THE government is set to table during this Parliamentary session a Bill for enactment of the National Shipping Agencies Act. But the stakeholders in the maritime industry have called for review of the provisions under the Bill to, among other things, accommodate the establishment of the Tanzania Maritime Authority (TMA) to regulate maritime affairs and activities in the country. Our Staff Writer FAUSTINE KAPAMA reports…
IT may be recalled that after the
sinking of MV Bukoba in 1996, the United Republic of Tanzania formed a
committee to look into the possibility of establishing a National
Maritime Safety Agency. The committee had members from both Zanzibar and
Tanzania mainland.
The committee in 1997 recommended that a
Tanzania Maritime Safety Authority be formed. The Maritime Safety
Authority was not formed, and as a result, two statutes regulating the
registration of ships in the United Republic of Tanzania were enacted.
There is Merchant Shipping Act, 2003 for
the mainland and the Maritime Transport Act, 2006 of Zanzibar. Ships
registered through these legislation, fly the maritime flag of the state
of the United Republic of Tanzania.
Complex issues have arisen on this
practice. The Maritime Law Association of Tanzania (MLAT), as one of the
stakeholders in maritime industry notes that the Bill in its Sections
attempts to resolve complex issues by indicating the application of the
Proposed Act.
Such Bill on the Maritime Transport
Sector seeks to establish a National Shipping Agencies Corporation
(NASAC), which is a public corporation and a business organization that
would, at the same time, be vested with powers to regulate the Maritime
Transport Sector in Tanzania.
However, Section 2(1) of the Bill
provides that the Act shall apply to shipping services at the sea ports
and inland waterways ports in mainland Tanzania. This means therefore
that NASAC’s business operations will be restricted to Tanzania
mainland.
Whereas Section 2(2) of the proposed
law, nevertheless, states that matters of Maritime Administration,
Marine Environment, Safety and Security shall apply to the United
Republic of Tanzania. Section 11 of the Bill grants NASAC the Authority
to administer The Merchant Shipping Act but not the Zanzibar Maritime
Transport Act.
Yet, Section 2(2) of the Proposed Act
extends the functions of NASAC to Zanzibar. MLAT has the opinion that a
national or Tanzania Maritime Authority, would eliminate some of the
complex issues and exercise its Authority on the matters outlined under
Section 2(2) of the Bill.
It will administer both the mainland
Merchant Shipping Act and the Zanzibar Maritime Transport Act. Seasoned
marine and maritime law expert, Capt Ibrahim Bendera, points out that
the established TMA would have major objectives and functions, notably
to monitor, regulate and coordinate activities in the maritime industry
and have responsibility to implement the provisions of enactments on
shipping.
“Tanzania Maritime Authority shall have
full control on flag state control over all ships registered in the
United Republic of Tanzania and shall have port state control on all
ships with foreign flags when in the waters of the United Republic of
Tanzania,” he says.
According to him, many countries with
coastlines have such authorities in place. Our neighbour Kenya, he says,
has one law called the Kenya Maritime Authority Act, Cap 370 of 2006,
which establishes the Authority.
Capt. Bendera discloses further that
South Africa, a SADC member State established such an Authority in 1998
under the South African Maritime Authority Act 1998. Whereas Ghana have
also a Maritime Authority established under the Ghana Maritime Authority
Act, 2002.
“We could also borrow a leaf from
Australia which in 1990 established a Maritime Safety Authority through
the Australian Maritime Safety Authority of 1990,” he says.
He concludes, therefore, that MLAT
highly recommends that the executive reconsider its intention to proceed
with the Bill and instead bring forward a New Bill for the
establishment of a Tanzania Maritime Authority on the basis of Part III
of the Bill.
On October 26, 2017, a stakeholders’
meeting was convened in Dar es Salaam to scrutinize the proposed law and
came up with a number of observations, including Section 7 providing a
sole mandate in NASAC objectives and functions to the extent of a
guaranteed monopoly in the shipping agencies business.
The NASAC, as a public corporation,
would enter a business where it would have to compete with other
shipping agencies, guided by the rules of the free market economy and
free trade.
At the same time, the Director General
of NASAC is given powers to obtain information, documents and evidence
from competitors, as per section 8 and section 9 gives him the power to
suspend and revoke licenses or permits issued to NASAC competitors.
Section 12(1)(a) of the Bill gives
NASAC, as a regulator of this industry, the power to issue, renew and
cancel licenses. The stakeholders also noted with concerns that the
funding of their new competitor will partly come from public funds
(Section 27 (1) (a), that is moneys appropriated by parliament.
It was, therefore, observed with great
concerns that the proposed public corporations engaged in the business
of shipping agencies, through the provisions of the proposed Act, will
stifle competition and establishes a monopoly.
This is a worrying situation to private
shipping agencies. Participants to the meeting observed that NASAC would
be acting in conflict. It is clearly a conflict of interest situation
probably aimed at consolidating its monopoly and not being able to
perform PSC over ships which it represents.
Law Professor Costa Mahalu takes a
critical eye on the Bill, especially on provisions relating to the
establishment of NASAC. He says that it is clear that the government
intends to establish a shipping agency which will operate commercially.
“We note that however, the Bill intends
to repeal the Shipping Agency Act, Cap 415 as stated in Section 55 (1).
Now, by doing so and taking into consideration the contents of Part I,
especially Sections 5 and 6, the Bill makes NASAC to be a Government
Monopolistic Corporation,” he says.
However, he says, NASAC shall have the
ability to enter into contractual obligations with other persons or
groups of persons by means of “…….. concession, joint venture, public
private partnership, or other means and to delegate its own functions of
providing shipping agencies to one or more parties.”
According to Prof Mahalu, who also
doubles as MLAT Chairman, under such circumstances NASAC will be a
Monopolistic Government Business Organ deciding which other entity it
can cooperate with and in which way.
It is a non free trade action abolishing
the achievements brought by Cap 415. He says that MLAT was of the view
that Cap 415 should not be repealed. Instead, the government should use
it to establish a shipping agency, in the name of NASAC, in the form of a
company limited by liability, in which the government could have 100
percent shares.
Thus, he says, NASAC would compete with
other shipping agencies in Tanzania. Such Tanzanian shipping agencies
will abide by the law, in particular, Section 7 (a) (b) of Cap 415,
where Tanzania nationals will have more than 50 percent of the shares.
He also observes that Section 6 (1) (w)
of the Bill provides for NASAC’s functions, among others, as that of
providing or arranging for clearing and forwarding of cargo. Section 3
of the Bill, however, provides that “clearing and forwarding” to mean
the function of processing shipping documents for import or export
through customs control will be conducted by NASAC.
In MLAT’s opinion, he says, such
provision should be removed because all the functions of customs control
are already monitored and regulated by the Tanzania Revenue Authority
and are conducted by customs agents as specified in the East African
Community Customs Management Act, 2004.
Section 145 of the Act provides, “The
Commissioner may license a person to act as agents for transacting
business relating to the declaration or clearance of goods or baggage
other that accompanied non manifested personal baggage of a person
travelling by air, land or sea.”
It is apparent that the intention of the
Bill is to double license custom agents by the law of this nation
recognizing them as two functioning identities having the names of
clearing and forwarding agents in one law and also customs agents in
another law.
“We strongly recommend that NASAC should
not interfere with the supervision or regulating the customs agents who
are at the same time supervised by the Tanzania Revenue Authority by
simply naming them as clearing and forwarding agents,” Prof Mahalu says.
He adds that if NASAC would want to
conduct the functions of a customs agent it will have to register itself
with the TRA as a customs agent
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