Maritime Law

Lexis® Practical Guidance Maritime law is a diverse and wide ranging topic, complex in nature and often difficult to source. With the aim of making the law more accessible,
The legislation on ships is discussed and explained with reference being made to recent case law, practical examples and checklists.
The guidance notes are user-friendly with the aim of educating the readers on various aspects of maritime law as well as highlighting the importance of maritime law in a commercial sense.
The Guidance notes will simplify Maritime law and displays the importance of Maritime law in a commercial sense. In addition to providing content, the relevant forms and precedents which are referred to have also been enclosed for the reader’s ease of reference.


Expert Contributors
Andrew Robinson

Andrew is based in Durban and is the Practice Group Leader for Disputes. This practice group includes the Employment and Labour, Commercial, Insurance, Construction and Transport litigation teams. He is also the Regional Head of Transport for Africa.
He is primarily a transport lawyer and specialises in both commercial and the litigation aspects of international trade, shipping, admiralty, marine insurance, transport, logistics and marine environmental law, as well as maritime casualty response and subrogated recoveries. He heads up the practice’s Admiralty and Shipping team.
He has been involved in a number of high profile casualty-related matters and has mediated litigated or arbitrated matters in the United States, England, France, Germany, Italy, India, Zambia, Mozambique and Belgium. He has advised P & I Clubs, shipowners and underwriters in South Africa, Namibia, America, England, Italy, France, Belgium and the United States.
He was the President of the South African Maritime Law Association from 2008 - 2010, and is currently the Chairman of the Admiralty sub-committee of that association.
He led the South African delegation to the CMI Conference in Athens, 2008, Beijing in 2012 and Dublin, Ireland in 2013. He currently sits as a member of a CMI International Working Group for the Judicial Sale of Ships.
He is referred to in The Expert Guides: Shipping and Maritime Lawyers and the 2009 and 2010 editions of WHO’S WHO LEGAL, The International Who’s Who of Business Lawyers, Shipping & Maritime. He was also listed as a leading lawyer in the Transport industry by Who's Who Legal Transport 2015 (Aviation contentious & Shipping). Andrew is also listed as a recommended shipping and transport lawyer in Legal500, 2015. Who’s Who Legal, 2016 listed Andrew as an expert in Transport (Shipping).
He authored the chapter on South African Law of Cargo Insurance as part of the International Cargo Insurance book edited by John Dunt which focuses on those areas where South African law has developed differently from English Law and avoids dealing with general insurance principles that are not relevant to marine cargo insurance.
Andrew obtained a BA LLB from the University of Cape Town, LLM at the University of Wales and a post graduate diploma in environmental law in 1994 from UKZN.

Peter Lamb

Peter is a senior associate in the admiralty and shipping team based in Durban.
Peter focusses on admiralty, shipping, marine, transport & logistics insurance law and has acted both for and against ship owners in admiralty litigation (including instituting and defending in rem ship arrests; security arrest applications; admiralty judicial sales and lodging of claims against the Admiralty Fund).
He advises owners, ship managers, stevedores, freight forwarders, cargo interests and underwriters on various shipping, admiralty, marine, transport & logistics insurance matters. Peter has assisted in marine insurance disputes in other African jurisdictions, including Tanzania, Namibia and Zambia.
Peter has been awarded an LLM in shipping law from the University of Cape Town. During this period he contributed towards the extensive research done for a leading maritime law text book.
Peter is on the executive committee of the Maritime Law Association of South Africa (Durban Chapter).

 
Table of contents.

  • Maritime claims
  • Maritime liens
  • Foreign maritime liens
  • Applicable law in terms of section 6(1)

  • Section 2(1) and the High Court
  • Declining jurisdiction
  • Stay of proceedings
  • Commencement of proceedings
  • Property yet to arrive

  • Provisions of the Act and Admiralty Rules
  • Attachment for an action in personam
  • Documents required for a section 3(2) procedure

  • The impact of an action in rem
  • Section 3(4) requirements
  • Section 3(2) and maritime property
  • Documents required for a section 3(2) procedure
  • Caveat
  • Custody of property arrested or attached

  • Section 3(6) provisions of the Act
  • Beneficial owners and control

  • Demise charterers and section 1(3)
  • Time charterers and section 3(7)
  • Deemed arrest and release

  • Section 5(3) security arrest provisions
  • Section 5(3) security arrest requirements
  • Documents needed for security arrests

  • The concept of counter security
  • High Court exercising admiralty jurisdiction
  • Section 5(2) legal costs for local and foreign proceedings
  • Additional security

  • No reasonable probable cause
  • Excessive security

  • Procedure for setting aside an arrest
  • Appealing an admiralty judgment
  • Prescription

  • Admissibility of evidence (High Court)
  • Inspection
  • Procedure
  • Hearsay evidence
  • Discovery

  • Sale of arrested property
  • Section 9 requirements
  • Section 9 procedure
  • Appointment of referee, broker or auctioneer
  • Attending judicial sale, payment of deposit and delivery of vessel
  • Effects of judicial sales
  • Creation of an admiralty fund
  • Lodging claims against the fund

  • Ranking of claims (section 11)
  • Preservation costs
  • Crew claims
  • Mortgage claims

  • Application of Uniform Rules
  • Court structure and conduct
  • Judgments and executions

  • National law and international conventions
  • The legal effect of registration

  • Entitlement to register
  • Prohibition on dual registration

  • What is a ships register?
  • Types of vessels eligible for registration
  • Legal forms of owners
  • Particulars recorded with the Registrar
  • Costs of registration
  • Omissions, rectification and correction of errors in the register
  • False statements
  • Offences and penalties
  • Registered agent

  • Signing, witnessing and translation of documents lodged with the Registrar
  • Application for registration
  • Pre-inspection survey
  • Documents required for registration
  • Application for renewal
  • Application for change of name of registered ship
  • Registration certificates
  • Application for a new registration certificate
  • Application for a provisional registration certificate
  • Application to fly the South African flag
  • Change of name, address, nationality and home port
  • Temporary pass

  • Application to transfer a ship or share in a ship

  • Transmission by operation of law

  • Requirements to register a bareboat chartered ship
  • Documents required for the registration of bareboat charters

  • Application for closure of register
  • Employment law
  • Ship safety and environmental protection
  • Sources of law and general characteristics of mortgages
  • Priority of morgages
  • Rights of mortgagee
  • Mortgage protection in case of deregistration of a vessel
  • Effects of change of ownership
  • Types of vessels
  • Registration of a mortgage on a vessel registered in South Africa
  • Costs of registration of a mortgage
  • Registration of mortgages on vessels under construction
  • Application for registration
    The collateral mortgage agreement
    Application for transfer of a mortgage
    Transmission of a mortgage
  • Deregistration of mortgage bonds
  • Transfer of mortgages
  • Shipping and international trade
  • INCO terms
  • UN convention on contracts for the international sale of goods
  • Obligations of the carrier
  • Applicable law to contracts for carriage of goods by sea
  • The common carrier
  • International liability regimes
  • Terms implied by law
  • Seaworthiness
  • Despatch
  • Deviation
  • Safe ports
  • Dangerous goods
  • Loading and unloading
  • Delivery
  • Application of Hague-Visby Rules
  • Carrier's minimum liability under HVR
  • Carrier's obligations under HVR
  • Shipers obligations under HVR
  • Receiver's obligations under HVR
  • Limitation of liability
  • Origin and nature of the bill of lading
  • Bill of lading as receipt
  • Bill of lading as evidence of contract of carriage
  • Bill of lading as document of title
  • Transmission of rights
  • Charterer's bill of lading
  • Common clauses in bills of lading
  • The nature of charterparties
  • Types of charterparties
  • Demise charterparties
  • Time charterparties
  • Voyage charterparties
  • Common clauses in charterparties
  • Charterparties and bills of lading
  • Law to be applied to charterparty disputes
  • Proper law of contract
  • Onus and standard of proof of cargo claims
  • Measure of damages
  • Hull and machinery policies
  • Protection and indemnity insurances
  • Freight insurances
  • Cargo insurances
  • Roman Dutch law
  • Judicial precedent
  • Application of English law
  • Effect of marine insurance policies on consumers
  • The position of Lloyd's Underwriters
  • The formation of the contract
  • The good faith requirements
  • Non-disclosure, misrepresentation and failure to disclose
  • Formalities, insurable interest and illegality
  • Open covers, policies and certificates of insurance
  • Warranties
  • Exclusions
  • Conditions
  • All risks
  • Burden of proof
  • Exclusion - wilful misconduct
  • Exclusion - ordinary wear and tear
  • Exclusion - inherent vice, insufficiency of packaging
  • Exclusion - delay and insolvency
  • Exclusion - unseaworthiness and unfitness
  • War, strikes and terrorism
  • Duration of insurance - the transit clause
  • Held covered, termination of carriage and change of voyage
  • Claims and losses
  • Proof of loss
  • Interest and costs
  • Good faith and fraudulent claims
  • Total loss of cargo and abandonment
  • Abandonment
  • Loss of the adventure
  • Partial loss - measure of indemnity, valued and unvalued policies
  • Cargo delivered damaged at destination - salvage losses and under insurance
  • Recoverable expenses
  • Subrogation
  • Double insurance and contribution
  • The nature of general average
  • Historical origins of general average
  • Applicable law

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