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Ship Registration

The 'jolly roger' skull and crossbones flag

The ‘jolly roger’ was a sight far from jolly. The skull and crossbones flag – typically white on black – has been the symbol of pirates for centuries. Known as the ‘jolly roger’, the flag would be raised by an attacking pirate ship, and one of the reasons was to instil fear in those on-board the unlucky victim. Although seemingly glorified by Hollywood in recent times, particularly in the Capt. Jack Sparrow character, pirates were not pleasant people and did things which were even less pleasant. Modern-day pirates remain a scourge; as recently as 2012, it was reported that Somalian pirates operating in the Gulf of Aden, for example, cost ship owners up to US$3.3 billion.1 Of course, a huge toll is exacted on human life.

A flag is one of the few ways that ships could be identified in years gone by – now, technology makes a difference. However, the flag still forms a symbol of importance in the maritime world, and is taken particularly seriously by the authorities. Generally, flags identify the country of registration of the vessel in question – and, in South Africa, that is mostly what the Ship Registration Act 1998 is all about.

For the purposes of the Act, basically, a ‘ship’ means any type of vessel capable of navigation by water – in other words, anything thing that can float and be moved.

A ‘South African ship’ is one which is registered with the Registrar of Ships, or is entitled to be registered with him. That means any ship which is owned by a South African, or which is operated solely by South Africans, or which is on (so-called ‘bareboat’2) charter to South Africans.

A. Flags, colours and identification

  1. The master of a South African ship must cause the National Flag to be hoisted:
    • upon signal from any ship in the naval service of the Republic; or
    • on entering or leaving any foreign port; or
    • on entering or leaving any national port, if the ship is more than 50 gross tonnes.

    He commits a crime if he fails to do this.3

  2. If anyone on board hoists any national colours except the South African National Flag, or hoists any colours or pennants of ships in the South African naval service, he commits an offence.4

  3. Indeed, the owner of the ship who allows this to happen is also guilty of a crime.5

  4. If the owner or master of a ship which is not a South African ship does anything – or permits anything to be done – to give the impression that the ship is a South African ship, he is guilty of a crime.6

  5. On the other hand, if the master or owner of a South African ship does anything, or permits anything to be done, which:
    • hides the ship’s nationality from someone who is lawfully enquiring into its nationality;
    • deceives that person; or
    • causes the ship to appear to be not a South African ship,

    they commit an offence.7

  6. In order to be registered, ships must be marked as directed by the Registrar. It is a crime not to maintain the markings.8

  7. For that matter, it is also a criminal offence to conceal, alter, remove, deface or obliterate any marking.9

  8. If you allow any person under your control to do so, you are also guilty of a crime.10

  9. If anyone describes a ship other than by her registered name, he commits an offence.11

B. Registration

  1. When a ship is registered, the Registrar issues a ‘certificate of registration’. The certificate reflects all the particulars of the ship that are required for registration. It is a crime to use the certificate for any purpose other than the lawful navigation of the ship.12

  2. In particular, it is an offence to attach (i.e. seizure by the Sheriff of the Court) the certificate as security for any claim or right.13

  3. It is a crime to refuse to hand over the certificate to any person entitled to request it and who does so.14

  4. If a registration certificate is lost whilst the ship is in foreign waters, a provisional registration certificate must be obtained from the applicable foreign port. Within 10 days of the ship’s arrival back at a South African port the provisional certificate must be handed to the Registrar. It is an offence not to comply with this requirement.15

  5. It is a crime to make a false entry in the Register, or to cause one to be made.16

  6. If a registered ship is lost, taken by an enemy, burnt or broken up, or ceases to be entitled to registration, the Registrar must be informed by the owner of the ship, who commits an offence if he fails to do so.17

  7. The Registrar will then make an entry of the event in the register, after which the registration of the ship is deemed to be closed. When that happens, the person in possession of the registration certificate must return it to the Registrar, and commits an offence if he fails to do so.18

  8. The master of an unregistered ship (which is entitled to be registered) commits a crime if that ship departs from a South African port to a place outside the Republic.19

  9. So is the owner of the ship, if he orders or permits such departure.20

  10. Where an unregistered ship becomes entitled to be registered at a foreign port, it may not leave that port without a temporary pass, or a provisional or final registration certificate. If it does depart on a voyage, the master of that ship is guilty of an offence, and so is the owner if he orders or permits that conduct.21

C. Transfer of ownership or interests in a ship

  1. If a ship is sold or transferred to another person by lawful means, the person in possession or control of the registration certificate must deliver it to the person receiving ownership, and commits an offence if he fails to do so.22

  2. Then that person must immediately deliver the certificate to the Registrar, and he commits an offence if he fails to do so.23

  3. Where an interest in a ship is acquired other than by a registered bill of sale (ie, generally by operation of law), the person receiving the interest must lodge a declaration of transmission within 14 days, and commits an offence if he fails to do so.24

  4. Where a ship is under mortgage, and the mortgage is transferred, the person receiving transfer must lodge the document recording the transaction with the Registrar within 14 days, and commits an offence if he fails to do so.25

  5. Similarly, where the interest in a mortgage is transferred to another person, that person must lodge with the Registrar a declaration of the transfer, together with evidence of the transaction, within 14 days and commits an offence if he fails to do so.26

  6. When a mortgage in a ship is discharged (i.e. the debt that is secured is paid off) the mortgagor (i.e. the owner) must, within 14 days, lodge with the Registrar the document recording the mortgage together with proof of its discharge. He commits a crime if he does not do so.27

  7. If a registered ship has been altered so that it no longer matches the tonnage or description contained the register, the ship’s ‘agent’ must notify the Registrar within a prescribed period. He commits a crime if he fails to do so.28

D. Officers and detention of ships

An ‘officer’ for the purposes of this Act is a member of the Defence force, SAPS, or an officer of the South African Maritime Safety Authority. They have limited but important powers – for example, they can seize and detain the ship under certain circumstances.

  1. If a ship which has been detained in terms of the Act is taken to sea before it is released by the officer, the master of the ship commits a criminal offence, and so does the owner of the ship if it orders or permits such action.29

  2. If an officer is taken to sea without his consent the Master of the ship commits a crime; and so does the owner if it permits or orders such action.30

  3. It is a crime to make a statement to an officer – whether orally or in writing – knowing it to be false or misleading.31

  4. Any person who makes a false or misleading statement to an officer (whether directly or even in documentation submitted to the officer) in order to cause the officer to do or refrain from doing any act or thing commits a crime.32

  1.  ’The economics of Somali piracy,’ The Washington Post, March 3, 2013. ↩

  2. Meaning for a fixed term, and where the charterer has possession and control of the ship, and has the right to appoint crew. ↩

  3. Section 52(1) read with section 4(2). ↩

  4. Section 52(1) read with section 4(3). ↩

  5. Section 52(1) read with section 4(4). ↩

  6. Section 5(1). ↩

  7. Section 5(3). ↩

  8. Section 20(2). ↩

  9. Section 20(3). ↩

  10. Section 20(3). ↩

  11. Section 52(1) read with section 21(1). ↩

  12. Section 52(1) read with section 24(2). ↩

  13. Ibid. ↩

  14. Section 52(1) read with section 24(3). ↩

  15. Section 52(1) read with section 25(6). See also section 26(5) for a like requirement in circumstances where the certificate is not lost, but a provisional one is issued for the first time in a foreign port. See also section 27(5). ↩

  16. Section 38 read with section 52(1). ↩

  17. Section 52(3) read with section 42(1). ↩

  18. Section 52(1) read with section 42(10). ↩

  19. Section 44(2) read with section 44(1). ↩

  20. Ibid. ↩

  21. Section 45(2) read with section 45(1). ↩

  22. Section 52(3) read with article 8(1) of Schedule 1. ↩

  23. Section 52(3) read with article 8(2) of Schedule 1. ↩

  24. Section 52(1) read with article 4(1) of Schedule 1. ↩

  25. Section 52(1) read with article 12(2) of Schedule 1. ↩

  26. Section 52(1) read with article 13(1) of Schedule 1. ↩

  27. Section 52(1) read with article 14(2) of Schedule 1. ↩

  28. Section 52(3) read with section 41. ↩

  29. Section 49(2). ↩

  30. Section 52(1) read with section 50(2). ↩

  31. Section 52(1) read with section 51(2). ↩

  32. Section 51(1). ↩

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