IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

							CASE NO: AC 54 / 2004

In the matter between:
TRANSNET LIMITED t/a NATIONAL PORTS

versus

The cargo laden on board the

JUDGMENT   :   22 JANUARY 2010

BOZALEK J:

[1] The issue raised in this matter is whether a public authority is entitled to claim a reward for salvaging a vessel in distress. It is a vexed issue because a key element of a claim for such a reward is that the salvor's services must be voluntary and since public authorities involved in salvage actions often render their services under a common law or statutory duty, the voluntary nature of the services is negated and no award may be claimed.

[3] The parties agreed that liability would be determined through the stating of two questions of law and fact. They agreed further that the determination would be made on the basis of those averments not in issue on the pleadings, the documents referred to therein and the facts set out in a statement of agreed facts. That statement reads as follows:
1.	The plaintiff, Transnet Limited trading as the National Ports Authority, is a company vested with legal standing by virtue of section 3 of the Legal Succession to the South African Transport Services Act 9 of 1989 ("the SATS Act") and administers the port of Saldanha.
2.	The plaintiff is a public authority as contemplated by article 5 of the International Convention on Salvage of 1989.
3.	The first defendant is the MV "CLEOPATRA DREAM" ("the vessel") a bulk carrier of 75801,00 GRT having a length overall of 269 meters.
4.	The second defendant is a cargo of 146 670 MT of iron ore product that was loaded on board the vessel at the port of Saldanha during the period 31 March to 2 April 2004.
5.	The area in respect of which the plaintiff has jurisdiction in the port of Saldanha is described in the preamble to the Harbour Regulations published on 18 April 1982 ("the Harbour Regulations") which continue to be in force and are deemed to have been promulgated in terms of the SATS Act by reason of section 21 of that Act. A chart depicting the plaintiff's area of jurisdiction as regards the port of Saldanha Bay will be placed before the court at the hearing of this matter.
6.	The plaintiff is the entity that exercises control over the port of Saldanha and earns revenue from the services provided by it pursuant to the charges set out in the Tariff Book.
7.	Section 4.3 of the Tariff Book, which was in force at the relevant time, especially provided that: "CRAFT INVOLVED IN SALVAGE: Special conditions apply when services rendered constitute salvage. Transnet reserves the right to claim a reward for salvage if the services rendered to a ship in distress constitute salvage."
8.	The port of Saldanha is a compulsory pilotage harbour as described in section 10(1) of Schedule 1 to the SATS Act with the result that every ship entering, leaving or moving in the harbour is required to be navigated by a pilot who is an employee of the plaintiff, with the exception of ships that are exempt by statute or regulation.
9.	The vessel is not exempt from the requirements of section 10 of the Schedule.
10.	The plaintiff is the sole public authority lawfully operating tugs within the port of Saldanha.
11.	Regulation 22 of the Harbour Regulations states: "The Transport Services will, on application or when considered necessary, and subject to the discretion of the port captain and to any conditions which he may impose in the interest of safe, orderly and efficient harbour working, undertake work and provide all towage, tug or other floating craft services at harbours under the Transport Services' jurisdiction where such craft are maintained and are available".
12.	The vessel arrived in the port of Saldanha on 31 March 2004 and was berthed and loaded the cargo at the Saldanha side bulk ore loading terminal situated within the port.
13.	The vessel completed loading the cargo at approximately 02h50 on the morning of 2 April 2004.
14.	A sailing pilot was requested for 04h00.
15.	At approximately 03h54 pilot De Kock, an employee acting in the course and scope of his employment by the plaintiff, boarded the vessel while she was alongside.
16.	In accordance with section 10 of the Schedule:

16.1. It was the function of the pilot to navigate the vessel in the harbour, to direct its movements and to determine and control the movements of the tugs assisting the vessel whilst under pilotage.
16.2. It was the responsibility of the pilot to determine the number of tugs required for pilotage in consultation with the port captain.

17.	At approximately 04h00 the vessel commenced casting off the last of her mooring lines and at approximately 04h14 all lines were clear and on board.
18.	Shortly after 04h00 the plaintiff's tug "Jutten" made fast to the starboard bow of the vessel and, at approximately 04h20, cast off from the vessel before she had reached the navigation channels for departing ships.
19.	At 04h40, and within the limits of the port of Saldanha, the vessel experienced a power failure which resulted in the stoppage of her main engines.
20.	On the occurence of the vessel's main engine stoppage the pilot requested that the plaintiff provide tug assistance to the vessel.

22.Thereafter, and at approximately 06h18 to 06h28, the plaintiff's tug "Jutten" came alongside and commenced pushing the vessel's port bow.
23. At approximately 06h48 the second pilot, Captain Ahmed, boarded the vessel.
24. At approximately 07h05 - 07h20 the second tug operated by the plaintiff, the "Meeuw", came alongside and was made fast to the vessel.
25. At approximately 07h36 - 07h42 pilot De Kock left the vessel.
26. The vessel was towed to a place of safety within the port of Saldanha.
27. All of the events described above giving rise to the plaintiff's claims against the defendants occurred within the limits of the port of Saldanha as described in the Harbour Regulations.

[4]     The following further facts admitted by the defendants on the pleadings are relevant:
1. The "CLEOPATRA DREAM" is a ship as described in section 1 of the Wreck and Salvage Act 94 of 1996 ("the Wreck and Salvage Act") and in Article 1(b) of the International Convention on Salvage, 1989 ("the Convention") which is a Schedule to the Act.

2. The cargo laden on board the "CLEOPATRA DREAM" is "property" as described in Article 1(c) of the Convention.
3. In so far as the defendants are concerned, the services rendered by the plaintiff constituted a "salvage operation" as described in Article 1(a) of the Convention.
4. Until the tug "Jutten" made fast at 06h32, the "Cleopatra Dream" was in danger of grounding.
5. When the "Cleopatra Dream" suffered engine failure its crew was unable to provide or restore power to the vessel and until 10h20 she was unable to drop either of her anchors.

6. The "Cleopatra Dream" was towed to an anchorage position within the area of the port of Saldanha and the tugs "Jutten" and "Meeuw" stood by until the vessel let go of her starboard anchor at approximately 11h25.

[5] Notwithstanding the various admissions by the defendants, including that the services rendered by the plaintiff constituted a "salvage operation", they denied that the services gave rise to a salvage award in terms of the Wreck and Salvage Act, 94 of 1996 ("the Wreck and Salvage Act") and the 1989 International Convention on Salvage ("the Convention"), a Schedule to that Act, since, it was contended, they were rendered in the performance of a statutory and common law duty and were not voluntary. This in turn is denied by the plaintiff. The two questions of law and fact to be decided prior to and separately from the other matters in issue are the following:
[1] Whether the salvage operation carried out by the plaintiff in connection with the defendants was rendered voluntarily and not in the performance of a statutory and/or common law duty to perform the salvage operation in question.
[2] In the event of it being found the salvage operation was carried out in the performance of a statutory and/orcommon law duty, and accordingly not voluntarily (as pleaded by the defendants), whether the plaintiff is nonetheless entitled to a salvage reward by virtue of the provisions of the Salvage Convention and clause 4.3 of the Tariff Book.

THE APPLICABLE LAW

[6] Subject to any relevant local statute, English law as it existed on 1 November 1983 applies to salvage claims. This is so because immediately before the commencement of the Admiralty Jurisdiction Regulation Act 105 of 1983 ("the AJRA") the South African court of admiralty would have had jurisdiction to entertain a claim for salvage. The incorporation of English law is subject, however, in terms of section 6(2) of the AJRA, to the provisions of a local statute, namely, the Wreck and Salvage Act and/or the Convention. In the event of there being a conflict between English law on the one hand and the Wreck and Salvage Act and the Convention on the other, the latter must prevail. 

WAS THE SALVAGE OPERATION VOLUNTARY OR PURSUANT TO A STATUTORY OR COMMON LAW DUTY?

  

[11] It is appropriate to have regard firstly to the statutory and regulatory framework under which the plaintiff administers and operates the port of Saldanha. It does so pursuant to the provisions of the Legal Succession to the South African Transport Services Act 9 of 1989 ("the SATS Act") in which the "operating provisions" and "operating powers" applicable to the plaintiff are set out in articles 10 and 11 of Schedule 1 to the Act. In so far as it is relevant article 10 provides:
"1. The harbours of the Company are compulsory pilotage harbours with the result that every ship entering, leaving or moving in such a harbour shall be navigated by a pilot who is an employee of the Company, with the exception of ships that are exempt by statute or regulation.
2. It shall be the pilot's function to navigate a ship in the harbour, to direct its movements and to determine and control the movement of tugs assisting the ship under pilotage.
3. The pilot shall determine the number of tugs required for pilotage in consultation with the Port Captain, whose decision shall be final.
4. The master shall at all times remain in command of his ship and neither he nor any person under his command may, while the ship is under pilotage, in any way interfere with the navigation or movement of the ship or prevent the pilot from carrying out his duties except in the case of an emergency, where the master may intervene to preserve the safety of his ship, cargo or crew and take whatever action he deems necessary to avert the danger."

[12]   Also in force at the relevant time were the Harbour Regulations
promulgated in terms of section 73(1) of the South African
Transport Services Act 65 of 1981. Regulation 22 is relevant and
bears repeating:
"The Transport Services will, on application or when considered necessary, and subject to the discretion of the port captain and to any conditions which he may impose in the interests of safe, orderly and efficient harbour working, undertake work and provide all towage, tug or other floating craft services at harbours under the Transport Services' jurisdiction where such craft are maintained and are available".

[13] On behalf of the defendants, Mr. Wragge contended that, regard being had to this legislative and regulatory framework, the plaintiff, through its employees, the Port Captain and the pilot, had a statutory duty to provide tug services to the vessel whilst it was under pilotage so as to safely direct its movementswithin the port. However, Mr. Fitzgerald, who appeared for the plaintiff together with Mr. Cooke, took a different view of Regulation 22, contending that it was a general empowering provision which contemplated not salvage operations but the ordinary work of a port tug. In so far as it bestows a discretion on the Port Captain to provide towage or tug services, he submitted, this discretionary power could not simultaneously be deemed an obligation.

[17] Mr. Fitzgerald submitted further that Regulation 22 imposed no obligation upon the plaintiff inasmuch as it is not specifically concerned with the salving of vessels in distress. To give it such an interpretation, it was said, would compel the plaintiff to engage in perilous salvage operations, regardless of the circumstances. I do not regard Regulation 22 as creating an absolute obligation on the part of the plaintiff to mount a salvage operation within the area of its jurisdiction in all circumstances. The Port Captain retains a discretion as to the circumstances in which he will deploy the vessels at his disposal. The discretion would have to be exercised rationally and is subject to certain restraints such as the availability of an appropriate vessel. Other constraints can be readily imagined. The envisaged salvage exercise might be extremely perilous and have limited prospects of success. In such circumstances it would be difficult to contend that the port authority was burdened with an absolute obligation to provide the services necessary to salvage a vessel.

[18] In my view, bearing in mind that Saldanha is a compulsory pilotage harbour, it would be anomalous to construe Regulation 22 as affording the plaintiff, acting through the Port Captain, an unfettered discretion to decide whether or not it would provide towage, tug or other floating craft services to a vessel particularly where it is both under pilotage and in need of such services. Although dependent upon the precise circumstances obtaining, I consider that, viewed in its overall context, Regulation 22 imposes a general obligation upon the plaintiff to provide the services envisaged therein.

[20] The central question remains whether, under the circumstances prevailing, the plaintiff acted outside or within its existing duty in providing the services it did to the vessel and the cargo. It is now necessary to consider the common law duty upon which the defendants rely in contending that the services it enjoyed were not rendered voluntarily.

COMMON LAW DUTY

[23] The general argument was moreover rejected in the case of 

[24]   Amongst the arguments raised by the Commissioners were that
even if their services in removing the stricken vessel from the
fairway were in the execution of a public duty such a plea in

services were a duty owed only to owners of other ships. The
judgment of Lord Blackburn of the Scottish Court of Sessions on
this point is recorded as follows:
""This denial amounted to an admission that the removal of an abandoned vessel from the fairway was a duty laid upon them, coupled with an averment that the removal of the vessel was not a duty to the owners of the vessel itself but only a duty to the owners of other shipping. In his Lordship's opinion the defendant's contention was not well founded. The principal object of the powers might be to protect other shipping from the risks of collision with the abandoned vessel: but it was undoubtedly an advantage to the owners of an abandoned vessel to have their vessel removed from the danger of such collision; and, accordingly, it could not be said that they had no interest in the performance of a statutory duty laid upon the Commissioners."

[26]   A survey of the case law confirms the governing principle to be
that, as a general rule, a public authority which renders salvage
services falling within an existing statutory duty or common law
duty to exercise reasonable care to ensure that a port is safe for
navigation, will not be entitled to claim salvage. Where the
services rendered go outside the scope of the statutory or
common law duty which the public authority is required to
perform, it may claim salvage. This core principle was pithily

"The way in which the principle has been applied is by denying to such persons salvage in respect of acts within their existing duty, but allowing salvage in respect of acts going outside such duty."

[29] Willmer J held that in a proper case salvage may be payable to the servants of a public authority notwithstanding that they wereengaged in work which was part of the duty of the public authority to carry out and quoted with approval the following passage from Mclachlan's Law of Merchant Shipping:

"In all cases, indeed, where duty springing from office or arising out of contract would have legally bound the claimants to do services of the same nature as they actually rendered, the Court is vigilant to protect the owners from improper claims, without neglecting what is required for the ends of justice and the encouragement of enterprise on such occasions."

[30]   Lord Willmer held that each case must be considered on its own
facts and merits. However, salvage may only be claimed by
servants of a public authority in very exceptional cases where
the services rendered go far outside those which the statutory or
common law duty of the public authority required it to perform.
Significantly, he held that the onus rests upon the claimants to
satisfy the court that they did, in the circumstances, render
services which went quite outside their ordinary duties. The claim
for salvage was nonetheless allowed because:

Harbour Administration had in good faith and with full knowledge of the circumstances entered into a fair contract of towage for remuneration, the officers and crew of a harbour tug were bound to carry out the contract and were not entitled to claim salvage even though the services might otherwise be regarded as salvage. It was further held that the Court should incline towards supporting contracts for towage or salvage made by the Administration and the onus would thus be placed on the officers or crew of the towing tug to show that any such contract was manifestly unfair and such that they were entitled to a salvage award.

[32] In 

[33] The first defendant submitted that, since the plaintiff as port authority had been under a statutory duty to perform the services it had rendered to the vessel, an essential ingredient of a salvor's right to claim salvage, namely, that the services rendered be voluntary, had been absent. In rejecting this defence, however, Levinsohn J noted that the voluntary nature of the services rendered in a salvage operation was an entrenched principle in the common law of salvage both in England and in South Africa. The plaintiff's claim for salvage was upheld, however, principally on the basis that when the emergency arose, the vessel had reached a point in the open sea beyond the area of the harbour or the extended harbour and, furthermore, that the tugs had responded to a distress signal from the first defendant in going to its assistance. The Court held that it was incorrect to characterise the actions of the tugs as designed to remove an obstruction or potential obstruction in the area of the harbour.

APPLICATION OF THE LAW TO THE FACTS

CONVERSION OF A CONTRACT OF PILOTAGE TO SALVAGE

"The general principle governing claims for salvage by a pilot engaged to pilot a ship, or by tugs engaged to render towage services to her, is that they are only entitled to claim salvage if, first, the ship is in danger by reason of circumstances which could not reasonably have been contemplated by the parties when the engagement to pilot or tow was made, and, secondly, risks are run, or responsibilities undertaken, or duties performed, which could not reasonably be regarded as being within the scope of such engagements."
[40]   The same point is made in the following passage in Kennedy

(supra) at page 592:

[41]   I do not consider that the plaintiff's case is much strengthened

court allowed the conversion of services from towage to salvage
in the light of the wording of the port authority's contract and
the provisions of the Merchant Shipping Act, 57 of 1957 which
entitled a person rendering assistance to a ship "in distress" to a

distress and that her saviours were thus salvors has been called
into question on the basis that the port authority's towage
obligation probably encompassed its actions in saving the

following dictum of English law was approved by Gardiner JP:
"In accordance with this just principle of rewarding only volunteers as salvors, neither the crew nor the pilotnavigating the ship nor the owner or the crew of the tug towing it under a contract of towage ... are ordinarily held entitled to obtain salvage reward in respect of the services rendered by them in the preservation of the ship herself or of the lives or the cargo which she carries; for all of these persons are under a pre-existing obligation to work in their respective ways for the benefit of the life and property at risk; and the like disability rests upon government officials, however valuable their assistance may be, so long as they are acting only within the lines of their official duty" ..." I do not think that claims are to be encouraged where the services merely consist in using the vessels in which the claimants are engaged, without any personal risk and without the necessity for displaying any special skill or the rendering of any great or courageous service - where, in other words, the work done in connection with the salvage services by the officers and crews of these ships is no harder and involves no more risk than the work in which they would ordinarily be engaged."

"(T)here is a striking difference between a person possessed of such monopoly (of pilotage), and entitled to charge a given sum (which is fixed on the ground of its being a monopoly), and a person voluntarily performing a duty, whether a pilotage or a salvage service, because the latter has a right to exercise his own judgment as to whether he will go out on the service or not, and may then demand a fair remuneration for whatever he does. It might happen that mere pilotage pay would be no reward at all to a person who goes out under these circumstances...".

IS THE PLAINTIFF ENTITLED TO A SALVAGE REWARD BY REASON
OF THE PROVISIONS OF THE SALVAGE CONVENTION AND
CLAUSE 4.3 OF THE TARIFF BOOK?

[46] Inasmuch as it was argued that a contract of salvage arose, I have already indicated why, on the facts there can, in my view, be no question of a contract of pilotage having been converted into one of salvage. In any event the onus of proving the existence of such a contract lay with the plaintiff. Bearing in mind that the call for tug assistance came from the pilot and the absence of any evidence of any communication between the ship's master and the port authorities regarding the terms upon which the assistance would be rendered, there is no basis for a finding that a contract of salvage was concluded.

[47] In terms of section 2(1) of the Wreck and Salvage Act, the Salvage Convention has the force of law and applies in South Africa. Article 5 of the Convention provides as follows:
""Salvage Operations Controlled by Public Authorities
1. This Convention shall not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities.
2. Nevertheless salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations.

[48] Article 12 provides that salvage operations which have had a useful result give right to a reward, whilst article 13 stipulates the criteria to be considered in fixing the salvage reward. Finally, article 17 provides that:

""Services Rendered Under Existing Contracts No payment is due under the provisions of this Convention unless the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose."

[49] The plaintiff's case is that, upon a proper interpretation of articles 5, 12, 13 and 17 of the Convention, the right of a public authority to salvage reward is not dependent upon whether a salvage operation was carried out voluntarily or in the performance of a statutory or common law duty; in terms of article 12 in order to qualify for a reward one need only show that there was a salvage operation as defined in the Convention which had a useful result. On behalf of the plaintiff, Mr. Fitzgerald submitted further that inasmuch as there is no express reference to the principle of voluntariness in article 12, to the extent that voluntariness remains an essential element of a salvage operation, article 17 restricts it to circumstances where a salvage operation is performed under the terms of an existing contract. Since there was no suggestion by the defendants that the salvage operation was performed by the plaintiff pursuant to an existing contract, the non-voluntary nature of the plaintiff's services do not deprive it of a salvage reward.

[50] I should firstly observe that the Convention must be read as a whole and all the articles given their due weight. It is unhelpful, therefore, to disregard those articles of the Convention dealing directly with an issue and to focus on other articles not directly addressing that issue for indirect support for a particular interpretation.

[51] Central to the plaintiff's argument is the far-reaching proposition that the requirement of voluntariness as an element of a successful salvage claim has been completely or largely removed by the terms of the Convention. However, the provisions of article 5(1) and 5(3) in themselves are clear and strongly suggest no substantive change to the existing law of salvage where the salvage operations are conducted by or under the control of a public authority. Article 5(1) provides that the Convention does not affect any provision of a national law or any international convention relating thereto. There is no other convention relating to salvage operations which is applicable and accordingly in order to determine whether a public authority carrying out salvage operations is entitled to a salvage reward, regard must be had to the South African law, which is English law as of 1 November 1983 unless in conflict with the Wreck and Salvage Act or the Convention. Article 5(3) more pointedly focuses upon the extent to which a public authority "under a duty" to perform salvage operations may avail itself of the rights and remedies provided in the Convention. It stipulates that this question is to be determined by the law of the state where such authority is situated. These two sub-articles are thus powerful indications that the Convention does not purport to change existing national law in these respects.

[52]   It is article 5(2), an apparent qualification of article 5(1), which
throws up problems of interpretation. On its face it seems to
contradict article 5(1) when it states that salvors carrying out
salvage operations shall be entitled to the rights and remedies
provided in the Convention, notwithstanding that article 5(1)
states that the Convention does not disturb any provisions of
national law or any other international convention. Commenting

follows at page 14 para 1 - 39:

International Maritime Organisation together with the draft Convention preceding its eventual adoption by that body.

[55]   By virtue of the provisions of section 2(5) of the Wreck and
Salvage Act, in interpreting the Convention a South African court
or tribunal is given the liberty to "consider the preparatory texts
to the Convention,  decisions of foreign  courts  and  any
publication". I consider the CMI report to be a valuable guide to
the interpretation to the Convention and falling within the class
of material which a court may consider. In that report the
purpose of Article 5(2) is described as follows:

The following further comments in the report regarding Articles

5(1) and 5(2), respec tively, are relevant:

""The draft convention does not deal directly with questions related to salvage operations by or under the control of public authorities, nor does it deal with the rights of salvors to payment in such cases from the authority concerned."

and:

[56]   Furthermore, in the CMI report the purpose of article 17, which
prescribes that no salvage reward is payable for services
rendered in terms of those reasonably envisaged in a contract, is
described as follows:
"This is a general restatement of the principle in the 1910 Convention, Art 4. As mentioned above, the rule forms part of the important principle under which a salvage service must be voluntary to give right to the remedies of the Convention."

Wragge submitted, correctly in my view, that had the drafters of the Convention intended to do away with the requirement of voluntariness in regard to salvage services rendered by public authorities, it would have done so in express terms.

[59] In my view article 5 of the Convention does not recognise the entitlement of a public authority to a salvage award irrespective of the existence of any duty, whether statutory or otherwise, pursuant to which the services were rendered but rather stipulates that, in considering whether a public authority is entitled to a salvage award, regard must be had to the existing national law. As I have indicated, in my judgment, applying that law to the facts of this matter the plaintiff has no entitlement to a salvage reward.

[60] For these reasons I consider that the second stated question, namely, whether, assuming that the salvage operation was carried out in the performance of a statutory and/or common law duty, the plaintiff is nonetheless entitled to a reward by virtue of the provisions of the salvage Convention and clause 4.3 of the Tariff Book, must be answered in the negative.

[61] Both stated questions having been answered in favour of the defendants, the customary costs order must follow. In the result the plaintiff's claim-is dismissed with costs.