Browsing by Author "Bradfield, Graham"

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    An analysis of the factors inhibiting ECDIS from effectually achieving its intended primary function of contributing to safe navigation
    (2018) Lawson, Lauren; Bradfield, Graham
    This research is contextualised in the maritime domain, where since the introduction of legislation mandating the carriage of Electronic Chart Display and Information Systems (ECDIS) by merchant vessels, evidence has emerged of unintended consequences of this legislation – which threaten the safety of navigation. The real-time presentation of information displayed by ECDIS should improve deck officers’ cognitive assessment of their navigational situation, yet the terms ‘ECDIS-assisted accidents’ and ‘ECDIS-assisted groundings’ have of late become part of maritime terminology. This dissertation presents an analysis of the factors inhibiting ECDIS from effectually achieving its intended primary function of contributing to safe navigation. Applicable legislation is identified and case studies are used to scrutinise the efficacy of the current legal framework regulating the use of ECDIS. The potentially unsafe technical operational aspects and limitations of ECDIS are analysed and the human factor and human error in the use of ECDIS are critically evaluated. Current industry initiatives to improve the safety of navigation with ECDIS are outlined and additional measures to mitigate unsafe practices in the use of ECDIS by deck officers are considered. This research finds that despite an apparently robust legal framework regulating the use of ECDIS, the current legislative provisions do not appear to be effective in preventing ECDIS-assisted accidents, particularly vessel groundings. It is found that ECDIS training has not been sufficiently integrated into the STCW Code and express provisions mandating how ECDIS should be used as an aid to navigation are inadequate. Overreliance is identified as a primary risk in the use of ECDIS, as it significantly reduces navigational safety. ECDIS is an aid to navigation and must be used in conjunction with traditional watchkeeping skills and the practices of good seamanship. Given that most maritime casualties are caused by human error, measures to address the human factor should be embedded into ECDIS pedagogy. Instead of fulfilling its primary function of improving the safety of navigation, the use of ECDIS can in fact reduce situational awareness by distracting navigators from looking out of the bridge windows. This research concludes that in the case of ECDIS, the introduction of technology intended to reduce human error in shipboard operations has inadvertently created new error sources. Improved training methods are required to address these types of technologically-generated error pathways.
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    Analysing the decline of the usage of the Lloyd's Open Form Agreement (LOF) for a vessel in distress at sea
    (2023) Makubalo, Pumla; Bradfield, Graham
    The Lloyd's Open Form (LOF) standard form salvage contract emerged in the late 19th century and for about a century has, through its various revisions, been the most widely used international salvage contract worldwide. The latter part of the 20th century has seen a steady decline in its usage raising the question of whether there remains any role and place for it going into the future. A factor that has undoubtedly contributed to the decline in its usage is the enhanced safety of shipping during the course of the 20th century which has reduced the number of salvage opportunities. A further contributing factor to this decline has been the increasing number of instances of vessels being refused permission to seek refuge in coastal states' waters or harbours or being ordered out of those coastal waters, in either instance preventing any salvage of such vessels being successfully completed by bringing the vessel to safety, and the salvor from earning a salvage award. These instances have seen the increasing reliance on other forms of services contracts, such as towage contracts and wreck removal contracts, with fixed remuneration that is not earned on a no-cure, no-pay basis as is the case with LOF as with salvage contract generally, and this too has reduced the usage of LOF. These contracts also reduced the uncertainty with regard to the amount of the service providers remuneration that exists in the determination of salvage awards. The emergence of a range of standard form contracts in other parts of the world has provided competition for LOF within the international salvage contract marketplace, further contributing to the decline in its usage. Despite these developments, the LOF has survived through its ability to adapt to changing circumstances and maintain a place for itself, albeit reduced, going into the further, and its primary role and place in the marketplace going forward would seem to be in large-scale emergency salvage operations. The study also acknowledges the risks involved when salvors are entering perilous conditions where other mariners seek refuge, such as inclement weather or in waterways that other mariners are trained to avoid. Conditions such as the nature and size of the ship, its location, number of passengers, type of cargo, and political ramifications make each casualty operation unique and distinctive. It is acknowledged that the development of ship designs and the implementation of operating safety requirements has reduced prospects for salvage, which have been steadily declining, however the continuous usage of LOF is still important since it continues to be the salvage contract of choice in situations of time-sensitive emergencies at sea. Despite technological advancements, the LOF has evolved and responded to the new environment admirably. Additionally, the LOF has been able to allow for ongoing revisions as a result of difficulties brought on by international events, environmental issues, and arbitrator difficulties. Most significantly, it has demonstrated the ability to adapt to change as it occurs.
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    Are the relevant provisions of the Rotterdam Rules dealing with the identification of the carrier an improvement over the Hamburg and Hague-Visby Rules?
    (2017) Samkange, Ruvarashe Kudzai; Bradfield, Graham
    The carrier identity problem is one that may arise in the context of the international carriage of goods by sea. This problem may arise in a variety of ways particularly when the carriage arrangements are complex or where there is no clear documentary evidence that may assist in the identification of the contractual carrier. The identification of the carrier is a question of fact that can be drawn from the circumstances surrounding the carriage contract and the transport documents issued in relation to the carriage of goods by sea. The core question in solving this problem is to ask is which party assumed responsibility for the carriage and delivery of the goods. There are various ways in which the carrier may be identified, however, it must be understood that the solution to the carrier identity problem is not so straightforward. The carrier identity problem can stem from the way in which these methods of identifying the carrier are executed in practice. The dissertation argues that the relevant provisions of the Rotterdam Rules relating to the identity of the carrier are an improvement on the relevant provisions in the Hague-Visby Rules and the Hamburg Rules in that they provide a more coherent and clearer solution to the carrier identity problem than the previous carriage regimes did as well as providing solutions where the previous dispensations did not. The dissertation does not address all manifestations of the carrier identity problem, instead three specific examples are used to highlight the various aspects of the fundamental problem in order to assess whether the Rotterdam Rules have been an improvement on the previous carriage regimes. These specific instances are; when there is insufficient information to identify person or entity that is the contractual carrier; when there are different contractual and performing parties and; the carrier identity problem in the context of multimodal transportation. The Rotterdam Rules aim to be more an extensive and uniform set of Rules attempting to be a reflection of modern commercial practice in tune with the current trends and practices. The Rotterdam Rules provide what can be labelled as pre-emptive and reactive measures which seek to prevent the carrier identity problem from arising as well as providing solutions for situations when the carrier identity problems arise. This dissertation assesses whether the Rotterdam Rules, as compared to the previous dispensations do provide solutions to the carrier identity problems as well as whether such solutions are adequate to fully address these identified problems.
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    Attaining uniformity in the meaning and application of good faith in international trade instruments
    (2016) Gariseb, Adolf Nana; Bradfield, Graham
    The objective of this dissertation is to ascertain whether it is possible to have a universally acceptable meaning of good faith and if indeed such a meaning can finally lead to uniformity in the application of the concept in international commercial transactions. It will be argued that such uniformity is possible but that it cannot be achieved without addressing the obstacles that have prevented a uniform adoption of the concept to date and how such difficulties can be solved in international trade. In answering the above question the dissertation will look into the meaning and application of the concept of good faith within international trade instruments, primarily article 7(1) and (2) of the Convention on the International Sale of Goods (CISG); article 1.7 of the UNIDROIT Principles on International Commercial Contracts, and the Principles of European Contract Law (PECL). The purpose of considering these instruments is to identify the current difficulties in the meaning and application of good faith in international commercial transactions and how they can be addressed if uniformity is to be attained. Furthermore the dissertation will also examine the different definitions of good faith and the methods of application adopted by major European legal systems, particularly the German civil code, the Dutch civil code, the Uniform Commercial Code and the position in English law. The purpose for considering these domestic legislations is to identify the possible meaning and application that will be given to good faith in situations where courts and tribunals gap fill with reference to national laws.
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    Can the parties to an international sale contract on CIF Incoterms varied in the oil and gas industry achieve the objective of linking the passing of ownership in the petroleum products that are sold from England to South Africa to the passing of risk in those petroleum products by indicating such intention in their contract of sale?
    (2015) Cairncross- Chinnapyel, Nancy; Bradfield, Graham
    This dissertation aims to focus on whether the parties to an international sale contract on CIF Incoterms varied in the oil and gas industry, specifically the petroleum sector, achieve the objective of linking the passing of ownership in the petroleum products1 sold from England to South Africa, to the passing of risk in those petroleum products by indicating such intention in their contract of sale?
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    Competition class action damages and the corporate leniency policy
    (2014) Van Eden, Matt; Bradfield, Graham; Kelly, Luke
    Cartel conduct constitutes one of the most serious threats to the maintenance of competition in markets. Due to the secretive nature of cartels, and their conduct, they are extremely difficult for the Competition Commission1 (‘the Commission’) to detect, investigate and prosecute.2 Cartels therefore pose a grave threat to the maintenance of competition in markets. Section 4(1)(b) of the Act imposes a per se prohibition on such conduct. Consequently, cartel conduct is treated as one of the most serious breaches of the Act.
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    Do the provisions of section 3(7)(a)(ii) read with section 3(7)(b)(i) of the Admiralty Jurisdiction Regulation Act 105 of 1983 infringe the substantive requirements of section 25(1) of the Constitution of the Republic of South Africa Act 108 of 1996?
    (2015) Doble, Vanessa; Bradfield, Graham
    In this dissertation, the issue that is considered is whether or not the provisions of section 3(7)(a)(ii) read with section 3(7)(b)(i) of the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act') constitute an arbitrary deprivation of a minority shareholder's property because they permit the deprivation of minority shareholder's property interests purely on the basis of common control by the majority shareholder.
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    Does blockchain technology offer a solution to the remaining impediments to the more widespread use of electronic negotiable bills of lading?
    (2020) Smit, Jason Johnathan; Bradfield, Graham
    The problem when it comes to the concept of possession in terms of technology and transferring possession which requires the concept of exclusivity which cannot be tampered with. Data messages cannot in their current state cannot be a symbol of goods that by constructive possession rights of a holder could be transferred. Other researchers have commented on the fact blockchain could remedy this situation. It should be maintained that a specific type of blockchain should be the preferred approach to the dematerialisation of bills of lading in electronic form, but that does not exist yet. Other researchers think that blockchain generally should be the genus of technology that should be recognised to facilitate the electronic equivalent of documentary bills of lading.1 I think only a specific type should. As the technology in theory exists, it does not mean it is available. This should mean that an open standard to allows any technology to fulfil the void that is required for recognition in bills of lading should be facilitated to facilitate trade because of the multi-dimensional cost of dealing in paper.
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    Evaluating the impact of IMO 2020 on the container shipping industry
    (2021) Lutchman, Kavitha; Bradfield, Graham
    MARPOL Annex VI agreement (IMO 2020) entered into force in January 2020, seeking to reduce sulphur emissions in the global shipping industry arising from ships burning high sulphur bunker fuel. The regulation is estimated to cost the industry up to US$ 30 billion and offers no apparent direct benefit or advantage to the industry, as well as being ill-designed for effective enforcement. Shipowners who plan to comply have called for modifications to the regulation to address opportunities for non-compliance so that their good faith will not become a competitive disadvantage. These concerns around compliance are just one of the areas in which the efficacy of this regulation is being questioned. This paper takes a structured approach to assess the efficacy of this regulation in terms of four explicit goals: realising the necessary reduction in global sulphur emissions, achieving high compliance, encouraging continuous improvement in technology and business practices, and not unduly damaging the global shipping industry. These goals are assessed across five chapters, the first of which interrogates the legal framework of the regulation, exploring the complicated question of regulatory authority, with a special focus on the enforcement mechanisms and the catastrophic effect of the COVID-19 pandemic on basic enforcement processes. The next chapter investigates the likely impact on the industry, contrasting the impact of market-based regulations and control and command type regulations, and different tools such as permits and taxes. This chapter also discusses the emerging disagreement between developing and developed countries over who should be responsible for the costs of environmental reform. Next, a case study of A.P. Møller – Mærsk A/S (Maersk) explores the compliance experience of the largest shipping company in the world, including their internal structuring to deliver compliance, and their pricing adjustments to offset some of the costs. The following chapter evaluates the practical and economic costs of this regulation across all major elements of the global shipping industry. The penultimate chapter makes an effort to predict what the long-term impact of this regulation is likely to be, using two different models for evaluating the interactions between profit-seeking industries and new environmental regulations in general: the Porter Hypothesis and the Polluter Haven Hypothesis. The final chapter concludes the paper with an evaluation of the regulation, and some suggested next steps which could improve the likelihood that the long-term goals of IMO 2020 will be realised.
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    An evaluation of the solutions provided by the Rotterdam Rules to identifying the carrier
    (2013) Renggli, Helen Louise; Bradfield, Graham
    While the identification of the carrier under a contract for the carriage of goods by sea, whether as unimodal transport or as a leg of a multimodal transport, for the purposes of determining the person liable for the loss or the damage to goods carried, does not generally present a cargo interest with difficulties, there are instances in which it may do so. This minor dissertation evaluates the solutions provided by the Rotterdam Rules to certain 'identity of the carrier problems'.
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    An examination of the inadequacy of the wording of the damage claim provisions of the Oil Pollution Act of 1990, resulting in interpretative legal difficulties as revealed by claims stemming from the Deepwater Horizon Oil Spill
    (2014) Bradley, Martha Magdalena; Bradfield, Graham
    The United States Oil Pollution Act 1990 (OPA), contains a provision, s1002(b) (2), that sets out six categories or kinds of damage that may be recovered from a ‘responsible party’ liable for losses resulting from damage caused by the discharge of oil in United States (US) waters. The provision was drafted with the purpose of facilitating a predictable and just outcome for claimants against such a responsible party. The central argument of this dissertation is that the intended purpose is undermined by difficulties in interpreting certain of these provisions, and that, if these provisions are to achieve their objective, they require legislative amendment and that such reform is urgent. The BP Spill highlighted the issue of the lack of clarity in the claims provisions of the OPA as well as revealing the potentially catastrophic and widespread effect that a spill of this magnitude can have.
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    An examination of whether the protection of Investment Act represents a successful alternative to bilateral investment treaties
    (2017) Boyce, Gizelle Marie; Bradfield, Graham
    The aim of this thesis is to examine whether South Africa's recently promulgated Protection of Investment Act represents a viable alternative to the bilateral investment treaty regime. In undertaking this examination, the bilateral investment treaty regime which preceded the Protection of Investment Act was first reviewed and some of the typical clauses found in these treaties were examined. Pursuant to this examination, the Foresti arbitration, through which a group of Italian and Luxembourgish investors challenged South Africa's affirmative action measures in the mining industry on the basis of the bilateral investment treaties that South Africa had entered into, was then introduced. The author examined the claim made in Foresti, South Africa's response and the final award. The next Chapter then turned to the effects of the Foresti arbitration, which set in motion South Africa's review of the BITs it had entered into, and then the eventual termination of these BITs and replacement with the Protection of Investment Act. In answering the central question of this thesis, a clause by clause analysis of the Protection of Investment Act was conducted in order to determine whether that Act is able to satisfy the deficiencies highlighted in the BIT review pursuant to Foresti. In conducting this analysis, the author highlighted some notable omissions in the Protection of Investment Act. Through this review and comparison, it was concluded that the Protection of Investment Act fails as a viable alternative to the bilateral investment treaty regime for a number of reasons, and in particular for crystallising the flawed BIT regime through a legislative savings provision. A better alternative for South Africa would have been renegotiating historical BITs based on a Model BIT incorporating the necessary amendments to rectify the perceived BIT limitations as highlighted in South Africa's BIT review.
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    General Average and the York-Antwerp Rules: The historical quest for international conformity, the divisive effect of more recent amendments to the Rules and recommendations with regard to the way forward to regain more widespread acceptance of the Rules in today's global maritime industry
    Ukattah, Chukwuechefu Okwudiri; Rycroft, Alan; Bradfield, Graham
    General average emerged as an independent mechanism in ancient times for the redistribution of losses incurred for the safety of the common maritime adventure from peril. Its robustness and efficiency as a risk and loss distribution device led to its recognition and incorporation in a plethora of medieval codes and the laws of many maritime states. As the concept evolved in different maritime states there emerged a divergence in the principles and practice of general average. The undesirability of a divergence in such a concept of international import led to the adoption of the York-Antwerp Rules by the maritime community as a tool for achieving uniformity. The York-Antwerp Rules have been amended periodically over the course of more than a century with the object of achieving greater uniformity in the law of general average and to keep abreast of developments in international trade and the maritime industry. The most recent revision of the York-Antwerp Rules adopted in 2004 (York-Antwerp Rules 2004), is the first revision adopted without a consensus amongst the majority of interested parties. Nine years after their adoption, the York-Antwerp Rules 2004 have failed to gain widespread acceptance and use in the maritime industry. An attempt by the Comité Maritime International to resolve the impasse on the use of the Rules at its 2012 Beijing Conference was unsuccessful and it was resolved instead to work towards the adoption of a new set of Rules at its next Conference in 2016. To ensure that the revision of the York-Antwerp Rules presented for acceptance at the 2016 Conference does not suffer the fate of the York-Antwerp Rules 2004 it is important that the mistakes made with regard to the York-Antwerp Rules 2004 are not repeated. Consequently, this thesis analyses the substantive revisions made in the York-Antwerp Rules 2004 to ascertain why other interested parties, particularly shipowning interests, are opposed to the York-Antwerp Rules 2004. This will assist in the recommendations to be made with regard to the substantive changes to the York-Antwerp Rules 2004 that could ensure the widespread acceptance of the Rules to be adopted in 2016. Furthermore, the factors that led to the periodic revision of the Rules are examined and the ingredients of the previous successful revision processes are identified as a comparative base to ascertain the flaws, if any, in the process that led to the adoption of the York-Antwerp Rules 2004; which culminated in the lack of widespread acceptance of the Rules in the maritime industry. This thesis contends, among other things, that the York-Antwerp Rules 2004 failed to gain widespread acceptance in the maritime industry because the substantive changes introduced by the Rules did not ensure a measure of equitable balance of the interests of all interested parties. Furthermore, the ingredients of the previous successful revision processes were disregarded in the process of adopting the 2004 Rules. This thesis makes recommendations on the content of the York-Antwerp Rules to be adopted in 2016 and the process of adopting the new Rules in an attempt to enhance their widespread acceptance and use in the maritime industry.
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    Has criminalisation of the master subverted the aim of International Pollution Instruments to impose uniformity on the consequences of ship-source pollution?
    (2021) Kapp, Catharina Wilna; Bradfield, Graham
    Ship's Masters frequently face criminalisation after a maritime accident. Even though international pollution instruments are unambiguous regarding the consequences of shipsource pollution, states often penalise the Master in a manner that is not consistent with their treaty obligations. It brings into question whether international pollution instruments' objective to impose uniformity in their application is subverted by states who impose sanctions on the Master, which defies the aim of the pollution instruments to which they are bound. The protection of the marine environment is strictly regulated in several international conventions to reduce the risk of pollution. The consequences of ship-source pollution are sufficiently clear-cut to ensure compliance by the shipping industry and provide states responsible for enforcing it with clarity. The reality is that states often impose harsh punitive measures on the Master when an accident leads to pollution, and he is often disproportionately criminalised despite the conventions' safeguards. During the last decade, the IMO and maritime industry partners have attempted to address criminalisation by appealing to states to treat seafarers fairly after a maritime accident. However, the facts indicate that states often circumvent the conventions to suit their prevailing circumstances. Although the criminalisation of the Master is an innately worrying factor for anyone who operates a ship or aspires to a career at sea, it is the persistent unwillingness of states to comply with their treaty obligations that poses the biggest threat to the industry. Why states may be motivated to circumvent the conventions are investigated and measured against the ramifications when states do not comply with their treaty obligations to establish whether states are deliberately subverting the aim of international pollution instruments to achieve uniformity. Indications are that the criminalization of the Master through defying the international pollution instruments has become the norm, and states are more driven by regional ethics than their treaty obligations. States tend to favour a punitive approach to pollution strongly and are highly likely to act in a manner inconsistent with their treaty obligations when ship-source pollution occurs in their waters.
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    An historical and multi-jurisdictional study of jurisdiction clauses in internaional maritime carriage contracts
    (2011) Sanchez, Natalie Isabelle; Bradfield, Graham
    This dissertation aims to engage in an historical and multi-jurisdictional study of forum selection clauses in the context of international maritime carriage contracts by: 1. Describing the historical situation which led to the inclusion of jurisdiction clauses in maritime contracts in the first place, providing background information on their regulation, construction and validity under the law, and touching upon other important preliminary considerations ( Chapter 2 ); 2. Providing a multi-jurisdictional analysis of the national regulation and enforcement of jurisdiction clauses contained in carriage agreements ( Chapter 3 ); 3. Providing an overview of the European regulation and enforcement of jurisdiction clauses contained in carriage agreements ( Chapter 4 ) ; 4. Providing an overview of the regulation and enforcement of jurisdiction clauses under the Hamburg and Rotterdam Rules ( Chapter 5 ); and 5. Offering suggestions for achieving greater harmonization of rules on jurisdiction clauses and concluding remarks ( Chapter 6 ).
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    Insurance warranties in South Africa: consideration of reform of the law on insurance warranties in South Africa and why there is a need for such reform
    (2019) Deonandan, Nirvana; Bradfield, Graham
    Aim The overall aim of this dissertation is to consider reform of warranties in the area of insurance law in South Africa. In considering the main aim of this dissertation, the current law relating to insurance warranties in South Africa and other jurisdictions will be analysed in order to demonstrate why the South African position is unsatisfactory in its current form and therefore in need of reform as well as ideas on how the current law can be reformed. Thesis It will be argued that the South African law on insurance warranties is in need of reform to address unsatisfactory aspects of it indicated in recent judgments and by academic commentators and that such reform should, in broad terms, take account of consumerism and eliminate the harsh and unfair effects associated with the interpretation and implementation of warranties.
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    Offshore cyber risk in the Marine Industry: limitations and challenges faced by the insurers and policyholders
    (2021) Seboko, Tilly; Bradfield, Graham
    As stated by Stephen Harris, a mere 30 years ago, the idea of commercial cyber-attack was rather a topic for the science fiction novelists than reality.' However, nowadays we witness a growing tendency of reoccurrence of this phenomenon across many sectors that rely on progressively advancing technology. Despite always being known as a conservative field, the maritime industry is no exception in terms of the exposure to risks that result from cyber-attacks.
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    Opening up the rich man’s club : ways to solve the clash between IMOs need for a more efficient decision-making process and the necessary participation of developing countries in the process?
    (2014) Solf, Katarina; Bradfield, Graham
    The question this dissertation aims to answer is how developing countries can be better included in the IMOs decision-making process in order to make the process more efficient regarding time efficiency and the enforcement of decisions. It will be shown that the decision-making process of the IMO lacks efficiency regarding time-efficiency, which leads to a delay in finalising, adopting and implementing IMO decisions. Furthermore, the implementation and enforcement of decisions is inefficient. It will be demonstrated that the IMO would work more efficiently if developing countries would be better included in the decision making process. In order to point out ways to increase the IMOs efficiency and to improve the participation of developing countries in the process, seven suggestions on how to improve the efficiency of the IMO will be analysed. However, it will be shown that only a few of them have the double effect of improving the effectiveness of IMO´s decision-making process and strengthening the participation of developing countries. Out of the seven proposals for strengthening the efficiency of the IMOs decision-making process that are to be examined in this work only a change to the structure of the IMO to open up the “rich man´s club” and the expansion of the IMOs efforts to strengthen the member states implementation willingness achieve both objectives at the same time. However, there is not just one way to improve the IMOs decision-making process and the participation of developing countries in it. For achieving the best results, a few of the proposals should be combined.
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