Doctoral Degrees (Maritime Law)
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Item Piracy jure gentium in territorial seas: a perspective from the East African seaboard.(2018) Surbun, Vishal.; Swanepoel, Paul Arthur Albertus.The brazen acts of Somali pirates against international shipping transiting through the Gulf of Aden and around the Horn of Africa drew global media attention between 2006 and 2012. As a countermeasure, foreign and international naval resources were deployed to the region in an attempt to interdict the perpetrators and prevent further acts, particularly because Somalia possessed no capacity to police the waters adjacent to its coast. States are granted universal jurisdiction over acts of piracy committed on the high seas or exclusive economic zones of coastal states in terms of the United Nations Convention on the Law of the Sea (UNCLOS). However, the perpetrators often committed similar piratical attacks in the territorial sea or found refuge in the territorial sea after descent from the high seas. The universal jurisdiction conferred by UNCLOS on all states does not apply in the territorial sea, where the coastal state exercise exclusive and sovereign jurisdiction. To circumvent this, the United Nations Security Council passed a series of resolutions authorising foreign naval intervention in the territorial sea. Some piratical acts could fall outside the geographical and temporal limitations of the resolutions and the study accordingly proposes the need for a permanent and binding universal enforcement regime which would extend into territorial seas in specified circumstances. The study considers two approaches to achieve this. The first approach suggests a modification of the UNCLOS provisions to extend the universal enforcement jurisdiction granted under article 105 into territorial seas. The details and procedure of such modification is set out in the study. However, it will be shown how states are protective of their sovereign rights over their respective territorial sea and their preference to maintain the current UNCLOS regime. Thus attempts to modify UNCLOS would be adversely perceived by states as an erosion of sovereign rights and would be unlikely to be adopted. A contribution of the study is to challenge this perception of states regarding the erosion of their sovereign rights over the territorial sea. The study will reveal through an exegesis and revisit of legal scholarship and juridical doctrine that the notion of absolute and exclusive sovereignty is built upon a hollow historical foundation and there is an evolving contemporary jurisprudence to suggest an erosion of traditional concepts of maritime sovereignty. The second approach turns to the east African seaboard and reveals from a continental perspective that there is a movement away from these traditional notions of sovereignty in the direction of the facilitation of international and regional cooperation, collaboration, intervention and pooling of resources in respect of maritime security. Against this background the second approach in this study proposes a model which is complementary to the existing UNCLOS regime and has a permanent and wide geographical application. Under this model, the role of the African Union to intervene in member states is highlighted. The proposed model facilitates the exercise of universal enforcement jurisdiction over piratical acts committed in the territorial sea by descent from the high seas or exclusive economic zone. This special jurisdiction is exercised under specified circumstances under the aegis of the African Union and through its institutional framework, particularly the African Standby Force and Continental Early Warning System.Item Abandonment in marine insurance law : an historical comparative study.(1996) Marnewick, Christiaan Georg.; Staniland, Hilton.This study follows upon an LLM thesis in which the writer submitted that South African marine insurance law should be allowed to develop by way of a codification process which co-ordinates research of the principles of Roman-Dutch law . Abandonment is defined as a special remedy available to the assured under a marine insurance policy in in special circumstances. It is related to the indemnity principle and subrogation and , operates as a method of transferring real rights. The reasons for the research are examined and the historical-comparative method is proposed as the appropriate rearch method. An historical review of the origins and early history of indemnity insurance is undertaken . It reveals that abandonment is an original institution of marine insurance which has been imported into to the legal systems of the countries of western Europe and England . After recounting the historical developments in customary and statute law pertaining to abandonment spanning the period from the birth of marine insurance to the end of the eighteenth century, the principles of abandonment currently applicable in Dutch, German, French, English and American law are analyzed and compared in order to determine what the basic rules of abandonment are. In this process certain common principles of abandonment are identified and arranged into a set of basic rules. The theoretical implications of abandonment and its relationship with the indemnity principle and subrogation are considered in order to arrive at some conclusions with regard to the origins of abandonment, its functions as a servant of the indemnity principle and its links with economic loss as a species of indemnifiable loss. It is concluded that the purpose of abandonment is to compensate for a loss which is wholly or partially economic in nature. Abandonment as a means of transferring real rights without formal delivery of the abandoned things is discussed against criticism by others that abandonment does not have the effect of transferring real rights in South African law. The development of abandonment principles in South Africa after 1652 is investigated against the background of the original customary law which applied in Europe, the local ordonnances which were promulgated in the towns of Holland between 1563 and 1744, the writings of the most important Roman-Dutch authors and developments in South African statute and case law. This allows the basic principles of abandonment in the law of the countries used for comparison and arrived at by the historical-comparative method to be compared to the principles of abandonment in the Roman-Dutch law of the seventeenth and eighteenth centuries and to current South African law. It is concluded that, whilst there are unimportant differences, the South African common law recognizes the same basic rules of abandonment as the classic Roman-Dutch law, recent Dutch law and current German, French, English and American law. In the- discussion of South African case law it is pointed out with reference to Roman- butch, English, French and Dutch authorities that an injustice has been done in the case of the 'Morning Star' . Three general recommendations are made with regard to the future development of South African law, namely that total loss should be recognized as a separate category of loss, that it is unnecessary to import the concept of a constructive total loss into South African law, and that the insurer should be allowed to decline receiving transfer of ownership of the abandoned ship or goods. The principles of abandonment are also stated on three different bases, allowing the South African legislature to choose its own model, namely: those which apply in South African law as the inherited Roman-Dutch principles; those which apply in English law, firstly as they applied prior to codification in 1906 and secondly as they now apply under the Marine Insurance Act 1906; and lastly those which the writer recommends should be taken up in a proposed South African marine insurance act . Case law is stated as at 31 December 1995. In the case of English law the wealth of material has made it necesary for the author to use his own discretion on the question whether any particular case or work was worthy of a mention .Item 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