Browsing by Subject "Shipping Law"

Now showing 1 - 19 of 19
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    Assessment of contractual damages : developments in the test for remoteness in contractual damages under English and South African law, with particular regard to the 2008 House of Lords judgement in The Achilleas
    (2012) Deacon, Melissa Emma; Hare, John
    The test for remoteness of damages laid down in Hadley v Baxendale has survived more than a century and a half with comparatively little meddling from the English courts. That is not to say there has been no attempt at refinement or clarification. The recent decision in The Achilleas saw five Law Lords coming to the same conclusion as to the rule’s effect but for very different reasons. This dissertation will consider the historical development of the Hadley v Baxendale rule, its rationale, its application in the later English cases of Nettleship, Victoria Laundry and The Heron II, the approaches adopted by the House of Lords in The Achilleas, its subsequent effect in The Amer Energy and The Sylvia, the difference in approach adopted in tort and finally will conclude with a comparison of the approaches to assessing remoteness of damages in English and South African law.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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'.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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 ).
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    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
  • Thumbnail Image
    Item
    Open Access
    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.
  • Thumbnail Image
    Item
    Open Access
    The use of port state measures as a tool of combating illegal unreported unregulated fishing: Is there a need for expansion of coastal state jurisdiction?
    (University of Cape Town, 2020) Ogega, Peris B; Bradfield, Graham
    This dissertation examines the scope and limitations of port state jurisdiction with respect to the enforcement of international conservation and management measures established under international and national instruments. The current fisheries regulatory regimes rely primarily on flag states to enforce these measures against foreign vessels. The aim of this dissertation is to recommend an expansion of port state enforcement jurisdiction over foreign vessels when fishing in the high seas. The expansion of port state jurisdiction supplements the role of flag states in enforcing the provisions of international conventions and agreements applicable in the high seas and also fills in where flag of convenience fishing vessels have failed to do so. To support this view, the dissertation will compare the issue of illegal unreported unregulated fishing with the issue of marine pollution. The significance of this comparison is to show how provisions in regard to marine pollution, have legitimized the expansion of port state jurisdiction to the extent that port states have enforcement jurisdiction over foreign flagged vessels which violate the provisions of LOSC relating to marine pollution in the high seas.
  • Thumbnail Image
    Item
    Open Access
    Towards a legal regime for limiting ship-source greenhouse gas emissions
    (2009) Paul, Daniel Alexander; Gibson, John
    In the 55th meeting of the International Maritime Organisation's (IMO) Marine Environment Protection Committee (MEPC) in October 2006, the Committee noted that the impact of greenhouse gas emissions from the burning of marine fuel oil on climate change is a serious concern and even though shipping is considered an environmentally friendly mode of transport, it too must change with the times and take action to reduce its own greenhouse gas emissions. If it does not, then shipping will fall behind other industries and become one of the largest producers of greenhouse gas emissions in the future.
  • Thumbnail Image
    Item
    Open Access
    The unmanned ship sets sail - is South Africa prepared to open The Ship Register?
    (2017) Forster, Tom; Bradfield, Graham
    The dissertation discusses unmanned shipping from a South African perspective. While some nations are trailblazers in this field, other states lack behind and do not yet provide with a clear strategy for the future. Hence, the threat is real that they might be too late and will lose out in the competition to attract ship building, technology development, job creation and a whole new branch of industry. As a shipping nation in a strategically high important geographic area, South Africa's perspective is highlighted and it is examined whether the time has already come to open the ship register for unmanned vessels. Therefore, after a summary regarding the state of affairs, it is evaluated what the most severe dangers of unmanned shipping are from the perspective of compliance with safety regulations. Subsequently, a cost-benefit-analysis follows that seeks to anticipate the decision of the registrar burdened with the question of whether to allow an unmanned vessel of a certain level of autonomy on the South African register. Although it is found that the benefits in prospect are tremendous, it is also concluded that at this point in time great dangers and uncertainties are to expect and that possible solutions to those are still in their infancy. Thus, it is to conclude that the question whether South Africa should open its register for unmanned vessels must be yes ultimately, but not now.