Maritime law, which is often referred to as admiralty law, is a fundamental branch of law that regulates commerce and navigation on the seas or other navigable waters. It covers a broad spectrum of matters such as the development of legislation, both nationally and internationally; customs and excise regulations; the fishing industry; human rights and employment issues usually relating to the crew; insurance claims; property damage; the implications of stowaways on vessels; pollution; personal injuries; wreck and salvage; piracy; and container and passenger liner matters, etc.
The origins of maritime law date back to antiquity as did trade between nations through sea transport. It thus became increasingly necessary to expand this scope of the law as no country may claim arbitrary jurisdiction over the seas. Consensus between nations also became vital in the face of disputes.
With time, the principles of maritime law were developed and refined. However it must be noted that although general maritime law has developed internationally, it operates under the auspices and laws of an individual country as each nation bases its own maritime law on the general international regulations with the modifications and qualifications it deems essential and suitable to its particular needs.
In addition to the above, maritime law regulates the enforcement of contracts and commonly makes provision for damages to parties who have suffered some form of loss at the hands of a contracting party that has failed to honour or perform in accordance with their agreement. Such a contractual clause must be distinguished from the principle of general average which contemplates the voluntary sacrifice made by the master of the ship in respect of cargo, equipment or funds in order to mitigate further losses or damage in an emergency. The loss suffered by parties is thus shared amongst other parties who have shared in the relevant venture.
The exception of force majeure in contracts usually also exists which relieves a party from any liabilities or obligations whenever an extraordinary or unpredictable vent occurs, such as a war, strike, or an “act of God.”
The apparent entitlement of a party to “arrest” a vessel by means of legal action (provided that the law of a nation recognizes and implements such legislation) is amongst further unique aspects of this legal discipline. Due to the fact that South Africa is one such jurisdiction and which, by means of the Admiralty Jurisdiction Regulation Act, No. 105 of 1983, serves as the battleground over numerous ship arrests, the next 2-part article will highlight the basic principles of ship arrests in South Africa.
Please note that the above article is not intended to represent an exhaustive or all-inclusive synopsis of all the aspects relating to maritime law in South Africa and has been simplified for the purposes of this publication. Readers are therefore cautioned to seek legal assistance before taking any decisions based on the information herein.
About the Author – Kavisha Baboolal :
Kavisha Baboolal is an attorney with over four years’ experience in the legal industry, holding an LLB degree and a Masters in Maritime Commerce.
She has worked
- as a Judge’s Associate at the Durban Labour Court
- as a Legal Adviser at Mediterranean Shipping Company (Pty) Ltd.
- in the shipping, energy and trade department at Garlicke & Bousfield Inc
- part-time at the University of KwaZulu-Natal as a researcher, lecturer and supervisor of masters’ dissertations.
She has also lectured on Fundamental Human Rights at Varsity College.
Kavisha currently works at Edward, Nathan and Sonnenbergs Inc as an attorney in the Corporate and Commercial department. Her experience includes maritime and logistics claims, company formation and restructuring, mergers and acquisitions, and other corporate and commercial matters.