Lloyd's Maritime and Commercial Law Quarterly
South African Maritime Law
Craig Forrest *
251. De Beers Marine (Pty) Ltd v Harry Dilley (Pty) Ltd 1
Salvage—voluntariness and criteria for fixing salvage reward
In 2015, the appellant, De Beers Marine (Pty) Ltd (“De Beers”), concluded a written contract with the respondent, Harry Dilley (Pty) Ltd (“Dilley”), in terms of which Dilley agreed to charter its vessels, including the Nkwaza, to De Beers to support the latter in carrying out research and development of its survey equipment. After this agreement came to an end in 2017, De Beers entered into a new agreement to charter Nkwaza to assist with the sea trials in False Bay of upgrades to an autonomous underwater vehicle (AUV) used to map the seabed in its mining operations off the coast of Namibia. The 2017 charterparty provided for the use of the Nkwaza for an eight-hour day and overtime. It was common ground that the terms of the 2015 charter agreement were tacitly incorporated into the 2017 contract, and that cl.9 of the 2015 charter agreement provided that, if Dilley’s representatives deemed the conditions as being unsafe for the test work, he shall immediately notify De Beers, and the Nkwaza would be off hire for that period.
It was also common ground that the sea trials were carried out in accordance with
De Beers’ standard Operational Procedures, which included a provision that, “[i]n the event that communication is lost to the AUV, while the vehicle is on the surface, as a result of rough seas or equipment failure, a towing line is then attached on the AUV and the rubber duck will tow the AUV back to the harbour or the towing line passed on to the workboat.”
In 2017, the AUV was launched for sea trials without any difficulty, though its location had been moved at the instance of Dilley, as he was not willing to operate Nkwaza near the rocky area. However, communications were lost with the AUV and it was washed onto a rocky shore near Simon’s Town. The Nkwaza returned to harbour and Mr Dilley and a
De Beers technician drove to the site of the AUV stranding, where they met by arrangement two commercial divers who agreed to assist for a fixed fee. Mr Dilley returned to harbour and, together with the commercial divers on board Nkwaza, proceeded to a location about 150 metres off-shore. The divers swam to the AUV, connected a towrope and with some manoeuvring connected it to the Nkwaza, which proceeded to tow the AUV back to harbour. The entire operation took about one hour. At some point during these operations, Dilley formed the idea that this was a salvage operation but did not inform the De Beers technician of this view.
Dilley claimed a salvage reward. The High Court awarded him 10 per cent of the replacement value of the AUV, amounting to R5,525,288.23. De Beers appealed the
* Professor and Director of the Marine and Shipping Law Unit, TC Beirne School of Law, University of Queensland, Australia.
1. (Case no.413/22) [2023] ZASCA 110 (19 July 2023) (Supreme Court of Appeal).
South African Maritime Law
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