Chumming for your chum (part one)

A chumming row in Nelson Mandela Bay was reported in the press on 29 March 2011 (see here). The facts were apparently as follows. On 24 March, the holder of a boat-based whale watching license in Algoa Bay, Raggy Charters, threw fish off-cuts overboard less than 100 m from the shore between Humewood Beach and Kings Beach in Port Elizabeth in order to lure seagulls for a film crew working on a documentary about bird migration. The activity, which was captured on the municipality’s CCTV system, apparently caused “public panic” in view of the risk of it resulting in sharks being attracted to some of the city’s main recreational beaches and the life of swimmers, including individuals training for forthcoming major sporting events, being endangered.


The report refers to the contentious nature of the awarding of the whale watching license to Raggy Charters (the dispute relates to the affirmative action credentials of the latter) and the argument that the activity described above is blown out of proportion in order to smear the operator. Legally, the actions on 24 March are not related to the awarding of the license. The latter is governed by the Regulations for the Management of Boat Based Whale Watching and Protection of Turtles, 2008 (the WWR were made in terms of s 77(1)(b), 2(g), 2(x)(v) and 2(y) of the Marine Living Resources Act, 1998 (Act 18 of 1998) and published under Government Notice R725 of 2008 in Government Gazette 31212 of 4 July 2008). The factors to be considered when issuing a permit are listed in regulation 6. The only factor of some import in this case is: “[w]hether the applicant has been convicted of any offence in terms of the Act or regulations made in terms of the Act and the seriousness thereof” (reg 6(e)). It will be noticed that three elements are required: (1) there must be a conviction; (2) the offence must be in terms of the Marine Living Resources Act or regulations made under it; and (3) the offence must be serious enough to have an impact on the decision whether to issue the permit. Neither the Act nor the 1998 Regulations (made in terms of sections 7(5), 9(3), 12(2)-(3), 39(2), 45, 47, 50(1), 77 and 80(2) of the Act and published under Government Notice R1111 of 1998 in Government Gazette 19205 of 2 September 1998) do mention “chumming”. The prohibited activities dealt with in chapter 5 of the Act relate to fishing, which was evidently not the purpose in the case of Raggy Charters. As far as the Regulations are concerned, regulation 87(1) provides that waste must be taken back to port and no waste may be disposed of at sea. However, the waste concerned is waste “generated on a fishing vessel”, which the vessel operated by Raggy Charters was not (in terms of regulation 1 read with section 1 of the Act, the term “fishing vessel” means “any vessel, boat, ship or other craft which is used for, equipped to be used for or of a type that is normally used for fishing or related activities, and includes all gear, equipment, stores, cargo and fuel on board the vessel”).

The actions of Raggy Charters took place within that part of Algoa Bay which falls within the limits of the port of Port Elizabeth (see regulation 2(5) and appendix 5 of the Port Limits Regulations, 2010 made in terms of section 80(1) of the National Ports Act, 2005 (Act 12 of 2005) and published under Government Notice R11 of 2010 in Government Gazette 32873 of 22 January 2010). On that basis, the National Ports Act applies together with the Port Rules, 2009 (made in terms of section 80(2) of the Act and published under Government Notice 255 of 2009 in Government Gazette 31986 of 6 March 2009. See rule 3 read with rule 1(1)(jj) and sections 1(1) and 10 of the Act). Rule 85 requires that all persons within the port limits take all reasonable steps to prevent, minimise and mitigate pollution or damage to or degradation of the marine environment. Rule 86(1) forbids any person to throw from a vessel “any harmful matter or substance of whatsoever nature” without the permission of the Harbour Master. Finally rule 86(7) requires that any person who drops an article “that might cause danger, obstruction, pollution, a negative impact upon the environment or a nuisance”, and any person who witnesses a person doing this, report the matter to the National Ports Authority immediately. In the present case, there was clearly no obstruction. It is unlikely one could speak of pollution or a negative impact upon the environment. There may have been some danger, but there is little doubt that a nuisance was caused.

(to be continued)

A definition of "marine tourism law"

I see marine tourism law as a part of attractions law, which I defined earlier as “the body of legal rules that regulate the relationships of the tourists while they are involved in the attraction that motivated their journey” (P Vrancken “Introduction” in P Vrancken Tourism and the Law in South Africa (2002) 274). I agree with Orams that what distinguishes marine tourism law from other parts of attractions law is the fact that, in the case of marine tourism law, the attractions “have as their host or focus the marine environment (where the marine environment is defined as those waters which are saline and tide-affected)” (Orams Marine Tourism. Development, Impacts and Management (1999) 9). It is necessary to narrow the scope of marine tourism law down further in order to exclude work-related attractions such as commercial fishing and marine scientific research, so as to avoid including almost the entire law of the sea. Indeed, in a sense, humans being land-based creatures, any individual spending at least one night at sea is a tourist. I therefore suggest that “marine tourism law” be defined as “the body of legal rules that regulate the relationships of the tourists while they are involved in non-work-related attractions which have as their host or focus the marine environment, the latter being understood as including all bodies of saline water connected permanently or episodically to the open sea”.

BLT model for law purposes

The difficulties involved in defining marine tourism (see Orams Marine Tourism. Developments, Impacts and Management (1999) 8-11) are matched by those encountered when identifying the wide-range of legal relationships involved. A useful tool to tackle those obstacles is the BLT model, a sociology tool which, on the one hand, identifies tourism brokers, locals and tourists as the main actors in tourism and, on the other hand, facilitates the identification of their relationships (Miller and Auyong “Coastal Zone Tourism. A Potent Force Affecting Environment and Society” (1991) 15 Marine Policy 76-77). In that model, the tourists are the individuals who consume the tourism services and the locals are the individuals who live at the place where the tourism services are consumed. As far as they are concerned, the brokers either supply the tourism services (private brokers) or regulate the supply of those services in the public interest (public brokers).  To the extent that law is understood as the normative system which can be adjudicated upon by the judicial organs of the State, the model’s distinction between public brokers and private brokers needs to be highlighted in view of the central role played by the former when marine tourism is approached from a legal perspective. To that end, the following adaptation of the model is proposed: