The ports of Durban and Gqeberha currently each have a vessel in quarantine due to crew having tested positive for COVID-19 in circumstances where their last port of call was in India and Kenya, respectively. On one of the vessels, media reports suggest that the Master had failed to disclose an ill seafarer on board, prompting an investigation and possible criminal charges against the Master.

These developments have again brought the rights of seafarers into sharp focus, where many have been on enforced extended contracts without being able to return home due to travel restrictions. This must be viewed against safety measures implemented by the relevant authorities to curtail the spread of COVID-19 and importation of variants of the virus.

Subject to certain conditions, foreign crew changes have been permitted in all nine South African sea ports from 1 October 2020 with the relaxation of the Regulations promulgated under the Disaster Management Act, 2002.

The South African Maritime Safety Authority (“SAMSA”) summarised the conditions for Alert Level 1 crew changes after relaxation of the Regulations. This included requiring on-signing and signing-off crew on board vessels who have had crew changes or visited a foreign port within 10 days before arrival at a South African port to produce a negative Polymerase Chain Reaction (PCR) test certificate or a valid certificate of COVID -19 negative test results, obtained not more than 72 hours before the date of travel/arrival at a South African port.

Subject to port health and immigration requirements, foreign crew may layover at a designated quarantine facility and shore leave has been permitted for foreign crew.

SAMSA and Transnet National Ports Authority (“TNPA”) have issued various notices since the Act was triggered in March 2020 in reaction to government’s legislative response to the pandemic.

TNPA “Health Risk Alert” Notice 12 sets out general safety measures prescribed for vessels making use of South African ports, such as limiting persons boarding vessels, sanitising, social distancing, wearing of personal protective equipment (PPE) and safety precautions relating to pilots. There are also requirements for additional permitted activities such as disembarking of returning South African citizens and holders of South African permanent residence permits; medical evacuations and search and rescue.

TNPA’s “Health risk Alert” Notice number 13, dated 5 May 2021, prescribes additional maritime safety precautions in respect of “all vessels where the last port of call was any Indian Port”. The measures are to be read with TNPA Notice 12.

Some of the notable requirements in these circumstances include:

  • The Master, who is responsible and accountable for all on board, must make an accurate Maritime Declaration of Health and well-being of all on board and for whose accuracy they are responsible. It is clear from the Notice that false declarations will be taken seriously and reported to the authorities resulting in either detention, a fine and/or additional stricter measures. The Notice also places an obligation on the vessel’s agent with regard to accurate reporting and a failure to do so carries a penalty of suspension of its Agent Registration Certificate.
  • The health declaration must list all crew who joined the vessel in the last 30 days and their transit points as well as any stowaways on board.
  • Where vessels have been to an Indian port during their last 10 port calls, all crew and officers are required to be tested for COVID-19 before arrival in a South African port. The Master must also declare the last 10 ports of call.
  • Anyone on board a vessel with their last port of call being an Indian port will not be permitted shore leave. Shore leave is also not permitted for persons who have travelled to India in the last 30 days without a COVID-19 test certificate from South Africa.
  • Any Indian citizen signing off a vessel will be required to be tested and required to leave South Africa as soon as practical. Any crew or passengers signing-on from India must be certified fit and clear of any COVID-19 infections.
  • The Notice further records that access to those vessels coming from India must be limited to the minimum and remote operations are encouraged.

It is unclear what variant of COVID-19 is prevalent among the infected seafarers. Although the COVID-19 regulatory framework is unchanged, South African port authorities are viewing the recent developments as a risk and have responded by intensifying safety measures so as to mitigate the importation of different variants of COVID-19 into the immediate port environment and ultimately South Africa.