THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  163/10

In the matter between:

TRANSNET LIMITED t/a
NATIONAL PORTS AUTHORITY

Appellant

and

THE MV CLEOPATRA DREAM

First Respondent
THE CARGO LADEN ON BOARD

Second  Respondent

Neutral citation: Transnet  v The MV Cleopatra Dream (163/10) [2011] ZASCA 12 (11
March 2011)

Coram:
BRAND, LEWIS, HEHER, MALAN and SERITI JJA

Heard:
22 February 2011

Delivered:
11 March 2011

Updated:

Summary:
Merchant Shipping – maritime law – salvage – by public authority within
limits of its own port – whether acting under statutory and common law
duties – claim for reward under Salvage Convention – interpretation of arts 5
and 17 of Convention.

___________________________________________________________________________________
_
ORDER

On appeal from: Western Cape High Court (Cape Town) (Bozalek J sitting as court of
first instance):
The appeal is dismissed with costs.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (BRAND, LEWIS, MALAN AND SERITI JJA concurring):
[1] This is an appeal against the whole of the judgment and order delivered by Bozalek
J in the Western Cape High Court, Cape Town in the exercise of its admiralty jurisdiction.
The learned judge answered two stated questions in favour of the present respondents
and dismissed the appellant’s claim with costs.1

[2] The appellant instituted an action in which it claimed a salvage reward from the first
respondent (the vessel) and the second respondent (the cargo), arising from a salvage
operation carried out by tugs belonging to the appellant on 2 April 2004 in the port of
Saldanha Bay in which it is the statutory authority. The claim was defended.

[3] Pursuant to an agreed order in terms of Rule 33(4), the following questions of law
and fact were to be decided prior to and separately from the other matters in issue in the
action:
Whether the salvage operation carried out by the appellant in connection with the
respondents was rendered voluntarily and not in the performance of a statutory and/or
common law duty.
In the event of it being found that the salvage operation was carried out in
performance of a statutory and/or common law duty, and accordingly, not voluntarily, as
averred by the respondents in sub-paragraph 18.2.6 of the plea, whether the appellant was
nonetheless entitled to a salvage reward by reason of the provisions of the Salvage

1 The judgment is reported as Transnet Ltd t/a National Ports Authority v MV Cleopatra Dream [2010] 3 All SA
110 (WCC).

Convention2 and item 4.3 of the Tariff Book.3

[4] As regards the first issue, Bozalek J held that:
‘the [appellant] 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.’

[5] With respect to the second issue, the learned judge held that:
‘[A]rticle 5 of the Convention does not recognise the entitlement of a public authority to a salvage
award irrespective of the existence of any duty, whether statutory or otherwise, pursuant to which
the services were rendered but rather stipulates that, in considering whether a public authority is
entitled to a salvage award, regard must be had to the existing national law (and) applying that law
to the facts of the matter the [appellant] has no entitlement to a salvage award.’

[6] In stating the question for decision the parties agreed that the issues would be
determined by reference only to the facts set out in a Statement of Agreed Facts, the
documents referred to in it and to those facts not in issue in the pleadings. It is from these
sources that I derive the summary which follows in paras 7 to 19.

[7] The appellant, a company with legal standing by virtue of s 3 of the Legal
Succession to the South African Transport Services Act 9 of 1989, administers the port of
Saldanha. The appellant is a public authority as contemplated by art 5 of the Convention.

[8] The vessel is the MV Cleopatra Dream, a bulk carrier of 75801 GRT having an
overall length of 269 metres. The cargo consisted of 146 670 MT of iron ore that was
loaded on board the vessel in the port during the period 31 March to 2 April 2004.

[9] All of the events described below giving rise to the appellant’s claims against the
respondents occurred within the limits of the port. The area in which the appellant has
jurisdiction in the port is described in the preamble to the Harbour Regulations published

2 The International Convention on Salvage, 1989 which is contained in the Schedule to the Wreck and
Salvage Act 94 of 1996 and has, subject to the provisions of the Act, force of law and application in the
Republic (s 2(1) of the Act).
3 National Ports Authority of South Africa: Port Tariffs, 4ed, 1 April 2004.

on 18 April 1982 and which continue to be in force. A chart depicting the appellant’s area
of jurisdiction in the port was placed before the court at the hearing and a copy was made
available to us. It shows inter alia the limits of the appellant’s jurisdiction, the layout of the
harbour, the approach channel and the position of sandbanks and islands, the largest of
which, to the south of the channel and inside the harbour entry line (stretching from North
Head to South Head) is Jutten Island.

[10] The appellant exercises control over the port and earns revenue from the services
provided by it pursuant to the charges set out in the Tariff Book. Among the charges listed
in Section 4 ‘Marine Services’ are charges ‘payable for tugs/craft assisting and/or attending
ships, within the confines of the port’ (item 2), ‘miscellaneous tug/craft services’ (item 3)
and ‘berthing services’ (item 4). Included in the ‘miscellaneous services’ is this sub-item:
‘Craft involved in salvage: Special conditions apply when services rendered constitute salvage.
Transnet reserves the right to claim a reward for salvage if the services rendered to a ship in
distress constitute salvage.’

[11] The appellant is the sole public authority that lawfully operates tugs within the port.
Moreover the port of Saldanha is a compulsory pilotage harbour as described in s 10(1) of
Schedule 1 to the Legal Succession Act,4 with the result that every ship entering, leaving
or moving in the harbour is required to be navigated by a pilot who is an employee of the
appellant, with the exception of ships that are exempt by statute or regulation. (The vessel

4 Section 10 provides as follows:
‘(1) The harbours of the Company are compulsory pilotage harbours with the result that every ship entering,
leaving or moving in such a harbour shall be navigated by a pilot who is an employee of the Company, with
the exception of ships that are exempt by statute or regulation.
(2) It shall be the pilot’s function to navigate a ship in the harbour, to direct its movements and to determine
and control the movements of the tugs assisting the ship under pilotage.
(3) The pilot shall determine the number of tugs required for pilotage in consultation with the Port Captain,
whose decision shall be final.
(4) A master shall at all times remain in command of his ship and neither he nor any person under his
command may, while the ship is under pilotage, in any way interfere with the navigation or movement of the
ship or prevent the pilot from carrying out his duties except in the case of an emergency, where the master
may intervene to preserve the safety of his ship, cargo or crew and take whatever action he deems necessary
to avert the danger.
(5) Where a master intervenes, he shall immediately inform the pilot thereof and, after having restored the
situation, he shall permit the pilot to proceed with the execution of his duties.
(6) The master shall ensure that the officers and crew are at their posts, that a proper look-out is kept and that
the pilot is given every assistance in the execution of his duties.
(7) The Company and the pilot shall be exempt from liability for loss or damage caused by a negligent act or
omission on the part of the pilot.
(8) For the purpose of this item, ‘pilot’ shall mean any person duly licensed by the Company to act as a pilot at

was not so exempt.)

[12] Regulation 22 of the Harbour Regulations5 provides:
‘The Transport Services will, on application or when necessary, and subject to the discretion of the
port captain and to any conditions which he may impose in the interests of safe, orderly and
efficient harbour working, undertake work and provide all towage, tugs or other floating craft
services at harbours under the Transport Services’ jurisdiction where such craft are maintained
and are available.’

[13] The vessel arrived in the port on 31 March 2004 and was berthed and loaded at the
Saldanha side bulk ore loading terminal.

[14] The vessel completed loading the cargo at about 02h50 on 2 April 2004 and a
sailing pilot was requested for 04h00. At approximately 03h54 pilot De Kock, an employee
of the appellant acting in the course and scope of his employment, boarded the vessel.

[15] In accordance with s 10 of Schedule 1:
It was the function of the pilot to navigate the vessel in the harbour, to direct its
movements and to determine and control the movements of the tugs assisting the vessel
while it was under pilotage.
It was the responsibility of the pilot to determine the number of tugs required for
pilotage in consultation with the port captain.

[16] At about 4h00 the vessel commenced casting off the last of her mooring lines. The
appellant’s tug Jutten made fast to the starboard bow of the vessel. At about 4h20 the tug
cast off from the vessel before she had reached the channel for departing ships.

[17] At 4h40, within the limits of the port, the vessel experienced a catastrophic power
failure which resulted in the stoppage of her main engines and prevented her from
dropping anchor. When that happened the pilot requested tug assistance from the port
authority.

a particular harbour.’
5 Promulgated or in force in terms of s 21 of the Legal Succession Act.

[18] The vessel drifted without power in a south-westerly direction towards shallow water
and Jutten Island.

[19] At about 6h18 the tug Jutten again came alongside and commenced pushing the
vessel’s port bow. Twenty minutes later a second pilot, Captain Ahmed, boarded the
vessel. Within the next half hour a second tug operated by the appellant, the Meeuw, also
came alongside and was made fast to the vessel, which was then towed to a place of
safety within the port.

[20] On the same day the appellant caused the Cleopatra Dream and her cargo to be
arrested in terms of the provisions of the Admiralty Jurisdiction Regulation Act 105 of 1983,
thereby instituting an action in rem for payment of a total of R10 million. The claim was in
respect of salvage services rendered to ship and cargo in the port of Saldanha.

[21] Security was furnished for the appellant’s claims and the vessel and her cargo were
released from arrest. The arrests were, however, deemed to continue in terms of s
3(10)(a)(i) of the last-mentioned Act.

[22] The appellant duly delivered its particulars of claim and the respondents pleaded.
They admitted that the services rendered by the appellant constituted a ‘salvage operation’
as described in art 1(a) to the Convention and that the vessel and cargo were in distress
and in danger of grounding at the time the services were rendered. They denied that the
appellant was entitled to a salvage reward because the services performed by the
appellant were rendered in the performance of a statutory or common law duty and were
not voluntary.

[23] In its replication the appellant, having denied that its services were rendered in the
performance of a duty and, therefore, not voluntary, averred that, should the court hold
otherwise, it was nevertheless entitled to a salvage reward by virtue of the provisions of
the Convention, and, in particular, articles 56 and 177 thereof.

6 Art 5 Salvage operations controlled by public authorities, provides:
‘(1) This Convention shall not affect any provisions of national law or any international convention relating to

[24] In addition, the appellant replicated that, as the entity that exercised control over the
port of Saldanha, it earned revenue for the services provided by it according to the charges
set out in its Tariff Book. It referred specifically to the terms of item 4.3.8

The law to be applied
[25] Immediately before the commencement of the Admiralty Jurisdiction Regulation Act
on 1 November 1983 the South African courts of admiralty had jurisdiction to entertain a
claim for salvage. In terms of s 6(1) of that Act the applicable law in the action brought by
the appellant was the English law of admiralty at that date ‘in so far as that law can be
applied’. That provision does not however derogate from the provisions of any law of the
Republic applicable to a claim for salvage (s 6(2)). The Wreck and Salvage Act together
with the Convention is such a law. In the event of a conflict between English law and the
Act or Convention, the latter must prevail.9

[26] In interpreting the Convention the court may consider the preparatory texts to the
Convention, decisions of foreign courts and any publication.10

[27] The Convention came into force on 14 July 1996. Its essential purpose was to bring
the traditional rules of salvage which had been codified in the Convention for Unification of
Certain Rules of Law relating to Salvage and Sea, adopted in Brussels in 1910, up to

salvage operations by or under the control of public authorities.
(2) Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the
rights and remedies provided for in this Convention in respect of salvage operations.
(3) The extent to which a public authority under a duty to perform salvage operations may avail itself of the
rights and remedies provided for in this Convention shall be determined by the law of the State where such
authority is situated.’
7 Art 17, Services rendered under existing contracts, provides:
‘No payment is due under the provisions of this Convention unless the services rendered exceed what can
reasonably considered as due performance of a contract entered into before the danger arose.’
8 Item 4.3 is quoted in para 10 above.
9 MV Roxana Bank: Swire Pacific Offshore Services (Pty) Ltd v MV Roxana Bank 2005 (2) SA 65 (SCA) para
8.
10 Section 2(5) of the Wreck and Salvage Act.

date with modern practice and jurisdictional principles, and to take account of mounting
international concerns relating to the protection of the marine environment.11

[28] To achieve that object the Inter-governmental Maritime Consultative Organisation
(now the International Maritime Organisation or IMO) invited the CMI to prepare a draft
Convention to replace the 1910 Convention. The 1989 Convention was introduced in draft
form in Montreal in 1981 and settled in final form at a diplomatic conference in London in
April 1989. The convention came into force on 14 January 1996 when the requisite number
of States consented to be bound.12

[29] It has been suggested that five categories of preparatory text for the Convention
may be identified in the following, descending, order of importance:
The proceedings of the 1989 diplomatic conference at which the text was finalised.
The proceedings of the Legal Committee of the IMO during the period 1983-88
discussing the draft Convention formulated in 1981.
The proceedings of the CMI leading up to the 1981 draft.
The Brussels Salvage Convention of 1910.
The travaux preparatoires of the Brussels Convention, 1910.13

Voluntariness as a requirement for a salvage reward.
[30] As Bozalek J held, subject to the effect of Art 5 of the Convention, it is an essential
element of a salvor’s right to recover salvage that the services to the property in peril are
rendered voluntarily, without any pre-existing contractual or other legal duty. The duty is a
legally recognised duty towards the salved property or its owners and not a mere sense of
moral obligation. A right to salvage only arises when the contribution is voluntary.14

[31] The rationale for not allowing a salvage reward to a salvor acting under a pre-

11 The Travaux Preparatoires of the Convention on Salvage, 1989 (2003), publication of the Comite Maritime
International, (the CMI): foreword.
12 Ibid p ix.
13 F D Rose Kennedy & Rose Law of Salvage 7 ed (2010) at para 1.097. See also R Shaw The 1989 Salvage
Convention and English Law 1996 Lloyd’s Maritime and Commercial Law Quarterly 202.
14 See for example Brice, Maritime Law of Salvage 3 ed 1-01, 1-206; Kennedy & Rose 8.001; The MV
Mbashi; Transnet Ltd v MV Mbashi 2002 (3) SA 217 (D) 224B-C; J Reeder, Brice on Maritime Law of Salvage
4 ed (2003) 1-184; Halsbury’s Laws of England, Vol 94, 5 ed (2008) para 932 fn 2; W A Joubert (ed) Law of
South Africa, Vol 25 (2) (2006) first re-issue, para 45.

existing duty to render assistance, whether the duty arises from a contract or otherwise, is
that such a person should not be encouraged to neglect his duty and, by doing so, cause
or contribute to the danger necessitating salvage. Nor should the (prospective) salvor be
tempted to refuse to render services falling within his duty in order to obtain a salvage
reward.15

[32] 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 he performs them he will usually be barred from recovering salvage.16

[33] The principle of voluntariness has been applied to various classes of persons who
are or may be under an existing duty to the owner of the vessel assisted by them, including
port authorities, and salvage has been allowed only in respect of services going beyond
their duties.17 In The Gregerso,18 Brandon J said:
‘It is, in my view, significant that there is, so far as I know, no reported case where a port authority
has claimed salvage for removing a vessel which was an obstruction in its port. This is not, of
course, decisive against the validity of such a claim; but it does to my mind suggest that no port
authority has in the past felt optimistic about the chances of putting such a claim forward
successfully.’
My researches have failed to uncover such a success in the past forty years.19 The
question which must now be considered is whether the appellant has shown that this is
such a case.

Services rendered voluntarily or under a duty?
[34] The respondents relied on three alleged duties in support of their contention that the
services rendered by the port authority at Saldanha were not voluntary but rendered in

15 Kennedy & Rose 8.009.
16 For example, the master and members of the crew from the owner of the cargo: The Sava Star [1995] 2
Lloyd’s Rep 134 (QB) (AdmCt) at 142, or a passenger, ibid at 143, or the cargo owner himself, ibid at 143;
Kennedy & Rose 8.006; Reeder 1.206.
17 See particularly Bostonian (Owners, Master and Crew) and Patterson v The Gregerso (Owners) [1971] 1
Lloyd’s Rep 220 at 225-7 and the references therein to The Citos (1925) 22 Lloyd’s Rep 275 and The Mars
and Other Barges (1948) 81 Lloyd’s Rep 452.
18 At 227.
19 In The Mbashi supra the Durban port authorities assisted a ship in distress some three miles beyond the

performance of a duty. These were:
Duties flowing from reg 22 of the Harbour Regulations.20
A duty to users of the port (including the respondents) to make the port reasonably
safe for navigation.
A duty to users of the port (including the respondents) to ensure that tugs are
available in the event of an emergency occurring within the confines of the port.

[35] In interpreting reg 22 the intention behind the provision should be sought having
regard to its context, object and purpose.21 The context is the proper and orderly
management of South African harbours in so far as the carrying out of work and the
provision of floating craft services is concerned and, with that aim in mind, the role of the
port authority. The purpose of reg 22 is equally clear: it ensures that, within the ports
operated by it, the appellant shall be the first resort for all work required in the harbour and
the provision of such services. To this end the regulation stipulates that work or services
will only be undertaken (i) if application is made, or (ii) if the appellant, mero motu,
considers such to be necessary. In either case, the port captain is given an overriding
discretion (which he must of course exercise with due consideration of all the relevant
circumstances) to refuse to undertake the work or provide the services. Absent an exercise
of the discretion the clear intention is that the appellant will (and is therefore obliged to22)
undertake the work or carry out the services (albeit subject to conditions which the port
captain may impose in the interests of the safe, orderly and efficient working of his
harbour).

[36] In the present instance the port captain did not, on the agreed facts, exercise a
discretion against providing the services of the appellant’s tugs and their crews. As no
application was made to him and the only communication emanated from the pilot who
called for the assistance of the tugs, it must be inferred that the appellant (through its
employees such as the pilot and the, undisclosed, persons to whom the call was
transmitted) considered the provision of assistance to be necessary.

harbour limits and were rewarded.
20 Quoted in para 12 above.
21 Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School 2008 (5) SA 1 (SCA)
paras 16 to 19.
22 Sutter v Scheepers 1932 AD 165 at 173-4; Minister of Environmental Affairs and Tourism v Pepper Bay

[37] The peremptory nature of the provision is borne out by the language and the
following considerations:
Reg 22 relates to all floating craft services at the harbour. Such services are not
limited to routine or everyday occurrences but embrace exigencies which may be regarded
as unusual or extraordinary within the harbour. Just as it is applicable to all users of South
African ports, so it applies to users who experience mishap or require assistance.
If there were no duty do provide emergency services (including salvage) users of
the ports would be subjected to uncertainty and confusion and the hazard of emergencies
would be increased by delay and the availability of suitable alternative services, especially
in smaller ports. It was common cause that at ports under its jurisdiction the appellant
exercises the sole public authority and that Saldanha (as indeed all such ports) are
compulsory pilotage harbours with the consequence that every ship entering, leaving or
moving in the harbour is required to be navigated by a pilot with the functions and powers
that have been identified earlier in this judgment.23 The appellant has an effective
monopoly over the provision of tug services and its implied duties must be determined with
that as a starting point.

[38] Argument was addressed to us on the nature and breadth of the discretion
conferred on the port captain in reg 22. But that is of no relevance once the port captain
does not exercise the discretion. The peremptory terms of the regulation remain unaffected
(because not made subject to its exercise).

[39] Appellant’s counsel submitted that a salvage operation is inherently dangerous not
only to the ship, its crew and its cargo but also to the property and personnel of the salvor.
Therefore the regulations should not be interpreted so as to compel the appellant to face
the hazard. That may frequently be so, but the port captain is empowered to refuse to
undertake services or to impose conditions appropriate to the circumstances in so doing.
The degree of danger and the complexity of the task and the extent of resources available
to him are no doubt factors which he may properly consider in the exercise of his discretion
or the imposition of conditions. The extent of deviation from the normal duties of the port

Fishing (Pty) Ltd 2004 (1) SA 308 (SCA) para 32.
23 Section 10(1), (2) and (3) to the Schedule, quoted in para 12 above.

authority in the harbour area may also be regarded as an influence on his decision. In
addition, to the extent that the dangers and complications facing the salvor exceed the call
of duty, the possibility of salvage reward is not wholly excluded as I have pointed out. In so
far as they do not the appellant may claim the compensation provided for in its Tariff Book.

[40] I conclude therefore that the trial judge correctly found that Harbour Regulation 22,
read within its context, imposed a general statutory obligation to furnish tug and towage
services to users of the port within its confines.

[41] A further consideration which supports the conclusion that a statutory duty prevailed
throughout the course of the salvage in this case flows from the facts: At the time that the
ship’s engines failed the appellant’s pilot, De Kock, was carrying out his duties as pilot on
it. Although, strictly-speaking, once the ship began to drift it became incapable of further
pilotage, the pilot immediately called for assistance from the tugs. That was done and
responded to in the context of s 10(2) of the Schedule: the tugs were under a duty to
answer the pilot’s summons. There is no agreed fact which supports an inference that their
arrival was voluntary in any respect. The same can be said of their subsequent actions.
The salvage operation effectively commenced when the tug Jutten came alongside. What
she did then was designed to move the ship from a position of potential danger in the
harbour to safe anchorage and can only have taken place in accordance with the pilot’s
instructions. He was exercising his statutory obligation (s 10(1) of the Schedule) to
navigate a ship moving in the harbour and, to that end, ‘to direct its movements and to
determine and control the movements of the tugs assisting the ship under pilotage’ (s
10(2)), and persisted in so doing until the vessel was drawn into a safe anchorage. So
construed the whole substance of the salvage operation was carried out pursuant to the
statutory duties of a pilot navigating a ship under compulsory pilotage.

A common law duty
[42] The parties agreed that the appellant has a common law duty to make the port of
Saldanha reasonably safe for navigation.24 Counsel for the appellant submitted that that
duty extended only to the physical aspects of the port such as the positioning of lights and

24 In re SS Winton; Avenue Shipping Co Ltd (in liquidation) v South African Railways and Harbours 1938 CPD

the provision of safe berths. Further, he said, a distinction should be drawn between
making the port safe and making ships safe to navigate: the appellant’s common law
obligation does not extend to assisting ships to be safe.

[43] I agree with counsel for the respondents that both distinctions are artificial. If it is
necessary to take a ship without power under tow in order to prevent it from drifting within
the port limits or from becoming stranded in the port or from constituting a danger or
obstruction to other users of the port, then, in my view, such an action will constitute
performance of the appellant’s duty to make the port reasonably safe for navigation. A
sandbank or a ship drifting out of control are equally inimical to the safe working of the port
and both are within the means and competence of a port authority to deal with.

[44] But, so appellant’s counsel contended, the duty owed to users of the port, to make it
safe for navigation, is not a duty owed to the owners of the salved ship or cargo. It seems
to me, however, that this is to take too narrow a view. A fully laden bulk carrier drifting in a
harbour in the early hours of the morning presents a danger to itself, its crew and its cargo
as well as to shipping generally using the harbour, let alone to the environment. In The
Citos25 Lord Blackburn was concerned with an admitted general statutory duty to remove a
drifting ship in the fairway from danger to other shipping, but a denial of such a duty
towards the owners of the vessel itself. The learned judge noted that the contention was
not well-founded: the principal object of the powers might be to protect other shipping from
the risks of collision with the abandoned vessel, but it was undoubtedly an advantage to
the owners of an abandoned vessel to have their vessel removed from the danger of such
collision, and, accordingly, it could not be said that they had no interest in the performance
of the statutory duty. In The Gregerso26 Brandon J, dealing with a ship grounded
substantially athwart the channel in the River Witham leading to the port of Boston (in
Lincolnshire, not the United States). In that position she obstructed all entry to and exit
from the port. The learned judge said:
‘In this situation it was, in my view, the duty of the Boston Corporation, as the port authority, to
exercise, as a matter of urgency, the powers of removal conferred on it by the various statutes to
which I referred earlier. The duty was owed by the corporation to all users of the port, including the

247 at 264.
25 Supra fn 18.

owners of the Kungsö herself.’
Despite the obvious factual and legal differences between these cases and the substance
of the present appeal it seems to me that there is a common thread which renders them
subject to a similar analysis. In the present context it is that where a legal duty rests on an
port or similar authority to look to the safety of shipping and that duty extends to all users
of the harbour, then any user in distress is entitled to invoke the duty in order to procure
assistance for himself.27

[45] The conclusion that the court a quo was correct in finding that the appellant acted
pursuant to both statutory and common law duties leaves the possibility of an argument
based simply on action undertaken which exceeded the normal scope of such duties. But
that was not the appellant’s case and the agreed facts do not bear out such a hypothesis.
Although the ship was drifting towards a situation of peril it had not reached that point;
there is no suggestion that the salvage was rendered dangerous or difficult by reason of
sea or weather conditions or that any of the crew of the tugs was placed at risk by the
exigencies; apparently the ship’s crew remained with the ship and there was no need for
the salvor’s men to board it. In short it appears that the whole affair required neither out of
the ordinary skill nor courage.

Salvage reward irrespective of duty?
[46] The second issue for determination is whether the appellant, despite not being a
volunteer, was nonelessness entitled to a salvage reward by reason of the provisions of
the Convention and item 4.3 of the Tariff Book.

[47] The appellant does not contend that item 4.3 of itself entitles it to such a reward.
Indeed, although that item confers a right to claim a reward, it does not presume that the
requirements for such a claim are satisfied. Nor does it exclude proof of voluntary action as
an element of such a claim.

[48] It was common cause that:
The Cleopatra Dream was a ‘vessel’ for the purposes of the Convention.

26 Supra fn 18.
27 See also Kennedy & Rose op cit 1.185 and 1.186.

For the period from approximately 4h40 until the Jutten made fast, the vessel was
in distress, drifting without power in the direction of Jutten Island, unable to drop either of
her anchors, and in danger of grounding.
In so far as the vessel and her cargo were concerned, the services rendered by the
appellant constituted a salvage operation as defined in art 1(a) of the Convention ie an act
undertaken to assist a vessel in danger in navigable waters.
As a result of the services of the appellant’s tugs, the vessel, her bunkers and cargo
were saved without harm or damage or loss to the respondents. It is not in issue that this
constitutes a ‘useful result’ as contemplated by art 12(1) of the Convention that ‘gives right
to a reward’.

[49] It is the appellant’s contention that the facts enumerated in the preceding paragraph
are, under the Convention, determinative of its right to a salvage reward. Counsel
submitted that, ex facie art 12(1), the principle of voluntariness is not a consideration. Nor
does such a requirement fit easily with the definition in art 1(a) of a ‘salvage operation’
which means ‘any act or activity undertaken to assist a vessel or any other property in
danger in navigable waters or any other waters whatsoever’.

[50] So, counsel for the appellant submitted, in so far as voluntariness remains an
essential element of a salvage operation, art 17 of the Convention restricts this
requirement to circumstances where such an operation is performed in terms of an existing
contract (which is not the case here). Article 17 provides:
‘No payment is due under the provisions of this Convention unless the services rendered exceed
what can be reasonably considered as due performance of a contract entered into before the
danger arose.’

[51] As Prof Hare points out,28 although art 17 reinforces the voluntariness principle as
far as contractual duties are concerned (eg towage), it does not deal with the actions of
potential salvors who act in terms of a duty whether under statute or at common law. From
this he concludes that the Convention
‘would allow the non-voluntary salvor who performs a salvage operation, and complies with the
other requirements of the Convention, to claim salvage notwithstanding the existence of a pre-

28 John Hare Shipping Law and Admiralty Jurisdiction in South Africa 2 ed (2009) 414.

existing duty.’

[52] In his judgment Bozalek J found that the view expressed by Prof Hare was not
supported by any other authority or writer and was contrary to arts 5(1) and (3) of the
Convention. In addition, the learned judge was of the view that if the drafters of the
Convention had intended to do away with the requirement of voluntariness in regard to
salvage services rendered by public authorities, it would have done so in express terms.
Counsel submits that this conclusion is flawed for the reasons which follow.

[53] First, it is not so that Prof Hare’s view does not find support elsewhere. Counsel
refers in this regard to Martin Davies ‘Whatever happened to the Salvage Convention’29:
‘According to one view, art 17 is the only restriction on who can claim salvage reward, with the
result that the Salvage Convention 1989 applies to any person performing a “salvage operation”
that goes beyond the scope of an existing contract.’
Second, as there would appear not to be any reported judgments on this issue, there is, in
the circumstances, no authority one way or the other. Third, counsel submits, Bozalek J
has assumed, wrongly, that the salvage law of all parties to the Convention required public
authorities to act voluntarily before being entitled to a reward. Law in the Federal Republic
of Germany, a signatory to the Convention,30 in December 1987 (ie shortly before the
Convention) was to the effect that ‘even a public duty to render rescue services does not
exclude the right to equitable remuneration, unless the rescuer is obliged to act without
compensation’.31 Fourth, counsel drew attention to the Roman law principles of negotiorum
gestio on which, certain writers32 have suggested, the law of salvage is based:
‘It is not only the man who has involved himself and administered another’s affairs of his own free
will and under no compulsion who is liable to this action but also the man who has administered
them because for some reason he had to or thought he had to.’

29 39 Journal of Maritime Law and Commerce 463 at 486.
30 Nicholas JJ Gaskell ‘The 1989 Salvage Convention and the Lloyd’s Open Form (LOF) Salvage’ 16 Tulane
Maritime Law Journal 1 at 8. Also, the Chairman of the Committee of the Whole who managed the drafting
process, Prof Dr Norbert Trotz was German (ibid).
31 World Shipping Laws ed by David C Jackson and Debra Morris (June 1992) Binder 2 ‘IIIA – Salvage
Germany, Federal Republic’.
32 J P van Niekerk ‘Salvage and Negotiorum Gestio: Exploratory reflections on the Jurisprudential Foundation
and Classification of the South African Law of Salvage’ Acta Juridica 1992 148; Ina H Wildeboer The Brussels
Salvage Convention (1965) 40 ff. See also Sir C Robinson in The Calypso (1828) 2 Hagg 209 at 217 and
Gaskell (fn 29 above) at 27.

Counsel conceded, however, that there is authority to suggest that the derivation from
negotiotum gestio is, at least in English law, doubtful.33 Fifth, there was no requirement of
voluntariness in the 1910 Convention. The English delegation to that convention proposed
that the requirement be inserted in art 2 but the proposal was not adopted.34 Hence,
counsel submitted that if a general requirement of voluntariness, over and above what is
articulated in art 17, had been intended, the Convention would have said so in express
terms.

[54] Counsel further submitted that Prof Hare’s construction of art 17 operates
independently of the provisions of art 5, a submission, he said, not appreciated by the
court a quo. As it was common cause that art 17 does not apply in this matter, and as it
contains the only requirement of voluntariness in the Convention, the appellant should, in
the submission, be entitled to a salvage reward irrespective of whether the salvage
operation was carried out in performance of a statutory or common law duty.

[55] If Prof Hare’s conclusion (quoted in para 51 above) means only that a salvor who
acts under a statutory duty, but exceeds that duty in the breadth or degree of his actions,
may nevertheless qualify for a salvage reward under the Convention, then I agree with
him. That is the common law and the Convention does not derogate from it. If, however, he
intends to say (and I do not think that such was his intention) that the implication of art 17
is that under the Convention salvors who act strictly within the scope of a duty to the
salved property may nevertheless qualify for a salvage reward, I can find no such
indication in that article. In any event the entitlement of a public authority, including one
acting under a duty, is expressly regulated by art 5 of the Convention.

[56] As pointed out earlier the travaux preparatoires to the 1989 Convention (to which as
an interpretative aid s 2(5) of the Wreck and Salvage Act directs us) include the Report of
the CMI to the IMO that was approved by the XXXII International Conference of the IMO
held in Montreal in May 1981 on the draft International Convention on Salvage. In the
section of the Report headed Special Comments the following is said (in para 1.-1.1) about
the definition of ‘salvage operations’:

33 Reeder, Brice on Maritime Law of Salvage 4 ed (2003) 6 fn 28 and the authorities there cited.
34 Wildeboer (op cit fn 31) 65.

‘It is generally felt to be an important element of salvage that it must be voluntary, but this term
may be ambiguous, and therefore, it has not been included in the definition itself. The cases where
salvage operations are carried out on the basis of a pre-existing duty are dealt with in Art 1-3 which
contains provisions for salvage operations controlled by public authorities and in Art 3-6, in which it
is made clear that services which are rendered in due performance of a contract entered into
before the danger arose shall not be compensated under the rules of the Convention.’

[57] Concerning ‘Service rendered under existing contracts’ (Art 3-6, which became art
17 in the Convention) the same Report contains the following comment:
‘This is a general restatement of the principle in the 1910 Convention, Art 4. As mentioned above,
the rule forms part of the important principle under which a salvage service must be voluntary to
give right to the remedies of the Convention.’

[58] As to Art 1-3 ‘Salvage operations controlled by Public Authorities’, which became art
5 of the Convention, the commentary of the CMI is the following:
‘The draft convention does not deal directly with questions related to salvage operations by or
under the control of public authorities, nor does it deal with the rights of salvors to payment in such
cases from the authority concerned. This is in accordance with the system of the 1910 Convention,
and Art. 1-3.1.
In this provision it is now made clear that the fact that a salvor has performed salvage operations
under the control of a public authority shall not prevent him from exercising any right or remedy
provided for by the Convention against the private interests to which salvage services are being
rendered by him. Whether the salvor is entitled to recovery from such private interests depends
upon whether, according to the facts, the conditions for recovery set out in the provision of the
Convention have been met.
The present law varies from State to State as to whether for instance the coast guard or the fire
service may recover in salvage. It is intended that this position should be preserved.’

[59] Furthermore one must in reading and interpreting the Convention bear in mind that
‘the draft convention is not intended to set out the law of salvage in any exhaustive
manner’ (General Comments to the 1981 CMI Report).

[60] Informed by these comments certain specific conclusions regarding voluntariness in
the context of the Convention can be drawn:

The importance of voluntariness as a principle underlying the right to claim a
salvage reward was not intended to be restricted whether by its omission from the
definition of ‘salvage operations’ or by anything contained in the draft of what would
become Arts 5 and 17.
Art 3-6 (afterwards 17) was directed not at restricting the category of cases
regarded as ‘voluntary’ to the contractual situations therein addressed but to confirming
that a ‘salvor’ carrying out operations under a contract entered into before the danger
arose does not become entitled to a salvage reward unless his services exceed due
performance under that contract, ie because his services do not become ‘voluntary’ until
they exceed his contractual obligation. So understood, I think the appellant’s construction
of art 17 is misdirected.
Art 1-3 (afterwards 5) addressed two specific situations (i) the preservation of
national laws and international conventions relating to salvage operations by or under the
control of public authorities, and (ii) confirmed that salvors carrying out such operations are
entitled to avail themselves of the rights and remedies provided for in the Convention, ie
organisation and intervention by public authorities cannot be used as a reason to deprive
the private salvor of his right to salvage.

[61] Counsel for the appellant relied, independently of art 17, upon art 5 of the
Convention. That article provides:
‘(1) This Convention shall not affect any provisions of national law or any international convention
relating to salvage operations by or under the control of public authorities.
(2) Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves
of the rights and remedies provided for in this Convention in respect of salvage operations.
(3) The extent to which a public authority under a duty to perform salvage operations may avail
itself of the rights and remedies provided for in this Convention shall be determined by the law of
the State where such authority is situated.’

His submissions in this regard were:
In art 5 the entitlement of a port (public) authority to a salvage reward is expressly
recognised, irrespective of the existence of any duty, whether statutory or otherwise even
in cases where the salvage operation is carried out by or under control of a public
authority.

Art 5(2) reverses any pre-Convention common law rule, so that public authorities
under a duty to perform salvage operations would only be disentitled from claiming salvage
by reason of art 5(3) if a new rule to that effect were introduced by legislation, something
which has not happened in South Africa. The intention to change the pre-Convention
position is evident, counsel submits, from the use of the word ‘nevertheless’ at the
beginning of art 5(2).
Because s 2(1) of the Wreck and Salvage Act confers the force of law on the
Convention, ‘the law of the State’, as that phrase is used in art 5(3) of the Convention,
means the Convention itself.

[62] I do not accept counsel’s interpretation of art 5. It seems to me that the article is
divisible by reference to its sub-articles. Sub-article 1 recognises that national laws and
international conventions may exist relating to salvage operations by or under the control
of public authorities; it excludes any effect of the Convention on the provisions of those
laws and conventions. Sub-article 2 allows salvors carrying out such operations to avail
themselves of the rights and remedies provided for in the Convention. Such salvors would
include both private salvors which the public authority may be using in its operations and
the public authority itself. Sub-article 3 regulates the extent to which a public authority
under a duty to perform salvage operations may avail itself of the Convention rights and
remedies according to the law of the State where the public authority is situated. The
extent to which a private salvor may avail itself is not so regulated. If the local law limits the
public authority to reward only if it exceeds its statutory duty, that is the qualification the
authority must satisfy.

[63] The introductory word ‘Nevertheless’ (in subart (2)) is problematic. But, consistent
with what appears to be the structure of the three subarticles, it simply indicates that
despite the provisions of the unaffected laws and conventions, all salvors referred to in
sub-art (1) have a right to avail themselves of Convention rights and remedies to the extent
that the local law does not curtail such rights and remedies.

[64] It follows that I disagree that Art 5 recognises the entitlement of a public authority to
a salvage reward. Each case involving a claim by a public authority for salvage in
consequence of operations carried out by itself or under its control must therefore begin

within a determination of how the domestic law regulates a claim by it for salvage. Once
that is determined one will also know the limitations, if any, on its entitlement to a salvage
reward under the Convention. That exercise has already been undertaken in the first leg of
this judgment: the conclusion was that the appellant has no right in the circumstances to a
salvage reward because the whole scope of its operations was carried out subject to and
within the normal limits of its duty and not voluntarily. It follows that the appellant has no
entitlement to avail itself of the rights provided by art 12 of the Convention.

[65] Counsel’s third submission set out above is not correct. Art 5(1) expressly provides
that the Convention shall not affect any provisions of national law relating to salvage
operations by or under the control of public authorities. Such national law includes the
common law of South Africa. The law of the State referred to in art 5(3) according to which
the extent of a public authority’s right to avail itself of the rights and remedies provided by
the convention must be determined, is the common law unaffected by the Convention.

[66] Counsel for the appellant submitted that consideration must be given, in interpreting
Art 5, to the purpose of the Convention as expressed in the introductory recordals viz to
‘ensure that adequate incentives are available to persons who undertake salvage
operations’. He submitted that the drafters of the Convention no doubt wished to
encourage public authorities to perform salvage operations by ensuring that they too
enjoyed adequate incentives. In so far as the attempt to satisfy the general intention to
encourage salvage operations is concerned, the Convention does not, in my view, indicate
any such purpose in relation to salvage by public authorities. It is clear, I think, that they
were intended to share in the increased benefits provided for salvors generally in those
instances where their national laws permitted them to avail themselves of the rights and
remedies of the Convention.

[67] In the result I conclude that Bozalek J was correct in finding that the Convention
evidences no intention to exclude voluntariness in respect of salvage operations performed
by a public authority acting under a duty. Nor is the effect of art 5 read with s 2(1) of the
Wreck and Salvage Act to amend or supersede the common law.

[68] Both issues argued in the appeal having been decided against the appellant, the

appeal is dismissed with costs.

____________________

J A Heher

Judge of Appeal

APPEARANCES
APPELLANT:
M J Fitzgerald SC (with him D J Cooke)

Webber Wentzel, Cape Town

McIntyre & van der Post, Bloemfontein

RESPONDENTS:  M Wragge SC

Bowman Gilfillan Inc, Cape Town

Matsepes, Bloemfontein
Supreme Court of Appeal of South Africa
MEDIA STATEMENT
From:
The Registrar, Supreme Court of Appeal
Date:
11 March 2011
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

On 11 March 2007 the SCA delivered judgment in Transnet v The MV Cleopatra
Dream (Case no 163/10).

The vessel had suffered a catastrophic power failure while preparing to leave Saldanha
Bay carrying a cargo of iron ore. She drifted out of control towards shallow water. The
pilot, who had not yet left the vessel called for assistance and tugs were dispatched by
the port authorities. The vessel was then taken in tow and brought safely to an
anchorage. Transnet caused the ship and her cargo to be arrested as security for a
claim for R10 million as a salvage reward.

The claim was dismissed in the Western Cape Court. The judge found that Transnet’s
services were not rendered voluntarily but under a statutory duty to provide towage,
tugs and related services within the port and under a common law duty to keep the
harbour safe.

On appeal the SCA agreed with those findings. It rejected a submission that public
authorities were entitled to claim a salvage reward in terms of the Salvage Convention

in despite of domestic law. In terms of South African common law a public authority
is only entitled to claim a reward if its conduct exceeds what is normally required in
order to carry out its duties. As the salvage fell within the ordinary scope of Transnet’s
duties as port authority and required neither out of the ordinary skill nor courage the
claim had rightly been dismissed and the appeal failed.
--ends--