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[2011] ZASCA 12
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Transnet Ltd t/a National Ports Authority v The MV Cleopatra Dream and Another (163/10) [2011] ZASCA 12; [2011] 3 All SA 279 (SCA); 2011 (5) SA 613 (SCA) (11 March 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 163/10
In the matter between:
TRANSNET LIMITED t/a
NATIONAL PORTS
AUTHORITY
......................................................................
Appellant
and
THE MV CLEOPATRA DREAM
...........................................................
First
Respondent
THE CARGO LADEN ON
BOARD
..................................................
Second
Respondent
Neutral citation
:
Transnet v The MV Cleopatra Dream
(163/10)
[2011] ZASCA 12
(11
March 2011)
Coram:
BRAND,
LEWIS, HEHER, MALAN and SERITI JJA
Heard:
22 February
2011
Delivered:
11
March 2011
Updated:
Summary:
Merchant
Shipping – maritime law – salvage – by public
authority within limits of its own port – whether
acting under
statutory and common law duties – claim for reward under
Salvage Convention – interpretation of arts 5
and 17 of
Convention.
____________________________________________________________________________________
ORDER
On appeal from:
Western Cape High Court (Cape Town)
(Bozalek J sitting as court of first instance):
The appeal is dismissed
with costs.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (BRAND, LEWIS,
MALAN AND SERITI JJA concurring):
[1]
This is an appeal against the whole of the judgment and order
delivered by Bozalek J in the Western Cape High Court, Cape Town
in
the exercise of its admiralty jurisdiction. The learned judge
answered two stated questions in favour of the present respondents
and dismissed the appellant’s claim with costs.
1
[2] The appellant
instituted an action in which it claimed a salvage reward from the
first respondent (the vessel) and the second
respondent (the cargo),
arising from a salvage operation carried out by tugs belonging to the
appellant on 2 April 2004 in the
port of Saldanha Bay in which it is
the statutory authority. The claim was defended.
[3] Pursuant to an agreed
order in terms of Rule 33(4), the following questions of law and fact
were to be decided prior to and
separately from the other matters in
issue in the action:
1 Whether the salvage
operation carried out by the appellant in connection with the
respondents was rendered voluntarily and not
in the performance of a
statutory and/or common law duty.
2
In the event of it being found that the salvage operation was carried
out in performance of a statutory and/or common law duty,
and
accordingly, not voluntarily, as averred by the respondents in
sub-paragraph 18.2.6 of the plea, whether the appellant was
nonetheless entitled to a salvage reward by reason of the provisions
of the Salvage Convention
2
and item 4.3 of the Tariff Book.
3
[4] As regards the first
issue, Bozalek J held that:
‘
the
[appellant] rendered the relevant services to the vessel pursuant to,
and within, both a statutory and common law duty and thus
not
voluntarily as that term is understood in the law of salvage.’
[5] With respect to the
second issue, the learned judge held that:
‘
[A]rticle
5 of the Convention does not recognise the entitlement of a public
authority to a salvage award irrespective of the existence
of any
duty, whether statutory or otherwise, pursuant to which the services
were rendered but rather stipulates that, in considering
whether a
public authority is entitled to a salvage award, regard must be had
to the existing national law (and) applying that
law to the facts of
the matter the [appellant] has no entitlement to a salvage award.’
[6] In stating the
question for decision the parties agreed that the issues would be
determined by reference only to the facts set
out in a Statement of
Agreed Facts, the documents referred to in it and to those facts not
in issue in the pleadings. It is from
these sources that I derive the
summary which follows in paras 7 to 19.
[7] The appellant, a
company with legal standing by virtue of s 3 of the Legal Succession
to the South African Transport Services
Act 9 of 1989, administers
the port of Saldanha. The appellant is a public authority as
contemplated by art 5 of the Convention.
[8] The
vessel is the MV
Cleopatra Dream
,
a bulk carrier of 75801 GRT having an overall length of 269 metres.
The cargo consisted of 146 670 MT of iron ore that was loaded
on
board the vessel in the port during the period 31 March to 2 April
2004.
[9] All of the events
described below giving rise to the appellant’s claims against
the respondents occurred within the limits
of the port. The area in
which the appellant has jurisdiction in the port is described in the
preamble to the Harbour Regulations
published
on 18 April
1982 and which continue to be in force. A chart depicting the
appellant’s area of jurisdiction in the port was
placed before
the court at the hearing and a copy was made available to us. It
shows
inter alia
the
limits of the appellant’s jurisdiction, the layout of the
harbour, the approach channel and the position of sandbanks
and
islands, the largest of which, to the south of the channel and inside
the harbour entry line (stretching from North Head to
South Head) is
Jutten Island.
[10] The appellant
exercises control over the port and earns revenue from the services
provided by it pursuant to the charges set
out in the Tariff Book.
Among the charges listed in Section 4 ‘Marine Services’
are charges ‘payable for tugs/craft
assisting and/or attending
ships, within the confines of the port’ (item 2),
‘miscellaneous tug/craft services’
(item 3) and ‘berthing
services’ (item 4). Included in the ‘miscellaneous
services’ is this sub-item:
‘
Craft
involved in salvage: Special conditions apply when services rendered
constitute salvage. Transnet reserves the right to claim
a reward for
salvage if the services rendered to a ship in distress constitute
salvage.’
[11]
The appellant is the sole public authority that lawfully operates
tugs within the port. Moreover the port of Saldanha is a
compulsory
pilotage harbour as described in s 10(1) of Schedule 1 to the Legal
Succession Act,
4
with the result
that every ship entering, leaving or moving in the harbour is
required to be navigated by a pilot who is an employee
of the
appellant, with the exception of ships that are exempt by statute or
regulation. (The vessel was not so exempt.)
[12]
Regulation 22 of the Harbour Regulations
5
provides:
‘
The
Transport Services will, on application or when necessary, and
subject to the discretion of the port captain and to any conditions
which he may impose in the interests of safe, orderly and efficient
harbour working, undertake work and provide all towage, tugs
or other
floating craft services at harbours under the Transport Services’
jurisdiction where such craft are maintained and
are available.’
[13] The vessel arrived
in the port on 31 March 2004 and was berthed and loaded at the
Saldanha side bulk ore loading terminal.
[14] The vessel completed
loading the cargo at about 02h50 on 2 April 2004 and a sailing pilot
was requested for 04h00. At approximately
03h54 pilot De Kock, an
employee of the appellant acting in the course and scope of his
employment, boarded the vessel.
[15] In accordance with s
10 of Schedule 1:
1 It was the function of
the pilot to navigate the vessel in the harbour, to direct its
movements and to determine and control the
movements of the tugs
assisting the vessel while it was under pilotage.
2 It was the
responsibility of the pilot to determine the number of tugs required
for pilotage in consultation with the port captain.
[16] At about 4h00 the
vessel commenced casting off the last of her mooring lines. The
appellant’s tug
Jutten
made fast to the starboard bow of
the vessel. At about 4h20 the tug cast off from the vessel before she
had reached the channel
for departing ships.
[17] At 4h40, within the
limits of the port, the vessel experienced a catastrophic power
failure which resulted in the stoppage
of her main engines and
prevented her from dropping anchor. When that happened the pilot
requested tug assistance from the port
authority.
[18] The vessel drifted
without power in a south-westerly direction towards shallow water and
Jutten Island.
[19] At about 6h18 the
tug
Jutten
again came alongside and commenced pushing the
vessel’s port bow. Twenty minutes later a second pilot, Captain
Ahmed, boarded
the vessel. Within the next half hour a second tug
operated by the appellant, the
Meeuw
, also came alongside and
was made fast to the vessel, which was then towed to a place of
safety within the port.
[20]
On the same day the appellant caused the
Cleopatra
Dream
and
her cargo to be arrested in terms of the provisions of the Admiralty
Jurisdiction Regulation Act 105 of 1983, thereby instituting
an
action
in
rem
for
payment of a total of R10 million. The claim was in respect of
salvage services rendered to ship and cargo in the port of Saldanha.
[21] Security was
furnished for the appellant’s claims and the vessel and her
cargo were released from arrest. The arrests
were, however, deemed to
continue in terms of s 3(10)(a)(i) of the last-mentioned Act.
[22] The appellant duly
delivered its particulars of claim and the respondents pleaded. They
admitted that the services rendered
by the appellant constituted a
‘salvage operation’ as described in art 1(a) to the
Convention and that the vessel and
cargo were in distress and in
danger of grounding at the time the services were rendered. They
denied that the appellant was entitled
to a salvage reward because
the services performed by the appellant were rendered in the
performance of a statutory or common law
duty and were not voluntary.
[23]
In its replication the appellant, having denied that its services
were rendered in the performance of a duty and, therefore,
not
voluntary, averred that, should the court hold otherwise, it was
nevertheless entitled to a salvage reward by virtue of the
provisions
of the Convention, and, in particular, articles 5
6
and 17
7
thereof.
[24]
In addition, the appellant replicated that, as the entity that
exercised control over the port of Saldanha, it earned revenue
for
the services provided by it according to the charges set out in its
Tariff Book. It referred specifically to the terms of item
4.3.
8
The law to be applied
[25] Immediately before
the commencement of the Admiralty Jurisdiction Regulation Act
on
1 November 1983 the South African courts of admiralty had
jurisdiction to entertain a claim for salvage. In terms of s 6(1) of
that Act the applicable law in the action brought by the appellant
was the English law of admiralty at that date ‘in so far
as
that law can be applied’. That provision does not however
derogate from the provisions of any law of the Republic applicable
to
a claim for salvage (s 6(2)). The Wreck and Salvage Act together with
the Convention is such a law. In the event of a conflict
between
English law and the Act or Convention, the latter must prevail.
9
[26]
In interpreting the Convention the court may consider the preparatory
texts to the Convention, decisions of foreign courts
and any
publication.
10
[27] The Convention came
into force on 14 July 1996. Its essential purpose was to bring the
traditional rules of salvage which had
been codified in the
Convention for Unification of Certain Rules of Law relating to
Salvage and Sea, adopted in Brussels in 1910,
up to
date
with modern practice and jurisdictional principles, and to take
account of mounting international concerns relating to the
protection
of the marine environment.
11
[28]
To achieve that object the Inter-governmental Maritime Consultative
Organisation (now the International Maritime Organisation
or IMO)
invited the CMI to prepare a draft Convention to replace the 1910
Convention. The 1989 Convention was introduced in draft
form in
Montreal in 1981 and settled in final form at a diplomatic conference
in London in April 1989. The convention came into
force on 14 January
1996 when the requisite number of States consented to be bound.
12
[29] It has been
suggested that five categories of preparatory text for the Convention
may be identified in the following, descending,
order of importance:
1 The proceedings of the
1989 diplomatic conference at which the text was finalised.
2 The proceedings of the
Legal Committee of the IMO during the period 1983-88 discussing the
draft Convention formulated in 1981.
3 The proceedings of the
CMI leading up to the 1981 draft.
4 The Brussels Salvage
Convention of 1910.
5
The
travaux
preparatoires
of
the Brussels Convention, 1910.
13
Voluntariness as a
requirement for a salvage reward.
[30]
As Bozalek J held, subject to the effect of Art 5 of the Convention,
it is an essential element of a salvor’s right to
recover
salvage that the services to the property in peril are rendered
voluntarily, without any pre-existing contractual or other
legal
duty. The duty is a legally recognised duty towards the salved
property or its owners and not a mere sense of moral obligation.
A
right to salvage only arises when the contribution is voluntary.
14
[31]
The rationale for not allowing a salvage reward to a salvor acting
under a pre-existing duty to render assistance, whether
the duty
arises from a contract or otherwise, is that such a person should not
be encouraged to neglect his duty and, by doing
so, cause or
contribute to the danger necessitating salvage. Nor should the
(prospective) salvor be tempted to refuse to render
services falling
within his duty in order to obtain a salvage reward.
15
[32]
If a service is rendered under a pre-existing obligation to work for
the benefit of property and life at risk, then it is prima
facie not
a salvage service. Even in the absence of a duty, where the services
performed are ordinarily to be expected of the claimant
in the
capacity in which he performs them he will usually be barred from
recovering salvage.
16
[33]
The principle of voluntariness has been applied to various classes of
persons who are or may be under an existing duty to the
owner of the
vessel assisted by them, including port authorities, and salvage has
been allowed only in respect of services going
beyond their duties.
17
In
The
Gregerso
,
18
Brandon J said:
‘
It
is, in my view, significant that there is, so far as I know, no
reported case where a port authority has claimed salvage for
removing
a vessel which was an obstruction in its port. This is not, of
course, decisive against the validity of such a claim;
but it does to
my mind suggest that no port authority has in the past felt
optimistic about the chances of putting such a claim
forward
successfully.’
My
researches have failed to uncover such a success in the past forty
years.
19
The question which
must now be considered is whether the appellant has shown that this
is such a case.
Services rendered
voluntarily or under a duty?
[34] The respondents
relied on three alleged duties in support of their contention that
the services rendered by the port authority
at Saldanha were not
voluntary but rendered in performance of a duty. These were:
1
Duties flowing from reg 22 of the Harbour Regulations.
20
2 A duty to users of the
port (including the respondents) to make the port reasonably safe for
navigation.
3 A duty to users of the
port (including the respondents) to ensure that tugs are available in
the event of an emergency occurring
within the confines of the port.
[35]
In interpreting reg 22 the intention behind the provision should be
sought having regard to its context, object and purpose.
21
The context is the
proper and orderly management of South African harbours in so far as
the carrying out of work and the provision
of floating craft services
is concerned and, with that aim in mind, the role of the port
authority. The purpose of reg 22 is equally
clear: it ensures that,
within the ports operated by it, the appellant shall be the first
resort for all work required in the harbour
and the provision of such
services. To this end the regulation stipulates that work or services
will only be undertaken (i) if
application is made, or (ii) if the
appellant,
mero
motu
,
considers such to be necessary. In either case, the port captain is
given an overriding discretion (which he must of course exercise
with
due consideration of all the relevant circumstances) to refuse to
undertake the work or provide the services. Absent an exercise
of the
discretion the clear intention is that the appellant will (and is
therefore obliged to
22
)
undertake the work or carry out the services (albeit subject to
conditions which the port captain may impose in the interests
of the
safe, orderly and efficient working of his harbour).
[36] In the present
instance the port captain did not, on the agreed facts, exercise a
discretion against providing the services
of the appellant’s
tugs and their crews. As no application was made to him and the only
communication emanated from the pilot
who called for the assistance
of the tugs, it must be inferred that the appellant (through its
employees such as the pilot and
the, undisclosed, persons to whom the
call was transmitted) considered the provision of assistance to be
necessary.
[37] The peremptory
nature of the provision is borne out by the language and the
following considerations:
1
Reg 22 relates to
all
floating
craft services at the harbour. Such services are not limited to
routine or everyday occurrences but embrace exigencies
which may be
regarded as unusual or extraordinary within the harbour. Just as it
is applicable to all users of South African ports,
so it applies to
users who experience mishap or require assistance.
2
If there were no duty do provide emergency services (including
salvage) users of the ports would be subjected to uncertainty and
confusion and the hazard of emergencies would be increased by delay
and the availability of suitable alternative services, especially
in
smaller ports. It was common cause that at ports under its
jurisdiction the appellant exercises the sole public authority and
that Saldanha (as indeed all such ports) are compulsory pilotage
harbours with the consequence that every ship entering, leaving
or
moving in the harbour is required to be navigated by a pilot with the
functions and powers that have been identified earlier
in this
judgment.
23
The appellant has
an effective monopoly over the provision of tug services and its
implied duties must be determined with that as
a starting point.
[38] Argument was
addressed to us on the nature and breadth of the discretion conferred
on the port captain in reg 22. But that
is of no relevance once the
port captain does not exercise the discretion. The peremptory terms
of the regulation remain unaffected
(because not made subject to its
exercise).
[39] Appellant’s
counsel submitted that a salvage operation is inherently dangerous
not only to the ship, its crew and its
cargo but also to the property
and personnel of the salvor. Therefore the regulations should not be
interpreted so as to compel
the appellant to face the hazard. That
may frequently be so, but the port captain is empowered to refuse to
undertake services
or to impose conditions appropriate to the
circumstances in so doing. The degree of danger and the complexity of
the task and the
extent of resources available to him are no doubt
factors which he may properly consider in the exercise of his
discretion or the
imposition of conditions. The extent of deviation
from the normal duties of the port authority in the harbour area may
also be
regarded as an influence on his decision. In addition, to the
extent that the dangers and complications facing the salvor exceed
the call of duty, the possibility of salvage reward is not wholly
excluded as I have pointed out. In so far as they do not the
appellant may claim the compensation provided for in its Tariff Book.
[40] I conclude therefore
that the trial judge correctly found that Harbour Regulation 22, read
within its context, imposed a general
statutory obligation to furnish
tug and towage services to users of the port within its confines.
[41]
A further consideration which supports the conclusion that a
statutory duty prevailed throughout the course of the salvage
in this
case flows from the facts: At the time that the ship’s engines
failed the appellant’s pilot, De Kock, was carrying
out his
duties as pilot on it. Although, strictly-speaking, once the ship
began to drift it became incapable of further pilotage,
the pilot
immediately called for assistance from the tugs. That was done and
responded to in the context of s 10(2) of the Schedule:
the tugs were
under a duty to answer the pilot’s summons. There is no agreed
fact which supports an inference that their
arrival was voluntary in
any respect. The same can be said of their subsequent actions. The
salvage operation effectively commenced
when the tug
Jutten
came alongside.
What she did then was designed to move the ship from a position of
potential danger in the harbour to safe anchorage
and can only have
taken place in accordance with the pilot’s instructions. He was
exercising his statutory obligation (s
10(1) of the Schedule) to
navigate a ship moving in the harbour and, to that end, ‘to
direct its movements and to determine
and control the movements of
the tugs assisting the ship under pilotage’ (s 10(2)), and
persisted in so doing until the vessel
was drawn into a safe
anchorage. So construed the whole substance of the salvage operation
was carried out pursuant to the statutory
duties of a pilot
navigating a ship under compulsory pilotage.
A common law duty
[42]
The parties agreed that the appellant has a common law duty to make
the port of Saldanha reasonably safe for navigation.
24
Counsel for the
appellant submitted that that duty extended only to the physical
aspects of the port such as the positioning of
lights and the
provision of safe berths. Further, he said, a distinction should be
drawn between making the port safe and making
ships safe to navigate:
the appellant’s common law obligation does not extend to
assisting ships to be safe.
[43] I agree with counsel
for the respondents that both distinctions are artificial. If it is
necessary to take a ship without power
under tow in order to prevent
it from drifting within the port limits or from becoming stranded in
the port or from constituting
a danger or obstruction to other users
of the port, then, in my view, such an action will constitute
performance of the appellant’s
duty to make the port reasonably
safe for navigation. A sandbank or a ship drifting out of control are
equally inimical to the
safe working of the port and both are within
the means and competence of a port authority to deal with.
[44]
But, so appellant’s counsel contended, the duty owed to users
of the port, to make it safe for navigation, is not a duty
owed to
the owners of the salved ship or cargo. It seems to me, however, that
this is to take too narrow a view. A fully laden
bulk carrier
drifting in a harbour in the early hours of the morning presents a
danger to itself, its crew and its cargo as well
as to shipping
generally using the harbour, let alone to the environment. In
The
Citos
25
Lord Blackburn was
concerned with an admitted general statutory duty to remove a
drifting ship in the fairway from danger to other
shipping, but a
denial of such a duty towards the owners of the vessel itself. The
learned judge noted that the contention was
not well-founded: the
principal object of the powers might be to protect other shipping
from the risks of collision with the abandoned
vessel, but it was
undoubtedly an advantage to the owners of an abandoned vessel to have
their vessel removed from the danger of
such collision, and,
accordingly, it could not be said that they had no interest in the
performance of the statutory duty. In
The
Gregerso
26
Brandon J, dealing
with a ship grounded substantially athwart the channel in the River
Witham leading to the port of Boston (in
Lincolnshire, not the United
States). In that position she obstructed all entry to and exit from
the port. The learned judge said:
‘
In
this situation it was, in my view, the duty of the Boston
Corporation, as the port authority, to exercise, as a matter of
urgency,
the powers of removal conferred on it by the various
statutes to which I referred earlier. The duty was owed by the
corporation
to all users of the port, including the owners of the
Kungsö herself.’
Despite
the obvious factual and legal differences between these cases and the
substance of the present appeal it seems to me that
there is a common
thread which renders them subject to a similar analysis. In the
present context it is that where a legal duty
rests on an port or
similar authority to look to the safety of shipping and that duty
extends to all users of the harbour, then
any user in distress is
entitled to invoke the duty in order to procure assistance for
himself.
27
[45] The conclusion that
the court a quo was correct in finding that the appellant acted
pursuant to both statutory and common law
duties leaves the
possibility of an argument based simply on action undertaken which
exceeded the normal scope of such duties.
But that was not the
appellant’s case and the agreed facts do not bear out such a
hypothesis. Although the ship was drifting
towards a situation of
peril it had not reached that point; there is no suggestion that the
salvage was rendered dangerous or difficult
by reason of sea or
weather conditions or that any of the crew of the tugs was placed at
risk by the exigencies; apparently the
ship’s crew remained
with the ship and there was no need for the salvor’s men to
board it. In short it appears that
the whole affair required neither
out of the ordinary skill nor courage.
Salvage reward
irrespective of duty?
[46] The second issue for
determination is whether the appellant, despite not being a
volunteer, was nonelessness entitled to a
salvage reward by reason of
the provisions of the Convention and item 4.3 of the Tariff Book.
[47] The appellant does
not contend that item 4.3 of itself entitles it to such a reward.
Indeed, although that
item confers a right to claim a reward, it does not presume that the
requirements for such a claim are satisfied.
Nor does it exclude
proof of voluntary action as an element of such a claim.
[48] It was common cause
that:
1 The
Cleopatra Dream
was a ‘vessel’ for the purposes of the Convention.
2 For the period from
approximately 4h40 until the
Jutten
made fast, the vessel was
in distress, drifting without power in the direction of Jutten
Island, unable to drop either of her anchors,
and in danger of
grounding.
3 In so far as the vessel
and her cargo were concerned, the services rendered by the appellant
constituted a salvage operation as
defined in art 1(a) of the
Convention ie an act undertaken to assist a vessel in danger in
navigable waters.
4 As a result of the
services of the appellant’s tugs, the vessel, her bunkers and
cargo were saved without harm or damage
or loss to the respondents.
It is not in issue that this constitutes a ‘useful result’
as contemplated by art 12(1)
of the Convention that ‘gives
right to a reward’.
[49] It is the
appellant’s contention that the facts enumerated in the
preceding paragraph are, under the Convention, determinative
of its
right to a salvage reward. Counsel submitted that, ex facie art
12(1), the principle of voluntariness is not a consideration.
Nor
does such a requirement fit easily with the definition in art 1(a) of
a ‘salvage operation’ which means ‘
any act or
activity undertaken to assist a vessel or any other property in
danger in navigable waters or any other waters whatsoever
’.
[50] So, counsel for the
appellant submitted, in so far as voluntariness remains an essential
element of a salvage operation, art
17 of the Convention restricts
this requirement to circumstances where such an operation is
performed in terms of an existing contract
(which is not the case
here). Article 17 provides:
‘
No
payment is due under the provisions of this Convention unless the
services rendered exceed what can be reasonably considered
as due
performance of a contract entered into before the danger arose.’
[51]
As Prof Hare points out,
28
although art 17
reinforces the voluntariness principle as far as contractual duties
are concerned (eg towage), it does not deal
with the actions of
potential salvors who act in terms of a duty whether under statute or
at common law. From this he concludes
that the Convention
‘
would
allow the non-voluntary salvor who performs a salvage operation, and
complies with the other requirements of the Convention,
to claim
salvage notwithstanding the existence of a pre-existing duty.’
[52] In his judgment
Bozalek J found that the view expressed by Prof Hare was not
supported by any other authority or writer and
was contrary to arts
5(1) and (3) of the Convention. In addition, the learned judge was of
the view that if the drafters of the
Convention had intended to do
away with the requirement of voluntariness in regard to salvage
services rendered by public authorities,
it would have done so in
express terms. Counsel submits that this conclusion is flawed for the
reasons which follow.
[53]
First, it is not so that Prof Hare’s view does not find support
elsewhere. Counsel refers in this regard to Martin Davies
‘
Whatever
happened to the Salvage Convention
’
29
:
‘
According
to one view, art 17 is the only restriction on who can claim salvage
reward, with the result that the Salvage Convention
1989 applies to
any person performing a “salvage operation” that goes
beyond the scope of an existing contract.’
Second,
as there would appear not to be any reported judgments on this issue,
there is, in the circumstances, no authority one way
or the other.
Third, counsel submits, Bozalek J has assumed, wrongly, that the
salvage law of all parties to the Convention required
public
authorities to act voluntarily before being entitled to a reward. Law
in the Federal Republic of Germany, a signatory to
the Convention,
30
in December 1987
(ie shortly before the Convention) was to the effect that ‘even
a public duty to render rescue services does
not exclude the right to
equitable remuneration, unless the rescuer is obliged to act without
compensation’.
31
Fourth, counsel
drew attention to the Roman law principles of
negotiorum
gestio
on
which, certain writers
32
have suggested, the
law of salvage is based:
‘
It
is not only the man who has involved himself and administered
another’s affairs of his own free will and under no compulsion
who is liable to this action but also the man who has administered
them because for some reason he had to or thought he had to.’
Counsel
conceded, however, that there is authority to suggest that the
derivation from
negotiotum
gestio
is,
at least in English law, doubtful.
33
Fifth, there was no
requirement of voluntariness in the 1910 Convention. The English
delegation to that convention proposed that
the requirement be
inserted in art 2 but the proposal was not adopted.
34
Hence, counsel
submitted that if a general requirement of voluntariness, over and
above what is articulated in art 17, had been
intended, the
Convention would have said so in express terms.
[54] Counsel further
submitted that Prof Hare’s construction of art 17 operates
independently of the provisions of art 5,
a submission, he said, not
appreciated by the court a quo. As it was common cause that art 17
does not apply in this matter, and
as it contains the only
requirement of voluntariness in the Convention, the appellant should,
in the submission, be entitled to
a salvage reward irrespective of
whether the salvage operation was carried out in performance of a
statutory or common law duty.
[55] If Prof Hare’s
conclusion (quoted in para 51 above) means only that a salvor who
acts under a statutory duty, but exceeds
that duty in the breadth or
degree of his actions, may nevertheless qualify for a salvage reward
under the Convention, then I agree
with him. That is the common law
and the Convention does not derogate from it. If, however, he intends
to say (and I do not think
that such was his intention) that the
implication of art 17 is that under the Convention salvors who act
strictly within the scope
of a duty to the salved property may
nevertheless qualify for a salvage reward, I can find no such
indication in that article.
In any event the entitlement of a public
authority, including one acting under a duty, is expressly regulated
by art 5 of the Convention.
[56]
As pointed out earlier the
travaux
preparatoires
to
the 1989 Convention (to which as an interpretative aid s 2(5) of the
Wreck and Salvage Act directs us) include the Report of
the CMI to
the IMO that was approved by the XXXII International Conference of
the IMO held in Montreal in May 1981 on the draft
International
Convention on Salvage. In the section of the Report headed Special
Comments the following is said (in para 1.-1.1)
about the definition
of ‘salvage operations’:
‘
It
is generally felt to be an important element of salvage that it must
be voluntary, but this term may be ambiguous, and therefore,
it has
not been included in the definition itself. The cases where salvage
operations are carried out on the basis of a pre-existing
duty are
dealt with in Art 1-3 which contains provisions for salvage
operations controlled by public authorities and in Art 3-6,
in which
it is made clear that services which are rendered in due performance
of a contract entered into before the danger arose
shall not be
compensated under the rules of the Convention.’
[57] Concerning ‘Service
rendered under existing contracts’ (Art 3-6, which became art
17 in the Convention) the same
Report contains the following comment:
‘
This
is a general restatement of the principle in the 1910 Convention, Art
4. As mentioned above, the rule forms part of the important
principle
under which a salvage service must be voluntary to give right to the
remedies of the Convention.’
[58] As to Art 1-3
‘Salvage operations controlled by Public Authorities’,
which became art 5 of the Convention, the
commentary of the CMI is
the following:
‘
The
draft convention does not deal directly with questions related to
salvage operations by or under the control of public authorities,
nor
does it deal with the rights of salvors to payment in such cases from
the authority concerned. This is in accordance with the
system of the
1910 Convention, and Art. 1-3.1.
In
this provision it is now made clear that the fact that a salvor has
performed salvage operations under the control of a public
authority
shall not prevent him from exercising any right or remedy provided
for by the Convention against the private interests
to which salvage
services are being rendered by him. Whether the salvor is entitled to
recovery from such private interests depends
upon whether, according
to the facts, the conditions for recovery set out in the provision of
the Convention have been met.
The
present law varies from State to State as to whether for instance the
coast guard or the fire service may recover in salvage.
It is
intended that this position should be preserved.’
[59] Furthermore one must
in reading and interpreting the Convention bear in mind that ‘the
draft convention is not intended
to set out the law of salvage in any
exhaustive manner’ (General Comments to the 1981 CMI Report).
[60] Informed by these
comments certain specific conclusions regarding voluntariness in the
context of the Convention can be drawn:
1 The importance of
voluntariness as a principle underlying the right to claim a salvage
reward was not intended to be restricted
whether by its omission from
the definition of ‘salvage operations’ or by anything
contained in the draft of what would
become Arts 5 and 17.
2 Art 3-6 (afterwards 17)
was directed not at restricting the category of cases regarded as
‘voluntary’ to the contractual
situations therein
addressed but to confirming that a ‘salvor’ carrying out
operations under a contract entered into
before the danger arose does
not become entitled to a salvage reward unless his services exceed
due performance under that contract,
ie because his services do not
become ‘voluntary’ until they exceed his contractual
obligation. So understood, I think
the appellant’s construction
of art 17 is misdirected.
3 Art 1-3 (afterwards 5)
addressed two specific situations (i) the preservation of national
laws and international conventions relating
to salvage operations by
or under the control of public authorities, and (ii) confirmed that
salvors carrying out such operations
are entitled to avail themselves
of the rights and remedies provided for in the Convention, ie
organisation and intervention by
public authorities cannot be used as
a reason to deprive the private salvor of his right to salvage.
[61] Counsel for the
appellant relied, independently of art 17, upon art 5 of the
Convention. That article provides:
‘
(1)
This Convention shall not affect any provisions of national law or
any international convention relating to salvage operations
by or
under the control of public authorities.
(2)
Nevertheless, salvors carrying out such salvage operations shall be
entitled to avail themselves of the rights and remedies
provided for
in this Convention in respect of salvage operations.
(3)
The extent to which a public authority under a duty to perform
salvage operations may avail itself of the rights and remedies
provided for in this Convention shall be determined by the law of the
State where such authority is situated.’
His submissions in this
regard were:
1 In art 5 the
entitlement of a port (public) authority to a salvage reward is
expressly recognised, irrespective of the existence
of any duty,
whether statutory or otherwise even in cases where the salvage
operation is carried out by or under control of a public
authority.
2 Art 5(2) reverses any
pre-Convention common law rule, so that public authorities under a
duty to perform salvage operations would
only be disentitled from
claiming salvage by reason of art 5(3) if a new rule to that effect
were introduced by legislation, something
which has not happened in
South Africa. The intention to change the pre-Convention position is
evident, counsel submits, from the
use of the word ‘nevertheless’
at the beginning of art 5(2).
3 Because s 2(1) of the
Wreck and Salvage Act confers the force of law on the Convention,
‘the law of the State’, as
that phrase is used in art
5(3) of the Convention, means the Convention itself.
[62] I do not accept
counsel’s interpretation of art 5. It seems to me that the
article is divisible by reference to its sub-articles.
Sub-article 1
recognises that national laws and international conventions may exist
relating to salvage operations by or under
the control of public
authorities; it excludes any effect of the Convention on the
provisions of those laws and conventions. Sub-article
2 allows
salvors carrying out such operations to avail themselves of the
rights and remedies provided for in the Convention. Such
salvors
would include both private salvors which the public authority may be
using in its operations and the public authority itself.
Sub-article
3 regulates the
extent
to which a public authority under a
duty to perform salvage operations may avail itself of the Convention
rights and remedies according
to the law of the State where the
public authority is situated. The extent to which a private salvor
may avail itself is not so
regulated. If the local law limits the
public authority to reward only if it exceeds its statutory duty,
that is the qualification
the authority must satisfy.
[63] The introductory
word ‘Nevertheless’ (in subart (2)) is problematic. But,
consistent with what appears to be the
structure of the three
subarticles, it simply indicates that despite the provisions of the
unaffected laws and conventions, all
salvors referred to in sub-art
(1) have a right to avail themselves of Convention rights and
remedies to the extent that the local
law does not curtail such
rights and remedies.
[64] It follows that I
disagree that Art 5 recognises the entitlement of a public authority
to a salvage reward. Each case involving
a claim by a public
authority for salvage in consequence of operations carried out by
itself or under its control must therefore
begin within a
determination of how the domestic law regulates a claim by it for
salvage. Once that is determined one will also
know the limitations,
if any, on its entitlement to a salvage reward under the Convention.
That exercise has already been undertaken
in the first leg of this
judgment: the conclusion was that the appellant has no right in the
circumstances to a salvage reward
because the whole scope of its
operations was carried out subject to and within the normal limits of
its duty and not voluntarily.
It follows that the appellant has no
entitlement to avail itself of the rights provided by art 12 of the
Convention.
[65] Counsel’s
third submission set out above is not correct. Art 5(1) expressly
provides that the Convention shall not affect
any provisions of
national law relating to salvage operations by or under the control
of public authorities. Such national law
includes the common law of
South Africa. The law of the State referred to in art 5(3) according
to which the extent of a public
authority’s right to avail
itself of the rights and remedies provided by the convention must be
determined, is the common
law unaffected by the Convention.
[66] Counsel for the
appellant submitted that consideration must be given, in interpreting
Art 5, to the purpose of the Convention
as expressed in the
introductory recordals viz to ‘ensure that adequate incentives
are available to persons who undertake
salvage operations’. He
submitted that the drafters of the Convention no doubt wished to
encourage public authorities to
perform salvage operations by
ensuring that they too enjoyed adequate incentives. In so far as the
attempt to satisfy the general
intention to encourage salvage
operations is concerned, the Convention does not, in my view,
indicate any such purpose in relation
to salvage by public
authorities. It is clear, I think, that they were intended to share
in the increased benefits provided for
salvors generally in those
instances where their national laws permitted them to avail
themselves of the rights and remedies of
the Convention.
[67] In the result I
conclude that Bozalek J was correct in finding that the Convention
evidences no intention to exclude voluntariness
in respect of salvage
operations performed by a public authority acting under a duty. Nor
is the effect of art 5 read with s 2(1)
of the Wreck and Salvage Act
to amend or supersede the common law.
[68] Both issues argued
in the appeal having been decided against the appellant, the appeal
is dismissed with costs.
____________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANT: M J Fitzgerald
SC (with him D J Cooke)
Webber Wentzel, Cape Town
McIntyre & van der
Post, Bloemfontein
RESPONDENTS: M Wragge SC
Bowman Gilfillan Inc,
Cape Town
Matsepes, Bloemfontein
1
The
judgment is reported as
Transnet Ltd t/a National Ports Authority
v MV Cleopatra Dream
[2010] 3 All SA 110
(WCC).
2
The
International Convention on Salvage, 1989 which is contained in the
Schedule to the
Wreck and Salvage Act 94 of 1996
and has, subject to
the provisions of the Act, force of law and application in the
Republic (s 2(1) of the Act).
3
National
Ports Authority of South Africa: Port Tariffs, 4ed, 1 April 2004.
4
Section
10 provides as follows:
‘
(1)
The harbours of the Company are compulsory pilotage harbours with
the result that every ship entering, leaving or moving in
such a
harbour shall be navigated by a pilot who is an employee of the
Company, with the exception of ships that are exempt by
statute or
regulation.
(2) It shall be the
pilot’s function to navigate a ship in the harbour, to direct
its movements and to determine and control
the movements of the tugs
assisting the ship under pilotage.
(3) The pilot shall
determine the number of tugs required for pilotage in consultation
with the Port Captain, whose decision shall
be final.
(4) A master shall at
all times remain in command of his ship and neither he nor any
person under his command may, while the ship
is under pilotage, in
any way interfere with the navigation or movement of the ship or
prevent the pilot from carrying out his
duties except in the case of
an emergency, where the master may intervene to preserve the safety
of his ship, cargo or crew and
take whatever action he deems
necessary to avert the danger.
(5) Where a master
intervenes, he shall immediately inform the pilot thereof and, after
having restored the situation, he shall
permit the pilot to proceed
with the execution of his duties.
(6) The master shall
ensure that the officers and crew are at their posts, that a proper
look-out is kept and that the pilot is
given every assistance in the
execution of his duties.
(7) The Company and the
pilot shall be exempt from liability for loss or damage caused by a
negligent act or omission on the part
of the pilot.
(8) For the purpose of
this item, ‘pilot’ shall mean any person duly licensed
by the Company to act as a pilot at
a particular harbour.’
5
Promulgated
or in force in terms of s 21 of the Legal Succession Act.
6
Art
5
Salvage operations controlled by public authorities
,
provides:
‘
(1)
This Convention shall not affect any provisions of national law or
any international convention relating to salvage operations
by or
under the control of public authorities.
(2) Nevertheless,
salvors carrying out such salvage operations shall be entitled to
avail themselves of the rights and remedies
provided for in this
Convention in respect of salvage operations.
(3) The extent to which
a public authority under a duty to perform salvage operations may
avail itself of the rights and remedies
provided for in this
Convention shall be determined by the law of the State where such
authority is situated.’
7
Art
17,
Services rendered under existing contracts
, provides:
‘
No
payment is due under the provisions of this Convention unless the
services rendered exceed what can reasonably considered as
due
performance of a contract entered into before the danger arose.’
8
Item
4.3 is quoted in para 10 above.
9
MV
Roxana Bank: Swire Pacific Offshore Services (Pty) Ltd v MV Roxana
Bank
2005 (2) SA 65
(SCA) para 8.
10
Section
2(5)
of the
Wreck and Salvage Act.
11
The
Travaux Preparatoires of the Convention on Salvage
, 1989 (2003),
publication of the Comite Maritime International, (the CMI):
foreword.
12
Ibid
p ix.
13
F
D Rose
Kennedy & Rose Law of Salvage
7 ed (2010) at para
1.097. See also R Shaw
The 1989 Salvage Convention and English
Law
1996 Lloyd’s Maritime and Commercial Law Quarterly
202.
14
See
for example Brice
, Maritime Law of Salvage
3 ed 1-01, 1-206;
Kennedy & Rose
8.001; The
MV Mbashi; Transnet Ltd v MV
Mbashi
2002 (3) SA 217
(D) 224B-C; J Reeder,
Brice on
Maritime Law of Salvage
4 ed (2003) 1-184; Halsbury’s
Laws
of England
, Vol 94, 5 ed (2008) para 932 fn 2; W A Joubert (ed)
Law of South Africa
, Vol 25 (2) (2006) first re-issue, para
45.
15
Kennedy
& Rose
8.009.
16
For
example, the master and members of the crew from the owner of the
cargo:
The Sava Star
[1995] 2 Lloyd’s Rep 134 (QB)
(AdmCt) at 142, or a passenger, ibid at 143, or the cargo owner
himself, ibid at 143;
Kennedy & Rose
8.006; Reeder 1.206.
17
See
particularly
Bostonian (Owners, Master and Crew)
and
Patterson v The Gregerso (Owners)
[1971] 1 Lloyd’s Rep
220 at 225-7 and the references therein to
The Citos
(1925)
22 Lloyd’s Rep 275 and
The Mars and Other Barges
(1948)
81 Lloyd’s Rep 452.
18
At
227.
19
In
The Mbashi
supra the Durban port authorities assisted a ship
in distress some three miles beyond the harbour limits and were
rewarded.
20
Quoted
in para 12 above.
21
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School
2008 (5) SA 1
(SCA) paras 16 to 19.
22
Sutter
v Scheepers
1932 AD 165
at 173-4;
Minister of Environmental
Affairs and Tourism v Pepper Bay Fishing (Pty) Ltd
2004 (1) SA
308
(SCA) para 32.
23
Section
10(1)
, (2) and (3) to the Schedule, quoted in para 12 above.
24
In
re
SS Winton; Avenue Shipping Co Ltd (in liquidation) v
South African Railways and Harbours
1938 CPD 247
at 264.
25
Supra
fn 18.
26
Supra
fn 18.
27
See
also
Kennedy & Rose
op cit 1.185 and 1.186.
28
John
Hare
Shipping Law and Admiralty Jurisdiction in South Africa
2 ed (2009) 414.
29
39
Journal of Maritime Law and Commerce
463 at 486.
30
Nicholas
JJ Gaskell ‘
The 1989 Salvage Convention and the Lloyd’s
Open Form (LOF) Salvage
’
16 Tulane Maritime Law Journal 1
at 8. Also, the Chairman of the Committee of the Whole who managed
the drafting process, Prof Dr Norbert Trotz was German (ibid).
31
World
Shipping Laws
ed by David C Jackson and Debra Morris (June 1992)
Binder 2 ‘IIIA – Salvage Germany, Federal Republic’.
32
J
P van Niekerk ‘Salvage and Negotiorum Gestio: Exploratory
reflections on the Jurisprudential Foundation and Classification
of
the South African Law of Salvage’
Acta Juridica
1992
148; Ina H Wildeboer
The Brussels Salvage Convention
(1965)
40 ff. See also Sir C Robinson in
The Calypso
(1828) 2 Hagg
209 at 217 and Gaskell (fn 29 above) at 27.
33
Reeder,
Brice on Maritime Law of Salvage
4 ed (2003) 6 fn 28 and the
authorities there cited.
34
Wildeboer
(op cit fn 31) 65.