Lack of clarity over critical regulations governing South Africa’s maritime industry – thanks to government stalling on the update of the Merchant Shipping Act (MSA) – has raised serious concerns among industry players. Described as “a huge piece of legislation” that has been in existence since 1951 and has been altered so many times it is “unrecognisable”, the MSA has left South Africa without adequately updated legislation to govern the local shipping industry, a master mariner has told FTW. More importantly, whereas commendable work went into last year’s Draft Merchant Shipping Bill aimed at amending the MSA, crucial regulations remain absent without which the bill can’t be passed into an act, says Malcolm
Hartwell, director at law firm Norton Rose Fulbright. Some of the regulations he highlighted – and apparently there are at least 25 important sets of regulations that either remain to be drafted or revealed to industry – address a number of vital aspects such as legal liability limitations, the safeguarding of mariners, the construction of ships and the regulation of vessel behaviour off ports. “If these have indeed been drafted industry hasn’t been consulted yet and there’s been no opportunity to comment on them.” Focusing on the positive, Hartwell noted that government had been “trying very hard to bring out a new version of the MSA for years in a bid to try and align our law with modern trading partners but for various reasons it has been stalling”. He added that when the bill had initially been brought out last year the immediate response had been good in that the bill had clearly served to address technical and social issue changes around shipping and the work place. “Unfortunately nothing has happened since then and no one in industry seems to know when we might be hearing about the necessary
draft regulations that will enable the bill to become an act.” Providing some context about what is generally referred to as “a complex piece of legislation”, Hartwell said that when the MSA had initially been promulgated it had comprehensively tried to govern every aspect of the shipping industry, down to recommending the kind of mattresses mariners should use. “But the world has dramatically changed since 1951 so what has happened is that bits and pieces of the act have been cut out and moved to other pieces of legislation that deal with things like pollution, tonnage limitations and the registration of ships.” From a structural point of view, he explained, it had left the bill hamstrung “because they have moved all the technical stuff into regulations that have either not been drafted or shared with industry”. Had these regulations been drafted it begs the obvious question why industry remains in the dark. Either way, it means that maritime lawyers are stuck with “a messy piece of legislation that has been around for 60 years and has all these missing pieces to it that you now have to go look for somewhere else”.
CAPTION: We were well on our way when the draft bill came out but we seem to have stopped halfway. – Malcolm Hartwell
