Maputo legal battle a lesson for all ports

A legal battle in Maputo involving a ship that touched bottom could have some significance for Transnet National Ports Authority and the Port of Durban where similar situations have been reported. In the Mozambican case, the vessel’s charterers were suing the Maputo port authorities for declaring a false water depth alongside a port berth. SA maritime law specialists, Bowman Gilfillan, represented the charterers of the MV Dubai Sun, a vessel that touched the bottom of Berth 15 at the port of Maputo during loading of a cargo of chrome. “As a result, loading was delayed,” Andrew Pike, partner in the shipping and logistics practice of Bowman Gilfillan, told FTW. “The vessel had to leave the berth, move outside the port and could not return until about a week later when additional fenders were placed on the quayside to push the vessel out into deeper water.” So the charterers claimed damages from the port authority, Maputo Port Development Corporation (MPDC), arising out of the additional charter hire which had to be paid to the owners of the vessel during the delay period, together with all of the port and underwater inspection costs they incurred. “The basis of the claim against MPDC was that they had made a negligent and false representation about the berth depth by publishing a particular water depth in the berth and confirming that it was safe for the vessel to load at the berth to the draught Maputo legal battle a lesson for all ports advised to MPDC by the vessel’s agents,” Pike said. As it transpired, the water depth was significantly less than that published by MPDC and the vessel was unable to load safely, touching the bottom of the berth before completion of loading and taking a two degree list. And the charterers were successful in their claim against MPDC in the Maputo high court. Said Pike: “The judge found that MPDC was responsible in terms of its concession agreement for the dredging of the berths and maintenance of their depths, even though dredging was sub-contracted to a third party. “By making the misrepresentation about the berth depth at a time when it was responsible for maintaining the berth depths, it brought about the losses suffered by the charterers as they relied on the misrepresentation to their detriment.” Pike added that there was something particularly heartening about the decision. “This,” he said, “was to note the independence of the Mozambique court and its willingness to give a judgment in favour of a foreign entity against a partially state-owned local entity. “More importantly, this judgment may have some other implications for MPDC given the recent spate of groundings at both the berth and in the channel of various vessels.” At the same time, this judgment may also have some implications for Transnet National Ports Authority (TNPA) – the landlords of the Port of Durban. That port has always enjoyed a reputation of being a safe haven. But it has suffered from a disastrous recent history of a number of vessels touching bottom. And these, like the Maputo case, were because actual depths were less than charted depths. One ship grounding is very bad. Two grounding is even worse. Three is disastrous. But four? That number of ships in grounding incidents in just over two months at the Port of Durban screams out “unsafe”. And they unfortunately gained Durban the title of an unsafe port from both local and foreign master mariners and line executives. This spate of groundings should be of major concern to ship owners and charterers alike, according to Pike. “As I’m sure you know,” he told FTW, “almost every charter party has a safe port/safe berth warranty. This is where the charterer gives a warranty to the owner of the ship that the port at which it directs a vessel to call and the berth at which the vessel is required to dock is prospectively safe.” As a result, the series of groundings, some of which showed signs of TNPA’s declared charted depths being wrong, put the harbour authorities in a very shaky legal position. The TNPA told FTW that they had conducted emergency dredging “to get areas back to design depth” and the Port of Durban had been “authorised to exceed the current dredging budget to attend to all urgent/additional dredging in the port”, and “more frequent soundings are being done”.