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[2010] ZAWCHC 4
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Transnet Limited t/a National Ports Authority v The MV Cleopatra Dream and Another (AC 54/2004) [2010] ZAWCHC 4; 2010 (5) SA 428 (WCC) (22 January 2010)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: AC 54 / 2004
In
the matter between:
TRANSNET
LIMITED t/a NATIONAL PORTS
AUTHORITY
Plaintiff
versus
THE
MV
CLEOPATRA
DREAM
1
st
Defendant
The
cargo laden on board the
MV
CLEOPATRA
DREAM
2
nd
Defendant
JUDGMENT
: 22 JANUARY 2010
BOZALEK
J:
[1]
The issue raised in this matter is whether a public authority is
entitled to claim a reward for salvaging a vessel in distress.
It is
a vexed issue because a key element of a claim for such a reward is
that the salvor's services must be voluntary and since
public
authorities involved in salvage actions often render their services
under a common law or statutory duty, the voluntary nature
of the
services is negated and no award may be claimed.
[2]
Transnet Limited, trading as the National Ports Authority, is the
plaintiff in this action
in
rem
in
which the first defendant is the MV "Cleopatra Dream" (also
referred to as "the vessel"), and the second defendant
is
The cargo laden on board the vessel. Plaintiff claims a salvage award
arising out of services rendered to the vessel and the cargo
on 2
April 2004 in the port of Saldanha.
[3]
The parties agreed that liability would be determined through the
stating of two questions of law and fact. They agreed further
that
the determination would be made on the basis of those averments not
in issue on the pleadings, the documents referred to therein
and the
facts set out in a statement of agreed facts. That statement reads as
follows:
The
plaintiff, Transnet Limited trading as the National Ports Authority,
is a company vested with legal standing by virtue of section
3 of
the Legal Succession to the South African Transport Services Act 9
of 1989 ("the SATS Act") and administers the
port of
Saldanha.
The
plaintiff is a public authority as contemplated by article 5 of the
International Convention on Salvage of 1989.
The
first defendant is the MV "CLEOPATRA DREAM" ("the
vessel") a bulk carrier of 75801,00 GRT having a length
overall
of 269 meters.
The
second defendant is a cargo of 146 670 MT of iron ore product that
was loaded on board the vessel at the port of Saldanha during
the
period 31 March to 2 April 2004.
The
area in respect of which the plaintiff has jurisdiction in the port
of Saldanha is described in the preamble to the Harbour
Regulations
published on 18 April 1982 ("the Harbour Regulations")
which continue to be in force and are deemed to have
been
promulgated in terms of the SATS Act by reason of section 21 of that
Act. A chart depicting the plaintiff's area of jurisdiction
as
regards the port of Saldanha Bay will be placed before the court at
the hearing of this matter.
The
plaintiff is the entity that exercises control over the port of
Saldanha and earns revenue from the services provided by it
pursuant
to the charges set out in the Tariff Book.
Section
4.3 of the Tariff Book, which was in force at the relevant time,
especially provided that: "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."
The
port of Saldanha is a compulsory pilotage harbour as described in
section 10(1) of Schedule 1 to the SATS Act 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 plaintiff,
with
the exception of ships that are exempt by statute or regulation.
The
vessel is not exempt from the requirements of section 10 of the
Schedule.
The
plaintiff is the sole public authority lawfully operating tugs
within the port of Saldanha.
Regulation
22 of the Harbour Regulations states: "The Transport Services
will, on application or when considered necessary,
and subject to
the discretion of the port captain and to any conditions which he
may impose in the interest of safe, orderly and
efficient harbour
working, undertake work and provide all towage, tug or other
floating craft services at harbours under the Transport
Services'
jurisdiction where such craft are maintained and are available".
The
vessel arrived in the port of Saldanha on 31 March 2004 and was
berthed and loaded the cargo at the Saldanha side bulk ore loading
terminal situated within the port.
The
vessel completed loading the cargo at approximately 02h50 on the
morning of 2 April 2004.
A
sailing pilot was requested for 04h00.
At
approximately 03h54 pilot De Kock, an employee acting in the course
and scope of his employment by the plaintiff, boarded the
vessel
while she was alongside.
In
accordance with section 10 of the Schedule:
16.1.
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 whilst under pilotage.
16.2.
It was the responsibility of the pilot to determine the number of
tugs required for pilotage in consultation with the port captain.
At
approximately 04h00 the vessel commenced casting off the last of her
mooring lines and at approximately 04h14 all lines were
clear and on
board.
Shortly
after 04h00 the plaintiff's tug "Jutten" made fast to the
starboard bow of the vessel and, at approximately 04h20,
cast off
from the vessel before she had reached the navigation channels for
departing ships.
At
04h40, and within the limits of the port of Saldanha, the vessel
experienced a power failure which resulted in the stoppage of
her
main engines.
On
the occurence of the vessel's main engine stoppage the pilot
requested that the plaintiff provide tug assistance to the vessel.
21.
The
vessel drifted without power in the south-westerly direction towards
shallow water and Jutten Island.
22.Thereafter,
and at approximately 06h18 to 06h28, the plaintiff's tug "Jutten"
came alongside and commenced pushing the
vessel's port bow.
23.
At approximately 06h48 the second pilot, Captain Ahmed, boarded the
vessel.
24.
At approximately 07h05 - 07h20 the second tug operated by the
plaintiff, the "Meeuw", came alongside and was made fast
to
the vessel.
25.
At approximately 07h36 - 07h42 pilot De Kock left the vessel.
26.
The vessel was towed to a place of safety within the port of
Saldanha.
27.
All of the events described above giving rise to the plaintiff's
claims against the defendants occurred within the limits of the
port
of Saldanha as described in the Harbour Regulations.
[4]
The following further facts admitted by the defendants on the
pleadings are relevant:
1.
The "CLEOPATRA DREAM" is a ship as described in section 1
of the Wreck and Salvage Act 94 of 1996 ("the
Wreck and Salvage
Act"
;) and in Article 1(b) of the International Convention on
Salvage, 1989 ("the Convention") which is a Schedule to the
Act.
2.
The cargo laden on board the "CLEOPATRA DREAM" is
"property" as described in Article 1(c) of the Convention.
3.
In so far as the defendants are concerned, the services rendered by
the plaintiff constituted a "salvage operation" as
described in Article 1(a) of the Convention.
4.
Until the tug "Jutten" made fast at 06h32, the "Cleopatra
Dream" was in danger of grounding.
5.
When the "Cleopatra Dream" suffered engine failure its crew
was unable to provide or restore power to the vessel and
until 10h20
she was unable to drop either of her anchors.
6.
The "Cleopatra Dream" was towed to an anchorage position
within the area of the port of Saldanha and the tugs "Jutten"
and "Meeuw" stood by until the vessel let go of her
starboard anchor at approximately 11h25.
[5]
Notwithstanding the various admissions by the defendants, including
that the services rendered by the plaintiff constituted a
"salvage
operation", they denied that the services gave rise to a salvage
award in terms of the Wreck and Salvage Act,
94 of 1996 ("the
Wreck and Salvage Act"
;) and the 1989 International Convention on
Salvage ("the Convention"), a Schedule to that Act, since,
it was contended,
they were rendered in the performance of a
statutory and common law duty and were not voluntary. This in turn is
denied by the plaintiff.
The two questions of law and fact to be
decided prior to and separately from the other matters in issue are
the following:
[1]
Whether the salvage operation carried out by the plaintiff in
connection with the defendants was rendered voluntarily and not
in
the performance of a statutory and/or common law duty to perform the
salvage operation in question.
[2]
In the event of it being found the salvage operation was carried out
in the performance of a statutory and/orcommon law duty,
and
accordingly not voluntarily (as pleaded by the defendants), whether
the plaintiff is nonetheless entitled to a salvage reward
by virtue
of the provisions of the Salvage Convention and clause 4.3 of the
Tariff Book.
THE
APPLICABLE LAW
[6]
Subject to any relevant local statute, English law as it existed on 1
November 1983 applies to salvage claims. This is so because
immediately before the commencement of the Admiralty Jurisdiction
Regulation Act 105 of 1983 ("the AJRA") the South African
court of admiralty would have had jurisdiction to entertain a claim
for salvage. The incorporation of English law is subject, however,
in
terms of section 6(2) of the AJRA, to the provisions of a local
statute, namely, the
Wreck and Salvage Act and/or
the Convention. In
the event of there being a conflict between English law on the one
hand and the
Wreck and Salvage Act and
the Convention on the other,
the latter must prevail.
WAS
THE SALVAGE OPERATION VOLUNTARY OR PURSUANT TO A STATUTORY OR COMMON
LAW DUTY?
[7]
It is an essential element of the salvor's right to claim salvage
that the service rendered must be voluntary.
1
Salvage is defined by Kennedy
2
as
"a
service
which confers a benefit by saving or helping to save a recognised
subject of salvage when in danger from which it cannot be
extricated
unaided, if and so far as the rendering of such service is voluntary
in the sense of being attributable neither to a pre-existing
obligation nor solely for the interests of the salvor".
[8]
Having regard to the definition of salvage given by Kennedy
and
the defendants' formal admissions in this regard, it is clear that,
aside from the issue of voluntariness, all the requirements
for a
successful salvage claim were met in the present case.
[9]
Kennedy states further that the general test for whether a public
authority is entitled to a claim for a service provided is
essentially
the same as the Admiralty law test for voluntariness:
"whether the service provided is outside the scope of the normal
performance
of its public duties".
Thus, it is stated, " ...
a
harbour authoritytaking action for the safety of shipping is likely
to be unable to claim salvage while acting within its harbour
area
but may be able to do so if acting elsewhere".
[10]
In assessing whether the operation in respect of the
Cleopatra
Dream
fell
within the plaintiff's duties, defendants' counsel relied in their
plea on the duty of a harbour authority to users to make it
reasonably safe for navigation, the duty owed by it in terms of
Regulation 22 of the Harbour Regulations to provide tug assistance
within the confines of the harbour and its duty to users to ensure
that tugs are available in the event of an emergency occurring
within
the harbour area.
[11]
It is appropriate to have regard firstly to the statutory and
regulatory framework under which the plaintiff administers and
operates the port of Saldanha. It does so pursuant to the provisions
of the Legal Succession to the South African Transport Services
Act 9
of 1989 ("the SATS Act") in which the "operating
provisions" and "operating powers" applicable
to the
plaintiff are set out in articles 10 and 11 of Schedule 1 to the Act.
In so far as it is relevant article 10 provides:
"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 movement
of
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.
The 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."
[12]
Also in force at the relevant time were the Harbour Regulations
promulgated
in terms of section 73(1) of the South African
Transport
Services Act 65 of 1981. Regulation 22 is relevant and
bears
repeating:
"The
Transport Services will, on application or when considered 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, tug
or other floating craft services at harbours under the Transport
Services' jurisdiction where such craft are maintained
and are
available".
[13]
On behalf of the defendants, Mr. Wragge contended that, regard being
had to this legislative and regulatory framework, the plaintiff,
through its employees, the Port Captain and the pilot, had a
statutory duty to provide tug services to the vessel whilst it was
under
pilotage so as to safely direct its movementswithin the port.
However, Mr. Fitzgerald, who appeared for the plaintiff together with
Mr. Cooke, took a different view of Regulation 22, contending that it
was a general empowering provision which contemplated not salvage
operations but the ordinary work of a port tug. In so far as it
bestows a discretion on the Port Captain to provide towage or tug
services, he submitted, this discretionary power could not
simultaneously be deemed an obligation.
[14]
In
The
Mars and other Barges
the Court was faced with the same argument in a similar situation.
The plaintiffs were the crew of the London port authority's launch
which rescued a number of barges adrift on the River Thames. In
response to a claim for salvage the defendant alleged that the
plaintiffs
were doing no more than performing their ordinary duties
as servants of the port authority which, significantly, did not
itself claim
salvage. The first line of defence adopted was that in
no circumstances should a salvage award be payable to the servants of
a public
authority in such circumstances for doing that which was the
authority's duty to do in any event.
[15]
In rejecting this defence, Mr Justice Willmer held that the relevant
statute gave the port authority the power to remove any
obstruction
that impeded navigation in the River Thames. He held that this
section granted a permissive power rather than imposing
a statutory
duty. He doubted, however, that this was a point of significance
because it was well-established that if an authority
armed with such
a power receives tolls and dues from shipping using the port then at
common law, there arises a duty towards vessels
paying such tolls and
dues to exercise reasonable care "to
see
that the channel is safe, and so forth".
In
the circumstances he had no doubt that the port authority had a duty
to exercise the power conferred upon it by the relevant Act.
I find
this reasoning persuasive and directly applicable to the
interpretation of Regulation 22 of the Harbour Regulations.
[16]
Whilst the language used in Regulation 22 is obviously important in
construing its meaning, the context in which the regulation
is framed
must not be overlooked. In this regard the statutory provisions
making Saldanha a compulsory pilotage harbour are in my
view
significant. Going hand in hand with this provision is the
plaintiff's entitlement to levy charges for such pilotage and related
services calculated in accordance with the detailed provisions set
out in its Tariff Book. This effectively accords to the plaintiff
a
monopoly over the provision of such services and, as such, lends
support to an interpretation of Regulation 22 as imposing a duty
upon
the plaintiff, provided, of course, that the necessary craft are
available. Such an interpretation is moreover borne out by
the
language used. The operative phrase
""Transport
Services will â¢â¢â¢ undertake work and provide all towage, tug or
other floating craft services."
although
qualified by reference
inter
alia
to
the Port Captain's discretion, is peremptory. The factors which must
inform the exercise of his discretion are of limited scope,
either
the availability of resources or considerations of efficiency and
safety.
[17]
Mr. Fitzgerald submitted further that Regulation 22 imposed no
obligation upon the plaintiff inasmuch as it is not specifically
concerned with the salving of vessels in distress. To give it such an
interpretation, it was said, would compel the plaintiff to
engage in
perilous salvage operations, regardless of the circumstances. I do
not regard Regulation 22 as creating an absolute obligation
on the
part of the plaintiff to mount a salvage operation within the area of
its jurisdiction in all circumstances. The Port Captain
retains a
discretion as to the circumstances in which he will deploy the
vessels at his disposal. The discretion would have to be
exercised
rationally and is subject to certain restraints such as the
availability of an appropriate vessel. Other constraints can
be
readily imagined. The envisaged salvage exercise might be extremely
perilous and have limited prospects of success. In such circumstances
it would be difficult to contend that the port authority was burdened
with an absolute obligation to provide the services necessary
to
salvage a vessel.
[18]
In my view, bearing in mind that Saldanha is a compulsory pilotage
harbour, it would be anomalous to construe Regulation 22 as
affording
the plaintiff, acting through the Port Captain, an unfettered
discretion to decide whether or not it would provide towage,
tug or
other floating craft services to a vessel particularly where it is
both under pilotage and in need of such services. Although
dependent
upon the precise circumstances obtaining, I consider that, viewed in
its overall context, Regulation 22 imposes a general
obligation upon
the plaintiff to provide the services envisaged therein.
[19]
The fact that the plaintiff's towage or tug services were needed by
the defendants when the
Cleopatra
Dream
found
herself in distress or an emergency situation does not, in my view,
establish or point towards a separate duty, founded in statute
or in
common law, on the part of the plaintiff to provide these services in
such a situation. Nor was any authority cited by defendant's
counsel
for the existence of a separate common law duty to this effect.
Rather, any such duty would appear to be an incident of the
plaintiff's statutory duty based primarily on the provisions of
Regulation 22, read together with those statutory provisions
establishing
the port of Saldanha as a compulsory pilotage harbour
and the plaintiff as the public authority administering the harbour.
[20]
The central question remains whether, under the circumstances
prevailing, the plaintiff acted outside or within its existing
duty
in providing the services it did to the vessel and the cargo. It is
now necessary to consider the common law duty upon which
the
defendants rely in contending that the services it enjoyed were not
rendered voluntarily.
COMMON
LAW DUTY
[21]
Counsels' arguments in relation to a common law duty focussed on the
harbour authority's duty to make the port of Saldanha reasonably
safe
for navigation. This principle was established in our law in
In
re SS Winton: Avenue Shipping Company Ltd (in liquidation) and Others
v South African Railways and Harbours and Another
1938
CPD 247
at 264 where Centlivres J stated as follows:
"It
was
not disputed that it is the duty of the Administration to make that
Harbour reasonably safe for navigation. If the Administration
introduces or is a party to the introduction of a source of danger in
a harbour under its control it seems to me that a duty arises
on its
part to take steps to see that no one is injured by that danger".
The
principle was extended in
Colonial
Steamship Co Ltd v SA Railways and Harbours
1949
(3) SA 1187
(D & CLD), De Wet J stating at 1194 as follows:
"
The
defendant Administration earns revenue through charges which it makes
for the use of its harbours and equipment. It owes a duty
to make the
harbour reasonably safe for navigation...
".
[22]
It was contended on behalf of the plaintiff that this duty, which it
undoubtedly bore, should not be equated with an obligation
to make
ships
safe to navigate the port. Furthermore, the argument proceeded, the
Cleopatra
Dream
never
presented a danger to other ships in the port and thus the salvage
operation was a case of making that vessel safe to navigate
rather
than an instance of the plaintiff discharging its duty of keeping the
port safe for navigation. The first difficulty with
this argument is
that there was no mention in the stated or common cause facts
regarding the effect, if any, of the "Cleopatra
Dream's"
plight upon other shipping.
[23]
The general argument was moreover rejected in the case of
The
Citos
3
a
ship which found itself at risk of running aground on a stormy night
and was abandoned by her crew. The master of the
Pole
Star,
which
was owned by the Commissioners of the Northern Lighthouses, was
instructed to endeavour to secure the
Citos
and
remove it from the track of shipping. The crew of the
Pole
Star
boarded
the
Citos,
connected
a tow and duly towed the
Citos
to
a place of safety. The master and crew of the
Pole
Star
claimed
a salvage award which was defended by the owner of the
Citos
on
the ground that the services were rendered in the discharge of a
statutory duty and were therefore not rendered voluntarily.
[24]
Amongst the arguments raised by the Commissioners were that
even
if their services in removing the stricken vessel from the
fairway
were in the execution of a public duty such a plea in
effect
was not available to the owners of the
Citos
in
that the
services
were a duty owed only to owners of other ships. The
judgment
of Lord Blackburn of the Scottish Court of Sessions on
this
point is recorded as follows:
""This
denial amounted to an admission that the removal of an abandoned
vessel from the fairway was a duty laid upon them,
coupled with an
averment that the removal of the vessel was not a duty to the owners
of the vessel itself but only a duty to the
owners of other shipping.
In his Lordship's opinion the defendant's 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 a statutory duty laid upon the Commissioners."
Lord
Blackburn found, however, that a salvage award might be earned for
services rendered in excess of a duty owed by the salvors
to the
salved vessel. He concluded that only certain services rendered
during the latter part of the towage and certain repairs rendered
to
the steering gear of the
Citos
fell
outside the public duty.
[25]
Notwithstanding the fact that neither the stated facts nor those
which were common cause on the pleadings make any reference
to the
question of what danger, if any, the vessel posed to other shipping,
prima
facie
it
would not be unreasonable to conclude that the steps taken by the
plaintiff to tow the
Cleopatra
Dream
to
a place of safety within the harbour were taken in the execution of a
public duty to make it safe for navigation, being a duty
owed both to
other shipping using the harbour and to the vessel itself. At first
sight, a fully laden bulk carrier, drifting without
power within the
harbour, apart from being itself in distress and in danger of
grounding, would constitute a danger to other users
of the port,
either existing or prospective. Inasmuch as the plaintiff bears the
onus of proving that it acted voluntarily, the lack
of any evidence
regarding the danger to other shipping impacts negatively upon its
claim.
[26]
A survey of the case law confirms the governing principle to be
that,
as a general rule, a public authority which renders salvage
services
falling within an existing statutory duty or common law
duty
to exercise reasonable care to ensure that a port is safe for
navigation,
will not be entitled to claim salvage. Where the
services
rendered go outside the scope of the statutory or
common
law duty which the public authority is required to
perform,
it may claim salvage. This core principle was pithily
expressed
by Brandon J in the matter of
The
Gregerso
4
after
considering
and approving the judgments in
The
Citos
and
The
Mars
as
follows:
"The
way in which the principle has been applied is by denying to such
persons salvage in respect of acts within their existing
duty, but
allowing salvage in respect of acts going outside such duty."
[27]
In
The
Gregerso
a
vessel, the
Kungso,
ran
aground in the River Witham which leads to the port of Boston and a
tug which was owned by the port authority was hastily manned
and
taken to the sea. Eventually, the next morning, the tug managed to
free the
Kungso.
The
port of Boston, its harbour master and the master and crew of the
tug, all claimed salvage from the owners of the
Kungso.
Brandon
J found that it was the duty of the Boston port authority to exercise
the powers of removal conferred upon it byvarious statutes
and that
this duty was owed by it to all users of the port, including the
Kungso.
He
found thus that the work done by the port authority's employees was
within their ordinary work and, in the circumstances, that
the
freeing of the
Kungso
was
not voluntary as the term is understood in salvage law and that
neither the port authority nor its employees were entitled to
recover
salvage for the operation. Brandon J explained his reasoning in part
as follows:
"
The
result at which I have arrived may appear unjust in that it means, in
effect, that the defendants get the benefit of having their
vessels
salved by the port authority, without having to pay for such benefit
. This result is, however, justified by the need to
ensure that those
who have existing public duties to perform at ordinary rates of
remuneration should not be permitted to say that
they will only
discharge such duties if they are paid salvage for doing
so."
[28]
In
The
Mars and other Barges
(supra),
the second line of defence raised, was that if in such circumstances
there could be a claim by a public authority for a salvage
award, it
could only arise in exceptional cases where the work done went
substantially outside the ordinary work which would be expected
of
the authority's servants when carrying out the authority's duties.
[29]
Willmer J held that in a proper case salvage may be payable to the
servants of a public authority notwithstanding that they wereengaged
in work which was part of the duty of the public authority to carry
out and quoted with approval the following passage from Mclachlan's
Law of Merchant Shipping:
"In
all cases, indeed, where duty springing from office or arising out of
contract would have legally bound the claimants to
do services of the
same nature as they actually rendered, the Court is vigilant to
protect the owners from improper claims, without
neglecting what is
required for the ends of justice and the encouragement of enterprise
on such occasions."
[30]
Lord Willmer held that each case must be considered on its own
facts
and merits. However, salvage may only be claimed by
servants
of a public authority in very exceptional cases where
the
services rendered go far outside those which the statutory or
common
law duty of the public authority required it to perform.
Significantly,
he held that the onus rests upon the claimants to
satisfy
the court that they did, in the circumstances, render
services
which went quite outside their ordinary duties. The claim
for
salvage was nonetheless allowed because:
"
â¢by
boarding the drifting barges, by overhauling and renewing their
ropes, and by attempting to take them in tow, (they) were doing
something which was outside and substantially outside, their ordinary
duties as servants of the Port of London Authority."
[31]
In
Master,
Officers, etc of S.T. "J.W. Sauer" v Owners of S.S.
"Sellasia"
1926
CPD 437
, the Court held that, where Railways and
Harbour
Administration had in good faith and with full knowledge of the
circumstances entered into a fair contract of towage for
remuneration,
the officers and crew of a harbour tug were bound to
carry out the contract and were not entitled to claim salvage even
though the
services might otherwise be regarded as salvage. It was
further held that the Court should incline towards supporting
contracts for
towage or salvage made by the Administration and the
onus would thus be placed on the officers or crew of the towing tug
to show
that any such contract was manifestly unfair and such that
they were entitled to a salvage award.
[32]
In
MV
Mbashi - Transnet Limited v MV Mbashi and Others
the
defendant vessel, in seeking to defeat a salvage claim,
unsuccessfully raised the defence that the plaintiff, under whose
jurisdiction
the harbour authority fell, had not acted voluntarily in
rendering its services to the vessel when in distress. The salvage
operation
arose when a fire broke out in the engine room of the first
defendant's container vessel, as a result of which it lost all power
and was left a "dead ship". At this stage it was 3.5 miles
from Durban harbour where it had berthed prior to its departure
for
Port Elizabeth. In response to a radio message from the Master, the
Durban port authority despatched two tugs and a pilot to
assist the
vessel. When they reached the vessel it was 0.9 miles from the beach
and drifting towards it. Lines from the tugs were
eventually made
fast and it was towed out to the open sea and brought into the
harbour the following day.
[33]
The first defendant submitted that, since the plaintiff as port
authority had been under a statutory duty to perform the services
it
had rendered to the vessel, an essential ingredient of a salvor's
right to claim salvage, namely, that the services rendered be
voluntary, had been absent. In rejecting this defence, however,
Levinsohn J noted that the voluntary nature of the services rendered
in a salvage operation was an entrenched principle in the common law
of salvage both in England and in South Africa. The plaintiff's
claim
for salvage was upheld, however, principally on the basis that when
the emergency arose, the vessel had reached a point in
the open sea
beyond the area of the harbour or the extended harbour and,
furthermore, that the tugs had responded to a distress signal
from
the first defendant in going to its assistance. The Court held that
it was incorrect to characterise the actions of the tugs
as designed
to remove an obstruction or potential obstruction in the area of the
harbour.
APPLICATION
OF THE LAW TO THE FACTS
[34]
Against this background I turn to the question of whether the
plaintiff acted pursuant to, and within, a common law and/or
statutory
duty in rendering its services to the
Cleopatra
Dream
when
it suffered engine failure. Of central importance is that the
services were rendered within the limits of the port of Saldanha
and
whilst the vessel was under pilotage. It is also material that the
power failure which incapacitated the vessel occurred at 04h40,
merely 20 minutes after the plaintiff's tug had cast off from the
vessel and before she had reached the navigation channels for
departing
ships. Furthermore, it was the pilot's request that the
plaintiff provide tug assistance, in accordance with his function and
responsibility
in terms of article 10 of Schedule 1 to the SATS Act,
which resulted in the
Jutten
coming
to the vessel's assistance at 06h18. Thereafter a second pilot
boarded the vessel and from 07h05 onwards a second tug operated
by
the plaintiff, the
Meeuw,
came
alongside the vessel, made fast to it and assisted in towing it to a
place of safety.
[35]
Both parties accepted that the plaintiff had a common law duty to
make the port of Saldanha reasonably safe for navigation. It
was
common cause, moreover, that until the tug
Jutten
made
fast at 06h32, the
Cleopatra
Dream
was,
as dawn was breaking, drifting without power in a south-westerly
direction towards shallow water and Jutten Island with all the
potential dangers this held for its safety and that of its crew.
Furthermore, in my view a fully laden bulk carrier drifting without
power within the confines of a harbour would, in the ordinary course,
by its very nature, constitute a danger to other users of the
harbour
with the result that the plaintiff would owe a common law duty to
come to the vessel's aid in order to make the port safe
for
navigation, both for other shipping and for the owners of the
Cleopatra
Dream
and
her cargo. In this latter regard I refer to the remarks of Lord
Blackburn in the
The
Citos
quoted
above.
[36]
From a statutory perspective, in determining whether the plaintiff
acted outside its legal duty to the
Cleopatra
Dream,
and
thus the question of whether it rendered the services in question to
the vessel voluntarily or not, it is clearly material that
Saldanha
was a compulsory pilotage harbour, that the plaintiff's services were
at all times rendered within the area in which it
exercised its
jurisdiction as the port authority and that it was under a duty, in
terms of Regulation 22, to "provide all towing,
tug or other
floating craft services..." at the port. The vessel was under
pilotage when it fell into distress and it was the
pilot who
requested that the plaintiff provide tug assistance to the vessel at
a time when it was drifting without power towards
shallow water and
Jutten Island. In terms of article 10 of the first Schedule to the
SATS Act it remained "the
pilot's
function to navigate a ship in the harbour, to direct its movements
and to determine and control the movement of tugs assisting
the ship
under pilotage".
[37]
One can envisage circumstances where tug services rendered by the
plaintiff might well fall outside of its ordinary duties, for
example, where a vessel was in imminent danger of sinking or
grounding in the harbour and was not under pilotage or where the
provision
of such services would have entailed considerable danger to
the plaintiff's vessels or personnel. This was not such a case,
however.
The
Cleopatra
Dream
was
still under pilotage within the port precincts when it suffered
engine failure and even the somewhat leisurely pace of assistance
provided by the plaintiff was sufficient to secure the vessel which
appeared never to have been in any imminent danger of grounding.
Bearing in mind the onus resting on the plaintiff, there is
furthermore, in my view, nothing in the stated or admitted facts in
the
way of action taken by the plaintiff which suggests that the
services rendered by the plaintiff went substantially beyond the
scope
of the duties which it bore.
[38]
Taking all these factors into account as well as the operative legal
framework, I conclude that the plaintiff rendered therelevant
services to the
Cleopatra
Dream
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.
CONVERSION
OF A CONTRACT OF PILOTAGE TO SALVAGE
[39]
The plaintiff's claim may also be approached from the perspective
that it became entitled to a salvage reward upon conversion
of a
contract of pilotage into one of salvage. The circumstances in which
a pilot is entitled to recover salvage are governed by
principles
which are the same as or very similar to those applying when a tug
towing a ship under a towage contract may recover salvage.
In
The
Aldora
Brandon
J held:
"The
general principle governing claims for salvage by a pilot engaged to
pilot a ship, or by tugs engaged to render towage services
to her, is
that they are only entitled to claim salvage if, first, the ship is
in danger by reason of circumstances which could not
reasonably have
been contemplated by the parties when the engagement to pilot or tow
was made, and, secondly, risks are run, or responsibilities
undertaken, or duties performed, which could not reasonably be
regarded as being within the scope of such engagements."
[40]
The same point is made in the following passage in Kennedy
(supra)
at page 592:
"The
courts
have long been reluctant to recognise in cases before them that
pilots have performed salvage services. Thus, Sir Boyd Merriman
P,
said in
The
Luigi Accame
:
' regard it as of the utmost importance to the seafaring community in
general that there should be no temptation to pilots to convert
their
ordinary pilotage duties, or the normal hazards which may arise in
the course of performing their ordinary pilotage duties,
into salvage
services...'"
.
[41]
I do not consider that the plaintiff's case is much strengthened
by
its reliance on the ruling in
The
Mancheste
r.
In that case the
court
allowed the conversion of services from towage to salvage
in
the light of the wording of the port authority's contract and
the
provisions of the Merchant Shipping Act, 57 of 1957 which
entitled
a person rendering assistance to a ship "in distress" to a
salvage
award. The court's finding that the
Manchester
was
in
distress
and that her saviours were thus salvors has been called
into
question on the basis that the port authority's towage
obligation
probably encompassed its actions in saving the
vessel.
The decision in
The
Manchester
is
difficult to reconcile
with
that in
The
J.W. Sauer
where, at page 443 - 444, the
following
dictum of English law was approved by Gardiner JP:
"In
accordance with this just principle of rewarding only volunteers as
salvors, neither the crew nor the pilotnavigating the
ship nor the
owner or the crew of the tug towing it under a contract of towage ...
are ordinarily held entitled to obtain salvage
reward in respect of
the services rendered by them in the preservation of the ship herself
or of the lives or the cargo which she
carries; for all of these
persons are under a pre-existing obligation to work in their
respective ways for the benefit of the life
and property at risk; and
the like disability rests upon government officials, however valuable
their assistance may be, so long
as they are acting only within the
lines of their official duty" ..." I do not think that
claims are to be encouraged where
the services merely consist in
using the vessels in which the claimants are engaged, without any
personal risk and without the necessity
for displaying any special
skill or the rendering of any great or courageous service - where, in
other words, the work done in connection
with the salvage services by
the officers and crews of these ships is no harder and involves no
more risk than the work in which
they would ordinarily be engaged."
[42]
The remarks of Dr. Lushington in
The
Rosehaugh
(1854)
1 Spinks
267,
268
are apposite:
"(T)here
is a striking difference between a person possessed of such monopoly
(of pilotage), and entitled to charge a given sum
(which is fixed on
the ground of its being a monopoly), and a person voluntarily
performing a duty, whether a pilotage or a salvage
service, because
the latter has a right to exercise his own judgment as to whether he
will go out on the service or not, and may
then demand a fair
remuneration for whatever he does. It might happen that mere pilotage
pay would be no reward at all to a person
who goes out under these
circumstances...".
[43]
In the present matter by the time the pilot called for tug assistance
the very reason for him doing so could only have been that
the
Cleopatra
Dream
was
without power and was drifting. Accepting that the vessel was in
danger when it lostpower and further that the pilot could not
reasonably have anticipated that the vessel would lose all power, I
nonetheless do not consider that the action taken by the pilot
in
summonsing tug assistance and remaining with the vessel until it was
towed to a safe place of anchorage and until power was restored,
were
risks run, responsibilities undertaken or duties performed which
could not reasonably be regarded as being within the scope
of his
duties as a pilot.
There
is thus no room for any finding that in the circumstances of this
matter a contract of towage was converted to one of salvage.
IS
THE PLAINTIFF ENTITLED TO A SALVAGE REWARD BY REASON
OF
THE PROVISIONS OF THE SALVAGE CONVENTION AND
CLAUSE
4.3 OF THE TARIFF BOOK?
[44]
Clause 4.3 of the Tariff Book, which was in force at the relevant
time, provided under the heading: "Craft Involved In Salvage"
as follows:
""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 constitutes salvage."
[45]
Relying on the decision in
The
Manchester
it
was contended on behalf of the plaintiff that even if it should be
found that the salvage services rendered to the
Cleopatra
Dream
were
not voluntary, the relevant clause of the tariff book constituted an
agreement between the parties to the effect that the plaintiff
would
be entitled to a salvage reward if it rendered salvage services to a
ship in distress. However, quite apart from the difficulty
of
elevating a regulation in a tariff book to a substantive contract,
upholding this contention would amount to the tail wagging
the dog.
The regulation providing that the plaintiff may claim a salvage
reward if the services rendered constitute salvage takes
its claim no
further since the regulation itself does no more than restate the
existing legal position. Standing alone it cannot
negate an essential
element of a successful salvage claim, namely the voluntary nature of
the services rendered.
[46]
Inasmuch as it was argued that a contract of salvage arose, I have
already indicated why, on the facts there can, in my view,
be no
question of a contract of pilotage having been converted into one of
salvage. In any event the onus of proving the existence
of such a
contract lay with the plaintiff. Bearing in mind that the call for
tug assistance came from the pilot and the absence of
any evidence of
any communication between the ship's master and the port authorities
regarding the terms upon which the assistance
would be rendered,
there is no basis for a finding that a contract of salvage was
concluded.
[47]
In terms of
section 2(1)
of the
Wreck and Salvage Act, the
Salvage
Convention has the force of law and applies in South Africa. Article
5 of the Convention provides as follows:
""Salvage
Operations Controlled by Public Authorities
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."
[48]
Article 12 provides that salvage operations which have had a useful
result give right to a reward, whilst article 13 stipulates
the
criteria to be considered in fixing the salvage reward. Finally,
article 17 provides that:
""Services
Rendered Under Existing Contracts 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."
[49]
The plaintiff's case is that, upon a proper interpretation of
articles 5, 12, 13 and 17 of the Convention, the right of a public
authority to salvage reward is not dependent upon whether a salvage
operation was carried out voluntarily or in the performance of
a
statutory or common law duty; in terms of article 12 in order to
qualify for a reward one need only show that there was a salvage
operation as defined in the Convention which had a useful result. On
behalf of the plaintiff, Mr. Fitzgerald submitted further that
inasmuch as there is no express reference to the principle of
voluntariness in article 12, to the extent that voluntariness remains
an essential element of a salvage operation, article 17 restricts it
to circumstances where a salvage operation is performed under
the
terms of an existing contract. Since there was no suggestion by the
defendants that the salvage operation was performed by the
plaintiff
pursuant to an existing contract, the non-voluntary nature of the
plaintiff's services do not deprive it of a salvage reward.
[50]
I should firstly observe that the Convention must be read as a whole
and all the articles given their due weight. It is unhelpful,
therefore, to disregard those articles of the Convention dealing
directly with an issue and to focus on other articles not directly
addressing that issue for indirect support for a particular
interpretation.
[51]
Central to the plaintiff's argument is the far-reaching proposition
that the requirement of voluntariness as an element of a
successful
salvage claim has been completely or largely removed by the terms of
the Convention. However, the provisions of article
5(1) and 5(3) in
themselves are clear and strongly suggest no substantive change to
the existing law of salvage where the salvage
operations are
conducted by or under the control of a public authority. Article 5(1)
provides that the Convention does not affect
any provision of a
national law or any international convention relating thereto. There
is no other convention relating to salvage
operations which is
applicable and accordingly in order to determine whether a public
authority carrying out salvage operations is
entitled to a salvage
reward, regard must be had to the South African law, which is English
law as of 1 November 1983 unless in conflict
with the
Wreck and
Salvage Act or
the Convention. Article 5(3) more pointedly focuses
upon the extent to which a public authority "under a duty"
to perform
salvage operations may avail itself of the rights and
remedies provided in the Convention. It stipulates that this question
is to
be determined by the law of the state where such authority is
situated. These two sub-articles are thus powerful indications that
the Convention does not purport to change existing national law in
these respects.
[52]
It is article 5(2), an apparent qualification of article 5(1),
which
throws
up problems of interpretation. On its face it seems to
contradict
article 5(1) when it states that salvors carrying out
salvage
operations shall be entitled to the rights and remedies
provided
in the Convention, notwithstanding that article 5(1)
states
that the Convention does not disturb any provisions of
national
law or any other international convention. Commenting
generally
on the Convention the authors of Brice
state as
follows
at page 14 para 1 - 39:
"
It
may be that lawyers, tribunals and others will at times be perplexed
when seeking to find the true intent of the London Salvage
Convention
1989 and by an apparent lack of clarity in some respects. This
obscurity arises from the circumstances in which the Convention
was
discussed and constantly re-drafted."
[53]
Kennedy
5
states that the effect of the Salvage Convention on the Admiralty
rule is unclear by reason of the inconsistency of the language
of
article 5. One way the authors offer to reconcile these provisions is
to construe the combined effects of the different parts
of article 5
as laying down a general rule limiting the impact of the Convention
on the general law relating to salvage operations
by or under the
control of public authorities, subject however to a
prima
facie
right
by persons conducting salvage operations to recover salvage. That
right is displaced if there is an existing or pre-Convention
rule
denying such recovery to public authorities with the duty to perform
salvage operations. The authors state that this interpretation
"has
the attraction of familiarity and is
'perhaps
the one most likely to be adopted by an English tribunal'".
[54]
On behalf of the defendants, Mr. Wragge relied on Brice's
6
view that article 5 was enacted to prevent intervention by public
authorities being used as an argument for depriving private salvors
of their right to salvage. Seen from this perspective article 5(2) is
in harmony with article 5(1) which leaves the right of a public
authority to a salvage reward to be determined by the relevant
national law. In support of this view Mr. Wragge referred to a report
prepared by the
Comite
Maritime International,
the
drafters of the Convention, which report was submitted to the
International
Maritime Organisation together with the draft Convention preceding
its eventual adoption by that body.
[55]
By virtue of the provisions of
section 2(5)
of the
Wreck and
Salvage
Act, in
interpreting the Convention a South African court
or
tribunal is given the liberty to "consider the preparatory texts
to
the Convention, decisions of foreign courts and any
publication".
I consider the CMI report to be a valuable guide to
the
interpretation to the Convention and falling within the class
of
material which a court may consider. In that report the
purpose
of Article 5(2) is described as follows:
"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
following further comments in the report regarding Articles
5(1)
and 5(2), respec tively, are relevant:
""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."
and:
"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."
[56]
Furthermore, in the CMI report the purpose of article 17, which
prescribes
that no salvage reward is payable for services
rendered
in terms of those reasonably envisaged in a contract, is
described
as follows:
"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."
[57]
In support of his contention that the Convention had in effect
reversed the pre-Convention position regarding the entitlement
of
public authorities engaged in salvage operations to reward,
plaintiff's counsel cited the view expressed in Hare that the
Convention
"
would
allow the non voluntary salvor who performs the salvage operation,
and complies with the other requirements of the Convention,
to claim
salvage notwithstanding the existence of a pre-existing duty".
Hare's
view, however, is not supported by any other authority or writer and,
inasmuch as it is called into service in respect of salvage
operations carried out by public authorities, is contrary to the
provisions of articles 5(1) and (3) of the Convention and South
African national law. Mr.
Wragge
submitted, correctly in my view, that had the drafters of the
Convention 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.
[58]
In
The
Mbashi
the
Court held that the Convention does not detract from the existing law
relating to salvage services rendered by a public authority.
Referring to the principle that an essential ingredient of the
salvor's right to claim salvage is that the service he renders must
be a voluntary one, Levinsohn J concluded that:
"On
a
proper interpretation of the Convention, nothing that is stated
therein derogates from the aforesaid requirement".
[59]
In my view article 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.
As I have
indicated, in my judgment, applying that law to the facts of this
matter the plaintiff has no entitlement to a salvage
reward.
[60]
For these reasons I consider that the second stated question, namely,
whether, assuming that the salvage operation was carried
out in the
performance of a statutory and/or common law duty, the plaintiff is
nonetheless entitled to a reward by virtue of the
provisions of the
salvage Convention and clause 4.3 of the Tariff Book, must be
answered in the negative.
[61]
Both stated questions having been answered in favour of the
defendants, the customary costs order must follow. In the result
the
plaintiff's claim-is dismissed with costs.
L
J BOZALEK, J
JUDGE
OF THE HIGH COURT
1
MVMbashl TransnetLtdvMVMbashlandOthers 2002 (3) SA 217 (D &
CLD) at 224 B-C.
MVMbashl TransnetLtdvMVMbashlandOthers 2002 (3) SA 217 (D &
CLD) at 224 B-C.
2
FD Rose Kennedy and Rose, the Law of Salvage 6th Edition (2002) at
para 16.
FD Rose Kennedy and Rose, the Law of Salvage 6th Edition (2002) at
para 16.
3
The Citos (1925) 22 Lloyd's Rep 275.
The Citos (1925) 22 Lloyd's Rep 275.,
4
The Gregerso [1971] 1 Lloyd's Rep 220.
The Gregerso [1971] 1 Lloyd's Rep 220.,
5
Kennedy et al supra at para 553.
Kennedy et al supra at para 553.
6
Brice supra at para 1-213.
Brice supra at para 1-213.