What about the rights of other cargo interests aboard arms ship?

IN THE on-going saga of the An Yue Jiang – the Chinese ship allegedly carrying arms
for Zimbabwe – there are still a number of unanswered questions, according to
maritime legal specialist
Andrew Robinson of Deneys Reitz.
She upped anchor and sailed from Durban’s outer
anchorage on Friday, April 14, slipping off to sea before a loudly-proclaimed arrest
warrant for the Zimbabwe cargo could be served on the ship’s master.
Behind this mystery lies a primary question, according to Robinson.
“What about the rights of other cargo interests who properly expected their cargo
to be discharged in Durban as
per their contracts of carriage
with the carrier, Cosco?” he asked.
“For example, I understand from a reliable source that there was cargo on board that
was needed desperately by the
mining industry – and it would
be interesting to see what
defences Cosco would have to
any such claims.” Not too many, if any, he
added. “It’s an unlawful deviation
under common law,” Robinson told FTW.
“The carrier cannot rely on the defence of “delay in delivery” in circumstances
where the carrier is responsible for the delay.
“Instead the carrier will have to answer to claims based on its unreasonable deviation
– in which circumstances they may have no defences at all.” The Cosco reaction – and
the ship disappearing to parts
unknown – also appeared to be an over-reaction, in Robinson’s thinking.
“What Cosco should have done,” he said, “was berth and discharge the cargo. After all,
there was no claim against the ship, only against certain cargo on board the ship.”
FTW has been unable to get any answer to this
question. Despite much telephonic legwork, the senior management at Cosren
– the SA ships' agents for the Chinese ship owner – were unavailable for comment.
Meanwhile, Robinson also queried the loud noise that accompanied the court action
preceding the An Yue Jiang’s departure.
“Why did the applicants go to such lengths to advertise their impending application?”
he asked. “Rule number one when
bringing an application relating to any ship (or cargo or bunkers) which is not
in harbour, is to keep your intentions to yourself,” he
said. “If a ship is in the roads
it can slip anchor very quickly and head directly for the 12-nautical mile edge of the
Territorial Sea, and beyond the court's jurisdiction.”
Speaking from extensive experience, he suggested that the answer to this problem was to very quietly get your legal paperwork into order,
and wait for the ship to enter harbour.
“Once a ship has berthed,”
Robinson said, “the cargo will be discharged and is unlikely to be moved in any great hurry.
And, if it is the ship you are looking to arrest or attach, the ship can only sail with the
permission of the port captain and the use of tugs.”