Browsing by Author "Wallis, Malcolm John David."

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The associated ship and South African admiralty jurisdiction.
(2010) Wallis, Malcolm John David.; Staniland, Hilton.
The associated ship and the jurisdiction to arrest such a ship created in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 is a unique legal institution in the world of maritime law and jurisdiction. The sister ship arrest envisaged by the Arrest Convention, 1952 is encompassed by the associated ship but the concept of an associated ship goes considerably further than the sister ship in going behind the separate corporate personality of ship-owning companies to their controlling interests and, on the basis of common control, providing that ships are associated. This status subjects them to arrest both in order to obtain security for court proceedings or arbitration, usually elsewhere than in South Africa, and arrest in actions in rem against the associated ship. This is in respect of claims arising in respect of other vessels in separate ownership. Although tentative consideration was given to a similar innovation when the Australian Law Commission undertook a review of admiralty law in Australia their legislation is confined to a surrogate ship arrest substantially along the lines of the sister ship arrest of the Arrest Convention. A proposal to introduce a similar institution by way of the revision of the Arrest Convention has not yet resulted in anything similar being introduced elsewhere. In South African maritime practice the associated ship jurisdiction has proved to be an important innovation, especially in conjunction with the power to arrest a ship for the purpose of obtaining security for proceedings in a foreign court or arbitration tribunal, and a substantial amount of maritime work involves associated ships. As an institution it has not hitherto been subjected to close scrutiny and the overall purpose of this work is to do that. It takes as a starting point the revision of South African admiralty procedure and jurisdiction leading to the enactment of the Admiralty Jurisdiction Regulation Act and the introduction of the associated ship. This task has been undertaken against the background of the general development of maritime law, the attachment ad fundandam et confirmandam jurisdictionem under the Roman Dutch common law of South Africa and the action in rem available in South Africa under the Colonial Courts of Admiralty Act 1890. The study reveals the common roots of these institutions in the Roman Law and the practice in maritime courts around Europe from the Middle Ages onwards and forms a part of the foundation for the proposition in the final analysis that South Africa has created an institution that is distinct from the English action in rem and having its own particular features derived from both its English and Roman Dutch forebears. The central analysis explores from a critical standpoint the justifications advanced at the time for the introduction of the associated ship jurisdiction and finds these wanting notwithstanding that they have tended to linger in statements in the judgments of the courts. Instead a policy-based justification is advanced that it is submitted provides a proper justification for the associated ship jurisdiction in the South African context. Being based upon policy considerations it is not suggested that this justification is universally applicable or demands the same response from all nations, as each will be influenced by different factors depending on the nature of the maritime interests of the country considering such an institution. This is likely to hamper attempts to obtain international agreement on a similar jurisdiction to arrest vessels going beyond the provisions of the Arrest Convention. In the light of the suggested justification of the associated ship jurisdiction the Act itself is analysed and various difficulties of interpretation are addressed. These include a critical analysis of certain controversial decisions and a consideration of the constitutional implications of the associated ship. Finally the different threads are brought together in an analysis of the nature and consequences of the arrest of an associated ship and the action in rem against the associated ship. The fact that the jurisdiction has been harnessed to two distinct purposes having entirely different features is highlighted. Although maritime law always has a significant international dimension the fact that the associated ship is a uniquely South African institution means that the analysis is largely driven by the underlying principles of South African law and principles. The view is taken that the statute is a South African statute governing matters of the jurisdiction of South African courts and as such falls to be construed in the light of South African legal principles. The too ready resort on questions of interpretation (as opposed to substantive law where it is mandated as being the
Development of the South African coastal shipping policy: the prospect of maritime cabotage.
(2020) Dlamini, Langa Hewitt.; Jones, Trevor Brian.; Wallis, Malcolm John David.
The Comprehensive Maritime Transport Policy (CMTP) provides the official policy position on maritime issues in South Africa since 2017. It covers a variety of maritime matters relating to shipping conduct on the coast and offshore and extends to the utilisation of landside resources. However, this work evaluates policy provisions pertaining only to coastal shipping and in particular to cabotage. Cabotage refers to the rights a coastal state reserves for itself to trade vessels of its choice between ports along its coast. The CMTP states cabotage as the official coastal shipping policy in South Africa for the first time in over a century-and-a-half of coastal shipping. However, the CMTP does not state the manner in which cabotage will apply. In fact, some of its ambitions seem impractical. Through a thorough historical account, the thesis sheds light on why cabotage has never been adopted in South Africa. It also gives the rationale for abandoning in 2017 the laissez-faire position that had existed over many decades. Given that cabotage presents itself in different forms, the thesis provides an overview of the various cabotage forms by reference to a sample of comparable jurisdictions. It then asks the question: what is the prospect of South African cabotage in light of the continental and international cabotage practice scope? The question directs focus to three issues: the meaning of cabotage; the scope of its application; and the comparative measure for its application. The analysis gleans the likely direction for cabotage implementation from the CMTP and other instruments despite anomalies that exist between what the CMTP sets out to achieve and the proposed legal framework for its implementation. The conclusion is that, given the dearth of shipping capacity in South Africa, coastal trade dependence on feeder cargo and imbalanced cargo trades, the country’s only proper option, when cabotage is adopted, is liberal cabotage. It should be implemented without comparing South Africa to other jurisdictions but must be founded on its own merits and that such should show a ready source of cargo.
An examination of the application of the Sea Transport Documents Act 65 of 2000 to title to sue under contracts of carriage evidenced by sea waybills and straight bills of lading.
(2013) Donnelly, Dusty-Lee.; Wallis, Malcolm John David.
The Sea Transport Documents Act, 65 of 2000, was a remedial statute intended to provide a solution to the problem of title to sue under the contract of carriage evidenced by sea transport documents. At common law a contract of carriage is not transferable. The contract of carriage is ordinarily concluded between the shipper and the carrier. The consignee lacks title to sue yet in terms of international sale contracts on C.I.F and F.O.B terms the consignee would be the person who stood to suffer the loss as risk in the goods passes from seller to buyer when the goods are loaded on board at the port of shipment. The Act provides a mechanism to transfer the contractual rights and liabilities with the transfer of the sea transport document. However section 2(2) restricts the application of the relevant provisions to documents that are ‘transferable or negotiable’. By custom of merchants bills of lading made out ‘to order’, and bearer bills of lading, are transferable and negotiable. However, straight bills of lading and sea waybills are made out to a named consignee only. These modern forms of sea transport document are increasingly popular and offer many advantages to traders and ocean carriers. Yet they are both regarded as non-negotiable. The dissertation examines the interpretation of the terms ‘transferable’ and ‘negotiable’ as they came to be applied to both negotiable instruments and bills of lading, and considers current academic and judicial opinion on the meaning of these terms. The provisions of the Sea Transport Documents Act are analysed, and compared to the remedies provided in the Carriage of Goods by Sea Act, 1992 (United Kingdom), similar legislation in other commonwealth countries and the law in the United States and Europe. Finally alternative means of establishing title to sue, including the stipulatio alteri, are considered.