Is South Africa Sufficiently Prepared To Deal With A Major Oil Spill?

On average, South Africa’s coast line is occupied by an estimated 12 000 vessels P/A

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On average, South Africa’s coast line is occupied by an estimated twelve thousand (12 000) vessels per annum, either passing through or visiting one of its many Ports. Of these vessels, many are tankers collectively carrying an estimated 30 million tons of crude oil, the rest, up to 126 000 metric tons of fuel.

To properly understand the magnitude and risk to our coastline annually, one only needs to consider the monetary value associated with an oil spill of minor proportions and the propensity for this to escalate with the advent of the ULCCS. Four such minor oil spills were right here in South Africa’s back garden of Bloubergstrand, Cape Town emanating from the MV “Seli 1”. Having already removed most of the 660 metric tons of bunker fuel from the vessel, the last oil spill reported from the vessel in 2012 stretched one kilometre across the Tableview bay area. The estimated expenditure by the South African authorities in oil pollution clean-up and eventual removal of the wreck amounted to 40 million Rands, the total sum of which came from one source—the South African taxpayer as the owner had abandoned the vessel.

Generally speaking, maritime casualties have a number of legal, commercial, political and social layers to them and in that, a number of parties involved in the decisions to be made regarding pollution prevention, possible salvage and eventual wreck removal. The decision on how to best manage a maritime casualty inevitably takes time. In the case of the MV “Seli 1” it took four years. With the passing of time, comes an increase in the risks to environmental safety, and consequently, the risk of an increase in costs of recovery and rehabilitation.

For now, South Africa has seemingly sailed through the last century relatively unscathed having avoided, or having simply been lucky enough, not to experience an environmental disaster of the magnitude of the MT “Exxon Valdez” and the MT “Prestige”. That is not to say that there haven’t been close calls in the last five to ten years. Lest we forget the MV “Seli 1” or the MT “Phoenix” that ran aground off the coast of KwaZulu-Natal, or the cargo ship, the MV “Kiani Satu”, which ran aground along the coast of a nature reserve in Knysna spilling approximately three metric tons of its reported 330 metric tons of fuel carried on board.

Two aspects to a maritime casualty have been, in more recent times, hotly debated in South Africa:

1.    The appointment of a South African SOSREP (Secretary of States Representative in Maritime Salvage and Intervention); and

2.    The increase in limits of recovery in terms of the 1992 International Convention on Civil Liability for Oil Pollution Damage (the “1992” CLC”) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (known more commonly as the Fund Convention).

South Africa’s present oil pollution prevention and liability legislation is housed in the Marine Pollution (Control and Civil Liability) Act and the Marine Pollution (Intervention) Act. An owner’s liability for oil pollution is limited to 133 SDRs (special drawing rights) per ton (measured by a ship’s tonnage) or 14 million SDRs, whichever is the lesser. In monetary terms this equates to a maximum of approximately ZAR 240 million (at an SDR: ZAR rate of 1 SDR 17.66).

To put this in perspective, The MT “Exxon Valdez” oil spill cost, at the time, approximately USD 3.5 billion in clean up, rehabilitation and penalties. South Africa has nowhere near enough resources to look to under the present legislative dispensation and, should a ship owner or its insurer abandon its vessel, these costs fall to the South African treasury to pick up.

However, South Africa has, in recent years acceded to both the 1992 CLC and 1992 Fund Convention. The 1992 CLC raises the ceiling of limitation of a ship owner’s liability and the 1992 Fund Convention acts as a top up where the 1992 CLC falls short or a ship owner is not able to meet its CLC liabilities. However, both Conventions are required to be incorporated into domestic legislation to become effective. This is because both owners’ P&I clubs and the Fund, administered in terms of these Conventions, will only pay out in circumstances where a ship owner is found to be legally liable in the jurisdiction in which a claim for oil pollution arises. South African legislation has not yet been amended or promulgated to incorporate the 1992 Conventions into domestic law and the limits of liability stand as set out above.[3]

One of the major limits to these Conventions is that they do not cover oil pollution due to the spillage or leaking of bunkers. The IMO has developed a new Convention dealing with this issue however South Africa has not yet acceded to this Convention.

Generally speaking, the current legislative dispensation in South Africa does provide extensive intervention powers to the South African Maritime Authority (“SAMSA”) to guard against or to prevent pollution of the sea by harmful substances, which, in its opinion, are likely to be discharged from a ship or a tanker. SAMSA’s role in this regard, and perhaps limited to those powers in the South African Marine Pollution Acts, are akin to those powers that would be given to a South African SOSREP. The difference that is proffered is that a SOSREP would proceed without the necessity of extensive consultation, bureaucracy and financial constraints.

The idea of a SOSREP is to appoint a single co-ordinator for salvage operations able to make quick and preventative decisions which would inadvertently decrease the cost of an environmental catastrophe through a quicker response times and decisive action. It is generally regarded that “salvage by committee” is ineffective and inefficient and can cause more harm and increase costs unnecessarily. The time it took to resolve the salvage and eventual wreck removal of the MV “Seli 1” is perhaps evidence of this from a South African perspective.

In many respects, something is at least better than nothing, however it appears, on the present legislative dispensation, that South Africa is quickly falling further and further behind in achieving international norms to safeguard against oil pollution and, where this is inevitable, to have reserves in place over and above relying on ship owners and their P&I clubs to come to the fore. The South African Maritime Law Association is alive to these issues and is, through a sub-committee, making representations to the National Department of Transport, in an effort to modernise and improve South Africa’s position.

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