Browsing by Department "Shipping Law Unit"

Now showing 1 - 20 of 22
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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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    Blackwater versus Blackbeard : which international regulations exist for the use of private maritime security companies in vessel protection operations?
    (2016) Wirtz, Christian Cornelius; Powell, Cathleen
    The problem of piracy and armed robbery at sea has sharply risen in the last decades. As a result, shipping companies, governments, insurances and maritime organisations have tried to approach the problem in different ways, the employment of private maritime security companies being one of them. State navies do not have enough resources to cover the vast areas of the high seas. As a result, armed security teams are exercising traditional State functions to protect vessels from being attacked. This study aims to find the legal foundations in international public law for the employment of armed guards on-board of commercial or private vessels. Furthermore, legal questions about the seizing of pirates, the use of force, criminal jurisdiction on-board of ships and the carrying of weapons will be scrutinized. For this purpose, the applicability of the Geneva Conventions and other key documents of the international humanitarian law will be analysed such as the Montreux Document and the Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies. Moreover, relevant aspects of the UNCLOS rules will be highlighted. An additional chapter will review existing international and regional soft law standards, mainly developed by the shipping and the security industry. The analysis concludes that international law has not yet developed distinct rules for the use of private maritime security companies. Especially the UNCLOS does not deal with private actors in the fight against piracy at all. As a result, national law remains responsible for the creation of a comprehensive set of rules concerning the employment and the conduct of maritime security guards. In addition, the vast number of soft law guidance and standards are missing enforceable and effective mechanisms and cannot yet be seen as an alternative for national regulations.
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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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    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 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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    Legal encouragement for salvage : an examination upon South African, English and German salvage law
    (1998) Kaestner, Christian; Hare, John
    The scope of this dissertation is an examination of the different aspects of legal encouragement for salvors in English, South African, and German salvage laws. For this purpose, attention will be given to the questions of whether the present salvage laws in England, as the "mother"-country for maritime law, in South Africa, and in Germany encourage modem salvors to undertake expensive and risky salvage operations or whether the mentioned legal systems dampen the salvor's motivation to salvage life and maritime property out of distress situations.
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    The menace of piracy and its effects on the marine insurance industry
    (2012) Akinyeye, Oluwole; Hare, John
    This thesis has the aim of analysing the metamorphosis of piracy into its present day status as a menace and how it has impacted most especially on the marine insurance industry. The marine insurance industry is basically comprised of the relationship between the assured (shipowner/cargo owner) and the insurer, and the nexus which creates the relationship between these parties lies in the marine insurance policy which is taken out by the assured and underwritten by the insurer.
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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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    The privatisation of pilotage services: a panacea for South Africa’s pilotage ills?
    (2015) Balmuth, Simon Mark; Bradfield, Graham
    Does the creation of a deemed servant-master relationship, between pilot and ship-owner or master through section 76 (2) of the National Ports Act (hereafter the NPA); accurately reflect the de facto relationship in which the parties stand? Can the provision's importation of the doctrine of vicarious liability and consequent foisting of liability on the ship-owner be defined as logical, just and practical? It will be argued after having had recourse to the manner in which these roles have come to be defined and understood in South African labour jurisprudence, the governing law, respective positions occupied by ship-owner and port authority, broad-based considerations of policy, and key tenets of the rationale underpinning the concept of vicarious liability; that the answer to the above-raised questions is are sounding no. In addition, the writer will submit that the privatisation of pilotage services presents a solution, alternate to the irrational imposition of the doctrine of vicarious liability, which is palatable to government, ship-owning interests and pilot. a) Introduction Typically, claims arising from consequences of pilot error satisfy the definition of a 'maritime claim' contained in s 1 (1) (e) and s 1 (1) (l) of the Admiralty Jurisdiction Regulation Act. As a result thereof; a South African court sitting in admiralty has jurisdiction to hear such claims. As to the identification of the appropriate law; s 6 (2) dictates that South African statute, if relevant, trumps pre-existing English admiralty law and is the law to be applied. The NPA, chiefly through sections 75 and 76, regulates the extent of the pilot's liability for his/her acts or omissions whilst a vessel is under compulsory pilotage. Thus, the Act is applicable to disputes arising from pilot error, before a South African court sitting in admiralty.
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    A reconsideration of the prima facie case
    (2013) Fitzgerald, Patrick; Bradfield, Graham
    The topic of this dissertation is whether the requirement of' a prima facie case' and the approach to determining whether it has been met in the context of security arrests 'in terms of section 5(3) of the Admiralty Jurisdiction Regulation Act' ("the Act") is still appropriate, and if not, what should the approach and the requirements be both to security arrests and to attachments at common law and under the Act. One of the current requirements for obtaining the relief sought in (a) 'an application for an order for attachment to found or confirm jurisdiction' before courts exercising their general civil jurisdiction ("attachments at common law"); (b) 'an application for an order for attachment to found or confirm jurisdiction' before courts exercising Admiralty jurisdiction ("attachments in personam under the Act"); ( c) arrests in rem to enforce a claim in Admiralty ("arrests in rem"); and, (d) an application for an order for an arrest in Admiralty ("security arrests") is that the applicant must show 'that it has a prima facie case on the merits against the respondent.
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    Shipping conferences and antitrust exemption in North America from a Canadian perspective: New life in an old debate
    (2001) Jermyn, Glen; Hare, John
    Transport Canada defines shipping conferences (herein "conferences") as follows: "Ocean liner shipping companies [which] offer regularly scheduled ocean transportation services, as opposed to irregular or non-liner services, primarily consisting of the carriage of containerized cargo rather than bulk commodities. A conference is an association of liner companies operating under an agreement to provide service on common trade routes and which collectively agree on rates and terms of service."
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    "The doctrines of deviation and fundamental breach: have they really sunk?"
    (2000) KARAGIANNIS, A; Bradfield, Graham
    A contract of carriage by sea evidenced inter alia by a bill of lading or charter-party governs and regulates the relations between the parties to whom it applies. As in any other contract, the parties have certain duties and obligations provided for by the contract whether expressly or by implication. This paper focuses on the effects of a breach of such a contract, in particular when such a breach is a fundamental breach or is a geographical deviation made by the carrier. The effect of an exclusion or limitation clause contained in a contract, in the event of such breaches will also be considered. There exists no jurisprudence in South African shipping law dealing with a fundamental breach or a deviation and thus in terms of s6(1) of the South African Admiralty Jurisdiction Regulation Act no. 105 of 1983, English law is the law applicable should a South African court be faced with a situation involving a fundamental breach or geographical deviation. The doctrines of deviation and fundamental breach will be examined from the moment of their inception to arguably their disintegration. Exclusion, exception and exemption clauses are all those clauses which exclude a party who has committed a breach from liability, and limitation clauses are those limiting liability. How these have been affected by the doctrines of deviation and fundamental breach as well as the survival of these doctrines will now be seen
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    The information super cul-de-sac: Troubled waters for shipping jurisdiction
    (2002) Cunha,LN; Hare, J
    It is estimated the paperwork associated with international freight transport may absorb between 7 and 10 per cent of the cost of trade and is now too cumbersome for the rapid and efficient movement of goods
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    The nature and scope of the contemporary maritime liens in South African Admiralty Law
    (1993) Bradfield, Graham
    Thesis looking at the nature and scope of the contemporary maritime liens in South African Admiralty Law.
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    The test for wrongful arrest of vessels: in search of harmonisation
    (2018) Goordeen, Sohana; Bradfield, Graham B
    The purpose of this dissertation is to evaluate and analyse the test for the wrongful arrest of vessels and cargo, although my primary focus will be on vessels. My evaluation is geared toward a view that the test is anachronistic, in need of revision and no longer applies effectively in the present day. I will begin by explaining wrongful arrest, and discuss its origins and history, and how the test for wrongful arrest has been applied in various jurisdictions, both common and civil law jurisdictions with a focus on common law judgements. This dissertation also includes reference to the renewed campaign to reform the test for wrongful arrest of vessels, initiated by Professor Mandaraka-Sheppard and debated between Sir Bernard Eder and Martin Davies. I will consider their respective views, supporting justification, arguments in favour and against the reform of the test, as well as possible solutions as to how the test should be reformed. When the test was first established, it was geared to address the challenges of a particular context in time, and now, not only is that context no longer in existence, but the test has created the perhaps unintended consequence of denying potential litigants access to courts, thus creating an inequitable and unjust situation. The work of the International Maritime Committee and the International Working Group on Wrongful Arrest of Vessels, is part of this study, as well as the results of the Questionnaire issued by the International Maritime Committee and the role it seeks to play in achieving harmonisation of the law relating to wrongful arrest. In conclusion, based on the discussion of the issues above, I will affirm my view that the time has come for the revision of the test as it stands in respect of wrongful arrest, and further that this revision should be one that establishes uniformity and harmonisation in this area of the law.