- Title
- The safety of navigation and the role of port state jurisdiction: a South African perspective
- Creator
- Metuge, Denning Ngomele
- Subject
- Harbors -- Law and legislation -- South Africa Law of the sea -- South Africa
- Date Issued
- 2017
- Date
- 2017
- Type
- Thesis
- Type
- Masters
- Type
- LLD
- Identifier
- http://hdl.handle.net/10948/19343
- Identifier
- vital:28853
- Description
- This thesis set to examine whether South Africa has incorporated the provisions on vessel navigational safety standards established in the relevant international instruments developed by the IMO: the International Convention for the Safety of Life at Sea, 1974 (SOLAS) as amended, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) as amended, and the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) as amended. It also set to determine the regulatory scope for the exercise of port State jurisdiction from a South African perspective. To establish whether a vessel’s condition complies to prescribed navigational safety standards, the relevant international instruments require States that have ratified the instruments not only to ensure that vessels registered under their flag are inspected for compliance before they can navigate, but that foreign visiting vessels must be surveyed to ensure that they also comply with the safety standards. These surveys are conducted while vessels are in the port of a port State. In addition, the Third United Nations Convention on the Law of the Sea, 1982 (LOSC), provides in article 218 that the port State may enforce anti-pollution regulations committed by a vessel that calls at one of its ports, after committing an illegal discharge outside the territorial waters of the State and its exclusive economic zone (EEZ). However, the provisions of article 218 LOSC have been the center of scholarly debate on the scope of port State jurisdiction (PSJ). Whilst one school of thought holds that PSJ refers only to the provisions of article 218 LOSC, another contends that in defining PSJ, its meaning must be awarded a broader scope to include the regulation of navigational safety standards. Due to the varied opinions on the scope of PSJ, this thesis examined the regulatory framework for the exercise of port State jurisdiction (PSJ) in South Africa. The discussion was relevant to determine the role of PSJ to enhance navigational safety from a South African perspective. This thesis comprised of an in-depth analysis of primary and secondary sources of data relevant to the regulation of navigational safety. The data obtained was critically discussed to establish whether the relevant international navigational safety standards are incorporated into South African law. The process included critical discussions on the principle of jurisdiction, and its exercise by States under international law. The discussions analysed the complexities associated with defining jurisdiction and determining its scope, which are relevant in respect of States’ competence to prescribe and enforce domestic laws, in conformity with the requirements of the LOSC. International law awards jurisdiction to the State to regulate laws within its national territory subject to some restrictions. However, the meaning of jurisdiction is not easily discernible even to lawyers. The discussions showed that the Republic exercises jurisdiction in conformity with generally accepted grounds for the exercise of jurisdiction, and that it is the prerogative of the State to adopt laws it deems necessary within its territory. Thus, the incorporation of international instruments on the safety of navigation is not a forgone conclusion, as it is dependent on the will of the State to ratify, and give effect to the provisions of the relevant instruments in its domestic law. Furthermore, this thesis discussed the relevant international safety instruments in contrast to the provisions of South African merchant shipping regulations, to identify any regulatory gaps in the incorporation of their provisions in South African law. Against a background of comparative analyses of the international norms and the provisions of South African merchant shipping regulations, this research found that a significant number of the relevant international safety instruments are incorporated into south African law by Merchant Shipping Act (MSA) as amended, and regulations made in terms of the Act. The provisions of South African merchant shipping regulations are administered by the South African Maritime Safety Authority (SAMSA). However, whilst this research found little doubt that the provisions of the STCW and COLREGs are given full effect in South African law, it identified regulatory differences in respect of the most relevant of all international instruments with regard to the safety of navigation, SOLAS. Some SOLAS provisions in respect of navigational safety are not incorporated into domestic law, and in some instances where they are incorporated, the provisions of domestic law contrasts that of SOLAS, or are not as comprehensive. For instance, there is a contrast in the provisions of the Navigation Bridge Visibility Regulations (NVBR), that make the regulations applicable to vessels of 45m or more in length constructed before 1 July 2008. Whereas, SOLAS regulations in respect of the navigation bridge visibility standards of vessels apply to vessels 55m or more length. Furthermore, a 5 months extension may be awarded in respect of a safety certificate issued for a South African vessel that is not in the Republic on the date of its expiry. This provision goes beyond the requirement of SOLAS, which requires that no extension be granted for a period longer than 3 months. Likewise, SAMSA may grant an extension of a safety certificate other than a cargo vessel construction certificate, for a period no longer than five month to enable a foreign vessel to complete its journey to its country of registry or point of inspection. This extension again, is longer than the 3 months requirement under SOLAS. Moreover, the survey requirements applicable to all South African vessels where ever they may be, and all foreign merchant vessels that come into the Republic, do not reflect the specific provisions of SOLAS. A significant amendment was made to SOLAS by SOLAS PROT 1988. SOLAS PROT 1988 introduced the harmonised system of survey and certification (HSSC) into the provisions of SOLAS, thereby harmonising its survey standards with those of other international instruments. SOLAS PROT 1988 has come into force for all States that have ratified the Protocol since the year 2000. This thesis finds that while South Africa is a party to SOLAS as amended by SOLAS PROT 1978, the Republic has not yet ratified SOLAS PROT 1988. Hence, the Republic is not bound to any requirements of SOLAS PROT 1988. Furthermore, although States that are not party to an international instrument requiring the implementation of the HSSC are invited to implement the HSSC anyway, there is no provision in the MSA that incorporates the HSSC. Of central importance to the regulation of merchant shipping standards, States are not only required to adopt domestic laws giving effect to international standards, but they are required to implement international standards in a uniform manner. This is aimed at avoiding a merchant shipping arena plagued by conflicting unilateral domestic rules. SOLAS PROT 1988 has been ratified by States comprising of 96% of the world’s merchant fleet by tonnage. The massive acceptance of SOLAS PROT 1988 is indicative of the international trend, towards uniformity in the implementation of international norms. This thesis recommends that, for the Republic’s merchant shipping regulations to reflect the international trend, the Republic should amend its merchant shipping regulation to incorporate the HSSC. Alternatively, the Republic may ratify SOLAS PROT 1988, and give full effect to its survey and certification standards and the relevant navigational safety provisions in the ANNEX of SOLAS.In addition, whilst a debate abounds on the international scene in respect of the scope of port State jurisdiction, the analysis of the regulatory framework for the exercise of port State jurisdiction in South Africa found that the regulatory framework for the exercise of port State jurisdiction by the Republic includes the regulation of not only environment-related navigational standards prescribed by article 218 LOSC, but also, navigational safety standards, and significantly, its scope is not burdened by the international law limitations to the exercise of coastal State jurisdiction. As such, a recommendation is made to the effect that when defining PSJ, its scope should not be limited to the enforcement of standards contained in article 218 LOSC, rather, it should be awarded a broader scope to include the regulation of other navigational standards including safety.
- Format
- xvii, 235 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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