New Act exempts ports from liability Some regulations still out for comment

ALAN PEAT
WITH THE National Ports Act in the offing, be aware that a new law has been passed which is set to change the way our national ports are regulated. That’s the word from Jeremy Prain, senior associate at Cape Town lawyers Bowman Gilfillan, to port users or those who operate a business within one of SA’s national ports It will significantly affect the interaction between port users and the port, and Prain suggested that businesses would have to be prepared to meet the demands of the new regime. “In particular,” he told FTW, “now may be as good a time as any for them to consider their future leasing/licensing and risk management arrangements.” The act came into operation on November 26 last year, but regulations that put part of it into gear are still out for comment – although it is expected that they will take effect soon, according to Andrew Robinson, director and maritime specialist at the Durban lawyers, Deneys Reitz. There are three key features of the act, and each makes its own demands on how the private sector will have to interact with the ports in future, Prain told FTW. “The act creates a new legal identity for the National Ports Authority (NPA), which will own, manage, control and administer ports,” he said, “with the aim of ensuring their efficient and economic functioning. “The authority will control land use within ports (and has the power to lease land to port users or operators) and it will also be responsible for exercising licensing and controlling functions in respect of port services and port facilities.” Looking at the regulations, which are still out in orbit, Robinson pointed out that they deal, amongst other things, with the appointment and powers of “a new beast on the scene”, the port regulator. “They also deal with the operation of the port consultative committee,” he added. But, to Robinson’s mind, what really is of interest to port users – such as shipowners and cargo owners – is to be found in sections 76 and 85 of the National Ports Act. “Section 76(1),” he said, “completely exonerates the pilot and the National Ports Authority (NPA) for loss or damage “caused by anything done or omitted by the pilot in good faith whilst performing his or her functions in terms of this act”.” Section 76(2), meantime, makes the pilot the servant of the owner or master of the ship whilst it is under pilotage – in effect, making the owner or master liable for the acts or omissions of the pilot, according to Robinson. “Section 85 deals with the NPA’s liability generally,” he said, “and it has the effect of completely exonerating the NPA from any liability for loss or damage caused by the negligent or perhaps even the grossly negligent acts or omissions of the NPA or any of its employees whilst performing any function in terms of the act. “This completely changes the position prior to the act coming into operation where – save for a few exceptions – the port authority was liable for the negligent acts of those for whom it was vicariously liable.” A hypothetical example, Robinson added, is: If a ship and cargo is damaged due to the fault of the pilot - no claim against the NPA. “It effectively gives the authority a blanket exemption of liability for loss or damage,” Prain added. This exemption is still questionable, according to Robinson. “Looking at this as a broader issue,” he said, “there is still some debate as to whether state-owned enterprises such as Spoornet (See “breach of contract” FTW March 16) and the NPA should be entitled to contract out of liability when no alternative rail or port operator is available.”