FISHING INDUSTRY NEWS – OCTOBER 2014


NEW WRECK REMOVAL REGIME FOR SOUTH AFRICA

 

Since vessels have had the ability to sail around the tip of Africa, the Southern African coast line has become the resting place for many a vessel, predominantly due to our traditionally dangerous seas.

As such the ability of South African authorities to prevent wreck situations or to efficiently remove ships wrecked or stranded on our coastline is of paramount importance to the preservation of our coastline, the marine environment and our marine resources.

It would therefore come as a surprise to the lay person that the existing legislative powers which SAMSA have with regard to wreck removal are contained only in one section of the Wreck and Salvage Act (WSA) which section comprises of only half a page. Section 18 of the WSA is the relevant section in question. Not only is it scant in detail regarding SAMSA’s wreck removal powers but it contains a glaring anomaly which seriously detracts from SAMSA’s powers of wreck removal.

For instance in a situation where a vessel loses dangerous cargo over board such as containers or heavy logs, according to Section 18(2) SAMSA may only take measures to remove such cargo from the sea if it has been unable to contact the owner of such cargo. In most cases SAMSA would be in a position to contact the owners and once contacted, SAMSA would therefore not have the legislative authority to remove such cargo from the water in order to prevent a hazard to navigation or a hazard to other users of our coastline.

Another element of our current legislation which is lacking is a uniform set of rules and procedures which clearly define and set out what constitutes a wreck/hazard, and exactly what process should be followed for its removal. More importantly being able to finance or recover the costs of such removal has often been a problem for SAMSA in the past. A prime example of this is the MV “Seli 1” which ran aground off Table View. SAMSA have been unable to recover their wreck removal costs from either the vessel owner or her insurers.

Enter the Nairobi International Convention on Removal of Wrecks (“NC”). The solution to the current hiatus in our wreck removal regime should hopefully come from the incorporation of the NC into South African Law. The NC was adopted by a diplomatic conference held in Kenya in 2007, and is an instrument to fill a gap in the existing international legal framework by providing the first set of uniform international rules ensuring prompt and effective removal of wrecks located beyond the territorial sea. Although its primary purpose was for wrecks located in the EEZ beyond the territorial sea, the convention provides that when ratifying or acceding to such convention, the NC can also apply to the territorial sea (up to 12 nautical miles).

The convention enters into force internationally 12 months from the date on which 10 states have signed or ratified the convention. In this regard the convention will enter into force on the 14th of April 2015 following Denmark’s ratification thereof on the 14th of April 2014. From a South African perspective a government press release dated the 7th of November 2013 has indicated Cabinet’s intention to ratify the convention and to give it effect within South Africa by incorporating it into our law. The most practical and expedient way of incorporation of the NC would be the amendment of the current WSA.

When incorporating the NC into our legislation it is vital that the NC is extended to apply in our territorial waters as this is predominantly where wreck removal situations arise.

The main advantages of incorporating the NC into South African Law are:

  •  Article 5 provides for a specific procedure for the reporting of wrecks by the Master or Operator of the vessel which includes information relating to the precise location of the wreck; the type, size and construction of the wreck; the nature of damage and the condition of the wreck; the nature and quantity of the cargo and whether or not it is hazardous or noxious and the amounts and types of oils, including bunker oil and lubricating oil on board;
  • Article 6 sets out detailed criteria for the coastal state to determine whether a wreck poses a hazard. These criteria include inter alia the types and size of the wreck; depth of water; currents in the area; proximity of shipping routes/traffic lanes; nature and quantity of wreck’s cargo; vulnerability of port facilities; proximity of offshore installations, pipe lines, etc and then a general criterion being any other circumstances that might necessitate the removal of the wreck.
  •  Articles 7 and 8 provide for the affected coastal state to warn mariners and states concerned of the nature and location of the wreck, and provides for reasonable steps to be taken to mark the wreck appropriately should it constitute a hazard.
  •  Article 9 is one of the most important sections of the NC as it sets out detailed measures to facilitate the removal of wrecks. It plugs the current lacuna in Section 18 of our WSA (referred to above). It specifically provides for the obligation of the registered owner to remove the wreck which constitutes a hazard and for the state to lay down conditions for such removal. If the removal is not affected then the state can intervene and remove the wreck to the extent necessary. The state however must give a reasonable deadline for compliance by the registered owner.
  •   Also of importance Article 10 makes provision for the liability of the owner for the costs of locating, marking and removing the wreck but also provide defences to such liability in the event of the wreck being:  “as a result of an act of war etc” … “or as a result of a natural phenomenon of an exceptional, inevitable and irresistible character” – this particular exception may be problematic as it appears extremely vague. A further defence would be if the wreck was wholly caused by the negligence or other wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function – this may also be a problematic section for the state when incorporating into South African law.
  •  The most important article in the NC from a “Seli 1” perspective is article 12 which provides for compulsory insurance or other financial security. In terms of this article vessels which are entering or leaving a port in the state territory must have insurance or other security (i.e. a bank guarantee) to cover liability for wreck removal under the NC in an amount not exceeding the limitation of liability regime set out in the Convention on the Limitation of Liability for Maritime Claims of 1976. This provision is accordingly balanced in that it provides for much needed compulsory insurance/financial security for wreck removal in respect of vessels entering or leaving our ports (i.e. vessels which could potentially pose a threat to our coastline) and at the same time provides for a limit of liability for the ship owner. This may be a question which our government may have to debate as currently Section 18 does not have any limit of liability on the owner of wrecked vessels. We may also want to extend the need for security to other vessels who are entering our EEZ or territorial waters at least.

In summary, the NC does provide an essential tool which South Africa needs to incorporate into its legislative regime. The key will be to what extent amendments are made to the NC when incorporating into our law and whether or not these amendments will be acceptable to the P&I Clubs/Insurers of vessels which navigate our waters. It is ultimately the insurers and financial institutions who must put up security in terms of the NC in order to avoid a “Seli 1” scenario.