The defendant’s vessel, the Cleopatra Dream, encountered a catastrophic engine failure on its way out of the port of Saldanha, South Africa. The plaintiff was a public authority which administered the port of Saldanha by virtue of the South African Transport Service Act 1989. The plaintiff was the only public authority in the port which could operate tugs legally. The plaintiff dispatched two tugs to tow the Cleopatra Dream to a place of safety within the port. After the successful salvage operation, the plaintiff arrested the ship and claimed a salvage reward.

The defendant argued that the plaintiff had no right to claim for the salvage reward since the rescue services were conducted by the plaintiff according to its statutory or common-law duty and were not voluntary. The plaintiff denied such argument and averred that it was entitled to a salvage reward by virtue of arts 5 and 17 of the Salvage Convention 1989.

In the first instance judgment, Bozalek J held (see MV Cleopatra Dream: Transnet Ltd t/a National Ports Authority v MV Cleopatra Dream (CMI352)) that the plaintiff provided the relevant services to the vessel pursuant to a statutory and common-law duty and there was no voluntariness in its performance. The judge further held that art 5 of the Salvage Convention 1989 indicates that, in considering whether a public authority is entitled to a salvage award, regard must be had to the existing national law. Therefore, by applying both art 5 of the Salvage Convention 1989 and relevant national law, the plaintiff had no right to claim the award.

The plaintiff appealed.

Held: Appeal dismissed.

The Supreme Court of Appeal confirmed Bozalek J’s finding that, according to art 5 of the Salvage Convention 1989, voluntariness is an essential element of a salvor’s right to recover a salvage award. A service which is rendered according to a pre-existing obligation to work is not a salvage service and the appellant was therefore barred from claiming a salvage reward. The Court confirmed that, by virtue of domestic regulations, the appellant was under a statutory obligation to furnish tug and towage services to users of the port within its confines. Therefore, the judgment of the court of first instance should be upheld.

In addition, the Court thoroughly analysed arts 5 and 17 of the Salvage Convention 1989 and held that:

1. The correct interpretation of art 17 is that a salvor only qualifies for a salvage reward if its salvage performance exceeds the degree or breadth of its statutory or contractual obligations; and
2. Article 5 does not recognise the entitlement of a public authority to a salvage reward. This is an issue for domestic law.