Download (pdf)...

Download (pdf)...

Maritime-Review Africa-March-April-2014

Download (pdf)...

Maritime-Review Africa-Feb-2014

Download (pdf)...

Maritime-Review Africa-Nov-Dec-2013

Download (pdf)...

Maritime-Review Africa-Sept-Oct-2013

Download (pdf)...

Maritime-Review Africa-July-Aug-2013

Download (pdf)...

Maritime-Review Africa-May-June-2013

Download (pdf)...

Maritime-Review Africa-March-April-2013

Download (pdf)...

ADVICE ON MOZAMBIQUE PORTS.

All the ports in Mozambique are owned by CFM (Caminhos de Ferro de Mozambique). Many of the ports have been given to private companies to manage the ports as going concerns. However, all the property in the port is owned by CFM on behalf of the Mozambique state. There have been no reported attempted piracy attacks in the region. The waters are patrolled by the South African and Mozambique Navies.

There have been no reported Ebola cases in Mozambique. We believe that they will simply follow South African guidelines should a case be reported.

Pemba:

The harbour of Pemba is very small, however is situated in a sheltered bay. The port is managed by CFM. The bay/ area of Pemba has potential for being a deep water port.

The entrance channel is approximately 23 meters in depth but alongside the berth the depth is only 6.4 to 7.6 meters.

Pilotage is compulsory and there is no tug assistance. There is only one berth which is 182 meters in length, and this berth is used for both oil /gas and general cargo and supply vessels.

There are limited fenders along the berth and therefore arriving vessels should take care during berthing operations.

There are limited / minor cargo claims at the port of Pemba but nothing of great concern.

Normal security should be in place. We have not had reports of stowaways attempting to board in Pemba.

In the summer months crews should be aware of malaria.

Nacala :

Nacala or Nacala-Porto is on the northern coast of Mozambique and is the deepest natural port on the east coast of Africa. It serves as the terminal for the Nacala Railway, a rail link to the landlocked Malawi.

Pilotage at Nacala port is compulsory, and with ships being boarded 2 miles from the Nacala lighthouse. The port is managed by Portos Do Norte SA who supply all port services including stevedoring.

The fendering in the port is poor and arriving vessels should be mindful of the poor fendering.

We have experienced claims in the past for damage to the quayside and for bollards being pulled out from mooring ropes. This is generally due to the lack of proper maintenance.

We receive the usual cargo claims in this port arising from bagged cargoes like rice/ cement/ and fertiliser. We have noted rough handling of cargo by stevedores and then the receivers allege shortages. Majority of the local receivers will accept Clubs LOU's in the event of a security demand, which in turn will allow the vessel to sail from the port in due course.

Recently, we have noted a number of disputes with bulk sugar loaded in the port. The cargo is railed/trucked to the port in jumbo bulk bags which in turn are drained into the cargo holds as bulk cargo and we have experienced a number of quantity disputes between shore and draught survey figures.

There are no shore scales in Nacala, and therefore the bags are NOT being weighed prior to loading. The bags are alleged to weigh 1 ton (net) weight and they simply carry out a tally to determine cargo quantity.

The weight of the jumbo bags could have changed during the transportation from Malawi to Nacala, and furthermore whilst in storage within the port warehouse.

Majority of the Receiver's will accept Clubs LOU's in the event of a security demand.

We have also noted bulk food cereals being discharge in Nacala into hoppers and the cargo then bagged and weighed. Again, shortage disputes arise between ship and shore figures.

In the summer months crews should be aware of malaria.

Normal security should be in place. We have not had reports of stowaways attempting to board in Pemba.

Beira :

The port of Beira in Mozambique is situated at the mouth of the Pungue River at Longitude 34o 50' E and Latitude 19o 51' S. The port is operated by Cornelder.

Access to the port is obtained via the dredged Mancuti Channel (17 n.miles from the Mancuti lighthouse). Ships waiting for berthing instructions are required to anchor east of the outer channel.

The port is tidal with a MH spring range of 6.2 - 7.4m.

Vessels awaiting berth must anchor at the bar. The approach to the River Pungue is obstructed by numerous banks and shoals, which are constantly changing. Master should obtain an update on the banks / shoals from the Pilots / Port Authorities / Agent upon arrival at Beira. Vessels have grounded in various locations during the approach to the port, but have refloated on higher tides. Masters should exercise caution when transitting the buoyed channel.

From the north end of Channel Rambler, the entrance channel is marked by light buoys west of Cbadelo light (metal mast, 4m in height), exhibits 9 cables north northwest of Ponta Gea on the edge of a bank fronting the shore between Ponta Gea and Ponta Chiveve.

The port is open 24 hours a day although night navigation is restricted to vessels up to 7m draught and LOA of 140m. Pilotage and tug assistance is compulsory at all times, with pilots joining ships near P Buoy.

Vessels with a draught of 4.88m or less may enter the port at any state of the tide. Those drawing more than 4.88m are required to wait for a suitable height of tide before entry.

During the raining season which in turn will result in a high river, the ebb stream can attain a rate of up to 6 knots at springs and 2 - 4 knots at neaps.

We receive the normal cargo claims from bagged items like rice/ cement/ fertiliser). These can be shortage claims based on B/L and shore tally. We also receive damages claims caused by stowage and rough handling by stevedores. Majority of the local receivers will accept Clubs LOU's in the event of a security demand, which in turn will allow the vessel to sail from the port.

We recommend that draught surveys are carried out for bulk cargoes in order to protect members/ clubs interest should any shortage claim arise.

Beira has been turned into a coal export port and a lot of money has been spent on upgrading the port. Loading coal in Beira is restricted because of the berth and channel depths and the LOA of a vessel.

The draft limitation at the coal terminal berths only allow vessels to load to certain draft depth. Thereafter, the vessel will proceed to anchorage, where two self-loading ships with offset cranes will top up with cargo, allowing the vessel to load to the maximum draft and contract weight.

The STS operation is carried out off shore and ships should be aware to exercise the usual cautions for STS operations and to check that there is adequate fendering in place. Please do not forget the stern of both ships.

Certain STS operations of liquid cargoes also occur off Beira and again the usual STS precautions should be in place.

There have been a few knocks/vessel making contact during the the STS operations. Many of these occurred in the initial start-up of the STS operation in Beira a few years ago and have tapered off now. We have not had a reported incident for over a year now which indicates that the operation has improved and that proper mooring masters are in use and proper fendering available. This does not mean that the master of your member's vessel can let his guard down and he should be mindful at all times. The incident referred to above was between two tankers and it occurred 3 months ago. The incident can be put down to the wrong positioning of fenders.

The security within the port is reasonable, however the crew / master should remain on a "high" security level. Members are recommended to have normal gangway and deck watches. Crew should be mindful of going ashore as we have heard reports of single crewman being mugged and robbed, best option is to travel in groups.

In the summer months crews should be aware of malaria.

MAPUTO :

The port of Maputo is the main and the busiest port of Mozambique. It is also a river port which is subject to large tidal fluctuations. The Port of Maputo consists of two main port areas.

The first part is the city area which is managed by MPDC. The second part of the port is in Matola, and this part is controlled by CFM and consists of the bulk cereal terminal, the alumina terminal, the liquid terminal and the coal terminal.

There is one access channel from the open sea leading into Maputo Bay, the North Channel with a limiting depth of 11m (Canal do Norte). The channel passes to the North of Portuguese Island (Ilha dos Portugueses) and is well marked by light buoys.

The distance from the North Channel entrance at Buoy 1N to the Pilot Station at Buoy 6 is 25 miles. From the Pilot Station at Buoy 6 the Xefina, Polana and Matola Channels lead into the quaysides and terminals.

We have investigated and attended to numerous vessels that have grounded having left the buoyed channel.

We have received numerous reports and concerns about the condition of the port and the depths alongside the various berths.

With regard to the latter, the port of Mozambique has just signed an agreement with Transnet in South Africa to carry out proper dredging of the port. Berths will be properly dredged in order that ships can load the agreed tonnages.

When ships are loading and discharging bulk cargoes, we recommend that a draught survey is carried out to prevent shortage claims.

We have the normal shortage claims for bagged cargoes like rice/ cement/ fertiliser. We recommend that for those cargoes, especially rice, that proper tallies are conducted. We have noted that the same receivers always claim for shortages especially of owners/charterers are not tallying the cargo.

We have also noted the usual damages on bagged cargoes because of poor stowage or rough handling by stevedores.

Majority of the Receiver's will accept Clubs LOU's in the event of a security demand, which in turn will allow the vessel to sail from the port.

The port is carrying out remedial works in places. Some of the berths are in need of work and work is being carried out slowly to repair berths. Masters should be careful when approaching the berths as we have seem claims for damages to berths when such damage is clearly because of inadequate fendering and poor maintenance.

There are 3 tugs in the port but they are not very powerful so masters should not rely on the tugs to assist with pulling if required.

There are a number of berths in Matola where the fendering is old and damaged. We have received claims for damages to fenders where such damage clearly arose over time from use and lack of basic maintenance.

The security within the port is reasonable, however the crew / master should remain on a "high" security level especially for thieves who will try and sneak on board ships to steal computers, cameras, money etc.

We have had reports of stowaways attempting to board in Maputo.

In the summer months crews should be aware of malaria.

Durban
South Africa
UPDATED SEPTEMBER 2014

Download (pdf)...

Download (pdf)...

LOSS PREVENTION

STOWAWAY UPDATE SOUTH AFRICA

AUGUST 2014
P&I ASSOCIATES (PTY) LTD

We refer to our previous loss prevention notice regarding stowaways boarding vessels in South African ports. Despite issuing our notice, we have seen a continuous increase, rather than a decrease, in the number of stowaway cases.

You will recall that the South African Immigration Authorities issued a notice advising that if any illegal person is found on board a vessel the authorities deem that the person is not a trespasser but a stowaway. The onus therefore rests on the vessel to prove that the person boarded the vessel in Durban and has evidence to prove this. The immigration authorities will not take the word of the stowaways since they are habitual liars.

We therefore advised that it was essential that no unauthorised person should be permitted to board a vessel. Any visitor to a vessel must produce a Transnet National Ports Authority (TNPA) permit. We have had several meetings with ships agents, the port, terminals and stevedoring companies in association with the South African Association of Ships Agents to discuss the issue of access to the port and vessels. Many of these meetings have been very heated especially following our first loss prevention notice. The purpose of that notice was to help ship owners to stop illegal people boarding their vessels and then being held liable to repatriate those people. All Clubs and Owners are aware of the costs involved in repatriating stowaways.

It is therefore essential that crews maintain a proper deck watch so that stowaways are not climbing up gangways and mooring lines unseen.

All visitors to a ship should be in possession of a TNPA permit and if they do not have one of these permits, then, as a concession to the stevedoring companies who do use temporary labour then those individuals must produce a South African Green bar coded identity document or copy provided it has been certified as a copy by the South African police.

We are aware that if 30 or more stevedores board a vessel that the vessel will not have enough ISPS passes for each stevedore. Accordingly, the vessel should use an A4 book and record the ID number of each visitor in that book and that person should then be ticked on and off the vessel. If the visitor does not have a TNPA permit then they must surrender their South African Green bar coded identity document or a police certified copy of that document to the gangway watch and that individual can then collect the document on leaving the vessel.

If the person does not collect their document or certified copy of that document from the gangway watch then the crew will be aware that a person is still on board. When the person is found, and claims to be a stowaway, then the vessel will be able to produce evidence to local immigration that the person boarded the vessel in South Africa by showing the entry in the A4 record book and produce the document or certified copy. The person will then be arrested and charged as a trespasser and not declared a stowaway.

If the vessel berths at the Island View facility in Durban then they must produce a Cutler permit. This is a secure terminal and any daily visitor is issued with a receipt that they have entered the terminal and this receipt must be handed in at the gate when they leave. Accordingly, the vessel should then take this permit from the visitor when they board the vessel and then return the permit to the visitor when the visitor leaves the vessel.

At the moment, no terminal in Durban is stowaway free and all the stowaways that have boarded vessels in South Africa have been Tanzanian nationals. The stowaways are seeking ingenious methods to get inside the ports. The ports are improving security with cameras, fencing, and regular patrols but despite these measures, stowaways are still gaining access. We always interview the stowaways to see how they managed to gain access to the port in order that we can pass on this information to port security.

The onus however remains with the vessel to protect itself and to prevent unlawful visitors getting on board. If a person does get on board without documentation then the ship will be responsible to repatriate that person and local immigration will not enter into any discussion whatsoever as they have advised us that their policy has been in operation for over a year and that the policy is clear, unambiguous and well publicised.

If the club or its members have any queries on the subject then please do not hesitate to contact me or any of the P&I Associates stowaway team.

Neil Chetty in Cape Town +27 83 250 3381
Garth Hansen in Saldanha Bay +27 83 283 3493
David Macdonald in Durban +27 83 253 0170
Vishal Pragraj in Durban +27 83 441 5685
P&I Associates 24 hour duty number +27 83 250 3398

Michael Heads
Managing Director
P&I Associates (Pty) Ltd
Durban
South Africa
Tel: +27 31 301 1102
Fax: +27 31 301 1290
Mobile: +27 83 4534899
E-Mail: headsm@pandi.co.za

LOSS PREVENTION

EBOLA VIRUS AND STOWAWAYS

AUGUST 2014
P&I ASSOCIATES (PTY) LTD

We have just been made aware of a new case involving stowaways that boarded a vessel in West Africa.

The vessel arrived in South Africa with 6 stowaways on board and the vessel was not allowed to berth because local health authorities were concerned about the identity of the stowaways and their nationality and whether the stowaways could be infected with the Ebola virus.

No doubt all international group P&I clubs have advised their members of the Ebola outbreak and the precautions that should be taken by vessels when calling at West African ports. The vessels will be boarded by numerous people who could have come into contact with people with the virus. No doubt vessels are adopting safeguards to protect the crew from such exposure to the virus.

We attach a useful guide which we received on the virus which has been distributed around our offices.

Vessels calling at West African ports also need to exercise greater diligence with regard to stowaways gaining access to the vessel and should the vessel then depart with stowaways on board, the vessel may be delayed or detained at her next port whilst local health officials check all the individuals on board.

The vessels may be further delayed if there are stowaways on board the vessel as local health officials will want a full investigation carried out as to the nationality of the stowaways and whether they are from areas which have been declared hotspots by the World Health Organization.

South Africa does not as yet seem prepared for this virus and the country is quickly trying to address the situation by putting procedures and methods in place to test for the virus. Accordingly ship owners must expect delays on berthing or obtaining health clearance until the stowaways have been properly vetted by immigration and health officials.

No stowaway can be landed in South Africa unless the stowaway has a valid passport or travel document and these often take time to arrange.

Our stowaway questionnaire must be properly completed and as much information as possible be obtained from the stowaway. Authorities will not accept incomplete questionnaire in order to obtain an emergency travel document.

We will keep you advised on local developments as they occur.

If the club or its members have any queries on the subject then please do not hesitate to contact me or any member of the P&I Associates stowaway team.

Neil Chetty in Cape Town +27 83 250 3381
Garth Hansen in Saldanha Bay +27 83 283 3493
David Macdonald in Durban +27 83 253 0170
Vishal Pragraj in Durban +27 83 441 5685
P&I Associates 24 hour duty number +27 83 250 3398

Michael Heads
Managing Director
P&I Associates (Pty) Ltd
Durban
South Africa
Tel: +27 31 301 1102
Fax: +27 31 301 1290
Mobile: +27 83 4534899
E-Mail: headsm@pandi.co.za

THE UK BRIBERY ACT

THE IMPACT ON SOUTH AFRICA

The Bribery Act 2010 ("the Act") came into force in the United Kingdom on the 1st July 2011 to combat the very serious nature of the problem of corruption which exists in the world today. South Africa ranks 54th in the world Corruption Perceptions Index (CPI) with a score of 4.5 (2010 figures) and has been steadily declining since 2008. To understand the tables one should note that Somalia has a score of 1.1 and Denmark is the best placed country with a score 9.3 (all 2010 figures).

Whilst the CPI can be criticised on various levels, it can also be recognised as a good analysis of the problems facing the world at large as corruption continues to plague the commercial world. It would seem that paying bribes and making facilitation payments in certain quarters of the world appears to be the norm and is becoming acceptable practice. The British Government has now decided to make a stand against corruption and to prosecute companies or individuals who partake in bribery.

The Act creates four offences. Two general offences of paying and receiving bribes, one offence of bribing foreign public officials and the last, the failure of commercial organizations to prevent bribery by an associated person ("corporate offence"). It should be noted that The Act does not permit "facilitation" payments unlike its US counterpart the Foreign Corrupt Practices Act which does allow for facilitation payments to be made.

It is important to note that the Act imposes on private companies obligations in respect of an associated person. The meaning of such a person is very broad and does not depend on the capacity of the person who performs the services. An associated person includes agents, subsidiaries, contractors, suppliers, employees and joint venture partners.

The jurisdiction of the Act is extra-territorial so under the Act, a relevant person or company can be prosecuted if the crimes are committed abroad.

Putting the above into perspective and into the South African sphere, where a "customary payment" is perhaps made to a public official no matter the size of the task or project, not only is the official at risk of prosecution, but so will the company involved together with its agents, subsidiaries, contractors, suppliers, employees and joint venture partners. Any of these parties could include lawyers, accountants and other professional advisors.

The Act brings pressure and increased risks to any company in the UK doing business outside the UK, especially in high risks areas, like Africa. They therefore need to monitor and control the activities of associated persons or face prosecution in the UK.

This means that Insurance companies and P&I Club's will have to carry out greater risk assessments and apply greater due diligence to the activities of associated person. P&I Associates, as commercial correspondents to all of the international group of P&I clubs, needs to be aware of the extent and impact of the Act as the company will be clearly seen as an associated person under the Act. The directors of the company will therefore also be liable under the Act and can face prosecution if they knowingly carry out activities which are deemed illegal under the Act. For example, where P&I Associates makes any payment to a 3rd party and then seeks to recover that payment from an insurer or where the member of the club seeks to recover reimbursement of an expense found to be illegal under the Act then the insurer will be held responsible under the Act should the insurer make the reimbursement.

The penalties under the Act are as follows:

An individual found guilty of an offence under sections 1, 2 and 6 are liable to receive:

On summary conviction

• - imprisonment for a maximum term of 12 months; or
• - a maximum fine of £5,000; or
• - to both imprisonment and a fine of up to £5,000.

On conviction on indictment:

• - imprisonment for a maximum term of 10 years; or
• - a fine; or
• - to both imprisonment and a fine.

A company found guilty of an offence under sections 1, 2 and 6 is liable to:

On summary conviction:

• - a fine not exceeding £5,000.

On indictment:

• - to a fine.

The UK's view is that bribery has no place in British business whether at home or abroad and the new law reflects the UK's commitment in the fight against bribery and paves the way for fair but competitive business practice.

It is against this background that the UK has suggested the following practical guidelines and suggested putting in place adequate procedures to prevent bribery taking place.

• - All commercial and public sector organisations should prohibit bribery in any form whether direct or indirect and by or for the organisation.
• - Commit to implementing systems to counter bribery.
• - Review the adequacy of their internal procedures to prevent bribery.
• - Put in place staff training and ensure written procedures available to staff and contracted consultants. Consider incorporating these into contracts of employment and service and enable the employer to terminate employment or engagement in the case of a breach.
• - Carry out due diligence before entering into arrangements with other parties.
• - Ensure that appropriate checks are carried out during the processing of payments.
• - Have a strategy in place to deal with an allegation of bribery or corruption made within the company or in public. This should include ways of reducing the potential damage to the organisations reputation and how to use the media and other channels of communication to combat this.

Most commentators agree that the purpose of the Bribery Act is to combat bribery at the upper echelons of the business industry. However, the Act does not discriminate against the level of bribery. As far as the Act is concerned, bribery no matter how small or large the amount may be, has no place in a fair and competitive market and anyone who prescribes to such business tactics should be prosecuted.

P&I Associates already operates a practice of good governance and we do not associate ourselves with any form of bribery be it in South Africa or any neighbouring states. Since under the Act, we could be held liable for the acts of subcontractors and agents, it is therefore imperative that all organizations, like ourselves, undertake an examination in the manner and method in which they carry on business and should therefore ensure that there are procedures and processes in place, as suggested above, to protect themselves being exposed to bribery, no matter what the level of bribery appears to be.

Michael Heads
Durban
July 2011

ARMAMENTS ON MERCHANT VESSEL SOUTH AFRICAN REQUIREMENTS

Due to the upsurge in piracy activity in the Indian Ocean region, there has been a large increase in the number of merchant vessels that are carrying security guards, guns and ammunition. Often, the security guards disembark the vessel after the vessel has transited the "hotspot" area off East Africa but the guns remain on board, only to be removed at final destination.

The issue of guns and ammunition remaining on board vessels is creating problems for Owners and this week, in South Africa, two masters were arrested and charged under the South African Firearm Control Act.

The South African Police require that 21 days before a vessel arrives at a South African port that an application must be made to the relevant authority for a permit. This application must be duly accompanied by a number of documents.

• - Copy of the applicants passport on which the photo and passports details are reflected.
• - Copy of the legal licence, permit, authorization or any other documentary proof confirming lawful possession of the firearm.
• - Documentary proof of knowledge of safe use and handling of a firearm, i.e training certificate.
• - Written authorization, which permits the export of the firearm from the country of origin.
• - Equipment list, firearm description and serial numbers and number of ammunition.
• - Equipment list, firearm description and serial numbers and number of ammunition.

Once the permit has been granted and the vessel berths in South Africa, the master can make arrangements for the guns and ammunition to be removed from the vessel and taken to a police locker for safekeeping and then these will guns and ammunition will be returned to the vessel one hour before departure.

It is now very clear that the South African Police will arrest the master and charge him with an offence and non conformance under section 120 and section 73 of Firearm Control Act, Act 6 of 2000.

The question which we have addressed to the South African police is the why one has to make an application prior to 21 days before arrival in South Africa. One of the points that we have made, is that South African ports are often used as bunkering ports as vessel transit the South African coast and that this period appears to be excessive when one considers that the sailing time from Mombasa, Kenya to Durban, is less than 7 days. We have also made the point that often Owners do not know that the vessel's will be stopping in South Africa and therefore if they have guns on board, will now have to wait 21 days in order to make the application, before arrival.

The ISPS clearance period is 96 hours and we have made representations to the Police Colonel to questioning this 21 day period and whether this period can be reviewed.

We attach the letter received from the South Africa Police setting out their requirements. We are busy checking to see whether these are requirements derive from regulations attached to the Act and if so, were these regulations gazetted and therefore brought into force under South African law.

Please can you urgently circulate this notice amongst your members and advise them that at the moment, in South Africa, in order for a vessel to enter a South African port with guns and ammunition on board that the vessel has a permit from the South African police. If there are guns and ammunition but no South African permit, then the master will be arrested and charged resulting in delays to the vessel. The master will be charged and fined and may be imprisoned depending on the severity of the offence. The fines vary from R50,000 to over R100,000 and the master will be prosecuted and will have a criminal record.

As advised, we are busy researching whether the requirements set out by the police are a legal one and whether they have the legal rights to enforce these requirements.

Until we have obtained clarity, we suggest that your members act under the above requirements and if they have any doubts or concerns then they must please feel free to contact us.

Michael Heads
P&I Associates
Durban
South Africa

February 2011

We will tow you away

By Michael Heads
P&I Associates (Pty) Ltd
Durban
South Africa

In June 2005, a vessel passing north on the South African east coast experienced main engine problems. The vessel stopped and anchored off the coast whilst the crew attempted to carry out repairs.

Whilst the vessel was at anchor, the South African Maritime Safety Authority (SAMSA) maintained a close watch on the situation. The crew were unable to effect repairs and the Owners entered into LOF with a team of international salvors.

The weather on the South African coast is notoriously unpredictable and the weather conditions changed and the vessel began to drag her anchor. The salvors in all likelihood already dispatched a tug in anticipation of the LOF agreement.

The weather conditions grew increasingly worse and the vessel was in danger of running aground. SAMSA ordered that a harbour tug from a nearby port tow the vessel into deeper water.

The master of the casualty declined to take the line for he had been advised that LOF had been signed and was concerned that by taking it he would, perhaps be contravening the LOF.

The vessel subsequently grounded prior to the salvage tug arriving.

As a result of this incident, SAMSA came under political pressure and were accused of failing to take action sufficiently quickly, the local view being that SAMSA has the power to order any vessel anchored 'illegally' along our coast to either leave immediately or take a tow.

Section 5 of the Marine Traffic Act, Act 2 of 1981, provides the following: "5. Immobilizing, laying-up, stopping or anchoring outside harbours or fishing harbours

• (1) Except with the permission of the Minister and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case, no person shall within the territorial waters or internal waters immobilize or lay-up a ship outside a harbour or fishing harbour.
• (2) The Authority may require the master or owner of a ship immobilized or laid-up or to be immobilized or laid-up to find security to the satisfaction of the Authority in an amount determined by it for the recovery of any costs incurred by the Authority in enforcing any condition applicable to the immobilizing or laying-up of the ship, or in the exercise of its powers under this Act.
• (3) No person shall stop or anchor a ship for repairs within the territorial waters or internal waters outside a harbour or fishing harbour except with the main engine thereof kept in readiness for immediate use and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case.
• (4) Any person who contravenes the provisions of subsection (1) or (3) shall be guilty of an offence."

Section 11 of the Act provides the penalties for contravention of the Act as follows:

11. Penalties

• (1) Any person shall be liable on conviction of -
• (a) any offence in terms of section 3 (2), to a fine or to imprisonment for a period not exceeding twelve months;
• (b) any offence in terms of section 4 (2) or 5 (4), to a fine or to imprisonment for a period not exceeding two years;
• (c) any offence in terms of section 6 (2) or 7 (3), to a fine or to imprisonment for a period not exceeding three months; any offence in terms of section 8B (1), to a fine not exceeding R200 000, or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
• (2) If any person -
• (a) admits to the Authority that he has contravened or failed to comply with any provision of this Act, which contravention or failure constitutes an offence;
• (b) agrees to abide by the decision of the Authority; and
• (c) deposits with the Authority such sum as may be required of him, but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question, the Authority may, after such enquiry as it deems necessary, determine the matter summarily and may, without legal proceedings, order by way of penalty the whole or any part of the said deposit to be forfeited.
• (3) There shall be a right of appeal to the Minister from a determination or order by the Authority under subsection (2) whereby a penalty exceeding R2 000 is imposed, provided such right is exercised within a period of three months from the date of such determination or order.
• (4) The imposition of a fine under subsection (2) shall be deemed not to be a conviction for an offence, but no prosecution in respect of the offence in question may thereafter be instituted.

Accordingly, should any vessel decide to anchor on the South African coastline without permission, which permission needed to be obtained from the Minister of Transport who is responsible for SAMSA, then that Minister (for which read SAMSA) has the powers to order the vessel to leave the area, or, demand that the vessel accepts a tow so that the vessel is taken away from the coast.

One of the main reasons for SAMSA exercising these powers, is to protect our coastline from the risk of pollution should a vessel run aground. The powers of SAMSA to protect the coastline are included in section 4 of the Marine Pollution (Control and Civil Liability)Act 6 of 1981 and section 18 of the Wreck and Salvage Act 94 of 1996.

Further, SAMSA, are quite quick to point out that in terms of our Merchant Shipping (Maritime Security) Regulations 2004, which incorporate Regulation XI-2/9 of Solas 74 Convention no vessel can anchor without first obtaining security clearance.

The position therefore, is that no vessel can anchor along the South African coast to effect repairs without first obtaining permission from SAMSA, who may order that various preventative measures are to be taken first, for example, by having a tug of sufficient bollard pull standing by to render assistance should assistance be required in an emergency.

SAMSA have confirmed that they have exercised these powers and they have already used a tug to escort a vessel to a port. They indicated that they were quite prepared to arrest the vessel in order to obtain security for costs however, the owners settled the claim before an arrest was made.

The question which begs to be answered, is what form of towage contract would be forced on a vessel should a vessel be ordered by SAMSA to take a tow. This has not been tested and neither has the question whether the tug or vessel rendering the tow has the right to proceed with a salvage claim under South African common law.

The National Port Authority who operate the ports of South Africa, have rendered assistance to vessel's and have, after having rendered assistance successfully claimed for salvage under our common law. In this regard, the South African common law closely mirrors English Law on this point.

We shall have to watch closely has future events unfold however, Owners should be made aware, that they cannot simply, as they may have done in the past simply stop and anchor on the South African coastline to effect repairs.

Owners need to immediately contact the local authorities and obtain permission for the anchorage and will need to disclose the problem facing the vessel. SAMSA, will then study the application and either agree to the anchorage perhaps subject to various requirements. If the application is denied, then one can safely assume that SAMSA will issue an order that the vessel leave the anchorage and if the vessel fails to comply with the order, then SAMSA have the powers to order that the vessel to take a tow. As stated, Owners can expect, in my view to face a common law salvage claim once the vessel is brought safely into port for I believe, that even if the vessel were say brought to the Durban anchorage, SAMSA may feel that the vessel is still a risk to other vessels and the environment and therefore the tow should only end in port.

Michael Heads
Durban
July 2007

THEFT ON VESSELS

By Michael Heads
March 2010

We have noticed in Durban Harbor that the amount of crime occurring on board vessels is on the increase. It is the requirement that in order to gain access to the port and in terms of ISPS one needs to be in the possession of a personal photo identity document and a vehicle permit which should correspond to your license disc and number plate.

If this is indeed the case and the rules being followed by the port then how are so many illegal immigrants and thieves gaining access to the port, either to stow away or commit crimes.

Recently, we removed a stowaway off a vessel in Durban who had gained access into the port using a port contractor's identity card. Clearly the card in question had been lost or stolen and it was quickly utilized in order for the stowaway to gain access to the port dressed as a contractor. It is therefore apparent that it is essential that any port user who has a port identity permit should understand and be aware that the identity document has value and the owner should take great care in looking after it and should that person lose their identity document that it is reported as soon as possible.

We are all mindful in Durban that access to the port through Maydon Wharf is far easier than gaining access through other terminals. We understand that the port is busy looking at security along those berths in order to improve security. Security, however, is not just a port problem. All port users should be mindful and should be vigilant when entering and exiting the port.

The same applies to the crews on ships. Crews are already mindful with regard to stowaways boarding vessels but they need to be mindful about crime too. Thieves are gaining access to vessels and are finding them to be easy and rich pickings. The thieves are not sneaking on board the vessels. They are actually walking up the gangway so therefore, it is imperative that the vessel has a proper gangway watch and that every visitor to the vessel should be identified and issued with the vessel's identity card. The purpose of their visit should be recorded together with the name of the person they are coming to see and the time that they boarded the vessel. These cards should be handed in as the visitor leaves the vessel and the visitor should be seen leaving the vessel.

Once the thief has gained access to the vessel it seems that he or she finds it quite easy to move around the accommodation of the vessel with relative ease.

In order to prevent this, crews have been reminded to keep their cabin doors locked including all port holes and windows. Crews have also been reminded to only have one door open on the main deck at the top of the gangway so that access to the accommodation section is strictly controlled. It is very easy for a thief to sneak on board the vessel acting like a stevedore and then once on board the vessel walk around the vessel looking for an open unguarded door. Once inside the accommodation section, it is just a matter of knocking and seeing who is in or out.

The thieves have been able to help themselves to watches, cameras, portable music players, laptops, and cash. These goods are easily disposed of to eager buyers.

We were called down to a vessel not too long ago where a thief was helping himself out to copper wire and anything else that was not bolted down. He was searched when he was leaving the vessel and in both pockets he had collection of metal bolts and nuts which he had carefully removed before hiding them in his pocket. These items were destined for the scrap metal market.

Defeating crime has to take various forms and the easiest form that anyone can take is to be mindful and not to make oneself an easy victim. The crews should not rely on the port security to be their defence against crime. They need to rely on their own security first and to make their vessels unattractive for thieves. Theft is often a crime of convenience. A door left open and unguarded is an easy entrance for any thief. We all know that crime in South Africa is still on the increase and that we all take measures at home to protect our personal property. A house with a security system, electric fence and dogs is less of an attraction than a house with no such system or dogs. The same rationale applies to a ship. A ship with a good gangway watch and observant crew who maintain control over their vessel is less likely to be a victim of crime than a ship whose crew easily allows access to strangers to their vessel.

Michael Heads
Durban March 2010

22 August 2008

South Africa - We will tow you away

By Michael Heads, P&I Associates (Pty) Ltd, Durban, South Africa

The South African Maritime Safety Authority has powers to order the towage of vessels that anchor on the South African coastline without permission from the authorities.

Casualty

In June 2005, a vessel passing north on the South African east coast experienced main engine problems. The vessel stopped and anchored off the coast whilst the crew attempted to carry out repairs. Whilst the vessel was at anchor, the South African Maritime Safety Authority (SAMSA) maintained a close watch on the situation. The crew were unable to carry out repairs and the owners entered into a Lloyd's Open Form (LOF) agreement with a team of international salvors.

The weather on the South African coast is notoriously unpredictable; the weather conditions changed and the vessel began to drag her anchor. The salvors in all likelihood had already dispatched a tug pursuant to the LOF agreement. However, the weather conditions became worse and the vessel was in danger of running aground. SAMSA ordered that a harbour tug from a nearby port tow the vessel into deeper water. The master of the casualty declined to take the line because he had been advised that LOF had been signed and was concerned that by taking it perhaps he would be contravening the terms of the LOF.

The vessel subsequently grounded prior to the salvage tug arriving.

As a result of this incident, SAMSA came under political pressure and were accused of failing to take action sufficiently quickly, the local view being that SAMSA have the power to order any vessel anchored "illegally" along the South African coast to either leave immediately or take a tow.

Marine Traffic Act

Section 5 of the Marine Traffic Act, Act 2 of 1981, provides the following: "5. Immobilizing, laying-up, stopping or anchoring outside harbours or fishing harbours

• (1) Except with the permission of the Minister and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case, no person shall within the territorial waters or internal waters immobilize or lay-up a ship outside a harbour or fishing harbour.
• (2) The Authority may require the master or owner of a ship immobilized or laid-up or to be immobilized or laid-up to find security to the satisfaction of the Authority in an amount determined by it for the recovery of any costs incurred by the Authority in enforcing any condition applicable to the immobilizing or laying-up of the ship, or in the exercise of its powers under this Act.
• (3) No person shall stop or anchor a ship for repairs within the territorial waters or internal waters outside a harbour or fishing harbour except with the main engine thereof kept in readiness for immediate use and in accordance with any condition prescribed by regulation or imposed by the Minister in a particular case.
• (4) Any person who contravenes the provisions of subsection (1) or (3) shall be guilty of an offence."

Section 11 of the Act provides the penalties for contravention of the Act.[1]

Powers of SAMSA

Accordingly, should any vessel decide to anchor on the South African coastline without permission from the Minister of Transport, who is responsible for SAMSA, then that Minister (for which read SAMSA) has the powers to order the vessel to leave the area, or demand that the vessel accepts a tow to be taken away from the coast. The Merchant Shipping (Maritime Security) Regulations 2004, which incorporate Regulation XI-2/9 of SOLAS, provides that no vessel can anchor without first obtaining security clearance.

The position, therefore, is that no vessel can anchor along the South African coast to carry out repairs without first obtaining permission from SAMSA. SAMSA may order that various preventative measures are to be taken first, for example by having a tug of sufficient bollard pull standing by to render assistance should assistance be required in an emergency.

One of the main reasons for SAMSA to exercise these powers is to protect the coastline from the risk of pollution should a vessel run aground. [2]

SAMSA have confirmed that they have exercised these powers and they have already used a tug to escort a vessel to a port. They indicated that they were quite prepared to arrest the vessel in order to obtain security for costs. However, the owners settled the claim before an arrest was made.

The question which begs to be answered is what form of towage contract would be forced on a vessel should it be ordered by SAMSA to take a tow. This has not been tested and neither has the question whether the tug or vessel rendering the tow has the right to proceed with a salvage claim under South African common law.

The National Port Authority that operate the ports of South Africa have rendered assistance to vessels and have, after having rendered assistance successfully, claimed salvage under common law. South African common law mirrors English Law on this point.

No more simply stopping and anchoring

Shipowners should be made aware that they can not simply stop and anchor on the South African coastline to carry out ship repairs, as they may have done in the past. Owners need to immediately contact the local authorities and obtain permission for the anchorage and disclose the problem the vessel is facing. SAMSA will then study the application and either agree to the anchorage, perhaps subject to various requirements, or refuse it, in which case one can safely assume that SAMSA will issue an order that the vessel leave the anchorage. If the vessel fails to comply with the order, then SAMSA have the power to order the vessel to take a tow. As stated, owners may face a common law salvage claim once the vessel is brought safely into port, for even if the vessel were for example brought to the Durban anchorage, SAMSA may feel that the vessel is still a risk to other vessels and the environment and therefore the tow should only end in port.

• [1] Section 11 reads: "11. Penalties
• (1) Any person shall be liable on conviction of
• (a) any offence in terms of section 3 (2), to a fine or to imprisonment for a period not exceeding twelve months;
• (b) any offence in terms of section 4 (2) or 5 (4), to a fine or to imprisonment for a period not exceeding two years;
• (c) any offence in terms of section 6 (2) or 7 (3), to a fine or to imprisonment for a period not exceeding three months; any offence in terms of section 8B (1), to a fine not exceeding R200 000, or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
• (2) If any person
• (a) admits to the Authority that he has contravened or failed to comply with any provision of this Act, which contravention or failure constitutes an offence;
• (b) agrees to abide by the decision of the Authority; and
• (c) deposits with the Authority such sum as may be required of him, but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question, the Authority may, after such enquiry as it deems necessary, determine the matter summarily and may, without legal proceedings, order by way of penalty the whole or any part of the said deposit to be forfeited.
• (3) There shall be a right of appeal to the Minister from a determination or order by the Authority under subsection (2) whereby a penalty exceeding R2 000 is imposed, provided such right is exercised within a period of three months from the date of such determination or order.
• (4) The imposition of a fine under subsection (2) shall be deemed not to be a conviction for an offence, but no prosecution in respect of the offence in question may thereafter be instituted."
• [2] The powers of SAMSA to protect the coastline are included in section 4 of the Marine Pollution (Control and Civil Liability) Act 6 of 1981 and section 18 of the Wreck and Salvage Act 94 of 1996

Ports and Places of Refuge

The issue of ports and places of refuge around the world became a topic of debate as a result of the breaking of the mt "Prestige". There were many issues at stake at the time and one view of thought believed that if the vessel had been taken into a port or place of refuge, the resultant oil spill could have been controlled. This would have been possible because the vessel would have been in a controlled space and not at the mercy of the sea and the weather.

South Africa is surrounded by 2,800 km of coastline and it can be at certain times, one of the most dangerous stretches of coastline in the world, especially when one takes the weather into account. It is for this reason that it is important that there are ports and places of refuge available for a vessel in the case of an emergency. Fortunately, there are places of refuge available in South Africa for deep draft vessels, together with certain ports, provided various requirements can be met.

The Marine Traffic Act, Act 2 of 1981, sets out South Africa's position when a vessel is seeking a port or a place of refuge. It is an offence under the act, for any vessel to lay-up on the South African coastline, without the permission. Permission to lay-up a vessel must be given by the relevant minister through the South African Maritime Safety Authority (SAMSA) who may demand, inter alia, that a tug be made fast to the vessel at all times throughout the duration of the lay-up. The tug would therefore be able to move the vessel in case of emergency. If she is made fast, then there is little delay in moving or relocating the vessel.

SAMSA have the authority to prevent a vessel coming towards the coast to seek refuge and this authority stretches to all bays and anchorage areas. Although the ports are operated by the Transnet National Ports Authority (TNPA), they will often turn to SAMSA for advice and assistance. Before a vessel can seek refuge at a place or port in South Africa, SAMSA must first give their authority so if it is a port, then, TNPA would also have to be consulted and give their approval. SAMSA will always consider the saving of life as being paramount and the MRCC in Cape Town co-ordinates all rescue activities with the harbor master at the nearest port. The next priority is the environment. Once the above factors have been taken into account, then one would then give consideration to the saving of property.

South Africa has always taken an excellent approach to the subject of vessels seeking a port or place of refuge and in this regard, SAMSA, should be commended for their role in such matters. SAMSA have a difficult function to fulfill and it has always been our advocacy that ship owners looking to utilize South African waters as a place of refuge should act with utmost good faith when dealing with SAMSA. A failure to disclose a particular aspect may lead to a vessel being barred from seeking refuge. Where a vessel's structure has been compromised, SAMSA, will want to inspect the vessel and assess the problem before granting permission for the vessel to close the coast.

Once permission has been granted, it may be subject to the fulfillment of certain conditions, for example:

1. Vessel may be requested to produce a valid Hull and Machinery insurance certificate.
2. Vessel may be requested to produce a valid P&I insurance certificate of entry
3. All fuel bunkers and black oil (including contents of engine sumps) are to be removed from the vessel.
4. Vessel must be attended to by an adequately powerful salvage tug that has to be made fast.
5. A salvage contractor to be appointed by owners (should be an ISU) member.
6. An operational plan must be prepared and approved by SAMSA.
7. A suitable guarantee to be in place.

The inclusion of valid insurance certificates is a new development and an essential one. If vessel's want to make use of our coast, then the Owners must understand so South Africa needs to protect itself from having to incur and bear the costs of removing a vessels which may eventually be abandoned. By having reputable insurance in place provides a level of comfort should an unfortunate event or risk arise during the period of refuge.

Alan Reid and Michael Heads

Marine Insurance Contracts

There are 4 main types of marine insurance contracts with each contract covering a particular subject matter within the marine insurance industry, namely

• 1. Hull and Machinery
• 2. Cargo policies
• 3. Freight Insurance
• 4. Protection and Indemnity

People often get confused between the terms of a P&I policy and the Hull and Machiney policy.

A P&I club's cover is in respect of the liability of the individual member (owner or charterer) to a third party. In order for a liability insurance claim to be made by a member against his club, there must first be a legal liability on the part of the member to pay a claim. Once this legal liability is proven, the club will then entertain the claim, subject to the clubs rules.

P&I clubs generally cover the following risks:

• - Liabilities for loss of life, personal injury and illness.
• - Repatriation expenses in respect of crew.
• - Liabilities in respect of the loss of the crew's affects.
• - Diversion expenses (charges incurred for the purpose of landing or disposing of stowaways or refugees).
• - Collision liability (the one fourth not covered under the marine hull policy).
• - Liability in respect of damage to fixed and floating objects (cranes and buoys).
• - Liability for damage to vessels other than by collision.
• - Liability under towage contracts.
• - Wreck removal.
• - Quarantine expenses.
• - Liability for loss or shortage of cargo or other property and liability for damage to or responsibility in respect of cargo or other property.
• - Liabilities in respect of oil pollution.

Every time a ship puts to sea (a maritime adventure) there is a risk that something could happen to the ship. Since marine perils are a risk that the shipowner assumes at the commencement of each maritime adventure, the shipowner can take out Hull and Machinery cover to protect against such losses that may occur to the ship and her equipment during the adventure. Hull and Machinery insurance, covers all risks (perils) subject to the normal exclusions for wear and tear and similar causes such as lack of maintenance. The insurance covers damage to the vessel, machinery and appurtenances (such as fixtures and fittings and nautical equipment) caused by all perils, for example:

• - Storms.
• - Collision's with other ships.
• - Running aground and shipwrecked.
• - Fire.
• - Explosions.
• - Theft.

In order to avoid instances whether a peril is one that is insured against, most shipowners simply insure their vessels in respect of "all risks". Such a provision would cover the shipowner against any peril that my arise.

There has been much debate with regard to the recent rise in piracy whether the shipowners claim is a P&I claim or a Hull and Machinery one. It is common opinion that it is the latter since it is the theft of a vessel and not a third party claim.

May 2009

This insurance covers damage to the vessel, machinery and appurtenances - such as fixtures and fittings and nautical equipment - caused by all navigation peril and external contingencies. Think, for example of storms, collision and shipwreck, but this insurance also covers fire, explosion and theft. This insurance also covers collision damage to third parties.

ILLEGAL PORNOGRAPHIC MATERIAL

Michael Heads
P&I Associates (Pty) Ltd
Durban
South Africa
January 2010

In May 2009, five Filipino seafarers from two separate vessels were arrested and detained in Liverpool, England, following the discovery of pornographic material on personal laptops and mobile phones by HM Custom officers. In December 2008, HM Custom officers had also caught a Filipino seafarer with child pornographic material and it was reported that he was the second seafarer to have been caught that month being in possession of such illegal material.

It has also been reported that in New Zealand, 2 seafarers were convicted in the North Shore District Court having been prosecuted by the Customs Service for the importation of objectionable material involving sexual exploitation of children.

We can now report that in South Africa, a seafarer has now also been arrested and successfully prosecuted for being in possession of illegal material involving the sexual exploitation of children.

In terms of South African law, it is quite legal for the South Africa Police Services to carry out a search of any vessel within South Africa's territorial waters. In our experience, such searches are on the increase and are now taking place regularly on vessels shortly after they berth in a South African port.

Masters should be advised, that in South Africa between 20-30 police officers will attend on board the vessel, and the master will be presented with a letter by the senior police officer. This letter sets out the rights and under which statutory legislation the South African Police Services can rely on to carry out the search. The letter also states that the master or any seafarer on board a vessel who interferes with a police officer in the execution of his duties will be arrested and prosecuted for such interference.

If the police feel that the vessel may have sailed from a port or country that is associated with illegal substances then they may also use dogs to assist them in the carrying out and executing the search.

In this regard, we have already reported on one major case of a vessel being detained by the South African Custom Services after an illegal substance, namely 250kg of cocaine, was found on board the vessel. The owners of the vessel concerned were charged with breaching various statutory offences. One of the issues arising out of the above case, which the owners faced, was that the custom services argued that the owners had breached the provisions of the ISPS code, in that they had failed to adequately check what was being brought on board their vessel by the crew and other third parties.

Recently, during the execution of one of the above searches, the South African Police Services, found illegal material involving the sexual exploitation of children. The seafarer concerned was immediately arrested and charged with various criminal offences. The vessel, thankfully, sailed without being detained or the owners fined. The seafarer was clearly acting outside the scope of his employment and had to cover his own legal expenses but the cost to the owners and the P&I Club could have been far greater had the seafarer been an officer and the need to call for a replacement in terms of the vessels safe manning certificate and watch keeping requirements.

The issue that should also be highlighted is whether the vessel could have been detained and the owner fined along with the seafarer for having such illegal material on board their vessel. It is quite plausible that the South African Custom Services and/or the South African Police Services could take the arguments raised in the drug ship case and argue that the owner of the vessel failed to enforce the provisions of the ISPS code in that they allowed illegal material to be carried onto and on board their vessel. The owners would be expected to demonstrate what efforts they had implemented to prevent such events occurring and in this regard, such steps could be interpreted as carrying out searches of cabins, checking mobile phones and lap tops and also checking at the gangway to see what is being carried onto the vessel by crew and visitors, for example, surveyors, stevedores, and agents.

We will of course keep monitoring such cases but in the meantime, owners should be advised to continue with their efforts to remind seafarers that they should not be in possession of illegal material whether in publication form or on their mobile phones and laptops and that regular reports are maintained of such searches and checks at the gangway, in cabins or other spaces. These written reports would then be available for inspection by the authorities and would thus serve as evidence and act as supporting demonstration of the shipowners efforts in terms of ISPS at curbing such events.

If in doubt report it

In terms of local legislation, the South African Maritime Safety Authority (SAMSA) should be notified of any accident on board a vessel that results in personal injury or even death to anyone on a vessel.

We have noted over the last six months that there has been a marked increase in the number of accidents occurring on board vessels in our harbors and that many people are unfamiliar with the reporting requirements of such incidents.

If an accident does occur on board a vessel then SAMSA need to be advised immediately and they also have an accident report form which should be completed and submitted to them as soon as possible and at the latest within 24 hours.

The information on the reports serves many purposes and one of the most important uses is that the information can be used to educate people working in the harbor on personal safety issues. Many of the accidents which take place could easily have been avoided by the parties simply being vigilant and recognizing potential dangerous situations. For example, we often notice people failing to be aware of objects moving overhead and waiting for the load to pass before moving on.

We have noticed that local agents often forget to advise ship masters that there is a duty to report accidents on board their vessels to local authorities. The master, in terms of ISM, will complete a report on the vessel and send the same to their head office and the head office then contacts ourselves to advise on the incident and what precautions can be taken to safe guard against future such incidents. When we contact SAMSA, we are often surprised to learn that the incident has not been reported.

Ships agents should therefore, in their introductions to the master, make it known to the master that all accidents must be reported to the local authorities and that an accident report form will need to be completed and delivered to the relevant authority.

If an accident does occur on board a vessel the best option is to immediately contact one of our offices and we will assist the master in the completion of the SAMSA accident report and we will contact SAMSA and alert them to the incident and assist them in investigating the incident.

Prevention has always been a better cure and knowledge is a very powerful tool provided it is used and implemented effectively. The more we understand and recognize danger and in particular, being aware of dangerous situations, so we can reduce the number of avoidable accidents.

Counting the Costs of a Spill

Michael Heads
P&I Associates (Pty) Ltd

We have investigated a number of incidences where bunker fuel has been spilled into the harbor. Many of these cases could have been quite easily avoided had the various parties in the bunker stem process exercised greater vigilance.

There are a few recorded cases where an oil spillage has occurred due to equipment failure and although some may consider these incidences to be non-negligent acts, one has to probe further and consider whether the failure was due to either the vessel or the bunker barge failing to maintain their equipment. Failure to maintain equipment would in the writers view, be negligence and would render the party involved guilty of an offence under the oil pollution legislation.

As soon as a spill has occurred, the various parties concerned must notify Port Control and must also notify the South African Maritime Safety Authority ("SAMSA").

The vessel or barge should take immediate proactive steps to minimize the spill and to control the spill. This action is particularly important for if one of the parties is found to be liable, SAMSA, will look at the manner in which the parties responded to mitigate the spill and to control the spill.

The maximum fine that a vessel can currently be penalized under the oil pollution legislation is R500,000.00. This figure equates to be about USD70,000.00. Many operators are unhappy about the extent of the fine but when you consider the level of fines across the world, the fine in South Africa is quite small. In the United States, for example, the fine can run into millions of dollars.

The writer is aware that SAMSA are busy looking at the level of the fine and is of the view that the fine level will be adjusted to bring South Africa in line with the oil pollution fines in European waters.

The fine is not the only cost that a guilty party will have to bear. The cleaning costs, depending on the amount of oil spilt and the extent of the spillage, can be very high. For example, if other vessels in the vicinity of the spill are tainted with oil then these vessels will also have to be cleaned. If any of these vessels were to sail with oil on them, then they themselves could be fined if they arrived at another port with oil on them. Loading operations of these stained vessels may also have to stop since the oil stain may disappear under water level and as a result these vessels could be placed off hire depending on the facts. The financial repercussions can easily increase quite rapidly.

SAMSA will consider all the facts of the matter once they have collected all the evidence before deciding on the level of the fine to be imposed.

In this regard, if the crew on the vessel or barge were quick to respond to the incident and chose to handle the matter diligently then these factors will persuade SAMSA to be more lenient on the guilty party when setting the level of the fine to be imposed.

The guilty vessel will be detained and the detention fee is currently R24,000.00

SAMSA will look at the reaction and manner of the crew in dealing with the oil spills. They will also look at the extent of the spill and whether by their actions, the crews were able to control the spill. Further, SAMSA will also look at the clean up procedures, the use of dispersants. It is therefore imperative that the vessel carries anti-pollution equipment and that the crew are equipped and trained in how to react to oil spills. The use of dispersants is very strictly controlled in South Africa by the Department of Environmental Affairs and Tourism ("DEAFT") and dispersants should only be used with prior authority from DEAFT and/or SAMSA.

One should bear in mind that whilst South African harbors are commercial ports, they are also recreational areas and they are frequented and used by fisherman and private boat owners.

It is against this background and caring for the marine environment that SAMSA is looking to increase the level of fines.

In many of the cases that we have seen, the actual clean up costs often exceed the level of the combined fine and the detention fee and these costs may run into millions of Rands. So whilst guilty parties may complain at the level of fines handed out by SAMSA they should note the cleanup costs could be significantly greater.

Michael Heads
Durban
January 2009

07 February 2008

A day in the life of Gard's South African P&I correspondents

By P&I Associates (Pty) Ltd, Durban, South Africa

Following in the series of articles featuring the work of Gard's P&I correspondents around the world, P&I Associates (Pty) Ltd provide Gard News with an account of their activities in Durban.

P&I Associates (Pty) Ltd operate a 24-hour emergency telephone so members can contact one number and be assured of an immediate response. All the staff take turns to "man" the duty phone for a week, with handover following the Monday morning operations meeting.

Early morning

A typical day in Durban often starts in the early hours of the morning.

Michael Heads, a qualified English solicitor and South African attorney, is manning the emergency telephone and it has just gone past 0100 on a Monday morning. His sleep is interrupted by the ringing of "the" phone: it is a master reporting that a stevedore, operating a ship's crane, has dropped a bucket onto the hatch coaming causing the vessel's coaming to buckle and the extent of the damage is unknown.

Trying hard not to disturb his six dogs and thereby wake up the whole family, Michael slips out of the house and drives down to the port.

The vessel is berthed alongside at Maydon Wharf, which consists of a series of private berths available for special cargoes. Once on board the vessel, Michael meets with the captain and chief officer in order to obtain all the pertinent facts, and then meets the stevedore driving the crane and carries out a without prejudice survey together with the surveyors for charterers and stevedores. It is 0500 by the time he departs from the vessel and whilst walking to his car he sees his colleague Jason Hossack, marine surveyor, on the quayside.

Jason is calling at a vessel loading steel and carrying out a steel pre-loading survey for owners. This requires attending various warehouses to inspect the cargoes and observing the cargo being transported to the vessel and noting any damage to the cargo. Jason has already checked the hatch covers and hatch securing arrangements and will also assist the chief officer in supplying suitable endorsements for the mate's receipts.

Morning meeting

The office holds an operational meeting every Monday morning in order to review any files opened over the weekend and to discuss various operational matters. The meeting is chaired by Captain Alan Reid, the managing director of the company. This morning, the ISO 9001:2000 internal auditor is also in attendance. His function is to review the meeting and to record any problematic issues which may have arisen in terms of ISO requirements.

Following the meeting everyone retires to their office to attend to emails received overnight and to dispatch interim reports on surveys and new matters arising.

Michael Heads writes his interim report on the dropped bucket, whilst Jason Hossack prepares a steel pre-loading interim report.

Wet rice

Alan Reid takes a call from a club advising that a member's vessel, which had arrived in Durban the previous Friday to discharge bagged rice, had just been placed on notice by local cargo receivers that wet cargo was being discharged from the vessel. The owners urgently required that a surveyor be appointed to investigate the allegations and protect the shipowner's interests.

Alan walks down the passage to find Jason Hill, who is also a staff marine surveyor, and briefs him on this new instruction. Jason immediately leaves the office and heads off down to the vessel to meet with the captain and the cargo receiver's surveyor. A tally of the wet bags is being carried out and Jason draws various samples for analysis. With the help of the stowage plan Jason can then ascertain how the various marks were stowed. Having checked the hatch covers, the cleats, compression bars and rubbers, Jason can not find any faults so he consults with the stevedore foreman, who advises that the wet bags were found scattered around the stow, rather than grouped together. This would suggest a pre-shipment problem rather than water ingress through the hatch covers or through rain water whilst stowed on board the vessel.

Michael Heads is still dictating the interim report of his early morning survey when he is interrupted by a phone call from a local lawyer. The lawyer advises that he has been instructed by cargo interests in respect of a claim involving wet rice. He advises that he will write to Michael with details of the claim but in the meantime could he take instructions from the vessel's P&I club on the question of security. Michael quickly sends an email around the office checking to see whether any of his colleagues are aware of this new matter. Alan Reid immediately responds that earlier he had taken instructions from that vessel's owner's P&I club and that Jason Hill was in attendance. Michael contacts Jason to obtain further information from him regarding this new claim.

Stowaways

Stowaways cost P&I clubs and shipowners vast sums of money each year. Ron Evans heads up the company's stowaway and personal injury department. Ron has just returned to the office having spent the morning removing 14 stowaways from a log ship which had simply called at Durban for bunkers. At first, three stowaways had been found, but after commencing canine search of the cargo, slowly but surely the stowaways started to make themselves known until all 14 had come out of their hiding places.

Ron had spent the morning interviewing the stowaways at a local police station where they were being held prior to being escorted up to Johannesburg. He was now at his desk preparing a report on the morning's activities and was giving the club and owners a cost-estimate for repatriating the stowaways to West Africa.

The day draws to an end

In the meantime, Michael reports to the club and shipowners regarding the wet rice claim and the demand for security. He receives instructions to put up a club LOU and finalizes the wording for the LOU with the cargo claimant's lawyers. Jason Hill has reported to him on the number of wet bags and he has reminded the cargo receiver that he needs to mitigate his damages. Later Michael leaves to deliver the original LOU.

Jason Hossack is back on his steel ship as a steel coil has been dropped and is lying on the quayside buried in the wharf. The stevedores allege that the vessel's crane is at fault. Jason surveys the steel coil and checks the lifting gear. He has called a marine engineer to look at the crane.

Alan Reid is the last person to leave the office. Whilst driving home, Alan takes a call from a master advising that there has been a bunker spillage. The ship is berthed over at Island View, which is a secure tanker storage area within the port. Alan diverts his car to the port and is soon on board the vessel negotiating with the South African Maritime Safety Authority (SAMSA), who are looking to fine the vessel. Skillfully using his wealth of experience, Alan points out that it was the quick action of the crew that contained the spill and only a "splash" of oil has entered the harbor. This oil has already been cleaned up. SAMSA are happy with the efforts of the crew and the vessel is not fined. Alan disembarks the vessel with a wry smile and calls the club on the way home to give them an update on events. He confirms that he will email a detailed report later in the evening. However, his day is far from drawing to an end - this week he is in charge of manning the emergency telephone and anything could happen once he gets that call!

LOSS PREVENTION NOTICE

Being "Bugged" Out
By Michael Heads
P&I Associates (Pty) Ltd

There appears to be a growing problem arising in the USA and we have just had another shipment of wheat arriving in South Africa where the cargo has been infested with "Rust Red Grain Beetles."

All the vessels concerned are being checked and passed fit for loading by the National Cargo Bureau (NCB) and the United States Department of Agriculture (USDA). These authorities have all issued certificates stating that the holds were found to be clean, dry, free of insect infestation and suitable to store or carry the grain cargo. On completion of loading, the cargoes are being fumigated with Aluminum Phosphide tablets. Whilst Aluminium Phosphide is an effective fumigant, it is only effective provided the application method being utilized is correct.

The dosages stated on the certificates issued by the fumigators at load port indicate that 33 grams of fumigant per 1000 cubic feet of hold space is being used and the fumigators are issuing certificates declaring that the fumigant was applied using the "trench" method.

We have noted from our attendance on board all of the vessels that the fumigant tablets appear to be simply scattered across the top of the stow in each hold. This application method is clearly ineffective since on arrival in South Africa, the cargoes are infested with "bugs" and the local authorities and receivers are simply rejecting the cargoes until the cargoes have been re-fumigated. The re-fumigation takes place on board the vessel at great expense to all parties concerned. The costs increase very quickly since the crew have to be placed ashore in hotels, emergency services put on standby and extra security provided to the vessel.

The vessels are being re-fumigated at Durban with Methyl Bromide Gas for a period of 36 - 48 hours using what is referred to as the "J" system of fumigation. This method entails using pipes, which are inserted into the cargo that go directly down to the tank top. This method then enables the gas to be circulated throughout the cargo thus eliminating all the "bugs".

Another method often used to fumigate cargoes is known as the "probing" method. This involves pushing metal probes deep into the stow, to a depth of approximately 2 - 3 metres. Phostoxin pellets are dropped into the probe and once at the bottom of the probe; the probe is then removed leaving the pellets in the cargo. Whilst this is certainly a cheaper method of carrying out the fumigation, it does not have the same effectiveness as the "J" system, because the fumigant is not circulated throughout the cargo, but will only penetrate to the depth that the probe is able to achieve which is usually about 3 metres.

A further method involves putting the tablets into the cargo at various stages of the loading in order to disperse the tablets evenly throughout the hold and thereby fumigating the entire cargo. This in theory is a good and inexpensive option, however, if due to operational circumstances, the loading is stopped for a period of time, the tablets will start to release their gas, creating a potentially lethal atmosphere in which to work. In reality, this is not really a viable option.

The usual method of fumigating is the sprinkling of tablets over the surface of the cargo whilst in stow. This fumigation method is in our view, ineffective when it comes to wheat. In stow, wheat has a high density and we believe that this is the factor, which prevents the gas, emitted from the tablets, not being able to penetrate through the cargo down to the tank top. We have noted from the fumigation certificates being issued to the various vessels at the various load ports that they do reflect that the correct amount of fumigant has been used, however, the results appear to reflect a very high concentration of fumigant at the top of the stow, but less so deeper down into the stow. It would also appear that Aluminum Phosphide, as a fumigant, is really only effective for about 8-10 days after which, any bugs or eggs that are present in the lower reaches of the stow and which have not been eliminated are able to move through the cargo.

The writer would recommend that the P&I correspondents in the USA be advised of the problem and provide necessary assistance on how to beat the "bugs" and save on costs subsequently arising in South Africa.

Michael Heads
Durban
South Africa
October 2007

Befriending stowaways - revisited

By Michael Heads
P&I Associates (Pty) Ltd
Durban

In 2006, I wrote an article on the important issue of crewmembers befriending stowaways as a result of an incident at Durban, South Africa, involving stowaways allegedly forced off a vessel in the harbor. Seven stowaways were found on a vessel after she left Kenya bound for South Africa. The article received worldwide coverage and sparked off much debate in the shipping world about stowaways being found on vessels and how the crewmembers should handle the stowaways.

In the case in question, the crew followed the IMO guidelines with regard to stowaways found on board a vessel. The stowaways were kept in confinement and given 3 meals per day. They were given clothes. They were allowed 30 minutes of exercise each day. They were given bathroom facilities.

The Master on the vessel concerned failed to notify the owners of the presence of the stowaways on board the vessel and subsequently, the crew then broke the cardinal rule when it comes to stowaways in that they allowed the stowaways to befriend them.

The article went on to explain that stowaways will always seek to befriend the crew in the hope that the crew will feel sorry for them. They will tell the crew gruesome tales of life in their home countries and that the reason that they are stowing away, is to get to Europe or North America in order to seek out a better life for themselves. The article also emphasized that crew's should be advised not to befriend stowaways, as stowaways are not their "friends".

The case in Durban resulted in the master and four crewmembers being arrested and charged with murder after the plan to illegally land the stowaways backfired on the crew and the stowaways. Two stowaways drowned in Durban harbor and the matter received major media attention.

After P&I Associates (Pty) Ltd intervention and following investigation the facts became known and the court in South Africa accepted that the crew had felt sorry for the stowaways and that the master had failed to report the presence of stowaways on board the vessel to the Owners or the South African authorities. Had the Owners been aware of the fact that stowaways had boarded the vessel they would have reported the matter to their P & I Club who in turn would have contacted the P&I Associates to assist in having the stowaways removed from the vessel and arranging for their repatriation.

When the vessel arrived in Durban, the stowaways were not declared to the port authorities and the crew agreed to allow the stowaways to sneak off the vessel at Durban since the vessel was not heading to what they would term a favourable destination. The crew listened to the stowaways rather than following the proper guidelines. In order to avoid detection by port security personnel on the quayside the stowaways climbed off the vessel by way of a rope, fixed to the offshore side of the vessel, and dropped down into Durban harbour where they would swim to a more remote quayside, no doubt in search of the next vessel to stowaway on.

However, the plan was not executed as was envisaged and as everyone had in mind and as result two of the seven stowaways drowned. The five surviving stowaways made it to the quayside where they then alleged that they had been forced off the ship. The Police were called in and the master and 3 crewmembers were arrested.

The stowaways made statements to the police, which they subsequently enhanced in a later statement made to the prosecuting authorities. The stowaways subsequently became the victims and the master and crew were accused of murder which was subsequently dropped to culpable homicide. Culpable homicide in South Africa is also known as manslaughter in other jurisdictions. They were also charged with breaches of South Africa's immigration regulations.

The stowaways turned on the crewmembers who they had befriended on the way to Durban in order to get off the vessel. Although the vessel was on route to South Africa, the stowaways would most probably have used the same tactics if the vessel were going to Europe. The Stowaways befriend the crew in the hope that the crew will feel sorry for them and will then help them to get to where the stowaways want to go.

After many hours of negotiation, the crewmembers subsequently agreed a plea bargain. They were in a foreign country and were miles from home. They had no idea about their futures. They were frightened and scared. No doubt various people who met with crewmembers told them rather grim stories about South African prisons. They missed their families and their support bases and English was not their first language. They found themselves in a very difficult situation.

P&I Clubs were very quick to advise their members to inform all their crews about the above incident and to remind the crews to follow the IMO guidelines with regard to stowaways.

Once stowaways are found on board a vessel the incident should immediately be reported to the vessel's Owners and the crew should never think of the stowaways as being their friends. Stowaways will not be the crew's friends when something goes wrong. In fact, as the above case clearly illustrated, they turn against the crew as quickly as they befriend them.

We have of course been monitoring the treatment of stowaways quite closely and recently we removed two female stowaways off a vessel in Cape Town. Based on our records and statistics, female stowaways are not prolific and in fact, we have only ever found female stowaways in the company of male stowaways.

We investigated this case and discovered that the crew had forgotten the IMO guidelines referred to above on the treatment of stowaways. The two female stowaways appear to have been allowed to spend far too much time with the officers. We found in their possession photographs taken wearing the officer's clothes and in possession of considerable sums of money which is unusual for stowaways. One of the stowaways had a letter from a crewmember stating how much he would miss her.

The IMO guidelines emphasize that stowaways are not allowed to work on vessels. It is not clear whether these were "working girls". We have dealt with a case where two females who had visited a vessel had fallen asleep on the vessel and where not discovered until the vessel was on route to her next port. Fortunately, the vessel was sailing between two South African ports and therefore the expenses to land the two females were minimal. It is not clear whether the two females which we recently removed from a vessel in Cape Town were "working girls". They were however landed and repatriated as stowaways.

The incident could have turned sour for the crewmembers had the female stowaways made allegations of impropriety on board the vessel. We again remind owners to inform their crews that befriending stowaways and becoming involved with them on any level is a dangerous scenario and must be avoided at all cost. If female stowaways are found on board a vessel they must be treated in accordance with the IMO guidelines. They must not be invited to any parties on board the vessel and no favors must be granted to them. It is advisable that they are removed and landed from the vessel as soon as possible in order to avoid any situation arising which could result in the crewmembers being charged with any criminal wrongdoing. The female stowaways could quite quickly turn the tables on the crewmembers that befriend them and manipulate the situation to suit them.

Crewmembers must follow the guidelines which are there for their own protection and the protection of the ship owner.

Michael Heads
Durban
South Africa
May 2010

Befriending Stowaways

The recent incident at Durban, South Africa, involving stowaways allegedly forced off a vessel in the harbour has received worldwide coverage.

The facts of the matter were that 7 stowaways hid on board the vessel whilst she was at Mombasa and the stowaways then made them selves known to the crew after the vessel had sailed from that port. The vessel was on route to Durban.

The crew followed the IMO guidelines with regard to stowaways found on board a vessel. The stowaways were kept in confinement and given 3 meals per day. They were given clothes. They were allowed 30 minutes of exercise each day. They were given bathroom facilities. However, the Master failed to notify the owners of the presence of Stowaways on board the vessel. The crew then broke the cardinal rule when it comes to stowaways in that they allowed the stowaways to befriend them.

Stowaways will always seek to befriend the crew in the hope that the crew will feel sorry for them. They will tell the crew gruesome tales of life in the home countries and that the reason that they are stowing away, is to get to Europe or North America in order to seek out a better life for themselves.

Crew's should be advised not to befriend stowaways, as stowaways are not their "friends". The case of the vessel at Durban is such an example.

The crew felt sorry for the stowaways and the master failed to report the presence of stowaways on board the vessel to the Owners. Had the Owners been aware of the fact that stowaways had boarded the vessel they would have reported the matter to their P & I Club who in turn would have contacted the local P&I Correspondents to assist in having the stowaways removed from the vessel and arranging for their repatriation.

When the vessel arrived in Durban, the stowaways were not declared to the port authorities and the crew agreed to allow the stowaways to sneak off the vessel at Durban since the vessel was not heading to what they would term a favourable destination. The crew listened to the stowaways rather than following the proper guidelines. In order to avoid detection by Port security personnel on the quayside the Stowaways climbed off the vessel by way of a rope, fixed to the offshore side of the vessel, and dropped down into Durban harbour where they would swim to a more remote quayside, no doubt in search of the next vessel to stowaway on.

However, the plan was not executed as was envisaged and as everyone had in mind and as result two of the seven Stowaways drowned. The five surviving stowaways made it to the quayside where they then alleged that they had been forced off the ship. The Police were called in and the master and 3 crewmembers were arrested.

The stowaways made statements to the Police, which they subsequently enhanced in a later statement made to the Prosecuting Authorities. The stowaways subsequently became the victims and the crew the accused.

The Stowaways turned on the crewmembers who they had befriended on the way to Durban in order to get off the vessel. Although the vessel was on route to South Africa, the stowaways would most probably have used the same tactics if the vessel were going to Europe. The Stowaways befriend the crew in the hope that the crew will feel sorry for them and will then help them to get to where the stowaways want to go.

The incident in Durban turned into a tragic accident. The plan went horribly wrong and two stowaways died. The crewmembers were charged and were arrested, inter alia, with murder. This charge was subsequently dropped to Culpable Homicide. Culpable Homicide in South Africa is also known as manslaughter in other Jurisdictions.

The crewmembers subsequently agreed a plea bargain. They were in a foreign country and were miles from home. They had no idea about their futures. They were frightened and scared. No doubt various people who met with crewmembers told them rather grim stories about South African prisons. They missed their families and their support bases and English was not their first language. They found themselves in a very difficult situation.

We urge all P&I Clubs to advise their members to inform their crew of the IMO guidelines with regard to stowaways. Once stowaways are found on board a vessel the incident should immediately be reported to the Owners and the crew should never think of the stowaways as being their friends. Stowaways will not be the crew's friends when something goes wrong. In fact, as this case clearly illustrates, they will turn against the crew as quickly as they befriended them.

The crewmembers in this matter were heavily fined and received suspended prison sentences in terms of the plea bargain.

We would like to further warn ship owners that since this recent incident the Police now attend on all vessels arriving at Durban with stowaways and they question the stowaways to ascertain how the crew have treated them. In view of the above it is essential that the master and crew follow the IMO guidelines for handling stowaways and furthermore ensure that the master properly documents all actions taken within those guidelines.