UNIVERSITY OF NAMIBIA
NAME:
MATEUS NDALIPO KAHOLONGO
STUDENT NO: 9023534
COURSE:
LLB
TOPIC:
A critical Review of Maritime Legislation
in Namibia
SUPERVISOR:
ADV. CLIVE KAVENDJI
1
Declaration
I, the undersigned, hereby declare that the work contained in this dissertation for
the purpose of obtaining my degree of LL B is my own original work and that I
have not used any other sources than those listed in the biography and quoted in
the references.
Signature:
………………………………
Date:
………………………………
Supervisor’s Certificate
I, Clive Kavendji hereby certify that the research and writing of this dissertation
was carried out under my supervision.
Supervisor’s Signature:
………………………
Date:
……………………….
2
TABLE OF CONTENTS
PAGE
Declaration
1
Acknowledgements
3
List of Abbreviations/Acronyms
4
Abstract
5
Chapter 1
:
Introduction
6
Chapter 2
:
Literature Review
9
Chapter 3
:
Current Admiralty
Legislation in Namibia
Chapter 4
:
26
International Dimension and
Influence on Namibia’s
Admiralty Legislation
36
Chapter 5
:
Evaluation
44
Chapter 6
:
Recommendations
50
Chapter 7
:
References
52
3
Acknowledgements
I would like to express my profound appreciation to my Supervisor, Adv. Clive
Kavendji for the encouragement and academic support without which this study
would not have been completed. I would like to thank Professor Nico Horn in the
Faculty of Law of the University of Namibia whose guidance in research writing
has improved my research skills considerably.
I am indebted to Mr. George Tshatumbuof the Department of Maritime Affairs in
the Ministry of Works and Transportwho provided me with rare documents on
Maritime Law. I would like to thank Meme Hilja and the children for their
encouragement to carry on until I completed the study.
4
List of Abbreviations/Acronyms
USA
:United States of America
IMO
: International Maritime Organization
SOLAS
:
International Convention for Safety of Life at Sea
(SOLAS)
MARPOL
:
International Convention for the Prevention of Pollution
from Ships
CLC
:Convention on Civil Liability for Oil Pollution Damage
STCW
:Convention on Standards of Training, Certification and
Watch Keeping for Fishing Personnel
OPRC
:
International Convention on Oil Pollution Preparedness,
Response and Co-operation
JVA
MSC :
:
Joint Venture Agreement
International Maritime organization’s Maritime Safety Committee
(MSC)
UN
: United Nations
5
Abstract
During the colonial period, Namibia applied the English Maritime Law that was
inherited from the Cape of Good Hope upon theformal occupation by South Africa
through the Administration of Justice Proclamation of 1919.The Colonial Courts of
Admiralty Act of 1890 which was applicable in the Cape at the time became
applicable to Namibia as well. During the 19 th century various countries enacted
maritime legislation to keep in line with the changing legal environment in the
shipping law. The changing trend in maritime environment was also necessitated
by the various international agreements and UN Conventions.
At independence, Namibia acceded to various UN Conventions. The UN
Conventions require that Parties should enact domestic legislations that give effect
to the Conventions. Namibia has not yet enacted admiralty legislation in this
regard. The Colonial Courts of Admiralty Act of 1890 which is still applicable to
Namibia as far as maritime matters are concerned is outdated and cannot deal with
admiralty cases effectively.
6
CHAPTER 1
INTRODUCTION
Namibia inherited the Roman Dutch Common law in 1919 when she became the cclass Mandate of South Africa after World War 1. This means that in terms of this
arrangement, the laws regarding the administration of admiralty affairs in South
Africa became applicable in Namibia as well.
The admiralty laws that were applicable in South Africa were: the Admiralty Act
of 1840; the Admiralty Court Act 1861 and the Colonial Courts of Admiralty Act
of 1890. The Colonial Courts of Admiralty Act of 1890, for instance, declared the
South African Courts, as courts of admiralty that have the same powers and
jurisdiction as the High Court of South Africa. 1 (Also see the case of Freiremar SA
v The Prosecutor General of Namibia and Another 1996 NR 18 at 28 and Namibia
Ports Authority v MV RybakLeningrada 1996 NR 355 HC at 359).
At the international level, maritime law has changed with time over centuries. As a
result, countries in Europe and America signed various conventions, especially on
carriage of goods at sea and in the area of marine insurance. These include the
Convention for the Unification of Certain Rules of Law relating to Bills of Lading
(Hague Rules). South Africa, for instance enacted the Admiralty Jurisdiction
Regulation Act of 1983 in order to mainstream its admiralty regulations in line
with the Hague Rules.
Freiremar SA v The Prosecutor General of Namibia and Another 1996 NR 18 at
28
1
7
In respect of Namibia, the admiralty law applicable is the Colonial Courts of
Admiralty Act 1890. Although Namibia is a party to various international
conventions, including, the Hague Rulesthat have become an integral part of
Namibian law, such instruments may be inadequate in dealing with maritime and
admiralty issues. The research willtherefore evaluate the admiralty regulation and
court jurisdiction in Namibia.
1.
Purpose of the Study
The study attempts to find out whether compared to other jurisdictions, such as
South Africa, England and USA, the Namibia maritime legislation is adequate. The
study will recommend strategies to improve the efficiency and effectiveness of the
Namibia maritime legislation in order to address the shortcomings in the
management and administration of maritime affairs.
2.
Methodology
The study will concentrate on secondary sources such as books, journals and case
law. The study will concentrate on literature review, especially the research work
of Gaskell, Debattista and Swatton (1987), Churchill and Rowe (1988), Wilson
(1998), Marsden (1998), Hill (1995), and Bamford (1983) as well as International
Conventions on Maritime law.
8
Case law on maritime law in various jurisdictions will also be consulted.
Interviews will be conducted with some government officials in the Ministry of
Works and Transport on maritime law in Namibia.
3.
Delimitation of the Study
Due to financial and time constraints, the study will concentrate on the history of
the development of admiralty law in Namibia. A brief comparison will be made
with some developments in maritime law with some countries such as South
Africa, England and USA. Thereafter, recommendations will be made to review
and reform maritime law in Namibia with the view to catch up with international
developments.
4.
Research Question
Maritime law has evolved over the last century. As a result, many countries have
developed and reformed their maritime law to suit the changing circumstances of
the dynamics of international trade in the field of maritime law. Namibia still has
the outdated Colonial Courts of Admiralty Act 1890 and the Merchant Shipping
Act 57 of 1951. The study aims to answer whether this outdated maritime
legislation is adequate to deal with changes of the time in maritime law
domestically and internationally.
9
CHAPTER 2
LITERATURE REVIEW
Admiralty or maritime law concern legal rules that relate to maritime matters.
Countries, especially those that have access to the sea have enacted and developed
laws that deal with matters such as marine insurance, carriage of goods by sea and
maritime liens. Maritime law also deals with matters of safety of personnel at sea,
the seaworthiness of ships, pollution, towage, salvage and many others. The
jurisdiction of the courts in dealing with maritime cases is of paramount
importance. It is important that when maritime cases are brought before court, the
court should exercise jurisdiction. In addition, the court must not only have
jurisdiction but also be able to enforce a maritime claim that has been decided by a
court of another jurisdiction.
In addition to the domestic maritime law, there are several international
conventions which deal with broader issues of maritime law.Indeed, while the
international law of the sea is in principle limited in its application to states and
other entities having international personality, international law has an impact on
individuals. In this connection, individuals could be arrested in coastal waters on
charge of illegal fishing or find themselves sued on the basis of pollution or on
matters relating to maritime claims.2
During the beginning of 19th century, states exercised laissez-faire in the sense that
the sea was open to all nations and there was no limitation on the usage of
international seas to carry out trade among nations. However, the freedom of the
seas has resulted in potential conflict among sea trading nations.
2
Churchill, R.R. and Lowe, A.V. 1988. The Law of the Sea.Manchester University Press.p.2
10
The threat of pollution from tankers necessitated states to exercise tight controls
over their coast lines and protect their natural resources.3
At the international level states decided to work closely together to protect their
commercial interests at sea. The first Convention to come on stream was the 1958
United Nations Conference on the law of the Sea which concentrated on producing
a framework of rules governing states’ rights and duties in the territorial sea,
continental shelf and high seas such as pollution and fishing.4
However, states accede to the international law on a voluntary basis. Only states
that acceded to international conventions will be obliged to obey them. States that
do not accede to international conventions are not bound to obey them against their
will. International law is a body of voluntary rules where states pledge to work
together for the common good of the members of the international community.
Notwithstanding, international law has grown and only few countries dispute its
existence. Today, international law is sourced from international conventions,
whether general or particular, establishing rules expressly recognized by the
contesting states; international custom as evidence of a general practice accepted as
law; general principles of law recognized by civilized nations; and judicial
decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.5
3
Ibid, p.2
Churchill, and Lowe, A.V. ibid, p.2
5
Ibid, p.4
4
11
Namibia also embraces international law as part of her law. Article 144 of the
Namibian Constitution stipulates that:
“Unless otherwise provided by this Constitution or Act of Parliament, the general
rules of public international law and international agreements binding upon
Namibia under this Constitution shall form part of the law of Namibia”.6
Namibia is a signatory to the following various international agreements and
conventions. 7These are:
a)
International Maritime Organization (IMO) Convention 1948;
b)
IMO Convention 1991;
c)
IMO Convention 1993;
d)
International Convention for Safety of Life at Sea (SOLAS), as amended
(SOLAS 74/78);
e)
International Convention on Load Lines 1966 and the Protocol of 1988 (LL
66 & Prot. 88);
f)
International Convention on Tonnage Measurement of Ship 1969 (Tonnage
69);
g)
International Regulations for Preventing Collision at Sea 1972, as amended
(Colreg 72, as amended);
h)
International Convention on Standards of Training, Certification and Watch
Keeping for Seafarers 1978/95 (STCW 78/95);
6
Article 144 of the Namibian Constitution
The list of the above mentioned Conventions entered into by Namibia are available at the Department of Maritime
Affairs, Ministry of Works and Transport in Windhoek.
7
12
i)
International Convention on Maritime Search & Rescue 1979, as amended
by resolution MSC 70 (69);
j)
International Convention for the Prevention of Pollution from Ships 1973
and the Protocol of 1978 (MARPOL 73/78) as amended;
k)
International Convention relating to Intervention on the High Seas in Cases
of Oil Pollution Casualties 1969 and the Protocol relating to Intervention on
the High Seas in Cases of Pollution by Substances Other Than Oil 1973;
l)
The Protocol of 1992 to amend the International Convention on Civil
Liability for Oil Pollution Damage 1969 (CLC Prot. 1992);
m)
The Protocol of 1992 to amend the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution
Damage 1971 (Fund Prot. 92);
n)
The Convention for the Suppression of Unlawful Acts against Safety of
Maritime Safety and the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms located on the Continental Shelf;
o)
International Convention on Standards of Training, Certification and Watch
Keeping for Fishing Personnel 1995 (STCW 1995; and
p)
International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC 1990).
While the Constitution of the Republic of Namibia stipulates that these
Conventions are part and parcel of Namibian admiralty and maritime law, it is
debatable whether Namibian courts would enforce these conventions, alternatively
13
it is a matter of legal debate if an individual who would sue for a claim falling
under the provisions of these conventions would be given relief in this regard.
The following admiralty laws are applicable in Namibia. These are the Admiralty
Court Act of 1840 and the Admiralty Court Act of 1861; Colonial Courts of
Admiralty Act 1890; Merchant Shipping Act 57 of 1951 which has an Annexure
containing the International Hague Rules; and Common Law. From this premise, it
could be deduced that Namibian maritime law is still under-developed.8 Indeed, “as
far as Namibia is concerned, it was already stated that our law is under-developed.
We do not have an admiralty jurisdiction regulation act, nor do we have a carriage
of goods by sea act which has the Hague Rules as amended. Instead Namibia uses
the Merchant Shipping Act 57 of 1951 of which its Chapter VIII (Sections 307311) incorporates the Hague Rules. Whether the Hague-Visby Rules which
amended the Hague Rules applies to Namibia is a matter of research.”9
The fact that Namibia still uses old admiralty laws impacts negatively on
administration of the country’s maritime affairs. Although many countries have
ratified the international conventions on maritime matters, they have equally
modified such conventions by domesticating them through the enactment of
domestic laws. The mere fact that Namibia has acceded and ratified international
agreements and conventions does not mean that these convections will be applied
in their current form whenever there are issues to resolve involving parties from
other jurisdictions, because not all the provisions of the international conventions
8
9
Namibia Ports Authority v MV RybakLeningrada 1996 NR 355 HC at 359)
Ibid
14
will work in the same manner in Namibia and elsewhere, especially when such
countries have modified such international conventions to suit their local needs.
The example in this respect is England. While the Admiralty Court Acts of 1840,
1861 and 1890, the 19thcentury introduced in the English law statutory rights to
deal with maritime cases such as arrest of the ship, maritime claims and
necessaries provided to foreign ships, there were still some gaps in the English law
of admiralty, thus necessitating the enactment of the Supreme Court of judicature
(Consolidation) Act 1925 and later the Administration of Justice Act 1956. The
provisions of this Act have now been consolidated into the Supreme Court Act
1981.10While England is a common law country, its admiralty law is based on
common law principles augmented by the conventions and statutory enactments
such as the Supreme Court Act 1981. In comparison to Namibia, our country has
not enacted its local admiralty law yet and the courts have to rely on international
customs, common law and decisions taken by courts in foreign jurisdictions. This
creates legal uncertainty as far as the admiralty law is concerned. Even if the
Namibian courts have jurisdiction on the matter, what constitutes a maritime claim
in Namibia in terms of the Namibian law today could not be a maritime claim in
another country or vice-versa.
The same situation existed in England. “The right to seize a vessel by legal process
is therefore partly based on rights conferred by general maritime law and partly
upon the right to take legal action of this nature granted by statute. The
Administration of Justice Act 1956 was the United Kingdom’s attempt to give
recognition to the International Convention on the Arrest of Sea-going Ships
1952”.11Therefore, the passing of the 1956 Act and subsequently the Supreme
10
11
Hill, C. 1995. Lloyd’s List Practical Guides. Maritime Law.4 th Edition. London. Lloyd’s London Press. p.113
Ibid. p.113
15
Court Act 1981brought in a new dimension in England’s maritime law which
eased the problem of judicial interpretation.
Namibia has not yet signed and ratified the International Convention on the Arrest
of Sea-going Ships 1952. This is another challenge to Namibia and the country’s
courts would not have jurisdiction in case an applicant brings a case to court
requesting that a particular ship be arrested to resolve a maritime dispute. Namibia,
for example has no provision for the arrest of the sister ship. This will be discussed
fully on the chapter dealing with jurisdiction.
Another important observation of the Namibian maritime law points to the
shortcomings of the law, relating to the Bill of Lading. When shippers have only a
small quantity of cargo to be shipped, they have to acquire services of the regular
liner services which operate from one port to another. When a cargo is loaded, a
bill of lading is issued to the shipper which is a prima facie evidence of the goods
shipped, the quantity of the goods, the consignee and the port of discharge. The
Bill of Lading also serves as the evidence of the contract of carriage.
“Whereas the parties, especially in a charter party contract of carriage are free to
negotiate their own terms, the inherent inequality of bargaining power as between
the parties to a bill of lading contract has necessitated restrictions being imposed
on the traditional principle of freedom of contract. International conventions have
defined the basic obligations of the carrier towards the cargo and prescribed the
maximum immunities and limitation of liability he can claim. The provisions of
one of these conventions, the Hague/Visby Rules, are now incorporated into
English law by the Carriage of Goods by sea Act 1971 and any attempt
contractually to exclude them is declared to be null and void”.12
12
Wilson, J. Carriage of Goods by Sea. 2nd Edition. London. Pitman Publishing Company. p.6
16
Namibia did not sign and accede to the Hague/Visby Rules nor does it have
specific legal provisions regarding the bill of lading, except that the Merchant
Shipping Act 1951 which is still operational in Namibia incorporates the
Hague/Visby Rules on the rights and obligations of the shipper and the carrier.
The Hague/Visby Rules were amended by the Hamburg Rules of 1978. The
HamburgRules are not operational in Namibia. While the conventions such as the
Hamburg rules regulate matters regarding the bill of lading and the responsibilities
of both the carrier and the shipper, countries are supposed to enact their own
legislation to make these rules suit their local conditions. In England, the Hamburg
Rules have been incorporated into the Carriage of Goods by Sea Act 1971. The
rationale for countries to enact their own laws in this regard is because although
the Rules establish the mandatory framework, parties are free to reach agreement
on all other aspects of the contract of carriage on their own terms.13
Wilson supra further demonstrates that “the development of containerization has
introduced a further complication in that many of these contracts of carriage now
envisage the participation of a succession of carriers. In such circumstances the
normal procedure is to issue a through bill of lading which may provide either that
the carrier issuing the bill undertakes responsibility for the entire carriage through
to the destination, or that each successive carrier only accepts liability for the
period during which the goods are under his control. By which case, any
responsibility for loss or damage will be governed by the law of the place where
the loss occurred and of the mode of transport being used at the time”.14
If the law of the place is to be used in this instance, there will be problems of
interpretation in case a matter involving multiple carriers comes to Namibian
13
14
Wilson, J. Carriage of Goods by Sea. 2nd Edition. London. Pitman Publishing Company. p.6
ibid
17
courts. The Namibian court would entirely rely on common law and international
conventions to deal with such cases because of the legal vacuum which has been
caused by the lack of relevant legislation in this regard.
Because Namibia did not accede to the Hamburg-Visby and Rotterdam Rules,it
disadvantages Namibian contractors to the carriage of goods by sea. The close
study of the Hague-Visby Rules indicate that the contract is defined on the basis of
the obligations of the parties and do not contain such definition but merely connect
it to the Bill of Lading. Thus, in terms of Article 1, the Hague-Visby Rules only
apply to contracts of carriage covered by the Bill of Lading or any similar
document of title. In comparison, the Hamburg Rules define the contract of
carriage by sea to mean any contract whereby the carrier undertakes against
payment of freight by sea from one port to another.
However, a contract by sea that involves carriage by some other means is deemed
to be a contract by sea for the purpose of the Convention only in so far as it relates
to the carriage of carriage by sea.15 In comparison, the Rotterdam Rules define the
contract of carriage as “a contract in which a carrier, against the payment of
freight, undertakes to carry goods from one place to another. The contract shall
provide for carriage by sea and may provide for the carriage by other modes of
transport in addition to the sea carriage”.16Whereas Hague Rules only deal with the
contract of sea carriage, the Rotterdam Rules include any other mode of transport.
This has been necessitated by the fast changing dynamics of international trade.
The question is whether cases involving other modes of transport different from
sea carriage when they come to Namibia will Namibian courts have jurisdiction on
such matters.
15
16
Article 1 of the Hamburg-Visby Rules
Article 1 of the Rotterdam Rules
18
Namibian courts would have to employ common law to resolve cases that involve
disputes between parties because the country did not yet ratify the Hague-Visby
and Rotterdam Rules. There could also be problems relating to geographical scope
of the application of these rules.
As far as geographical scope and application of these Conventions is concerned,
“under all Conventions the carriage must be international and must be linked to a
contracting State. While in the Hague-Visby Rules it is required for their
application that either the bill of lading or the port of loading be located in the
contracting State, in the Hamburg Rules, the place of issuance of the Bill of Lading
is rightly ignored because it may not be connected at all with the voyage, but
reference is made to both the port of loading and to the port of discharge.
Therefore, the Hague-Visby Rules do not apply to a contract from a port located in
a non-contracting State to a port of discharge located in a contracting State, while
the Hamburg Rules do apply. In addition, they both apply when they or a national
law giving effect to them is incorporated in the Bill of Lading.”17
If the contract of carriage is concluded in Namibia, the Convention will not apply
because Namibia does not have a national law giving effect to the Convention even
when the contract between the parties will give effect to the Conventions or
incorporated in the Bill of Lading. Moreover, “under the Rotterdam Rules the
geographical connecting factors are instead the places of receipt and of delivery
and the ports of loading and of discharge, the first two connecting factors having
17
Ramberg, J. 2009. UN Convention on Contracts for International Carriage of Goods wholly or partly by Sea.
London. Pitman Publishers.p.3.
19
been added because the Rules apply also to door-door contracts under which
receipt and delivery may be inland. No reference is instead made, as in the
Hamburg Rules, to the place of issuance of the bill of lading (or other transport
document) for the reasons previously indicated. Nor has a reference been made to
the incorporation may be different in the various jurisdictions. Furthermore, the
reference in both the Hague-Visby Rules and the Hamburg Rules to a national law
giving effect to them may be the cause of the significant uncertainty and of lack of
uniformity, because national laws may give effect to them with variations”.18
The following paragraphs will briefly examine the development of maritime law in
various countries such as England, USA, Australia and South Africa.In the USA,
the courts have relied on common law and the old General Admiralty Rules. The
first development in the maritime law in the USA was noted in 1966 when the
General Admiralty Rules were merged into the Federal Rules of Civil
Procedure.However, it was only until the late 1970s, when the Admiralty Court
began to exercise with measurable regularity the power to administer equitable
remedies in admiralty cases. Further amendments were again made to the
Supplemental Admiralty Rules in 1985 with respect to the issuance of in rem
process. The amendments were necessitated by the decision taken in the case of
Merchants National Bank of Mobile19. In this case the defendant argued
successfully that in having their property seized without a prior hearing, they were
deprived of property without the due process of law which is guaranteed in the 5 th
Amendment of the American Constitution.
18
Ramberg, J. 2009. UN Convention on Contracts for International Carriage of Goods wholly or partly by Sea.
London. Pitman Publishers.p.3.
19
Merchants National Bank of Mobile v The Dredge “General G.L. Gillepsie”, 1982 A.M.C. 1, 663 F. 2d 1338 (5
Cir. 1981)
20
A proposal was therefore made to amend Supplemental Rule B and C requiring
judicial scrutiny prior to issuance of a warrant and to Supplemental Rule E to
provide for prompt post-seizure hearing. The amendments were adopted by the
Supreme Court and entered into effect in 1985.20
Another development in the USA maritime law was demonstrated in the case of
Miles v Apex Marine.21 In this case, it was decided that in the United States, every
admiralty case which touches upon jurisdiction or practice is fundamentally a case
of constitutional law. Therefore, the grant to the American Admiralty Court in all
such cases flows directly from the Constitution and not from any act of the
legislature. It follows thus that it is the exclusive prerogative of the Supreme Court
to pronounce finally upon what does or does not lie within the admiralty and
maritime jurisdiction. In this respect, the Supreme Court has over the years altered
maritime remedies, determined maritime rights and developed a rule that divided
damages in collision cases. In the case of Miles v Apex Marine supra, the Supreme
Court upheld the right of action for wrongful death under the general maritime law
but ruled that the remedy of damages for loss of society was not within the power
of the general maritime law to grant.22
With respect to Australia, the admiral jurisdiction had been regulated by legislation
similar in structure to the English Admiralty Court jurisdiction acts. Particularly,
the Colonial Courts of Admiralty of 1890 and common law were the maritime laws
20
Wiswall, F.L. 1994. The Jurisdiction and Practice of the Admiralty Court Revisited: A Comparison of
Developments in Australia, The USA and England over the past quarter-century. Ebsworth. The 1994
Ebsworth&Ebsworth Maritime Law Lecture International Commercial Law. p.3-4.
21
22
Miles v Apex Marine 1991 A.M.C/ 1, 498 U.S. 19 (1990).
ibid
21
applicable to Australia until the Admiralty Act of 1988 was passed.Two important
cases went through the Australian admiralty court. These cases are worth
mentioning because they had a significant impact on the development of the
Australian maritime law. These are the Golden Glory 23 and the Shin Kobe Maru24
Cases.
In the case of “The Golden Glory” supra, the issue before the Admiralty Court was
whether an action in rem lies to compel specific performance of a contract for sale
of a ship. The ship in question was arrested within the geographical jurisdiction of
the court and owners have moved for its release. The court issued a decree for
specific performance and held that the ship can be released from arrest on
condition of the undertaking by the defendant to execute and deliver a deed of sale
in approved form. The case confirmed that equitable jurisdiction of the Admiralty
Court can be exercised in actions in rem.25
In the “Shin Kobe Maru” case, a contract for the transfer of title to a ship came
before the same court which had decided the “The Golden Glory” a few months
earlier. This time the contract was embedded in a joint venture agreement (JVA),
and a writ in rem had been issued asserting a proprietary maritime claim under
Section 4 (2) (a) and (b) of the Admiralty Act 1988 which grants jurisdiction in
possessory, pituitary and partition suits. An agreement subsidiary to the JVA
provided that although the Japanese JVA partner was a nominal purchaser, the
vessel continued in 50/50 ownership as under the JVA. The vessel was registered
in and flying the flag of Japan with the Japanese JVA partner, as the sole registered
owner of the vessel, the plaintiff JVA partner and all other parties to the agreement
23
Bakri Navigation Company Limited v Ship “Golden Glory” and Glorious Shipping S.A. (Fed.Ct. Sydney Registry
No.G199 of 1991.
24
Empire Shipping Co. Inc. v Owners of the Ship The “Shin Kobe Maru”, (1991) 32 F.C.R. 78, 104 A.L.R. 489
(F.C.)
25
Bakri Navigation Company Limited v Ship “Golden Glory” and Glorious Shipping S.A. (Fed.Ct. Sydney Registry
No. G199 of 1991
22
were likewise foreign, and the JVA itself was made abroad and contained no
Australian element. The vessel did however trade with regularity to Australia,
where she was subject to arrest.
The solicitors for the registered owner of the ship accepted service of the writ,
which is a valid means of serving process in rem in Australian practice. The
defendant owner then moved to set aside the writ for want of jurisdiction. The most
important question for decision was whether a claim asserting an equitable interest
in the ship under the terms of the JVA was a claim properly recognized by the
Admiralty Court in an action in rem.The court pointed out the restraints which the
legislature has placed upon Section 6 of the Admiralty Act 1988 in that the Act
may create new remedies but it does not create new rights. However, the court
affirmed that the plaintiff has invoked the provisions of Admiralty Act which
follow from the constitutional grant of admiralty and maritime jurisdiction. The
Admiralty Act emphasizes the maritime jurisdiction instead of only admiralty
jurisdiction.
Wiswall26 demonstrates that the purpose is not only to free the jurisdiction of the
Admiralty Court from the shackles forged by centuries of writs of prohibition
issuing from the common law, but also to enable the fullest development of seaborne foreign commerce in accordance with principles of maritime international
law and to enable the Admiralty Court to exercise its jurisdiction in rem beyond
those causes which are founded upon maritime liens, notably in cases which affect
the commerce and navigation of foreign nations. The word maritime has special
significance in relation to foreign ships and foreign employment and when they are
involved, the general maritime law enables the courts of admiralty to administer a
wholesome and prompt justice.
26
Wiswall, F.L. 1994, p.6
23
In South Africa, before the enactment of the Admiralty Jurisdiction Regulation Act
105 of 1983, various statutory provisions, common law, civilian practice and
judicial precedent of the English Admiralty Courts and the Colonial Courts of
Admiralty of 1890 were applicable. However, an attempt was then made to
modernize the South African admiralty jurisdiction with the passing of the
Admiralty Jurisdiction Regulation Act of 1983. The Act:
‘Provides for the vesting of the powers of the admiralty courts of the Republic in
the provincial and local divisions of the Supreme (High) Court of South Africa,
and for the extension of those powers; for the law to be applied by, and the
procedure applicable in, those divisions; for the repeal of the Colonial Courts of
Admiralty Act 1890 and incidental matters”.27
Section 2 of the Act further stipulates the admiralty jurisdiction of the High Court:
(1)
Subject to the provisions of this Act each provincial and local divisions,
including a circuit local division, of the High Court of South Africa shall have
jurisdiction (hereinafter referred to as admiralty jurisdiction) to hear and
determine any maritime claim (including, in the case of salvage, claims in
respect of ships, cargo or goods found on land), irrespective of the place
where it arose, of the place of registration of the ship concerned or of the
residence, domicile or nationality of its owner.28
27
28
Section 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983
Section 2 of the Admiralty Jurisdiction Regulation Act 105 of 1983
24
Section 2 of the Act has empowered the South African High Court to hear suits
defined as maritime claims as stipulated in section 1 and including any matter not
falling under the provisions of the Colonial Courts of Admiralty 1890 and matter
which by virtue of its nature or subject matter is marine or maritime matter. 29
In Namibia, the situation is different. An important maritime case that came before
the Namibian court is the Namibia Ports Authority v RybakLeninigrada. 30In this
case, the applicant had applied for an order that the respondent vessel be sold. The
vessel had been arrested and was lying in the harbor. The proceeds of the sale
would be used for outstanding port dues, tug fees, etc. The applicant alleged inter
alia that the vessel was deteriorating and that soon it would no longer be
seaworthy. The respondent opposed the application, submitting that the applicant
had no locus standi to bring the application. The court further held that the claim
for tug fees were not necessaries in terms of the Namibian maritime law. The
applicants argued that the Court has power to grant the order sought by virtue of
the provisions of Rules 138 and 139 of the Vice Admiralty Rules. Rule 38
stipulates that:
“The Judge may, either before or after final judgment, order any property under the
arrest of the Court, to be appraised, or to be sold with or without appraisement, and
either by public auction or by private contract”.31
Rule 39 stipulates that:
“If the property is deteriorating in value, the judge may order it to be sold
forthwith”.32
29
Hare, J. 1999.Shipping Law and Admiralty Jurisdiction in South Africa. Cape Town. Juta& Co. p. 17
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
31
Rule 38 of the Vice Admiralty Rules
32
Rule 39 of the Vice Admiralty Rules
30
25
The counsel for the applicant submitted that the Court has a wide discretion under
the above-mentioned Rules to order the sale of the ship. The counsel further
submitted the South African case of Union Lines (Pty) Ltd v MV Michalis S 33 that
was based on the provisions of section 9 of the (South African) Admiralty
Jurisdiction Regulation Act 105 of 1983. However, the court rejected that this law
was in no way applicable to Namibia. Gibson at 357 states “I accept that it does
seem that the South African Act by section 9 does give the Court a discretionary
power to sell an arrested vessel at any time, and is thus similar in ambit to
Regulations 138 and 139. However, as agreed by both sides, the 1983 Act is not
part of the Namibian law. But principles of English law have been made applicable
in South Africa by the 1983 Act. So the decision would be persuasive insofar as it
follows the principles established by English case law in exercising its Admiralty
jurisdiction”.
This means that Admiralty Court in Namibiacould find parallels in common law
and case law from other jurisdictions such as England but these would only have
persuasive effect. The question is whether the court would use its discretion and
exercise its maritime jurisdiction which is fairly limited at the moment.
33
Union Lines (Pty) Ltd v MV Michalis S 1990 (3) SA 817 (D)
26
CHAPTER 3
CURRENT ADMIRALTY LEGISLATION IN NAMIBIA
The admiralty legislation in Namibia can be traced back to the start of colonization
of the country in the late 18 th century. While the recorded history of Namibia’s
admiralty jurisdiction indicate that it was imported from South Africa, it is
assumed that before Namibia became a South African colony, the German colonial
authorities implemented the admiralty legislation applicable in Germany at that
time. However, with the presence of English authorities in Walvis Bay that was
annexed by the British in 1870 which later became part of Cape of Good Hope,
English admiralty law was applied at the enclave of Walvis Bay.
After World War 1, Namibia became a c-mandate territory under the League of
Nations. Accordingly, the law of admiralty at the Cape became applicable to
Namibia as well through the Administration of Justice Proclamation 21 of 1919.
This proclamation also transferred the Roman Dutch law applicable at the Cape of
Good Hope at that time to Namibia.34
As far as admiralty matters are concerned, initially, the applicable law in this
respect was English law that was transferred to South Africa. This was because the
Admiralty Court was only in England at that time. For instance, the Admiralty
Court Act 1840 stipulates that all courts in the British colonies that applied English
law had powers for the purposes of admiralty jurisdiction as well as purposes of
other civil jurisdiction.35
34
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
.
35
Section 3 of the Admiralty Court Act 1840.
27
In terms of this provision, it means that all courts that exercised admiralty
jurisdiction under British law had jurisdiction on all other civil matters and courts
that exercised English law in civil courts had powers to exercise admiralty
jurisdictions as well. The Admiralty Court Act 1840 was amended by the
Admiralty Act of 1861. This Act did not change the law entirely but merely
included new heads of jurisdiction. The Colonial Courts of Admiralty Act 1890
was then passed in 1890. This Act gave the South African Courts of Admiralty
equal powers to deal with admiralty matters as those in England.36
Various cases that were dealt by the Namibian courts confirmed that the Colonial
Courts of Admiralty 1890 remains the main admiralty law of Namibia. In the case
of Namibia Ports Authority37, Justice Johan Strydom stated that the Colonial
Courts of Admiralty Act was never repealed and therefore remains the law of
Namibia on admiralty matters.The Namibia Ports Authority case was a test to the
Namibian maritime law to determine whether it lives to its worth taking into
consideration of the changing dynamics of the international maritime law. In this
particular case, the court held that the claim at issue does not constitute necessities
because there was no supply of goods in terms of the agreement between the owner
of the vessel and/or his agent. There was also no dispute as to whether the matter
was a maritime claim or not.However in other admiralty jurisdictions, Admiralty
Courts exercise their discretion and determine whether the matter under
consideration by the court falls within the category of maritime claims or not.38
36
37
38
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
Ibid
Section 2 of the (South African) Admiralty Jurisdiction Regulation Act 105 of 1983
28
Article 144 of the Constitution of the Republic of Namibia stipulates that:
“Unless otherwise provided by this Constitution or Act of Parliament, the general
rules of public international law and international agreements binding upon
Namibia under this Constitution shall form part of the law of Namibia”. 39
This article indicates that all the international agreements acceded to by Namibia
are an integral part of the Namibian law. The question is whether such agreements
are binding upon Namibia in their current form or there is a need of a process of
domestication through the legislative process because the interpretation of such
agreements in the Namibian courts could result in different outcomes. There has
not been a challenge to such agreements yet in the Namibian courts.
Jurisdiction
Section 2 of the Colonial Courts of Admiralty Act 1890 stipulates that:
(1)
Every court of law in Namibia which is for the time being declared in
pursuance of this Act to be a court of Admiralty, …..has therein original
unlimited civil jurisdiction, shall be a court of Admiralty.40
This section stipulates that the rules of court for regulating the procedure and
practice in court in the exercise of the jurisdiction conferred by this Act, whether
original or appellate, may be made by the same authority and in the same manner
as rules touching the practice, procedure, fees, and costs in the said court in the
exercise of its ordinary civil jurisdiction respectively are made.41
39
Article 144 of the Constitution of the Republic of Namibia
Section 2 (1) of the Colonial Courts of Admiralty Act 1890
41
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
40
29
In South Africa, the Admiralty Proceedings were amended and promulgated in the
Government Gazette 17926 of 18 April 1997. In Namibia, Vice-Admiralty Rules
together with the Rules of the High Court of Namibia of 1990 are applied to
admiralty matters and claims.42
The Rules of the High Court of Namibia where maritime claims can be applied are
as follows:43
Rule 17:
Summons
Rule 8:
Provisional Sentence Proceedings
Rule 9:
Arrest and Release
Rule 9 (7-15):
Attachment to found or confirm jurisdiction
Rule 9 read with Rule 17:
Service in rem and in personam
Claims/Heads of Jurisdiction
The Colonial Courts of Admiralty Act 1890 deals with various claims arising from
the shipping and transport of goods at sea. These include claims of mortgage;
claims relating to title ownership; claims for necessaries; salvage; claims for
damage to cargo; claims relating for damage done by a ship or to a ship; claims for
wages and disbursements by the master of a ship; claims for seamen wages and
towage claims.
However, it is imperative that for a claimant to succeed, one has to prove that one
has a maritime claim. The maritime claims in Namibia are:44
42
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
Rules of the High Court of Namibia
44
Section 3 of the Colonial Courts of Admiralty Act 1890 endorses the heads of jurisdiction in the Admiralty Court
Act of 1861
43
30
a) The ownership of a ship or share in a ship;
b) The supply of necessities to a ship;
c) Salvage claims;
d) Claims for damage to cargo;
e) Claims relating to damages done by a ship or to a ship;
f) Claims for wages and disbursements by the master of a ship;
g) Claims for seamen wages; and
h) Towage claims.
The most noticeable deficiency in the Namibian Maritime law is the question
whether it is necessary at the time of the arrest of the associated ship, the applicant
to be able to bring an action against the guilty ship? In other words, can one arrest
an associated ship in respect of which no action in rem lies?
An associated ship is defined as a ship owned, at the time when the action is
commenced by the person who was the owner of the ship concerned at the time
when the maritime claim arose; or owned, at the time when the action is
commenced, by a company which is controlled by a person who owned the ship
concerned, or controlled the company which owned the ship concerned, when the
maritime claim arose.45
Prior to the enactment of the Admiralty Jurisdiction Regulation Act of 1983 in
South Africa, a creditor proceeding in rem could only look at the ship in respect of
which the cause of action arose and could not arrest other ships owned by the
defendant who is liable to the creditor in personam nor of course could the creditor
45
Section 3 (7) of the Admiralty Jurisdiction Regulation Act 1986 (South African law)
31
ordinarily look to other ships owned by a person not liable to the creditor in
personam. This situation, together with the creation of one ship companies, which
enabled fleet owners to limit their risk exposure, and other stratagems, served to
limit the creditors’ prospects of obtaining satisfaction in respect of its claim. The
Act therefore has provided remedy with provisions for certain circumstances for
the arrest, instead of the ship in respect of which the cause of action lay, of any
other ship owned by the debtor and, in the case of ship owning companies made
control the decisive factor.46
The following paragraphs will discuss whether one can arrest an associated ship in
respect of which no action in rem lies in Namibian jurisdiction.
Proceedings in rem
Proceedings in rem refer to the arrest of a maritime property to compel the owner,
either to pay the debt, or if he disputes it, to pay a sum of money as security to
secure the release of his ship, while the matter is sub judice. Failure to pay up
results in the arrested ship being sold to cover the debt. Arrest is also used to either
found or confirm the court’s jurisdiction. In order to proceed by in rem, the
claimant must show that he has a maritime lien over the property to be arrested or
that the owner of the property would be liable to the claimant in an action in
personam, in respect of some cause of action.47
In order to successfully obtain the court order to this effect, the claimant has a
maritime claim, as defined by the South African Act (Section 3 (7) of the
Admiralty Jurisdiction Regulation Act 1986). The property to be arrested is that
against which the claim lies or is an associated ship thereof; he has a maritime lien
over the property in personam; he has no security or have insufficient security and
46
47
Hofmeyer, G. 2006. Admiralty Jurisdiction Law and Practice in South Africa. Cape Town. Juta& Co. p.67
Hare, J. 1999.Shipping Law and Admiralty Jurisdiction in South Africa. Cape Town. Juta& Co. p.64
32
good reason for proceeding and he has no alternative method of enforcing his
claim.
The advantage of proceeding in rem is that it is a speedier remedy which can be
obtained by presentation of the barest detail to court and on an urgent basis, which
means that this is a mere ex parte application. It is brought ex parte because
alerting defendant may prejudice the claimant. However, proceedings in rem have
some disadvantages. Firstly, the claim or amount that may be recovered is only
limited to the value of the res which means that a separate action must be brought
again to recover the outstanding balance in cases where the total debt exceeds the
value of the res arrested. This may lead to inconvenience and further prejudice to
the claimant, as he now has to spend money to sue somebody who has been alerted
by the judgment. There will in all likelihood not be any property left to arrest or
attach.48
Associated ship arrest
Where the maritime claim arises in respect of a ship, it is possible to bring the
action by arresting an associated ship instead of the ship, in respect of which the
maritime claim arose. The term associated ship includes the concept of a sister
ship. An associated ship, is a ship, other than the ship in respect of which the
maritime claim arose, which is owned, at the time when the action is commenced,
by the person who owns the ship concerned when the maritime claim arose;
owned, at the time when the action is commenced by a person who controlled the
company which owned the ship concerned when the maritime claim arose; and
owned at the time when the action is commenced by a company which is
48
Hare, J. 1999.Shipping Law and Admiralty Jurisdiction in South Africa. Cape Town. Juta& Co. p.68
33
controlled by a person who owned the ship concerned or controlled the company
which owned the ship concerned, when the maritime claim arose.49
In the case of The Heavy Metal 50, court held that ownership is deemed when the
majority of the shares either in number or voting rights or value in the ship, is
owned by the same person. Furthermore, a person is deemed to control the
company if he has power directly or indirectly to control the company. The
essential element in determining association is that control of the res by such
particular person.
Ship arrest in Namibia
Maritime claims in Namibia, as administered under the Colonial Courts of
Admiralty Act 1890, include amongst others, the ownership of a ship or a share in
a ship; the supply of necessities to a ship, salvage claims, claims for damage to
cargo, claims relating to damages done by a ship or to a ship, claims for wages and
disbursements by the master of a ship, claims for seamen wages and towage
claims.
The Namibian Act (Colonial Courts of Admiralty Act 1890) provides for the action
in rem and action in personam but does not allow both proceedings to be pursued
concurrently. Therefore, in Namibia one cannot pursue an associated ship in rem
other than the ship in respect of which the maritime claim arose. Therefore, the
arrest of an associated ship in rem is not applicable to the Namibian maritime law.
49
50
Section 3 (7) of the Admiralty Jurisdiction Regulation Act 1986 (South African law)
1999 (3) SA 1083 (SCA)
34
In the South African case of Euromarine International of Mauren v The Ship Berg
and Others51, the court held that one cannot create new rights which do not exist
under common law or under the admiralty jurisdiction of the court before the
coming into being of the Admiralty Jurisdiction Regulation Act of 1983. The same
situation can be applied in Namibia that the court will not entertain an action in
rem for an associated ship which is not provided for by the current legislation,
namely the Colonial Courts of Admiralty Act of 1890.
Associated ship Arrest in South Africa
In South Africa, section 3 (6) of the Admiralty Jurisdiction Regulation Act 1983
provides that an action in rem on a maritime claim may be brought by the arrest of
an associated ship instead of the ship in respect of which the maritime claim arose.
Section 3 (7) (a) (iii) further permits arrest of a ship if the same person which may
be a company controls the company that owns the wrongdoing ship and also
controls the company that owns the associated ship, even if he/she does not own
either the ship personally. For example, in the case of The Heavy metal supra, the
Supreme Court of Appeal of South Africa held two ships to be associated for the
purpose of the legislation because the Cypriot Lawyer owned a majority of shares
in each of the one-ship companies that owned the ships, even though he did so as a
nominee for others.
In another case of October International Navigation INC v MV Fayroz IV 52, the
Natal Provisional Division held that “it was immaterial that at the time of the
institution of the proceedings no action in rem was available against the associated
ship.
51
1984 (4) SA 642
1987 (4) SA 675
52
35
The contention that such action be available against the guilty party was based on
the provisions of section 3 (4) (b) of the Admiralty Jurisdiction Regulation Act
1983 which govern the availability of actions in rem where action in personam lies
and this contention postulates that section 3 (4) was exhaustive of the
circumstances in which an action in rem might be enforced. The court further held
that associated ship provisions in section 3 (6) and (7) intended to extend the
circumstances in which such an arrest is available and provide an alternative action
in rem.
Ship Arrest in the United States of America
In the United States of America the plaintiff cannot arrest the associated ship. In
the case of Republic of India v India Steamship Co Ltd 53, the court held that the
American law contains no procedure for surrogate ship arrest, or for associated
ship arrest. A plaintiffmay only arrest the wrongdoing ship itself by proceeding
aginst in rem. An in rem action is not merely a means of obtaining security and
forcing the appearance of the ship owner, but an action against the ship owner
itself, personified as the defendant. Thus, the ship may be held in rem when the
ship owner would not be liable in personam.
Therefore, because the ship is the in rem defendant under American law, it follows
that the plaintiff cannot proceed against any other property as surrogate for the
wrongdoing ship, no matter what the connection between them.
53
1998 AC 878
36
CHAPTER 4
INTERNATIONAL DIMENSION AND INFLUENCE ON NAMIBIA
ADMIRALTY JURISDICTION
Article 144 of the Namibian Constitution stipulates that all international
agreements acceded by Namibia at independence are an integral part of the
Namibian law. These international legal instruments have added an international
dimension to the Namibian maritime law. Some of the international conventions
have become an integral part of the maritime law of Namibia. The most notable
Conventions are the Vienna Convention on the Law of Treaties; International
Convention for the Safety of Life at Sea 1974 and the 1988 Protocol and the 2000
Amendments;United Nations Convention on the Law of the Sea 1982;International
Regulation for Prevention of Collision at Sea, 1972; International Convention for
the Prevention of Pollution from Ships, 1973.
Other Conventions include, the Protocol of 1992 to amend the International
Convention on Civil Liability for Oil Pollution Damage, 1969; International
Convention on Standards of Training, Certification and Watch Keeping for Fishing
Personnel, 1995; International Convention on Oil Pollution Preparedness,
Response and Co-operation 1990; Convention for the Suppression of Unlawful
Acts against Safety of Maritime Safety and the Protocol for the Suppression of
Unlawful Acts against the Safety of fixed Platforms located on the Continental
Shelf.
These international Conventions will be discussed in the following
paragraphs:
37
Vienna Convention on the Law of Treaties
a)
The Vienna Convention on the Law of Treatieswas the result of the International
Law Commission and the two of the United Nations Conference on the Law of
Treaties held in 1968 and 1969, respectively. The Convention stresses the
fundamental role of treaties in the history of international relations. The
Convention recognizes the ever-increasing importance of treaties as a source of
international law and as a means of developing peaceful co-operation among
nations, whatever their constitutional and social systems.54
Article 2 of the Vienna Convention stipulates as follows:
For the purpose of the Convention,
(a)
treaty means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation;
(b) ratification, acceptance, approval and accession mean in each case the
international act so named whereby a State establishes on the international
plane its consent to be bound by a treaty.
(d)reservation means a unilateral statement, however phrased or named, made
by a State, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State.
Article 11 of the Vienna Convention stipulates the manner in which States express
consent to be bound by the treaty. “The consent of a State to be bound by a treaty
54
Preamble of the Vienna Convention of the Law of Treaties, 1969.
38
may be expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other means if so agreed”
55
.
The Vienna is therefore the yardstick on which international law is based. It
provides the guidelines which are followed in order to provide the legality of
international agreements and conventions.
Any international agreement signed among States should follow the guidelines laid
in the Vienna Convention. It outlines when the treaty can gain international
prominence; when such treaty is binding upon states and when states can express
their reservations on the treaty.
(b)
United Nations Convention on the Law of the Sea 1982
The United Nations Convention on the Law of the Sea was signed by more than
150 UN Member countries on 10 December 1982. The Convention establishes a
comprehensive framework for the regulation of all ocean space. It limits the
national jurisdiction over ocean space, access to the seas, navigation, protection
and preservation of the marine environment, exploitation of living resources and
conservation, scientific research, sea-bed mining and other exploitation of nonliving resources and the settlement of disputes. 56
The Convention allows for the establishment of a territorial sea of up to 12 nautical
miles in breadth, providing various methods for determining baselines and for
distinguishing between territorial waters and internal waters. The traditional right
of innocent passage through territorial waters is recognized, and some specifically
as to what kinds of activities will contravene innocence of passage is included.
55
Article 11 of the Vienna Convention 1969.
Introductory Material on the Convention and the Conference of the United Nations Convention on the Law of the
Sea, New York.United Nations. p. xxvii
56
39
In the case of the waters of States bordering straits, the concept of transit passage is
introduced, which comes from the concept of necessity.57
Beyond the territorial waters, the Convention allows the creation of an exclusive
economic zone of up to 200 nautical miles. Traditionally, all areas beyond
territorial waters comprised the high seas. In order for coastal States to gain
economic benefit from areas further off their shores, it was necessary for them to
extend their territorial waters, thus eliminating all freedoms of the high seas in the
annexed areas.58
In addition, the Convention deals with certain other matters of global concern.
Among these are ecological and environmental issues. The general principles and
policies governing prevention, reduction and control of pollution throughout the
marine environment are established, as are the specific rights and duties of States
concerned for the realization of their environmental and ecological goals.59
Article 21 of the Convention provides that the coastal State should adopt laws that
govern and regulates the innocent passage of ships belonging to land locked States
using the waters of the coastal State as well as other ships using the waters of the
coastal State. The Convention rules that every State shall effectively exercise its
jurisdiction and control in administrative, technical and social matters over ships
flying its flag. Further, the flag nation shall take such measures for ships flying its
flag as are necessary to ensure safety at sea with regard to amongst others:the
construction, equipment and seaworthiness of ships, the manning of ships, labour
conditions and training of crews, the use of signals, the maintenance of
communications and the preventions of collisions.
57
Section 3 of the UN Convention on the Law of the Sea
Ibid p. xxvii
59
Ibid p. xxvii
58
40
In taking such measures, each State is required to conform to the generally
accepted international regulations, procedures and practices and to take any steps
necessary to secure their observance.60
(c)
International Convention for the Safety of Life at Sea (SOLAS) 1974
and the 1988 Protocol and the 2000 Amendments
The International Convention for the Safety at Sea (SOLAS) was adopted in 1974.
In 1988, SOLAS Protocol was adopted by the International Maritime
organization’s Maritime Safety Committee (MSC) in 2000. The SOLAS deals with
the safety of merchant ships. The Convention underwent several amendments by
adopting and modernizing regulations in order to keep it in pace with the technical
developments in the shipping industry. The main objective of the SOLAS
Convention is to specify minimum stands for the construction, equipment and
operation of ships, compatible with their safety. Flag States are responsible for
ensuring that ships under their flagcomply with its requirements, and a number of
fitness certificates are issued in this regard. The Convention further requires
contracting Governments to inspect ships of other contracting States. Various
chapters of the Convention deals with amongst others: construction, sub-division
and stability of machinery and electrical installations; fire protection, fire detection
and
fire
extinction;
life
saving
appliances
and
arrangements;
radio
communications; safety of navigation; carriage of cargoes; carriage of dangerous
goods; nuclear ships; and management for the safe operation of ships.61
60
61
Article 94 (5) of the UN Convention of the law of the Sea 1982
http://www.imo.org/conventions/contents.asp assessed on 27 October 2010
41
SOLAS specifies minimum standards for the construction, equipment and
operation of ships compatible with their safety. SOLAS does not apply to fishing
vessels, wooden ships of primitive build and ships not propelled by mechanical
means, thus leaving out most of the fleet in the developing countries. Chapter V of
SOLAS deals with safety of navigation and identifies certain navigation safety
services that should be provided by Contracting Governments and sets forth
provisions of an operational nature applicable in general to all ships on all voyages.
62
Most of the requirements on safety of ships set out in the SOLAS do not apply to
most ships applicable in the developing countries.
The international conference that adopted SOLAS approved three resolutions
related to fishing vessels. The first referred to the application of the SOLAS
stipulations to such vessels and particularly to reasonable measures regarding
rescue equipment on board. The second called upon Governments to inform IMO
about the degree to which they apply SOLAS to fishing vessels. The third
concerned fishing vessels stability and weather adaptability of fishing vessels.
(d)
International Convention for the Prevention of Pollution from Ships,
1973
The International Convention for the Prevention of Pollution from Ships, 1973 as
modified by the Protocol of 1978. The Convention was adopted to minimize
pollution of the seas, including dumping, oil and exhaust pollution. The objective
of the Convention is to preserve the marine environment the marine environment
through the complete elimination of pollution by oil and other harmful substances
and the minimization of accidental damage of such substances. All ships under
countries that are signatories to the Convention are subject to its requirements
62
Chapter V of SOLAS
42
regardless of where they sail and member countries are responsible for vessels
registered under their respective nationalities.
In order for the IMO standards to be binding, they must be ratified by a total
number of member countries whose combined gross tonnage represents at least 50
per cent of the world’s gross tonnage. A system of tacit acceptance has therefore
been put in place, whereby if no objections are heard from a member state after a
certain period has elapsed, it is assumed they have accented to the treaty.
All six Annexes of the Convention have been ratified by the requisite Member
States; the most recent is Annex VI which took effect in May 2005. The country
where a ship is registered (flag state) is responsible for certifying the ship’s
compliance with the Convention’s pollution prevention standards. Each signatory
state is responsible for enacting domestic laws to implement Convention and
effectively pledges to comply with the Convention, annexes and related laws of
other nations. However, one of the difficulties in implementing the Convention
arises from the very international nature of maritime shipping. The country that the
ship visits can conduct its own examination to verify a ship’s compliance with
international standards and can detain the ship if it finds significant noncompliance. When incidents occur outside each country’s jurisdiction or
jurisdiction cannot be determined, the country refers cases to flag states in
accordance with the Convention.63
63
http://en.wikipedia.org/wiki/MARPOL-73/78 accessed on 27 Sept 2010
43
(e)
International Regulations for Preventing Collisions at Sea, 1972
The International Regulations for Preventing Collisions at Sea were adopted on 20
October 1972 and entered into force on 15 July 1977. The regulations underwent
several amendments, the latest being in 2007. The rules apply to all vessels upon
the high seas and in all waters connected therewith navigable by seagoing vessels.
Governments are obliged to ensure that their flag ships comply with the
regulations.64
64
http://en.wikipedia.org/wiki/international-regulations-for-Preventing-Collisions-at-Sea, accessed on 28 Sept 2010
44
CHAPTER 5
EVALUATION
Namibia has acceded to various international conventions on maritime matters, in
addition to the Colonial Courts of Admiralty Act 1890 and the Merchant Shipping
Act 1951. The conventions supplement the gaps in the domestic admiralty
legislation. As result, the country uses what can be called dual or parallel system.
This means that when there is a grey area in a maritime matter before court as far
as the Colonial Courts of Admiralty Act 1890 is concerned, the international
convention will apply, hence, all the conventions acceded to by Namibia are an
integral law of Namibia, in terms of Article 144 of the Namibian Constitution.65
Therefore, it can be deduced that there is an urgent need to enact newadmiralty
legislation in Namibia to replace the Colonial Courts of Admiralty Act 1890. This
act is obsolete because there have been drastic changes in the marine environment
over the years but the Namibian legislation in this regard has remained constant.
As a result, the country relies on separate pieces of conventions which should be
consolidated in one piece of legislation. The Merchant Shipping Act 1951 which
covers areas of sea pollution, arrest and sea worthiness of vessels is also not
adequate because of the dynamic changes that have taken place in various
conventions which deal with these specific issues.66
65
Interview held with George Tshatumbu, Deputy Director of Maritime Affairs at the Ministry of Works and
Transport on2 November 2010 in Windhoek.
66
Ibid
45
Regarding the prevention of pollution from ships, Namibia has acceded to the
Convention for the Prevention of Pollution from Ships, 1973 also known as Marpol
1973. Namibia has also ratified all the six Annexes of the said Convention. One of
the requirements of the Annexes, especially Annex VI obliges each signatory state
is responsible for enacting domestic laws to implement Convention and effectively
pledges to comply with the Convention, annexes and related laws of other nations.
However, it has been established that one of the difficulties in implementing the
Convention arises from the very international nature of maritime shipping. The
country that the ship visits can conduct its own examination to verify a ship’s
compliance with international standards and can detain the ship if it finds
significant non-compliance. Namibia has not enacted a relevant legislation in these
respects to enforce compliance with this Annex of the Marpol Convention 1973.
The next important observation is the 1993 Torremolinos Protocol and
Torremolinos International Convention for the Safety of Fishing Vessels. The
Convention applies to seagoing fishing vessels, including vessels also processing
their catch entitled to fly the flag of a Party. The Convention provides that Parties
to the Convention shall endeavor to establish, as a matter of high priority, uniform
standards to be applied by administrations to fishing vessels. 67 Namibia has not
developed relevant piece of legislation to enforce the shipping companies to
comply with the Convention. This poses the lives of fishing crew in Namibian
waters at risk because Namibia as a fishing country should ensure that fishing ships
calling at Namibian ports comply with the Convention and annexed protocols.
67
Article 3 of the Torremolinos Protocol and Torremolinos International Convention for the Safety of Fishing
Vessels 1993
46
During the past five years, there have been accidents of fishing vessels in
Namibian waters which were fatal. There is a strong probability that such incidents
were caused by the fact that such ships were not seaworthy and also that they did
not comply with this convention. Despite the increase in such accidents, Namibia
is still far from developing domestic mechanisms to enforce the implementation of
the said convention.68
Moreover, there are several areas of maritime law that are not yet covered by
international law and which requires domestic law to solve them. The most
important one is the applicable rules regarding the right of a ship in distress to
enter a place of refuge visavis the right of the coastal state concerned to deny entry
to such place on its territory, in line with the United Nations Convention on the
Law of the Sea (UNCLOS), especially when such a vessel poses a danger to the
environment. This situation poses a challenge to international maritime law. On
the one hand, there is the humanitarian right of a ship and its crew in danger to
receive help and assistance and on the other hand, coastal states have the right to
protect their territory against environmental and other damage from oil leaking
ships.69
International law has not provided straight forward answers on this matter. The
International Maritime Organization (IMO) has adopted guidelines in December
20003 on Places of Refuge for Ships in need of assistance. However, these
instruments do not deal with liability and compensation for the damage. Article
194 (2) of the UNCLOS makes it obligatory on states to refrain from acts which
may pollute the marine environment, while Article 235 of UNCLOS obliges states
to ensure recourse is available in accordance with their legal systems for prompt
68
Interview with Mr. Andreas Shapumba, Engineer of the Road Authority Company in Windhoek on 2 November
2010.
69
Vanneuville, V. 2005. Places of Refuge: Liability and Compensation for Damage. Cape Town. University of Cape
Town. pp. 4-5
47
and adequate compensation or other relief in respect of damage caused by
pollution on the marine environment by natural or judicial persons under their
jurisdiction. If one examines these conventions closely, one deduces that Namibia
still uses the Merchant Shipping Act which may ensure that the wrong the guilty
ship is responsible for the pollution damage. 70 However, this Act and the UNCLOS
are not certain in view of the damage caused by the ship in distress visavis
Namibia’s obligation under international law to render assistance to such a ship
which in turn may pose danger to the marine environment.
Moreover, by closely examining the Namibian admiralty jurisdiction it brings to
light the absence of the provisions to arrest the sister ship. International law has
intervened in the matter as far as ship arrest is concerned by adopting the Arrest
Convention in 1994. Namibia has not ratified this Convention. In South Africa,
section 8 provides for the ship arrest, while in section 3 (7) (b) (ii) it is stipulated
that ''a person shall be deemed to control a company if he has power, directly or
indirectly, to control the company''. This means that the appointment of nominee
shareholders of ship owning companies may well create a liability for debts due
from other companies.
This was the result reached in the judgement of the South African highest
commercial court of appeal in the case of MV "Heavy Metal" 711. In that case the
court considered the South African legislation that entitles a claimant to arrest a
ship in the associated ownership of a debtor ship-owner or charterer.
This decision means that ships are associated so long as there is a common
majority nominee shareholding in the owning companies. The practice of nominee
70
Article 235 of the UNCLOS
Belfry Marine Ltd v Palm Base Maritime SDN BHD 1999 (3) SA 1083 (SCA).
71
48
shareholding is, of course, fairly widespread in shipping circles and has often been
used to disguise the real shareholding in ship owning companies. Nominee
shareholders are often employees of the law firm that registers the ship owning
company. That practice will, in South Africa, now expose the ship owning
company concerned to the debts of other vessels whose owners have the same
majority nominee shareholders regardless of whether the principal shareholders are
common or not.
Given that this judgement was made by the highest commercial Court of Appeal,
legislative change would be required to amend the effect of the judgement. In the
interim members should be guided by the decision and consider amending their
corporate structure.72
As it has been discussed above, the Namibian admiralty jurisdiction provides for
the action in rem and action in personam but does not provide for the arrest of an
associated ship in rem other than the ship in respect of which the maritime claim
arose. Therefore, Namibia should develop legislative provision which enable the
Namibian authorities to arrest an associated ship in order to protect the interests of
the country’s economy.
In the absence of the associated ship arrest, a company or person who is liable for
the maritime liens to another in Namibia may continue to trade in another name or
company because there is no legislation that will allow the affected party to seek
72
Norton, T. 2008. Arrest of a sister Ship in South Africa. Durban. Garlicke and Bousfield
Inc.p.35
49
redress in court for the satisfaction of the debt owed from the company where such
a person has interests.
CHAPTER 6
50
RECOMMENDATIONS
Over the years, Maritime law has generated many international conventions and
agreements which have made enormous impact on the operations and
administration of maritime affairs around the globe. These conventions are aimed
at ensuring safety at sea, including the protection of marine environment, pollution
as well as collisions. Enormous responsibilities are also placed upon the
International Maritime Organization member states to enact and initiate domestic
legislations that give effect to such conventions.
As a result, many countries have amended their respective domestic maritime
legislations to be in line with the international conventions. Namibia still uses the
old maritime legislation, namely the Merchant Shipping Act 1951. This legislation
is not in line with the recent and modern maritime conventions. There is therefore
an urgent need for Namibia to amend this piece of legislation and or repeal it for
the one that encompass all the current maritime conventions.
Various research work consulted by the author, including Vanneuville 73 who
researched about the liability and compensation for damage indicated that many
international conventions and treaties on maritime law are not geared towards a
coherent entity. Therefore, a state cannot rely on international law alone. Namibia
currently, relies heavily on international law as far as maritime affairs are
concerned.
This impacts negatively on her sovereignty because some of the conventions place
restrictions to her sovereign powers. One convention found to impinge on
sovereignty is the UN Convention on the Law of the Sea.
73
Vanneuville, V. 2005.Places of Refuge: Liability and Compensation for Damage. Cape Town. University of Cape
Town, p. 35
51
It is accepted that in implementing international conventions, every country should
enforce such conventions within their jurisdictions. It is equally acknowledged that
a wrongful owner of the ship is liable for wrongful acts that should be penalised in
monetary terms. Although the Merchant Shipping Act 1951 has provisions for
penalties, these are very outdated and Namibia should ensure that this law is placed
in line with international trends.
REFERENCES
Books:
52
1.
Churchill, R.R. and Lowe, A.V. 1988. The Law of the Sea. Manchester
University Press.
2.
Hare, J. 1999. Shipping Law and Admiralty Jurisdiction in South Africa. Cape
Town. Juta& Co.
3.
Hofmeyer, G. 2006. Admiralty Jurisdiction Law and Practice in South Africa.
Cape Town. Juta& Co.
4.
Hill, C. 1995. Lloyd’s List Practical Guides. Maritime Law. 4th Edition.
London. Lloyd’s London Press.
5.
Norton, T. 2008. Arrest of Sister Ship in South Africa. Durban. Garlicke and
Bousfield Inc.
6.
Ramberg, J. 2009. UN Convention on Contracts for International Carriage
of Goods wholly or partly by Sea. London. Pitman Publishers
7.
Vanneuville, V. 2005. Places of Refuge: Liability and Compensation for Damage.
Cape Town. University of Cape Town.
8.
Wilson, J. Carriage of Goods by Sea. 2nd Edition. London. Pitman Publishing
Company.
9.
Wiswall, F.L. 1994. The Jurisdiction and Practice of the Admiralty Court
Revisited: A Comparison of Developments in Australia, The USA and England
over the past quarter-century. Ebsworth. The 1994 Ebsworth&Ebsworth Maritime
Law Lecture International Commercial Law.
Case Law:
10.
Freiremar SA v The Prosecutor General of Namibia and Another 1996 NR 18 at 28
53
11.
Empire Shipping Co. Inc. v Owners of the Ship The “Shin Kobe Maru”, (1991) 32
F.C.R. 78, 104 A.L.R. 489 (F.C.)
12.
Bakri Navigation Company Limited v Ship “Golden Glory” and Glorious Shipping
S.A. (Fed. Ct. Sydney Registry No. G199 of 1991
13.
Namibia Ports Authority v RybakLeninigrada 1996 NR 355
14.
Belfry Marine Ltd v Palm Base Maritime SDN BHD 1999 (3) SA 1083 (SCA).
15.
Union Lines (Pty) Ltd v MV Michalis S 1990 (3) SA 817 (D)
16.
Merchants National Bank of Mobile v The Dredge “General G.L. Gillepsie”,
1982 A.M.C. 1, 663 F. 2d 1338 (5 Cir. 1981)
17.
Miles v Apex Marine 1991 A.M.C/ 1, 498 U.S. 19 (1990).
Pieces of Legislation:
18.
Namibian Constitution
19.
Hamburg-Visby Rules
20.
Rotterdam Rules
21.
Admiralty Jurisdiction Regulation Act 105 of 1983
22.
Rule 38 of the Vice Admiralty Rules
23.
Admiralty Court Act 1840.
24.
Admiralty Jurisdiction Regulation Act 105 of 1983 (South African)
25.
Colonial Courts of Admiralty Act 1890
26.
Rules of the High Court of Namibia
27.
Admiralty Jurisdiction Regulation Act 1986 (South African law)
28.
Vienna Convention of the Law of Treaties, 1969
54
29.
Introductory Material on the Convention and the Conference of the United Nations
Convention on the Law of the Sea, New York. United Nations.Section 3 of the UN
Convention on the Law of the Sea
30.
UN Convention of the law of the Sea 1982
31.
Torremolinos Protocol and Torremolinos International Convention for the Safety
of Fishing Vessels 1993
Webpages:
32.
http://www.imo.org/conventions/contents.asp assessed on 27 October 2010
33.
http://en.wikipedia.org/wiki/MARPOL-73/78 accessed on 27 Sept 2010
34.
http://en.wikipedia.org/wiki/international-regulations-for-Preventing-Collisions-atSea, accessed on 28 Sept 2010
Interviews:
35.
Interview held with George Tshatumbu, Deputy Director of Maritime Affairs at the
Ministry of Works and Transport on2 November 2010 in Windhoek.
36.
Interview with Mr. Andreas Shapumba, Engineer of the Road Authority Company
in Windhoek on 2 November 2010.
55