A fire broke out in the engine room of the Mbashi. Carbon dioxide was pumped into the engine room and the fire was doused. However, it lost all power and was left a dead ship at 3.5 miles from Durban harbour, where it had berthed prior to its departure for Port Elizabeth, South Africa. The Durban port authority responded to a radio message from the master and dispatched two tugs and a pilot to assist the Mbashi. The operation was performed in foul weather. The following day, the Mbashi was towed out to the open sea and brought into harbour.

Transnet Ltd (plaintiff) fell within the jurisdiction of the harbour authority. It brought an action in rem against the Mbashi, the cargo owners and the charterer for a salvage reward, or in the alternative, special compensation, within the meaning of arts 13 and 14 of the International Convention on Salvage of 1989 (Salvage Convention 1989). This Convention, found in the Schedule of the Wreck and Salvage Act 94 of 1996, applies in the Republic of South Africa via s 2 and thus has the force of law.

The plaintiff alleged that the Mbashi had been, and remained, in distress until the completion of the salvage operation. It had voluntarily commenced and completed the salvage operation within the meaning of art 1.a of the Salvage Convention 1989. The salvage operation had saved the lives of the crew members, the vessel, its furniture, stores and victuals, the cargo, the bunkers and the freight at risk. Finally, the salvage operation had also averted damage to the environment as contemplated by art 1.d.

The first defendant alleged that the operation was simply pursuant to a contract of towage where the plaintiff was engaged to tow the vessel back into the harbour and thus was confined to charging a reasonable remuneration for that service. It did not dispute that the Mbashi had been in distress. However, it submitted that the plaintiff was not entitled to the salvor’s right to claim salvage - the services that the plaintiff rendered to the Mbashi were not voluntary services, as the plaintiff was already under a statutory duty as port authority to remove vessels presenting a danger within the area of jurisdiction of the harbour authority.

Held: The judge held that the plaintiff was entitled to claim a salvage reward. It was a necessary implication that the plaintiff had acquired the right to render salvage services under the relevant statute. However, it was incorrect to suggest that the tugs had been despatched to remove an obstruction or potential obstruction in the area of the harbour.

A reward of ZAR 3,212,459.90 was fixed pursuant to art 13.1 of the Salvage Convention 1989. The amount of the salvage award was self­-evident from the criteria laid down in art 13.1.a-j of the Salvage Convention 1989. However, each case had to be judged on its own facts and criteria, balancing the need to encourage salvors to rescue ships in distress, yet not make rewards unduly burdensome to shipowners, cargo owners and others having an interest in the ship and its cargo. In this case, the skill and expertise with which the pilot and tug masters had extricated the vessel from its difficulties, the impressive speed with which the plaintiff had responded to the distress call and the completion of a very successful salvage operation under hazardous conditions were taken into account. If assistance were not rendered, the Mbashi would have in all probability have run aground.