The defendant’s vessel, the Cleopatra Dream, encountered a catastrophic engine failure on its way out of the port of Saldanha. 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 a successful salvage operation, the plaintiff arrested the ship and claimed a salvage reward.

The defendant argued that the plaintiff had no right to claim a 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 the salvage reward by virtue of arts 5 and 17 of the Salvage Convention 1989.

Held: The plaintiff had no right to claim a salvage award.

According to reg 22 of the Harbour Regulations the operation in respect of the tug service of the vessel fell within the plaintiff’s duties.

Under both English and South African common law, voluntariness is the most essential nature of the salvage service.

In regard to article 5 of the Salvage Convention 1989, the Judge further held that:

1. The correct interpretation of art 5.1 of the Salvage Convention 1989 is that, in considering whether a public authority is entitled to a salvage award, regard must be had to the existing national law.
2. Article 5.3 further confirms that whether a public authority can avail itself of the rights and remedies provided in the Convention or not shall be determined according to the law of the State where such public authority is situated.
3. Although art 5.2 seems to contradict art 5.1, it does not derogate from the aforesaid requirement of art 5.1.

Therefore, by reading the Convention as a whole, the correct interpretation of art 5 must be that it does not recognise the entitlement of a public authority to a salvage award. The relevant issue must be considered according to existing national law.