By Dr Moses Amweelo When Namibia became an independent State in 1990, the Republic of Namibia inherited the Merchant Shipping Act No. 57 of 1951 from the old South African regime. The Merchant Shipping Amendment Act, 1991 was signed into force “in order to adjust its provisions in view of the independence of Namibia; and to provide for incidental matters”. In 1995, the Directorate Maritime Affairs was established to be the government’s executing body, and one of the first tasks taken on in order to get a firm picture of the maritime legal situation was to carry out an analysis of the Merchant Shipping Act. Professor Hilton Staniland of the University of Natal, an expert on maritime law not only on a national level but indeed also in the international context, was approached to do the analysis, and he delivered his report in September 1996. In his executive summary he states, among others: “The 1951 Act is out of date and places, in particular, the safety of life and ships at sea, the protection of the maritime environment”. It is interesting in this connection to note the concerns at that time expressed by representatives from the fishing industry. “The industry therefore favours the amendment of Section 83 of the Merchant Shipping Act 1951 in order to provide for the more ready recognition of foreign certificates. Section 83 of the Act opens up by allowing holders of foreign certificates to serve on board Namibian ships. At this early stage of the new maritime administration, it was clear that a new maritime legislation had to be developed, basically in line with Professor Staniland’s recommendations; however, also on the ground that operational procedures, in line with a modern maritime industry, had to be put in place should the Administration have the slightest chance to efficiently enforce the law. Thus, representatives from the fishing and shipping industry were invited to participate in the development of maritime legislation. Hence, it is imperative to have a full understanding of the actual industrial situation, in view of the fact that the Republic of Namibia, during a 16-year period, shall build up all vital functions for a modern society under a new Constitution. It should be noted that Namibia traditionally has been an agricultural and mining country, with no maritime traditions or culture to build on. It must also be fully understood that the new Republic of Namibia only 16 years ago took on the responsibilities to execute her authority as a coastal state; with a coastline of approximately 1500 kilometres stretching 200 nautical miles into the Atlantic Ocean – Exclusive Economic Zone (EEZ). Considering the potential resources this coastal and ocean area represents, and further considering the aspirations this new role as a coastal state may create, any regulatory approach to reporting systems and requirements must be viewed in light of that and the commitments accepted when acceding to international maritime conventions. As a matter of fact, the Government has, through the Directorate of Maritime Affairs, committed itself to ensure that Namibian waters and ports should not be a safe haven for sub-standard shipping. The objectives will therefore be to establish a reporting regime supporting an acceptable safety standard on board ships and vessels, and at the same time make it possible through analysis of reported accidents to establish the cause of the accident and what remedies are required to avoid or minimize the chances for similar accidents to happen again. If such a reporting system should be efficient, experience has proved that it is not enough to have the laws and regulations in place for enforcing the reporting system. There must also be an understanding in the industry itself of the importance of the reporting system. The managements, on board and on shore, must realize the benefits which a fleet with no occurring or at least a minimum of accidents represent. To reach a conclusion of value on which a practical solution can be built, it is necessary to ask the following questions for elaboration and summary: – What kind of control and reporting system is in force in the Namibian industry as such, to protect the labour force against accident? – What consequences does this system represent for the companies, managements, supervisors and the individual employees concerned? – Does present legislation governing the land-based industry also cover the maritime industry? – Which legislative instruments are available for the maritime sector providing legal support for a reporting system as wanted? What do the maritime conventions require with regard to accident reporting? – Which other international agreed instruments exist for implementation and adoption by the industry? – What kinds of accidents are most frequently observed in the maritime industry? In 1997 the Classification Society, Det Norsek Veritas (DNV) was engaged to carry out a “Maritime Safety Assessment” of the Namibia fleet. The project was basically a fact-finding mission to assess the general condition of ships flying the Namibian flag focusing upon the safety of ships and crew, and pollution prevention. At that time the total number of Namibian registered vessels over 25 GRT was: 241 vessels, of which 223 were fishing vessels. A total of 40 vessels were inspected with a finding of non-compliance with regulations. It should be noted that the inspection carried out was not with the purpose of preventing vessels from sailing or operations, but to establish facts as to the condition of the inspected vessels. It should be noted that most failures were found in the areas concerning lifesaving appliances, fire-fighting equipment and “safety in general” – and the report stated: “In a wider perspective it might be mentioned that this conclusion is quite in line with the overall worldwide distribution of the different categories of deficiencies of vessels inspected by Port State Control; as a thumb rule, the sum of these three categories is representing the majority of deficiencies reported”. The Merchant Shipping Act No. 57 of 1951 as amended in 1991, Chapter V, provides regulations concerning safety of ships and life at sea. Part IV, Sections 255-263, particularly handles accidents at sea. When acceding to the SOLAS Convention, the Maritime Administration of Namibia has committed itself also to comply with Chapter I, Part C, Regulation 21: “Each Administration undertakes to conduct an investigation on any casualty occurring to any of its ships subject to the provisions of the present Convention when it judges that such an investigation may assist in determining what changes in the present regulations might be desirable”. It follows from above that Contracting Governments undertake to supply the Organization (IMO) with pertinent information concerning the findings of such investigations. The most significant document with regard to safety on board, safety management and reporting requirements, is the International Management Code for the Safe Operation of Ships and for Pollution Prevention (The International Safety Management Code (ISM)). The International Shipping Federation/International Chamber of Shipping – ISF/ICS – has produced “Guidelines on the application of the ISM Code”. In the Code’s paragraph 1.4 it is stated:ÃƒÆ’Ã†’Ãƒâ€ ‘ÃƒÆ’ÃƒÂ¢Ã¢â‚¬Å¡Ã‚Â¬Ãƒ…ÃƒÆ’Ã†”Ã…Â¡ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â “Every company should develop, implement and maintain a Safety Management System (SMS) which includes the following functional requirements: 1.4.4 procedures for reporting accidents and non-conformities with the provisions of this Code”. In the recommendations for implementation it is underlined that the Safety Management System (SMS) should require the master to report the following to the designated persons ashore: – Accidents; – hazardous occurrences; – non-conformities with the Safety Management System (SMS); – suggested modifications and improvements to SMS. With regard to analysis of the reports, it is stated that the evaluation of reports may result in: – corrective action being taken; – distribution of experiences throughout the company; – amendment to existing SMS procedures and instructions; – the development of new SMS procedures. IMO news (the Magazine of the International Maritime Organization) Number 4, 1999 informed among others concerning casualty reports and casualty analysis: “Casualty statistics are prepared using casualty data submitted by countries to the Organization. This includes statistics on casualties of fishing vessels and fishermen and preliminary information on very serious casualties from rescue co-ordination centres”. It should be added that, due to very different practices among member countries with regard to reporting procedures and practices, it was decided to establish a Code, later on called The Code for the Investigation of Marine casualties and incidents. A joint ILO/IMO ad hoc Working Group on Investigation of human factors in Maritime casualties agreed to draft guidelines on the investigation of the human factor in maritime casualties and incidents, which were submitted to the Maritime Safety Committee (MSC). What is then the situation in Namibia? Although the requirement of reporting accidents is implemented and underlined by circulars and letters to companies, the reporting appears casual. Less serious accidents or incidents are reported too late. When analyzing this situation as mentioned above, there are the following issues which are apparent: – Safety training and safety attitudes on board are not good enough; – Managements’ active involvement in safety training and attitudes must be improved; – Reports of incidents and accidents are received too late; – Present legal instruments are not good enough to handle the cases fast and efficiently; – Marine resources in present situation are not adequate to stop culprits at sea. The Merchant Shipping Act No. 57 of 1951 as amended in 1991, Chapter IX, Sections 312-312 provide penalties of between N$80 and N$4ÃƒÆ’Ã†’Ãƒâ€ ‘ÃƒÆ’ÃƒÂ¢Ã¢â‚¬Å¡Ã‚Â¬Ãƒ…ÃƒÆ’Ã†”Ã…Â¡ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â 000 for penalties and a maximum imprisonment of up to three years. It is obvious that the monetary penalties are “pocket money” for those who want to avoid the law. It should be kept in mind that the Maritime Administration shall not only enhance the awareness and positive attitudes in the industry with regard to safety of life at sea and the prevention of pollution of the marine environment, the Administration shall also have the authority and power to bring offenders of the law to court. It is interesting to note that representatives of the industry have voiced reluctance to accept the Directorate’s efforts to implement, for example, the requirements of the STCW-78/95 and the STCW-F Conventions. These two Conventions are probably the most important instruments ever agreed upon internationally to improve the safety standards of seafarers.