COSPAS-SARSAT Agreement; Sea Transport Documents Bill

Meeting report

TRANSPORT PORTFOLIO COMMITTEE
24 May 2000
COSPAS-SARSAT PROGRAMME AGREEMENT; SEA TRANSPORT DOCUMENTS BILL: BRIEFING

Documents handed out:
Power point presentation on COSPAS-SARSAT Programme 

Briefing on Sea Transport Documents Bill (see Appendix 1)

SUMMARY
The COSPAS-SARSAT Programme Agreement and the Sea Transport Documents Bill were explained to the committee.

Committee members also referred to the Helderberg aeroplane disaster.
Members of the committee more, particularly Democratic Party members, said that there was a need for more insight into the Helderberg disaster in the light of a TRC hearing on the matter and of hovering accusations of foul play regarding the previous investigation. NNP members advised that members should wait and let the matter develop on its own. This was vehemently opposed by the DP members - arguing that the longer they waited, the worst the situation would become. In the end the committee members resolved that the Minister of Transport and Civil Aviation be approached for clarity.

MINUTES
COSPAS-SARSAT Programme Agreement
Mr Nasser Solomon from the Department of Transport, explained that as South Africa is a signatory to the Safety of Life at Sea Convention, the International Maritime Search and Rescue Convention, the Convention on International Civil Aviation, it had undertaken to provide maritime safety services. COSPAS - SARSAT is one such service. COSPAS, A Russian acronym, translates loosely into "Space System for the Search of Vessels in Distress" and SARSAT stands for Sarsat Search and Rescue Satellite Aided Tracking. COSPAS - SARSAT provides, free-of-charge, distress alert and location information to search and rescue authorities anywhere in the world for maritime, aviation and land users in distress.

The Department of Transport had recently acquired equipment to provide COSPAS- SARSAT services which are rendered by Telkom on behalf of the Department. A Local User Terminal (LUT) had been installed at Telkom Head Offices in Milnerton and is partly operational. The COSPAS - SARSAT system comprises three segments: radio beacons carried by ships and aircraft (the committee was briefed on the different types of beacons such as the 121s and 406s), a space segment and a ground segment.

Satellite services are provided free of charge in terms of the International COSPAS - SARSAT Agreement but individual countries must provide and pay for the ground segment that comprises of the Local User Terminal (that processes relayed distress signals to provide a beacon location and then transmits alert messages to a Mission Control Centre) and a Mission Control Centre that validates and exchanges alert data and technical information and redistributes it to search and rescue authorities.

The International COSPAS - SARSAT Programme Agreement was concluded on 8 July 1985 by the Union of the Soviet Socialist Republics, the United States of America, Canada and France. Its purpose is to ensure the long-term operation of the COSPAS - SARSAT system to provide distress alert and location data from the system to the international community in support of search and rescue operations on a non-discriminatory basis.

By ratifying this Agreement South Africa as a Ground Segment Provider by virtue of having recently installed the Local User Terminal, will be recognising the importance of close international co-operation in search and rescue.

Mr Derrick Cornellisen, also from the Department, explained that there are 26 countries at present who are also formally associated with the COSPAS-SARSAT Programme as Ground Segment Providers or User States. He said that the LUT/MCC installed at Milnerton was presently in stand-alone mode, awaiting a letter of association to go to initial and full operating capability and to establish links to SA's nodal MCC in Australia. Presently all alert data is supplemental to the UK MCC which is responsible for the Southern African COSPAS-SARSAT area. Since installation just over a year ago, local alert data has aided a number of Search and Rescue missions. The latest was Taiwanese MV Chwan Yi No. 1 in May 2000.

The responsibilities of Signatory's association are:
- To adhere to the specifications and procedures set by the Council for adequate system performance.
- To endeavour to deliver distress alert and location information to appropriate search and rescue authorities.
- To provide appropriate performance data in order to confirm compatibility of its Ground System equipment with the System.
- To advise the Council or the competent international organisation of its point of contact for distress alert purposes and to make use of radio beacons for operation in the System.
- To maintain a radio beacon register.
- To exchange COSPAS-SARSAT data in a timely and non-discriminatory manner.
- To participate in meetings of the Programme convened by the Council, with a view to resolving relevant administrative, operational and technical issues.

Sea Transport Documents Bill
Mr Douglas Shaw briefed the committee on this Bill (see document).

Questions and answers
(Q) Is it mandatory for aircrafts to carry beacons?
(A) Yes, there is a requirement that all big aircrafts carry a beacon.

(Q) Are all countries contributing or is only South Africa contributing? Is the black box linked to this system?
(A) They all contribute to run COSPAS-SARSAT Programme. It is part of funding for the Programme. As regards the Black box - it does not provide any aircraft location system. There is no mandatory system on aircrafts yet because large parts of the ocean are not covered by the 121 system.

(Q) Why is there a shift between 121 beacons to 406s and what are the financial implications of that?
(A) The 121s were not uniquely designed - false alerts were not unusual in 121s.Whereas false alerts are minimal with the 406s.

Appendix 1:
THE SEA TRANSPORT DOCUMENTS BILL (CARRIAGE OF GOODS BY SEA BILL), 1999
1. The Carriage of Goods by Sea Bill is promoted by the South African Maritime Law Association (MLA) and was prepared in consultation with them. Cabinet approved the Carriage of Goods By Sea Bill, 1999, on 20 October 1999. The name of the mentioned Bill was subsequently changed to the Sea Transport Documents Bill. on recommendation of the State Law Advisers, due to the fact that there is an existing Carriage Of Goods By Sea Act, 1986.

The provisions of the Bill were debated extensively, both within the MLA itself and in consultation with other interested parties, before its submission to the Department of Transport. The Department, Chief Directorate Shipping, was also involved in the consultation process by virtue of its membership of the MLA and participation in at least three MLA conferences at which the Bill was discussed. An earlier draft of the Bill was published in the Gazette for comment on 12 December 1997. Several interested parties responded, including the Association of Shipping Lines (ASL), Grincor Management Services (Pty) Ltd, the Council of South African Banks (COSAB) and SAFMARINE. All comments were considered in consultation with the MLA, and resulted subsequently in several amendments being made to produce the present text. The MLA and the Department are of the opinion that the concerns of those who participated in the consultation process have been addressed satisfactorily and that the Bill reflects a consensus position.

2 SUMMARY
Presently, the Admiralty Jurisdiction Regulation Act, 1983 (Act No.105 of 1983), makes English law, as it stood at the commencement of that Act, applicable to
various matters including bills of lading. Courts in the Republic are, by statute, obliged to apply the United Kingdom legislation enacted in 1855 which has been found to be unsatisfactory in the United Kingdom and has been replaced by their Carriage of Goods by Sea Act 1992. South African law, therefore, is in many respects out of date and unsatisfactory.

The Sea Transport Documents Bill seeks to clarify and modernise the law relating to the various documents, including bills of lading, commonly used in connection with the carriage of goods by sea.

3. DISCUSSION
3.1 It is essential that the law of the Republic of South Africa should deal with bills of lading and other related documents in a way which can be regarded as acceptable in the modern financial circles. For a considerable time it has been felt that the South African law to bills of lading is out of date and unsatisfactory. The Bill seeks to clarify and modernise the law relating to the various documents including bills of lading, commonly used in connection with the carriage of goods by sea.

3.2 In general the Bill provides for -
• definitions of certain words and expressions. In particular, "sea transport document" is defined so as to include both negotiable or transferable and non-negotiable or non-transferable documents.
• the application to documents issued before the Bill's commencement. A clear statement to this effect is desirable because it serves to clarify the applicable law and avoids doubt about retrospectivity.
• the application to negotiable or transferable documents only.
• the transfer of negotiable or transferable documents.
• the transfer of rights and obligations.
• the saving of certain rights and obligations.
• where a document represents goods to have been shipped on board or to have been received for shipment and is signed by the master or someone having authority or apparent authority to sign on behalf of the carrier, it is to be prima facie evidence that the goods were shipped if the person against whom (or, unusually, in whose favour) that proof is tendered is the person to whom it was originally issued. If, however, there is a subsequent holder (and this can apply only with regard to a transferable document) then no proof to the contrary can be tendered other than proof that the subsequent holder was not bona fide and is, therefore, debarred by clause 9 from relying on the representation.
• the right of the carrier to be regarded as having performed his or her obligation to make delivery. The carrier is discharged if he or she makes delivery to the first person presenting the document, subject to the carrier's right to require the person claiming delivery to establish his or her right to delivery. In addition, the person presenting the document must, if he or she wishes to obtain delivery, perform any obligations to which delivery is subject, he or she may, for instance, have to pay freight. This is the general rule with regard to those presenting bills of lading in order to obtain delivery.
• the position of persons not bona fide. There can be no claim by a person who knew that the document related to goods not shipped or received for shipment and there can be no claim for a defence on the grounds that goods have been delivered if they have been delivered to someone known or reasonably believed not to have the right to receive delivery.
• to empower the Minister of Transport to make regulations for the purposes of the Act. In particular, regulations may be made in relation to the production and transfer of documents electronically.

Prepared by Johan V d Westhuizen
Legal Maritime Officer
Department of Transport