Bowman Gilfillan Maritime and Transport Newsflash March 2011By james tweed • Mar 31st, 2011 • Category: IGPI
MV “Cleopatra Dream”: the Supreme Court of Appeal confirms the approach to salvage operations undertaken within the scope of statutory duties.
The Supreme Court of Appeal has confirmed the judgement handed down in the Western Cape High Court with respect to the mv Cleopatra Dream.
The matter, in which Bowman Gilfillan successfully acted for the respondent owners, revolved around the issue of voluntariness in salvage, and more particularly whether salvage services, rendered by an authority in the course and scope of a statutory or common law duty, qualify for a salvage reward.
The appellant, Transnet Limited (“Transnet”) the national port authority, had claimed salvage against the defendant, the mv “Cleopatra Dream” for coming to her aid in a time of distress. At the time of the distress, the vessel was within port limits and under the direction of a pilot employed by Transnet. She had suffered an engine breakdown and was drifting towards shallow water when the pilot requested harbour tug assistance.
The court a quo had found that Transnet had rendered the relevant services to the vessel pursuant to, and within, both a statutory and common law duty and thus not voluntarily as that term is understood in the law of salvage. As a result, the court had found the Transnet was not entitled to claim a salvage reward.
On appeal, Transnet denied that the services were rendered in the performance of either a statutory or common law duty and were therefore voluntary. Alternatively, Transnet claimed, that should the court find it had acted in accordance with a duty, it was nonetheless entitled to a salvage reward by virtue of the provisions of the International Convention on Salvage (“the Convention”).
The appeal court agreed with the court a quo that if a service is rendered under a pre-existing obligation to work for the benefit of property and life at risk, then it is prima facie not a salvage service. Even in the absence of a duty, where the services performed are ordinarily to be expected of the claimant in the capacity in which it performs them, it will usually be barred from recovering salvage.
Furthermore, the appeal court found that the Convention does not exclude voluntariness in respect of salvage operations performed by a public authority acting under a duty. Each case involving a claim by a public authority for salvage, in consequence of operations carried out by it, must begin with a determination of how the domestic law regulates a claim by it for salvage. Once that is determined, one will know the limitations of its entitlement to a salvage reward.
In the circumstances of the case, Transnet had no right to a salvage reward because the whole scope of its operation was carried out subject to, and within, the normal limits of its duty and not voluntarily.
This judgement is in keeping both with the relevant national legislation and the Salvage Convention, incorporated into South African law by the Wreck and Salvage Act.