requests permission to enter into a port, the Harbour

Master should consider whether to grant or refuse

such a request. Rule 60(2) provides further that in

considering whether to allow the vessel into a port,

the Harbour Master takes into account the factors

outlined under sub rule 2 (a) to (t) of the Port rules.

SAMSA, the DOEA, the DOT and other related

government departments, have a comprehensive

action plan and casualty response approach. (South

African Incident Response Plan for Prevention and

Combating of Pollution at Sea (“SA Response Plan”).

This plan allows for an effective initial response as

well as communication and co-operation between the

different authorities and interested parties by way of

a Joint Response Committee. South Africa's National

Contingency Plan for the Prevention and Combating

of Pollution from Ships (‘Contingency Plan”) provides

guidelines for the overall strategy for oil pollution

prevention and management, including an action

plan for SAMSA, a casualty response unit, overall

response policy, priorities and so on.

3 THE SOUTH AFRICAN APPROACH TO PLACES

OF REFUGE FOR SHIPS IN DISTRESS:

PRACTICAL CONSIDERATIONS

The practice of coastal states in terms of which a

distressed vessel is granted access to a place of refuge

is an ancient one and has developed to become one of

the well-established principle of international

customary law of the sea (Chircop, 2002; Noyes, 2008;

Van Hooydonk, 2003). In accordance with

international law, the South Africa law recognises this

practice of granting access to a place of refuge for ship

in distress. Given the circumstances around the South

African coastline, it is no rare occasion for SAMSA to

receive a distress call from a ship in need of assistance

and be requested to attend to maritime emergencies.

Below, SAMSA’s approach when dealing with

distressed vessels will be examined under the

following sub-headings: initial assessments; insurance

cover requirement; further assessments; setting up of

a response team; factors of consideration; casualty

management; and, SAMSA’s priorities.

3.1 Initial Assessments

Upon receipt of notification that there is a vessel in

distress, SAMSA requests essential information from

the master and/or owner in order to make an initial

assessment of the position. At this stage it is of utmost

importance that the ship's master and owners must

make a full disclosure of all the relevant facts and be

co-operative in their interaction with SAMSA

personnel (Holloway, 2005). SAMSA requires full

disclosure in order to make a proper assessment of

the situation. Failure to co-operate and provide fully

disclose the required information may result into

refusal to grant access to a place of refuge (SA

Response Plan). For instance, in The Bismihita, the

distressed vessel was denied access to a place of

refuge simply because the owners apparently refused

to cooperate at all with SAMSA and would not let

SAMSA have access to the master and crew. The

authorities were accordingly in no position to assess

the situation because they had no information about

the cause of the vessel's distress (Holloway, 2005).

Should the initial assessment be that the crew is at

risk, arrangements will be made to remove the crew.

In that instance, a salvage company will have to be

appointed upon SAMSA insistence. As part of the

initial assessment process, the limit of the owners'

liability will also be calculated in terms of South

African law and confirming what liability insurance is

in place. The insurance cover is a pre-requisite and a

guarantee to cover the cost of pollution damage and

wreck removal may be requested (“SA Response

Plan”). This will certainly be the case if, subject to

the approval of the National Ports Authority it is

decided to bring the vessel into a port. In terms of

Sections 74(1) & (3) and 80(2) of the National Ports

Authority Act read together with Rule 60 of the Port

Rules the National Ports Authority has the right to

refuse access to a vessel.

3.2 Insurance Cover Requirement

Setting the insurance cover as a pre-requisite and

demanding a guarantee to cover the cost of pollution

damage and wreck removal play a very pivotal role in

South Africa. That is because in terms of the South

African law an owner’s liability for oil pollution is

limited to 133 SDRs (special drawing rights) per ton

(measured by a ship’s tonnage) or 14 million SDRs,

whichever is the lesser. In monetary terms this

equates to a maximum of approximately R240 million.

In line with international practice (necessary to enable

us to collect from the Clubs) we imposed strict

liability on owners against which they have few

defences, in return for a capping of liability to a

maximum amount. That capping still stands in our

law, and it removes claimants' abilities to claim in any

other way: beyond that figure, you bear your own

losses. On the other hands, the costs associated with

maritime casualties have devastating effects on the

economy and the environment, more especially the

costs of dealing with oil pollution are capable of

running into billions of rands (Hare, 2012; Simpson &

Clark 2017). For instance, with The Exxon Valdez the

clean-up costs and other oil pollution losses for a spill

of some 40 000 tonnes hit R20 billion mark (Hare,

2012).

South Africa subscribe to the lowest cap or limit of

the owner’s liability. Therefore, insurance cover is

essential to top-up and cover the actual costs incurred

consequent to the oil spill. Since the insurance cover is

set as a pre-requisite, failure to furnish the authority

with the cover may result into refusal to grant access

to a place of refuge. In The Ikan Tanda, SAMSA was

prepared to allow her to be brought into a port;

provided that a guarantee was put up for the

estimated full potential cost which might have arisen

should the vessel have sunk in a South African port.

Owners were apparently only prepared to put up a

guarantee to the limits of liability in terms of South

African law, which are grossly inadequate (Holloway,

2005)

Though SAMSA’s insistence upon the provision of

insurance cover (or request guarantee, where

necessary) may not be ideal, but it is somehow

understandable in light of the South Africa’s past

experiences where ship owners would abandon the

vessel leaving the South African taxpayers having to

foot the bill. The abandonment of vessel by the

owners happens more often where such vessel is of a

relatively low value. For instance, in The Seli 1

incident SAMSA was left facing an expensive bill after

the owners of the ship and the cargo walked away

from their responsibility leaving the safety authority

to foot the bill for the removal of the cargo and the

ship. The Russian P&I Club withdrew cover for

pollution and wreck-removal expenses on the basis

that the ship-owner had defaulted on an express term

of the policy. Accordingly, the ship-owner was able to

avoid its obligations on the basis that, as it was not

covered by its P&I Club, it could not undertake the

removal. The estimated expenditure by the SAMSA in

oil pollution clean-up and eventual removal of the

wreck amounted to R40 million. Since the ship

owners abandoned the ship, the South African

taxpayers had to foot the bill.

A similar situation (abandonment) played itself

out in relation to The Phoenix off Ballito, Durban 2011.

The High Court ordered that the Phoenix could be

sold to the person who submitted the highest bid and

also that the recovered fuel could be sold to help

defray a small percentage of the costs incurred so far

by SAMSA. (Huston, 2011) The situation becomes

very difficult where the vessel is of relatively low

value, as it was the case with both The Ikan Tanda and

The Bismihita (Holloway, 2005).

3.3 Further Assessments: Consultation, Inspection and

Report Back by Surveyor

In practical terms, the vessel is requested to take up a

holding position and this may be anything from 20 to

120 nautical miles offshore, depending on the scale of

the threat and an immediate assessment of the

prevailing wind and currents (Holloway, 2005). A

surveyor is then placed on board the vessel to consult

with the master and crew, carry out an inspection and

report back on the overall situation. Should there be

any risk to the environment, oil cargoes, and/or the

bunkers would have to be trans-shipped and slop

tanks sealed off (SA Response Plan).

3.4 Setting up of a Response Team

SAMSA, as a lead agency, has a responsibility of

setting up a response team and to see to it that the

whole operation is running smoothly. In so doing, it

will consult with the DOEA, environmentalists and

other experts, before deciding whether or not to offer

the vessel a place of refuge, and if so, where (SA

Response Plan).

3.5 Factors of Consideration

In terms of factors of consideration, there are no stone

casted rules. Each case is considered on its own facts.

Generally speaking, all the factors are taken into

consideration, including for example, the threat to

safety of people and the environment; the type of

vessel and her size and draft; the prevailing wind and

sea conditions at that time of the year; the ability at

the location to undertake the possible trans-shipment

of cargo or their pair of the vessel. The response team

will also take into account the IMO Guidelines on

Places of Refuge for Ships in Need of Assistance,

adopted on 5 December 2003.

3.6 Casualty management

SAMSA’s strategy in respect of casualty response can

be described as “risk based casualty management”. Ship

casualties are an unfortunate and inevitable side effect

of sea based trade and as both the largest trading

country in the sub-continent as well as being a

strategically placed coastal trade

state(geographically), the South Africa can expect

more than its fair share of ship casualties. Risk based

casualty management is based on a practical real-time

evaluation of the benefits versus the risks, as the event

unfolds, and where necessary and possible, active

intervention.

3.7 SAMSA’s Priorities

SAMSA’s priorities in managing a casualty are: Safety

of Life at Sea (saving the lives of persons aboard or

otherwise threatened by the casualty); The

preservation of the vessel, or removal of the vessel

from the shore, with harmful substances contained

and intact, in order to prevent pollution; The removal

of oil and other harmful substances by the most

practical means, from the vessel to prevent pollution,

should the second option fail; The preservation of

property (coastal properties, cargo and/or ship); and

Removal of wreck

4 ASSESSMENT OF SOUTH AFRICA’S

APPROACH TO PLACES OF REFUGE FOR

SHIPS IN DISTRESS AND PREVENTION OF

MARINE POLLUTION

In the past, the South African approach to emergency

situations and requests for places of refuge used to be

very robust. So much that South Africa was the first

country to recognize the need to have a tug solely for

the purpose of assisting ships in distress. The robust

approach earned South Africa a good reputation

among the other maritime state in matters of places of

refuge for ships in distress (Hare, 2009). In a meeting

dated 30 March 2004 the British Maritime Law

Association prepared a document headed “Places of

Refuge” and recorded the following positive

observation about the South African approach to

places of refuge: “Some States have adopted a robust

and positive approach to the matter: South Africa is

the vanguard” (Holloway, 2005).

However, close examination of the recent maritime

incidents shows some signs of serious drawbacks. In

fact, the approach of SAMSA, as a country’s coastal

authority, appears to be falling short of keeping up

with the ever changing challenges relating to

maritime casualties and access to places of refuge for

ships in distress. In this regard, Simpson & Clark

stated that: “in many respects, South Africa is falling

behind in achieving international norms to safeguard

against oil pollution and to have reserves in place

besides relying on ship owners and their P&I clubs”

(Simpson & Clark, 2017).

Indeed, examination of SAMSA’s approach

appears to be largely characterized by a number of

shortcomings. Some of the shortcomings will be

surveyed in more details below.

4.1 Lack of Decisiveness (or Indecisiveness)

Dealing with a ship in distress is an emergency

situation and therefore, it is important that the coastal

authorities and other stakeholders to be decisive in

terms of action that should be taken when a distress

call is made. All what is needed is that a decision is

made and such a decision is reasonable in the

circumstances. It is impossible to devise a precise step

by step guide of how to act decisively in a case of

emergency. Every case must be determined in the

light of its own particular circumstances and facts.

The reasonableness of the decision is based on a

conspectus of factors that need to be taken into

consideration. Factors relevant to the decision in this

regard include the following (the list is by no means

exhaustive): the speed with which the decision was

taken; the degree of imminence of the threatening risk

or harm; etc.

In this context, it is not much about good or bad

decision. The reason being that a person with call to

make a decision about a ship emergency or distress

situation is faced with a choice of two alternatives.

That person is in a moment of crisis and as such he /

she should not be judged as though he had the time

and opportunity to weigh up the pros and cons. The

situation has been appropriately described as “but it’s

a bit like ‘damned if you do, damned if you don’t’; in

an emergency situation someone has to make

decisions under pressure but without knowing how it

will work out” (Huston, 2011). All what is needed is

decisiveness. So an armchair’s criticism can never be

justified.

The excellent example of decisiveness is that of

United Kingdom Secretary of the State’s

Representative’s (‘SOSREP’) decision to deliberately

beach the container ship MSC Napoli. To prevent her

sinking in the English Channel, where containers

would have floated off and caused great navigational

danger to one of the world’s busiest shipping lanes,

he ordered that the ship be run ashore on a stretch of

Devon coastline. Containers did break free with some

floating ashore. The SOSREP faced severe criticism for

his drastic action but later came into widespread

praise for minimising the danger and risk.

On the other hand, the The Treasure incident is a

good illustration of indecisiveness and its attendant

consequences. As stated above, The Treasure managed

to sail to Table View where SAMSA inspected the

ship and found a 170 meters squared hole in the

ship’s hull. SAMSA ordered the ship to unload its fuel

and cargo in Cape Town and begin repairs to override

other stakeholders or leave the SA waters. After a

prolonged period of indecision, the owners and

insurers of the The Treasure eventually decided to

have the ship depart from Table Bay. On the way it

sank while still close to the coast, spilling about 1,300

tons of oil from its fuel tanks.

SAMSA’s approach in handling The Treasure

incident was widely criticised as being indecisive.

Pointing to the indecisiveness of SAMSA, Madden &

Knight stated that: The incident involving the MV

Treasure shows what can happen when a procedure

for dealing with distressed ships becomes too open-

ended. The decision to either enter port or leave Table

Bay should never have been left up to the owners and

insurers of the Treasure when there was the threat of a

major environmental catastrophe if quick action was

not taken. SAMSA, as the relevant coastal state

authority, needed to act quickly and make its own

decision on whether or not it was more desirable that,

taking into account the possible danger to the

environment, the Treasure should attempt to take

refuge or steam for the open sea. The incident shows

how important it is for a coastal state to have

mechanisms in place that allow the problem posed by

a ship in distress to be dealt with quickly and

decisively.” (Madden & Knight, 2003).

It is submitted that the SAMSA’s criticism is fair

and justifiable in the circumstances. It is not an

armchair criticism. Given the fact that the situation

was a clear threat to the environment, it was

incumbent upon SAMSA to act decisively and with a

sense of urgency demanded by the circumstances.

Indeed, the decision to either enter port or leave Table

Bay should never have been left up to her owners. In

the end, the results proved to catastrophic in that on

the way she sank while still close to the coast, spilling

about 1,300 tons of oil from its fuel tanks. This oil spill

had a massive impact on the immediate environment,

particularly on the nearby colonies of African

penguins.

4.2 Lack of Clear Decision Making Structure and Chain

of Command

One of the challenges of dealing with maritime

emergencies is that the issue involves multiple

stakeholders with diverse interests (Morrison, 2011;

Noyes 2008). So it is of paramount importance that

the decision making structure and chain of command

be very clear. In this regard, the European Parliament

resolved that “each Member States must have at its

disposal a clear decision making structure and chain

of command for maritime emergencies, together with

an independent authority that in turn has at its

disposal the necessary judicial, financial and technical

say in taking decisions having binding effect in

emergencies within territorial waters and the

exclusive economic zones” (EP Resolution

2003/2066(INI), 2003).

In the South African context, the decision making

process and chain of command are not sufficiently

clear. This challenge is further compounded by the

South African statutory framework. For instance,

Sections 3, 4, 5 and 6 of the SAMSA Act authorises to

deal, among the other things, with issues of access to

places of refuge. On the other hand, Sections 74(1) &

(3) and 80(2) of the National Ports Authority Act 12 of

2005 read together with Rule 60 of the Port Rules also

empowers the Harbour Master of a port from which a

place of refuge is requested to either grant or refuse

such request from a ship in distressSAMSA does not

have the powers to order a port in South Africa to

accept a vessel (Holloway, 2005; Simpson & Clark,

2017). There is lack of clarity among the stakeholders

as to who bears the ultimate authority to override the

other when there are divergent views on matters of

places of refuge.

4.3 Lack of Guiding Principles

This refers to essential requirements that would

trigger intervention by the coastal authority. In other

words, it must be clear which circumstances would

warrant intervention of the authority. It must also be

clear what form of intervention is warranted. Is it a

control or command kind of intervention? Under

which circumstances can intervention change from

control to command? If the shipmaster or ship owner

refuses to comply with the intervention orders, what

powers can be invoked?

That would mean from the moment intervention is

triggered, the coastal authority would proceed with

its mission without recourse to the owners of the

vessel. For instance, the UK SOSREP uses public

interest principle as an overriding factor when

confronted with a potential disastrous emergency

situation. In taking decisions is guided by the public

interest principle. SOSREP has very wide-ranging

powers including the competency to beach the vessel

without the owner’s permission, as long as such

decision is taken in the overriding public interest.

4.4 Lack of Ultimate Powers to Override Other

Stakeholders

In performing its functions SAMSA may consult other

stakeholder including the harbour master, ship

master / owner, insures, relevant government

departments, environmentalists, any other relevant

statutory bodies, etc. Various stakeholders have

different interests and attitudes towards the decision

that should be taken in the case of maritime

emergency. In a situation where stakeholders hold

different views on the approach that should be

adopted, it would be ideal for SAMSA as a lead

agency to possess powers to override the other

stakeholders and implement its decision. Lack of such

overriding powers, as it is the case at the moment,

will lead to indecisiveness at crucial moments.

Lord Donaldson’s Control and Command Review

recommendation to the UK in relation to ultimate

control by SOSREP, that: “ultimate control of any

salvage operation where there is a threat of significant

pollution of the UK environment must be exercised by

the Secretary of State's representative acting in the

over-riding public interest. This representative should

in our view be known as "SOSREP" indicating neither

more nor less than that he is the Secretary of State's

representative empowered to exercise intervention

powers to whatever extent is required in the public

interest.” (recommendation 9).

4.5 Lack of accession to the highest limitation of liability

fund

In recent years South Africa has acceded to both the

1992 CLC and 1992 Fund Convention. The 1992 CLC

raises the ceiling of limitation of a ship owner’s

liability and the 1992 Fund Convention acts as a top

up where the 1992 CLC falls short or a ship owner is

not able to meet its CLC liabilities. Both owners’ P&I

clubs and the Fund, administered in terms of these

Conventions, will only pay out in circumstances

where a ship owner is found to be legally liable in the

jurisdiction in which a claim for oil pollution arises.

South African legislation has not yet been amended or

promulgated to incorporate the 1992 Conventions into

domestic law and the limits of liability stand as set

out above.

One of the major limits to these Conventions is

that they do not cover oil pollution due to the spillage

or leaking of bunkers. The IMO has developed a new

Convention dealing with this issue to which South

Africa has not yet acceded. South Africa’s present oil

pollution prevention and liability legislation is

housed in the Marine Pollution (Control and Civil

Liability) Act and the Marine Pollution (Intervention)

Act. An owner’s liability for oil pollution is limited to

133 SDRs (special drawing rights) per ton (measured

by a ship’s tonnage) or 14 million SDRs, whichever is

the lesser. In monetary terms this equates to a

maximum of approximately R240 million. On the

other hands, the costs associated with maritime

casualties have devastating effects on the economy

and the environment, more especially the costs of

dealing with oil pollution are capable of reaching

billions of rands. For instance, with MV Exxon Valdez

the clean-up costs and other oil pollution losses for a

spill of some 40 000 tonnes hit R20 billion.

South Africa has failed to accede to the 1992 CLC

convention with the maximum cover when it comes

to liability. In consequence thereof, SAMSA sets the

insurance cover is a pre-requisite to grant access to

place of refuge for ships in distress. It serves as a

guarantee to cover the cost of pollution damage and

wreck removal may be requested. This will certainly

be the case if, subject to the approval of the National

Ports Authority (NPA), it is decided to bring the

vessel into a port. The NPA has the right to refuse

access to a vessel.

This is one of the weaknesses in the South African

approach to places of refuge for ships in distress. In

MV Ikan Tanda, SAMSA was prepared to allow her to

be brought into a port; provided that a guarantee was

put up for the estimated full potential cost which

might have arisen should the vessel have sunk in a

South African port. Owners were apparently only

prepared to put up a guarantee to the limits of

liability in terms of South African law, which are

grossly inadequate. The vessel was of a relatively low

value. In the end, the vessel was denied access and

ordered to leave the South African waters.

The problem with this approach is that to a large

extent it leaves the decision to enter the port or sailing

out of the South African waters with the ship owners

and insures. And as such it is very risky in cases of

emergencies when there is the threat of a major

environmental catastrophe if quick action is not taken.

The delays and indecisiveness in a case of emergency

have proven to be catastrophic in MV Treasure

incident.

5 RECOMMENDATIONS

The approach of the coastal state authority when

dealing with request for access to places of refuge is

largely informed by the applicable regulatory

framework. The coastal authorities are creature of

statutes and as such they derive their powers from the

enabling statutes. Accordingly, in performing their

mandate they should do so within the parameters and

scheme of operation set by the empowering statute

and other relevant regulatory instruments. Therefore,

the shortcomings manifest in the approach of coastal

authorities in South Africa and elsewhere can be

resolved through adequate regulation. This is what

the European Parliament when its resolved that: ‘the

Prestige disaster has clearly shown that arrangements

to accommodate vessels in distress are inadequately

regulated…” (EP Resolution 2003/2066(INI), 2003,

2003).

In this regard, South Africa needs to reform its

legislative and policy framework so that it can

adequately regulate the issues relating to places of

refuge. In undertaking legislative enactments, South

Africa would do well to follow the lead of the

countries such as the United Kingdom. The UK

through SOSREP, currently represent what perhaps

may be described as one of the most effective way of

addressing the modern day challenges of places of

refuge. It is an approach that the other maritime states

should seek to emulate.

Shipping is international in nature and its

problems are also international in character. So in

trying to resolve them they need an eclectic approach.

South African lawyers are well not for being eclectic

and their lack of fear to venture beyond their defined

horizons and look to other legal systems for ideas.

According to Christie “it is for that reason that the

South African law has some of the characteristics of a

jackdaw’s nest embellished with treasures picked up

here and there” (Christie, 2006).

SOSREP system carries with itself a lot of benefits.

Pointing out to some of the benefits Simpson and

Clark stated that: “SAMSA’s role, and perhaps limited

to those powers in the South African Marine Pollution

Acts, are akin to those powers that would be given to

a South African SOSREP. The difference is that a

SOSREP would proceed without extensive

consultation, bureaucracy and financial constraints.

The idea of a SOSREP is to appoint a single

coordinator for salvage operations able to make

prevent active decisions, which would decrease the

cost of an environmental catastrophe, through quicker

response times and decisive action. In many respects,

South Africa is falling behind in achieving

international norms to safeguard against oil pollution

and to have reserves in place besides relying on ship

owners and their P&I clubs” (Simpson & Clark, 2017)

Regarding the South Africa’s need a coastal

authority agent with wide-ranging powers similar to

SOSREP, Huston stated the following: “South Africa

needs something along the lines of Sosrep, with its

wide-ranging powers of overriding anyone

preventing the ship from entering a port or place of

refuge” (Huston, 2011).

However, it should be noted that there is no

perfect and one-size-fits kind of approach to problems

relating to places of refuge. The challenges relating to

places of refuge are not static. They move with time.

For instance, in as much as technological

advancements and modern infrastructure presents

opportunities for better and more pragmatic solution,

on the other hand it brings with it new challenges

giving rise to complex problems.

So in adopting a system similar to the UK SOSREP,

South Africa should avoid a wholesale importation of

such a system. Instead it should adapt it to meet its

own peculiar circumstances.

6 CONCLUDING REMARKS

Clearly, the South African approach to places of

refuge for ships in distress falling behind in keeping

up with new challenges. Among the other things, it is

deficient in the following respects. To be more

specific, it is indecisive; lacks clear decision making

structure and chain of command; lacks guiding

principle(s); SAMSA, as coastal authority, has got no

ultimate authority to override other stakeholders;

South Africa as maritime state has failed to reform its

limitation of liability legislation so as increase its

limit. The combination of all these factors is the cause

of SAMSA’s unsatisfactory approach to places of

refuge for ships in distress.

In the main, the recommendation made is that

these problems can be resolved through adequate

regulation. The South African relevant regulatory

framework is dated and it needs reforms.

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