SOUTH AFRICA: RECENT DEVELOPMENTS RELATING TO STOWAWAY AND TRESPASS
It is well known that South African ports present high risks in respect of stowaways. Possibly due to the global lockdown and resultant economic conditions, Bowmans has recently seen a marked increase in stowaway cases in the country. Your members and risk management team may find the following update to be of interest.
The approach of the South African authorities to stowaway and trespass
The South African authorities distinguish between a ‘trespasser’ and a ‘stowaway’. In essence, a trespasser is an individual who, despite security measures being in place, breaches port and vessel security and boards a vessel without authorisation. In contrast, a stowaway is an individual not legally resident in South Africa, and who boarded the vessel without permission at an earlier port of call, outside South Africa.
Provided that there is proof that the person boarded the vessel in South Africa by breaching port and vessel security, the relevant authorities, being the Department of Transport and Department of Home Affairs (Immigration), will ordinarily declare that person to be a trespasser. The result being that the person is removed from the vessel by the South African Police Service (as opposed to the Immigration Authorities) and detained at no cost to the vessel owner and its insurer.
The latest directive of the National Port Authority
The National Port Authority recently issued a directive on ‘Maritime Security Incident Reporting’, recording the high number of trespass incidents at South African ports. The purpose of the notice is to emphasize the need for all trespassing incidents to be properly and immediately reported by the master of a vessel, together with an official statement to be provided to the South African Police Service from the person who apprehended the trespasser. A copy is available here.
The impact of COVID-19
In the ordinary course, where there is no proof that port and vessel security was breached, the unauthorised person will be declared a stowaway and will not be permitted to be disembarked in South Africa.
The COVID-19 pandemic created special circumstances in terms of which, for humanitarian reasons, the disembarkation of stowaways was permitted in some circumstances. Each case was presented to the authorities and assessed on a case-by-case basis with a review of the evidence in order to determine whether disembarkation of the stowaway would be permitted on these grounds.
Given that South Africa has now emerged from lockdown and all sea ports are again fully operational, the authorities have recently reverted to the position that no stowaways will be permitted to be disembarked in South Africa.
A recent case that exposed a lacuna in the position adopted by authorities
Recently, Bowmans and P&I Associates worked closely on a case that exposed a lacuna in the position adopted by authorities to dealing with stowaways and trespassers.
In this case, the unauthorised person boarded the vessel by breaching port security in Durban and provided a statement to that effect. The vessel was bound for Cape Town, and it was only en route to Cape Town that the person was discovered by the crew.
Technically, and according to the position adopted by the authorities, the person was a trespasser and should have been arrested and disembarked. However, because the vessel was, by then, in Cape Town, the Cape Town branch of the South African Police Service was unable to exercise jurisdiction over the trespasser given that the crime of trespass was committed in Durban. As a result, disembarkation in Cape Town was not permitted and the authorities directed that if the vessel was to return to Durban, disembarkation (after arrest) would be permitted there.
Of course, the costs of rerouting to Durban were prohibitive, not to mention the impact on the vessel’s operational schedule. As a practical solution, disembarkation of the unauthorised person as a stowaway was permitted and arranged by P&I Associates in Namibia.
As matters currently stand, it is the responsibility of the ship owner and crew to ensure that the vessel is properly secured and guarded during cargo operations and whilst alongside at South African ports. Given the outcome of this most recent case, and from loss a prevention perspective, it is now more important than ever to ensure that a full stowaway search is conducted prior to departure from any South African port, even where the vessel may be sailing to another port within the country.