PORT SAFETY UNDER SCRUTINY

THERE were two recent ship navigational incidents in the port of Durban which caused millions of rands in damage. In May, the MV Benedetta struck a gantry crane at the container terminal, while on April 30 a bulk carrier, the MV Julian, collided with a ship loader during berthing operations.

At the time of each incident, each of the vessels was under pilotage. These are not the first incidents in the port – and indeed in some of the others in South Africa – which have occurred while vessels are under pilotage.

Being under pilotage means that the captain of the ship temporarily relinquishes control of his vessel to a pilot, who is employed by the local port authority. The pilot assumes control of the navigation of the vessel and is responsible for safely moving the vessel in and out of the port.

In South African ports, including Durban, pilotage is compulsory and accordingly vessel owners are obliged to allow a pilot employed and appointed by Transnet National Ports Authority (TNPA) to navigate their vessel into, around and out of the port.

Almost all charter parties (contracts whereby a ship is rented from the owner to another) contain clauses relating to “safe ports”.

In terms of these clauses, the charterer (the party who hires the vessel) is liable to the vessel owners for any damage which a vessel suffers if the charterer orders the vessel to call at a port that is not a “safe port”. In addition, vessel owners are entitled to refuse to allow a ship into a port that is considered unsafe.

Most charter parties are governed by English law. The classic definition of a safe port was given in an English case, the MV Eastern City, which states that “a port will not be safe unless, in the relevant period, a particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship”.

In terms of this definition, it is required that a port must be physically safe in terms of its location, size, layout and natural and artificial characteristics. An “abnormal occurrence” in a port that causes loss or damage to a vessel does not mean the port is unsafe.

In establishing whether an occurrence which causes loss or damage is “abnormal”, evidence has to be evaluated to establish the past frequency of an event occurring in the particular port and the likelihood of it recurring.

If an event occurs frequently in a port, it is generally not considered abnormal. It should be noted at this juncture that “frequent” in this context does not necessarily mean very often. The English Court has found previously that gale force winds affecting a port 22 times over a 24-year period was sufficiently frequent for gale force winds not to be an abnormal event at the port.

In establishing whether an event is a characteristic of a port, evidence relating to its past history and the frequency of the event is considered, to establish whether the event is sufficiently likely to recur, for it to have become a “characteristic” of the port.

If a particular event is a source of danger in the port and is a characteristic of the port, it would probably render the port unsafe. As pilotage arrangements in Durban are compulsory they may be considered a characteristic. The question then to be examined is whether repeat incidents of pilots crashing vessels in Durban, either through incompetence or negligence, occurs with sufficient frequency to render the port unsafe.

The consequences of Durban being considered unsafe could be disastrous, for the local and national economy as the bulk of goods entering and exiting South Africa by sea proceeds through Durban.