Signs of change for outdated pollution law

South Africa has slumped behind the rest of the world on implementing new shipping regulations by up to 30 years, but things appear to be rapidly changing, according to three of the country’s prominent maritime lawyers. The accusation of tardiness in this country amending its various shipping acts to comply with the latest international conventions came from the current president of the Maritime Law Association (MLA), Malcolm Hartwell, director of Norton Rose Fulbright, and two of his predecessors in the MLA chair, Andrew Robinson, director of Norton Rose Fulbright and Andrew Pike, director of Velden Pike Nichols Incorporated. Just one example of the delays, according to Hartwell, relates to two conventions – the Fund Convention and the Civil Liabilities Convention. “The Civil Liabilities legislation makes oil tanker shipowners liable for any pollution clean-up costs that occur,” he told FTW – adding that they do this, in turn, by making capacity-based annual contribution payments to the London-based Fund. “Then,” Hartwell added, “any authorities which have to clean up can claim up to approximately US$3 billion from the Fund to cover the cost.” But, with SA not yet having changed its local legislation to comply with the convention rulings, if a major spill occurred here, this country would only be able to recover up to US$200m from the shipowners. “With the passing of the appropriate legislation however, we’d be able to claim billions, not millions. And this legislation has been lying around for 210 years,” said Hartwell. Since SA acceded to the 1992 conventions in 2004, the MLA has been pushing for this change. “Eventually, it went through the parliamentary stages last year,” said Hartwell. “But they still have not been signed into law.” An even older scenario is the Merchant Shipping Act No. 57 of 1951. Part of this is related to the construction of ships. Although the regulations were only promulgated many years after the Act was passed, the regulations have not been amended and brought up to date for 30 years, according to Hartwell. But another part of that same act is currently on the amendment trail. Cabinet has just approved that the Merchant Shipping Amendment Bill, 2014, be tabled in Parliament. This bill aims to amend that 1951 Act, which predates the Constitution, 1996. This, said the Cabinet, “making it imperative to align with the values and provisions of the Constitution and also to align with current international conventions” – effectively the Maritime Labour Convention 2006 and the Work in Fishing Convention 2007. “Whilst it is both important and necessary to do so, not least to align with international best practice for seafarers, one has to ask why it has taken seven or eight years to get this far and it is still not law in SA,” said Pike – who had fought for this during his turn term in the MLA chair. “The bill in its own right appears to be a good piece of legislation, but is symptomatic of major delays with maritime legislation in the department of transport.” But things may be on the mend, according to Robinson. “While with the MLA as president,” he told FTW, “we vigorously pressed for the government to try to accelerate its implementation of maritime legislation. And the signs are that there does appear to be accelerated action by the department of transport and the SA Maritime Safety Association (Samsa).” Confirming this, Hartwell told FTW that the United Nations’ International Maritime Organisation (IMO) had appointed consultants to help shut the department of transport with the maritime legislation issues. “We (MLA) meet every two months in Pretoria with the government committee tasked with maritime matters. And they have become much more energised recently. “I welcome this as it’s a good thing, and should have been done years ago.” INSERT & CAPTION The International Martime Organisation has appointed consultants to help out the department of transport with maritime legislation issues. – Malcolm Hartwell