PORTS SAFETY UNDER SCRUTINY
There have been two recent ship navigational incidents in the Port of Durban which together caused millions of Rands in damage. During May the mv “Benedetta” struck a gantry crane at the container terminal, while on 30 April 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 of Durban (and indeed in some of the other ports 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 the 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 charterparties (contracts whereby a ship is ‘rented’ from the owner to another party) contain clauses relating to “safe ports.” In terms of these clauses, the charterer (that is, the party who hires the vessel) will be liable to the vessel owners for any damage which a vessel suffers if the charterer orders the vessel to call at a port which is not a “safe port.” Additionally, vessel owners are entitled to refuse to allow a ship into a port which is considered to be unsafe. Most charterparties 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 of time, 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 its natural and artificial characteristics. However, an “abnormal occurrence” in a port which causes loss or damage to a vessel does not mean that 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 occurring again in the port. If an event occurs frequently in a port, it is generally not considered to be an abnormal occurrence. It ought to 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 twenty-two times over a twenty-four year period was sufficiently frequent for gale force winds not to be an abnormal event at the port in question.
In establishing whether an event is a characteristic of a port, evidence relating to the past history of the port and the frequency of the event is considered, to establish whether the event in question is sufficiently likely to reoccur in order for it to have become a “characteristic” of the port.
If a particular event is a source of danger in the port and if it is a characteristic of the port, it would likely render the port unsafe. As pilotage arrangements in Durban are compulsory they may be considered to be a characteristic of the port. The question then to be examined is whether or not the repeated incident of pilots crashing vessels in Durban, either through incompetence or negligence, occurs with sufficient frequency to render the Port of Durban unsafe.
The consequences of Durban being considered an unsafe port could be disastrous; not only for the local but also for the national economy as the bulk of goods entering and exiting South Africa by sea proceed through Durban. If Durban comes to be considered an unsafe port vessel owners’ insurance cover would be compromised and they might not permit their vessels into Durban. In addition, vessel charterers would not wish to bring vessels into the port as they would then be liable to the owners if the vessel was damaged through the pilot’s negligence or incompetence in the “unsafe” Port of Durban.
Whether or not the repeated incidents of the TNPA pilots damaging vessels in port have been sufficiently frequent to render the Port of Durban “unsafe” remains to be seen as this issue has not been raised in court or arbitration, nor indeed has the port history been sufficiently investigated as yet.
TNPA’s Chief Executive, Richard Vallihu, reportedly stated after the two incidents involving the mv “Julian” and the mv “Benedetta” that concerns voiced by industry that fast-tracking the training of harbour pilots may have contributed to recent quayside crashes in Durban were unfounded. As both incidents are still under investigation it would in any event be unfair on the Port to draw any conclusions at this stage regarding its safety.
While those industry concerns may or may not be unfounded, it is evident that any further incidents of vessel damage in the Port of Durban caused by or to vessels under TNPA pilotage may cause industry to look more closely at the port and treat it as unsafe. This is a potential risk which ought to be of paramount importance to both TNPA and could have knock-on consequences for the economy as a whole if some ships start avoiding calls at Durban.
This article first appeared in the Sunday Tribune.