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Merchant Shipping Bill 2020: a work in progress

The draft Merchant Shipping Bill was published in 2021 for comment and was designed to replace the 1951 Act which has grown into a very cumbersome piece of legislation as technology and shipping have developed. The Department of Transport is in the process of considering comments and input received and other submissions made during the course of the year. The Bill will then be scrutinised by state law advisers before being submitted to cabinet for approval and, ultimately promulgated by parliament as the new Merchant Shipping Act.

The Bill does require updates to 60 odd sets of regulations and requires new regulations dealing with South Africa’s recent accession to the Nairobi Wreck Removal Convention and various green legislation relating to the reduction of sulphur and other harmful emissions. Despite the pandemic, the director of the Department of Transport’s legislative programme, Mr Dumisani Ntuli, is confident that the draft Bill and regulations are on track to come into force in the second half of 2022. Mr Ntuli, with a wealth of legislative experience, was South Africa’s representative to the International Maritime Organisation in London and is very mindful of the importance of the new regime to South Africa’s shipping industry.

Other than alignment with new technology, the purpose of the Bill and new regulations is to continue the government and South African Maritime Safety Authority’s (SAMSA) intention to align our shipping legislation with the rest of the maritime world and in particular, to that of our major trading partners. This is particularly the case with the Wreck Removal regime and the so-called green legislation. The fact that South Africa’s transition to low sulphur fuel and resultant low sulphur emissions proceeded without a hitch bodes well for the future of South Africa’s maritime legislative regime.

One issue that the Bill does to deal with is the question of autonomous ships and no doubt this will be the next project that SAMSA focuses on along with the rest of the maritime world. Autonomous and remote controlled ships are a reality with the mv Yara Birkeland already operating in Norway and a number of other projects at an advanced stage. With the advantage of increased carrying capacity, lower staff and crew costs and the claimed elimination of human error, there is no doubt that we will be seeing these vessels in our waters in the next few years.

The technological challenges are in the main being dealt with by shipping lines and no doubt the possibility of remote controlled ships will create new employment opportunities for millennials raised on smart phones and PlayStation consoles.

From a liability and government perspective, these ships will not eliminate human error. They will simply move liability from the ship’s master and crew to the remote control operators and the manufacturers of the automated systems and software that will run the vessels and hopefully avoid collisions and groundings.

The biggest challenge faced by shipping companies in countries is that most of the world’s legal systems do not currently cater for autonomous vessels. This includes South Africa. This is partly because most legal systems only attribute legal personality and the extension of liability to individuals in corporations. The law will need to explore the possibility of attributing personality to the AI systems that will ultimately run these ships. Although there are many examples of AI devices and robots that can function as well as humans in a limited capacity, or on a limited scope of tasks, the fully autonomous ship and its operating systems would have to make decisions relating to collision avoidance and navigation which may result in AI defects when viewed with hindsight. Legislators may want to refer to some Isaac Asimov’s books for an understanding of the practical and philosophical challenges that AI and robotics bring.

This will apply not only to operational legislation such as the collision regulations which currently place obligations on persons to maintain a proper lookout in all prevailing circumstances and to minimum manning regulations which require a certain number of people to be on board a ship. It will more importantly apply in the liability, and accordingly insurance, space where current pollution, collision and carriage of goods by sea regimes contemplate liabilities and defenses arising that depend on the conduct of the master and crew.

Those regimes have developed over centuries and seek to strike a balance between, in the main, shipowners, cargo interests and the environment. This is in recognition of the fact that global trade is necessary and in certain circumstances, the shipowner can avoid or limit its liability for pollution damage provided the master and crew act in the required manner.

Once the new Merchant Shipping Act is in place, SAMSA will have their hands full in dealing with the complex legislative challenges arising out of operation of autonomous and remote controlled ships. The continued development of the Merchant Shipping Act and all of its regulations is to be welcomed and we are sure will mark an improvement in South Africa’s status as a maritime nation.
Source: Norton Rose Fulbright South Africa Inc

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