Lawyer Durban, Maritime Law Durban

Areas of Expertise

Contracts

Contracts are the be-all and end-all of legal risk mitigation in every business. However, the reality is that many businesses enter high-risk commercial arrangements without written contracts, alternatively they accept the other contracting party’s standard conditions without negotiation or review. Business enterprises also regularly attempt to self-draft amendments to contracts presented to them. This is often done by in-house resources who are not attorneys and who do not understand the contracts fully nor the ramifications of their amendments. All these scenarios are most undesirable for their businesses as the financial ramifications of getting it wrong are far reaching and can be avoided by seeking proper legal advice.

Many businesses also have existing contracts which have been changed over the years to such an extent that they no longer align with the risks they were originally intended to mitigate. We see this most frequently only at the point when businesses are confronted with a serious legal problem which could otherwise have been avoided. By regularly reviewing the standard contracts that our clients are using we add immense value by ensuring these risks do not occur or are mitigated against. We have no doubt that this is time and money well spent.

We understand that there is little point in drafting contracts which are out of kilter with the commercial needs of both parties, and we draw up realistic contracts which encourage business rather than put a spanner in the negotiations. We adopt a practical approach to drafting contracts for clients which range from complex ownership and co-ownership agreements with accompanying property finance suite of agreements, shareholders agreements, data protection agreements for use nationally and abroad, to the less complex but by no means less important non-disclosure, marketing, service level and standard agreements.

Maritime & Logistics

We understand the logistics chain and the role of all the parties involved from the Shipper to the Carrier and the Port Operator, the Clearing and Forwarding Agents, the Transporter, the Warehouseman, Rail Transporter, the Insurer and Transport Brokerages and the Receiver of the Goods. We deal with not only the insurance and contract drafting requirements of our clients in the Logistics and Shipping industry but also their claims management, litigation and arbitration matters.

Our extensive expertise in this specialist field has seen us handle ship arrests to enforce maritime claims to acting for bond holders of vessels, ship owners and those who have provided services to vessels but have not been paid. We also have extensive experience in representing the interests of the financiers of bulk commodities in their relationships with traders and collateral managers in drafting and negotiating collateral management agreements. We have represented dry docks, shipbuilders and ship repairers nationally and internationally in enforcing and defending complex claims and counterclaims.

Some of the issues that we have specialist expertise in are: Rights to limit liability; Security arrests; Arrests to confirm jurisdiction and associated ship arrests; Himalaya clauses; Cargo claims; Admiralty Jurisdiction; Carriage of Goods by Sea Act; Bills of Lading; Marine Insurance Claims; Warehouse liability claims; Collision and Casualty claims; Laytime and Demurrage; Bunker claims; Sanctions; Marine Insolvency matters; Ranking of Claims; Judicial Sale of Vessels and Bonded Cargo Advisory.

Customs & Excise

From time-to-time operators from all sectors of the Trade and Logistics industry including deemed Importers and Exporters, Licensees of Customs and Excise Bonded Warehouses, Clearing Agents, Freight Forwarders and Transporters can encounter Letters of Intent and Letters of Demand from SARS Customs and Excise and/or have their cargo stopped at the border by SARS.

Oftentimes, in these instances, parties involved are unaware of how or why they have fallen foul of the provisions of the Customs Act and are not well placed to defend a Customs claim without experienced legal assistance. In situations like these, it is imperative to seek specialist legal advice as demands for payment of penalties, VAT and Forfeiture and other fines can run into millions of Rands and an in-depth knowledge of the Customs Act and Customs Rules is required in order to defend such demands and criminal sanctions.

We assist in resisting such claims from inception to litigation, including SARS Internal Administrative Appeals and SARS Alternative Dispute Resolutions and Suspension of Payment Applications, and also specialise in the recovery of potential customs liability from other third parties.

Litigation & Arbitration

We appreciate that for most clients litigation is a point of last resort to be avoided where this is possible or realistic. However, the reality of commercial undertakings is that from time-to-time businesses are confronted with situations where there is no alternative but to embark on litigation or to defend a matter and thereby enter into litigation or arbitration. It is best to seek to avoid these situations through considered contract drafting at the outset and the prudent structuring of insurance programs. The maintenance of the contract data base that conforms to an insurer’s requirements and prudent risk mitigation also reduces litigation risk.

Where it is necessary to engage in litigation or arbitration as a plaintiff or defendant, our approach is always to do thorough preparation, considering all the facts of the matter and to thoroughly review all the relevant documentation and interview witnesses before briefing Counsel. Where it is realistic to do so every attempt is made before litigation commences to ascertain whether the dispute can be resolved whilst being mindful of prescription issues and applicable contractual time-bars.

Insurance & Claims

In our experience claimants sometimes make the mistake of only seeking specialist legal resources at the claims stage and then only when a claim has been repudiated by the insurer. This applies in all industries but where we find the most difficulties arise is in the Transport and Logistics field and the Property and Leasing environments. The optimum approach is to involve legal specialists when the insurance program is put in place so that Standard Trading Conditions can be drafted to dovetail with the insurance solution and to seek legal advice as soon as any significant claim takes place or is made against a party.

Clients often overlook the complexity of an insurance program and misunderstand the nature of the cover provided by the policy which faces all aspects of their business. It can be commercially impactful where a claimant is confronted by a significant uninsured risk which could easily have been avoided with proper independent legal and commercial advice during the inception of the insurance program and at each annual insurance renewal. An example of this is where licensed bonded warehouse operators fail to take cover or have too little cover for exposure to penalties, forfeiture and fines from SARS arising out of provisions of the Customs and Excise Act. This is why ongoing legal input is so strongly recommended.

Advisory

A common thread through all aspects of legal services and which is often overlooked is the advisory aspect of legal services provided. We live in an increasingly regulated and complex legal environment and these legal requirements need to be clearly unpacked in an accurate and commercially sustainable manner. Legal advice on an ongoing basis is key to keeping step with legal requirements and avoiding legal complications further down the line.