MV 'Shark Team' v Tallman (190/2015) [2016] ZASCA 46 (31 March 2016)

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[2016] ZASCA 46
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MV 'Shark Team' v Tallman (190/2015) [2016] ZASCA 46 (31 March 2016)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 190/2015
DATE:
31 MARCH 2016
Not
Reportable
In
the matter between:
MV
‘SHARK
TEAM’
............................................................................................
FIRST
APPELLANT
GRANT
TUCKETT
.........................................................................................
SECOND
APPELLANT
WHITE
SHARK PROJECTS
CC
......................................................................
THIRD
APPELLANT
And
SARAH
TALLMAN
.......................................................................................................
RESPONDENT
Neutral
citation:
MV ‘Shark Team’ v
Tallman
(190/2015)
[2016] ZASCA 46
(31
March 2016)
Coram:
Cachalia, Willis and Zondi JJA and Plasket
and Kathree-Setiloane AJJA
Heard:
22 February 2016
Delivered:
31 March 2016
Summary:
Admiralty Jurisdiction Regulation Act
105 of 1983 – maritime claim involving loss of life at sea –
boat capsized when
struck by unusually large wave – whether
skipper of boat negligent – no negligence established –
appeal allowed
and claim for damages dismissed.
ORDER
On
appeal from
Western Cape Division of
the High Court, Cape Town
(Freund AJ sitting
as court of first instance):
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following order:
‘
(a)
The plaintiff’s action is dismissed.
(b)
The plaintiff shall pay the defendants’ costs, including the
costs of two counsel and the qualifying expenses of:
(i)
Dr John Zietsman;
(ii)
Mr Michael Fiontann Hartnett;
(iii)
Professor Michel Tipton;
(iv)
Dr Cleeve Robinson;
(v)
Mr Robert Fine;
(vi)
Mr Wilfred Chivell; and
(vii)
Dr Linda Liebenberg.’
JUDGMENT
Plasket
AJA (Cachalia, Willis and Zondi JJA and Kathree-Setiloane AJA
concurring):
[1]
The great white shark (
Carcharodon
Carcharias
)
has been described as ‘one of the largest and most powerful
predators on earth’.
[1]
Because of its size and strength, it was hunted by sports fishermen
and, presumably because of the danger it was seen to pose to
bathers
and divers, by those who had ‘taken it upon themselves to rid
the oceans of these sharks’.
[2]
This, together with the slow growth rate of the great white shark,
its low fecundity and its vulnerability to being caught in open-ocean

gill-nets, rendered it a species vulnerable to over-exploitation. In
1991, it was declared a protected species in South Africa.
As a
result, the killing of great white sharks is unlawful.
[3]
In the wake of this, a new industry developed: about 20 years ago,
operators began to take paying clients to sea to view great
white
sharks from cages lowered into the water alongside ski-boats or
similar craft.
[2]
This appeal concerns the only tragedy in South Africa that has
befallen such a craft, the 10.7 metre long catamaran-hull ski-boat
MV
‘
Shark
Team’
.
At about 10h00 on Sunday 13 April 2008, while anchored and engaged in
viewing great white sharks in an area called the Geldsteen
to the
west of Dyer Island and some eight and a half kilometres south of
Kleinbaai on the southern Cape coast, a swell broke in
front of or on
Shark
Team
and capsized her. Most of those on board – paying tourists,
crew and research volunteers – were thrown into the sea,
among
the great white sharks that had been attracted to the boat by chum –
fish-bait thrown into the sea to lure the sharks
to the boat –
and ‘teased’ closer with a line to which a tuna head had
been attached.
[4]
Most of them
managed to climb onto
Shark
Team’s
up-turned hull and were taken off it and to the safety of Kleinbaai
harbour by the crew of one of the vessels in the vicinity,
White
Shark
.
[3]
Unfortunately, three tourists drowned. Two were trapped under the
hull while the third man, who had been sitting on the bow,
was
probably thrown clear of the boat. Ms Sarah Tallman, the widow of one
of the deceased, Mr Christopher Tallman, instituted a
maritime claim
in the Western Cape Division of the High Court, Cape Town, in which
she sought damages for, inter alia, loss of
support
in
rem
from
Shark
Team
, and
in personam
from the skipper, Mr Grant Tuckett, and the owner of
Shark
Team
, White Shark Projects CC. I shall
refer to Ms Tallman as the plaintiff and to
Shark
Team
, the skipper and the owner as the
defendants.
[4]
The issues of liability and quantum having been separated, Freund AJ,
after a trial that lasted 52 days and generated a record
of 8 638
pages, found in favour of the plaintiff and declared that the
defendants were liable for whatever damages the plaintiff
could, in
due course, prove. He did so on the basis that Tuckett had been
negligent in failing to keep a proper look out in respect
of the sea
conditions and that, had he done so, he would have been aware of the
risk posed by the swell, would have foreseen the
reasonable
possibility that a wave could have broken on or over
Shark
Team
,
and would have guarded against that possibility by weighing anchor
and departing from his anchorage. He held that the liability
of White
Shark Projects CC was not limited by s 261(1)(
a
)
of the Merchant Shipping Act 57 of 1951
[5]
because it was unable to establish a lack of privity on its part in
relation to the loss of life occasioned by the capsize of
Shark
Team
.
[5]
The defendants appeal to this court against Freund AJ’s order
and do so with his leave.
The
applicable law and the legal principles concerned
[6]
Section 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983
defines a maritime claim as ‘any claim for, arising
out of or
relating to’, inter alia, ‘loss of life or personal
injury caused by a ship or any defect in a ship or occurring
in
connection with the employment of a ship’.
[6]
Section 6(1) of the Act creates a mechanism for the determination of
the choice of law to be applied to a maritime claim. It provides:
‘
(1)
Notwithstanding anything to the contrary in any law or the common law
contained a court in the exercise of its admiralty jurisdiction

shall-
(
a
)
with regard to any matter in respect of which a court of admiralty of
the Republic referred to in the Colonial Courts of Admiralty
Act,
1890, of the United Kingdom, had jurisdiction immediately before the
commencement of this Act, apply the law which the High
Court of
Justice of the United Kingdom in the exercise of its admiralty
jurisdiction would have applied with regard to such a matter
at such
commencement, in so far as that law can be applied;
(
b
)
with regard to any other matter, apply the Roman-Dutch law applicable
in the Republic.’
[7]
The effect of s 6(1) was considered by this court in
MT
Argun: Sheriff of Cape Town v MT Argun, her owners and all persons
interested in her & others; Sheriff of Cape Town &
another v
MT Argun, her owners and all persons interested in her &
another
.
[7]
Scott JA held that ‘with regard to “any matter” in
respect of which the High Court in England exercising its
admiralty
jurisdiction in 1890 would have had jurisdiction, the law to be
applied is that which the High Court of Justice of the
United Kingdom
would have applied in the exercise of its admiralty jurisdiction on 1
November 1983, being the date upon which the
Act commenced’ and
that the ‘reference to what may for convenience simply be
called the English admiralty law as at
1983 is to be construed as a
reference to that law including the relevant principles of private
international law’.
[8]
[8]
In terms of English private international law (as at 1 November
1983), the law applicable to this matter is South African law.
[9]
This means that the common law rules of Aquilian liability are of
application.
[9]
The rules of evidence applicable to this matter differ from the
usual. This being a maritime claim, s 6(3) of the Admiralty

Jurisdiction Regulation Act permits a court in the exercise of its
admiralty jurisdiction to ‘receive as evidence statements
which
would otherwise be inadmissible as being in the nature of hearsay
evidence, subject to such directions and conditions as
the court
thinks fit’ but, in terms of s 6(4), the weight to be attached
to that evidence ‘shall be in the discretion
of the court’.
[10]
For Aquilian liability to arise, the harm caused by the defendant
must have been both unjustified – wrongful, in other
words –
and culpable – either negligently or intentionally caused.
[10]
The element of wrongfulness is not in issue in this matter: if the
other elements of Aquilian liablity are established, wrongfulness

will follow as a matter of inevitability. There is also no suggestion
that Tuckett acted intentionally when the harm occurred.
Whether
negligence was present and causally connected to the harm are the
only issues involved in the first aspect of this matter.
[11]
The starting point in a case such as this is, inevitably, this
court’s judgment in
Kruger
v Coetzee
[11]
in which the test for negligence was articulated as follows by Holmes
JA:
‘
For
the purposes of liability
culpa
arises if -
(a)
a
diligens paterfamilias
in the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’
[12]
The standard of diligence against which Tuckett will be judged will
not, however, be the general
standard of the
diligens
paterfamilias
referred
to by Holmes JA – the reasonable person.
[12]
In a case such as this, where specialized skill is involved, the
general standard of the reasonable person is adjusted to that
of the
reasonable person in the field of endeavour involved. In other words,
while a person possessed of, or professing to be possessed
of,
specialized skills is not required to display the ‘highest
possible degree of professional skill’, he or she will
be held
to ‘the general level of skill and diligence possessed and
exercised at the time by the members of the branch of
the profession
to which the practitioner belongs’.
[13]
In other words, he or she will be held to a standard of reasonable
skill and care within the area of his or her expertise or professed

expertise.
[14]
In this case,
then, Tuckett will be judged against the standard of the reasonable
shark boat skipper.
[13]
That said, however, one must guard against the ‘insidious
subconscious influence of
ex
post facto
knowledge’, and bear in mind that ‘[n]egligence is not
established by showing merely that the occurrence happened .
. . or
by showing after it happened how it could have been prevented’:
after all, the reasonable person does not have ‘prophetic

foresight’.
[15]
[14]
Generally speaking, Scott JA held in
Sea
Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold
Storage (Pty) Ltd & another
,
[16]
that in order to establish negligence on the part of a defendant, it
is not necessary that the precise manner of the harm’s

occurrence must be foreseeable: it is sufficient that its general
manner of occurrence is reasonably foreseeable. But this general
rule
must bow to the peculiar facts of a case, which may call for a more
subtle approach: flexibility with reference to the facts
of each case
is required.
[15]
Sea
Harvest
illustrates the point particularly well. An unknown reveller had,
shortly after midnight on 1 January 1993, fired a distress flare

which landed on a fibre glass gutter of the respondent’s cold
store in Duncan Dock, Table Bay Harbour. It set the cold store

ablaze. This was largely destroyed by the fire as were fish and fish
products belonging to the appellants that had been stored
in the cold
store. The flare had landed on the only part of the building that it
could have ignited, and the fibre glass gutter
could only have been
ignited by a heat source of sufficient intensity and longevity. The
distress flare met both of these criteria.
Scott JA found that there
was no doubt that a general possibility of a fire in the cold store
was reasonably foreseeable but what
would have been foreseen was a
fire starting inside the cold store: indeed, that was precisely why
fire-fighting equipment had
been installed inside the premises.
[17]
He then proceeded to hold:
[18]
‘
Having
regard to the particular circumstances of the case, it seems to me
therefore that the question of culpability must be determined
not
simply by asking the question whether fire, ie any fire, was
foreseeable but whether a reasonable person in the position of

Worthington-Smith or Visser would have foreseen the danger of fire
emanating from an external source on the roof of the building
with
sufficient intensity to ignite the gutter.’
[16]
I turn now to the common cause facts followed by the issues that
arise in this appeal. Thereafter
I shall deal with the voluminous
evidence adduced by the parties in relation to those issues. I shall
then consider the court below’s
approach to the evidence and
the issues.
The
common cause facts
[17]
According to Ms Christina Rutzen, Kleinbaai harbour’s harbour
master, on 13 April 2008
the wind was light and the swell was running
at about two metres at the harbour. Conditions did not change until
the afternoon.
There were no signs to make her believe that putting
to sea that day could be unsafe.
[18]
Shark
Team
was the first of the shark boats to leave Kleinbaai harbour on the
morning of 13 April 2008. It did so at about 07h30.
Shark
Team
was followed by
Barracuda
at about 08h00, by
Swallow
,
skippered by Mr Steve Smuts, at about 08h20, by
Shark
Fever
,
skippered by Mr Albert Scholtz, at about 08h45, by
Megalodon
at about 08h55 and by
White
Shark
,
skippered by Mr Ronnie Lennox, at about 09h05.
White
Pointer
,
skippered by Mr Phillip Colyn, left Gansbaai harbour at about 09h00
and arrived where the other boats were at anchor shortly before
the
capsize.
[19]
[19]
All of these craft made for the Geldsteen, a favoured area for
viewing great white sharks in
the winter months and in the conditions
prevailing that day.
Shark Team
,
having launched first, arrived at the Geldsteen first, and after
choosing a spot, Tuckett instructed the crew to commence chumming.
He
then anchored and lay some 200 metres from the point where he had
anchored. Cage diving commenced.
[20]
As they arrived,
Barracuda
,
Swallow
,
Megalodon
and
White Shark
anchored in a line roughly astern of
Shark
Team
.
Shark
Fever
took up a position ahead of and
off
Shark Team’s
starboard bow. The line of boats was spread over about 350 metres
from
Shark Fever
to
White Shark
.
[21]
As a result of the bridle anchoring system used by the shark boats,
their bows faced into the
south-westerly swell. The wind, blowing
from the south-east, blew into their port sides and the shark diving
took place in the
lee thus created on the starboard side of the
boats.
[22]
From about 07h50, when
Shark Team
anchored at the Geldsteen,
until its capsize at about 10h00, it,
Barracuda
,
Swallow
,
Megalodon
and
Shark Fever
had their cages lowered and
all of them engaged in shark viewing. Although
White Shark
lay
at anchor, no shark viewing took place on this vessel.
White
Pointer
, on arrival, had motored along the line of boats and was
in the vicinity of
Shark Team
when the capsize occurred.
Tuckett had contacted Colyn, the skipper of
White Pointer
, to
offer him
Shark Team’s
spot, he having decided to go
back to Kleinbaai. As they were talking to each other, disaster
struck.
Barracuda
had left for the shore shortly before the
capsize but returned to assist in the rescue.
[23]
When the capsize occurred,
Shark Team’s
videographer was inside the cage. Tuckett and other crew assisted
passengers to get onto the up-turned hull. He and Ms Megan Laird,
the
dive master that day, managed to free a woman trapped in the water
next to the hull as a result of her leg being entangled
in ropes.
Tuckett and Mr Adrian Hewitt, a crew member, were able to extricate
the videographer from the cage, thereby certainly
saving his life.
They also saved the life of a passenger who was floating off
Shark
Team’s
bow in great distress,
unable to save himself and about to drown.
[24]
White Shark
was able to come alongside
Shark Team
and succeeded in taking all of the survivors aboard. In what was now
a heavily over-loaded boat, its skipper, Lennox, headed for
the
safety of Kleinbaai harbour. It was then realised that people were
missing. That information was conveyed to the other boats
in the
area. They commenced a search.
[25]
Barracuda
towed the up-turned hull of
Shark
Team
into deeper water. In the meantime, the vessel
Stan
,
with Mr Michael Rutzen on board, had launched from Kleinbaai harbour.
When it arrived at
Shark
Team
,
its crew saw the feet of a man protruding from the hull. The body was
recovered. It was Christopher Tallman. Although cardiopulmonary

resuscitation (CPR) was attempted, it was to no avail. Rutzen, a
diver and great white shark expert of immense experience, later
dived
under the hull and found the body of Tallman’s friend, Mr Casey
Lajeunesse, entangled in ropes. Despite the attentions
of great white
sharks, he was able to recover Lajeunesse’s body.
[20]
A while later, a third body, that of Mr Kevin Rogne, was found
floating near
Shark
Team
.
[26]
Before proceeding further, it is necessary to say something about the
shark diving industry that
developed after the great white shark was
protected. Mr Wilfred Chivell, the owner of
Shark
Fever
, is one of the pioneers in the
industry and, it would appear, in the whale-watching industry as
well. He testified that the industry
started on a small scale in
about 1996. At that stage only four or five boats operated in the
area. That number has since increased.
In 2000, about 20 000
people were taken shark viewing. That figure has risen to about
70 000 people a year at present.
Between 30 000 and 40 000
trips have been made over the years. The capsize of
Shark
Team
is the first and only incident of
its kind in the industry.
The
issues
[27]
In her particulars of claim, the plaintiff alleged 32 different
grounds of negligence. During
the course of the trial some were not
pursued while others were refuted. What remained were two issues. A
third arose during the
course of argument in this appeal. The first
was that Tuckett was negligent because he failed to notice a
deterioration in sea
conditions when he could and should have done
so. The second was that he had been negligent in failing to motor
into the swell
before anchoring in order to check the depth in front
of where
Shark Team
was to lie. The third concerned the size of the wave and its origins,
and whether Tuckett ought to have recognised signs that were

indicative of an extraordinarily large swell developing and breaking.
This issue is in truth part of the broader ‘proper
lookout’
issue but will be considered separately.
[28]
The trial centred on the first issue and Freund AJ found that this
ground of negligence had indeed
been established by the plaintiff. He
rejected the defendants’ defence that a reasonable skipper in
Tuckett’s position
on the day in question, at the same spot,
with
Shark Team’s
bow pointing into the swell, and in the prevailing swell and wind
conditions, would not have foreseen the reasonable possibility
of the
capsize (and resultant harm). Because of the conclusion reached in
respect of the first ground, Freund AJ did not consider
it necessary
to deal definitively with the second ground: although he found that
Tuckett had been negligent, he suggested that
the element of
causation may not have been established. The third issue does not
appear to have received discrete treatment.
[29]
Evidence was led, on behalf of the plaintiff, to establish that while
Shark Team
was at the Geldsteen on the morning of 13 April 2008, the sea
conditions deteriorated to the point that it had become dangerous
to
be there.
[30]
The witnesses called by the defendants, on the other hand, testified
that
Shark
Team
was lying in deep enough water, that the swell was manageable and
that no swells broke in the vicinity of
Shark
Team
or looked like breaking (by either ‘peaking’ or
‘feathering’).
[21]
The conditions were safe and there were no danger signs.
[31]
As a result of a bathymetric survey conducted on the instructions of
one of the defendants’
expert witnesses, Dr John Zietsman, two
pinnacles were found in the vicinity of the spot where
Shark
Team
lay and on one of which the swell
that caused the capsize appears to have begun to break. It was argued
that had Tuckett motored
into the swell and used his fish-finder to
determine the depth further on from where he wanted to lie, he would
have seen the danger
and would have avoided it by lying elsewhere.
The defence to this attack was that the chances of Tuckett finding
the pinnacles
in this way were slim. Zietsman provided a possible
explanation for the size of the wave, which was described, in one way
or another,
by everyone who saw it, as an extraordinarily large wave.
The defendants’ defence was that the possibility of such a
swell
developing and then breaking, in that area in the conditions
prevailing at the time, was not reasonably foreseeable.
[32]
This appeal turns largely on the facts. It is therefore necessary to
traverse the voluminous
evidence at some length before considering
Freund AJ’s factual findings and his conclusions.
The
evidence
Proper
lookout: the sea conditions in general
[33]
As stated above, Christina Rutzen, the harbour master at Kleinbaai
considered the wind to be
light and the sea conditions to be moderate
on the morning of 13 April 2008. She also testified that those
conditions prevailed
throughout the morning and only deteriorated
during the afternoon. Her observations were supported by her
brother-in-law, Michael
Rutzen, who put to sea shortly after the
capsize in order to help with the rescue effort. The conditions at
the Geldsteen were,
in his opinion, not dangerous on his arrival. He
described conditions that day as not being too rough, stating that
there was nothing
unusual about the sea conditions. He experienced a
light south-easterly wind and a swell of two and a half to three
metres on his
way to where
Shark Team
had been towed. He saw nothing to alarm him at the Geldsteen, the
wind was dying and there was not a lot of swell. Mr Wilfred Chivell,

the owner of
Shark Fever
,
had not been concerned that day about the weather forecast and the
maximum predicted swell height of 3,96 metres because the swell
was
long and could be worked in safely and comfortably. He thought that
it would be a good day at sea. He saw no signs of deteriorating

weather conditions by the afternoon. It must be borne in mind,
however, that neither Christina Rutzen nor Chivell went to sea on
the
day in question and that Michael Rutzen only did so after the
capsize. That said, however, they are people with a great deal
of
maritime experience and local knowledge.
[34]
Ms Marili Meyer, a passenger on
Shark
Team
, testified that the wind was
strong and the sea was rough. She was extremely nervous and anxious
as this was the first time she
had ever gone to sea. Coming from the
inland city of Bloemfontein, she was not particularly familiar with
the sea. Her husband,
Mr Hendrik Meyer, had been to sea once before.
He therefore also had little experience to draw on as far as the
nature and characteristics
of the sea conditions and the wind were
concerned. Ms Meyer testified about a wave that broke while she was
on
Shark Team’s
viewing deck. While she initially testified that it was 50 to 100
metres from
Shark Team
,
she conceded that it could have been much further – in the
region of 500 metres or more as Mr Tuckett later testified. Her

evidence concerning this wave takes the matter no further, because
the wave broke far away from
Shark Team
and posed no threat to it at all.
[35]
Smuts, the skipper of
Swallow
,
described the wind on 13 April 2008 as being ‘very light’.
On the way to the Geldsteen nothing caused him any concern.
When he
arrived at the Geldsteen, however, he said he experienced a larger
swell than he had anticipated. He took up a position
about 30 to 50
metres astern of
Barracuda
,
which was, in turn, about 100 metres astern of
Shark
Team
. His crew lowered the cage and his
clients proceeded to view sharks.
[36]
He regarded the conditions as ‘threatening’ but not
dangerous. The threat, he said,
lay in the swell picking up because
of the dropping tide. The swells began to peak and he estimated their
size to have reached
about 7 metres. His method of estimating the
swell size, however, was based on what he believed to be the height
from
Barracuda’s
waterline
to the top of her aerial. He believed this to be eight metres but
accepted that it was, according to
Barracuda’s
skipper, between three and a half and four metres. He also accepted
that estimating swell height in the circumstances was, at best,
a
rough and ready exercise and unlikely to be accurate.
[37]
He maintained that conditions deteriorated rapidly – in the
five to ten minutes prior to
the capsize – and spoke to Lennox,
the skipper of
White Shark
,
on his cellphone to discuss the conditions. He told Lennox that all
of his clients had had their chance to view sharks and he
intended
returning to Kleinbaai. Lennox said that he was aborting his trip,
having lain at anchor for about 30 minutes already.
At that stage,
however, Smuts had not seen any swells breaking in the area. He had
just ended his conversation with Lennox when
the capsize occurred.
[38]
When Smuts was asked about the size of the wave that had capsized
Shark Team
,
he said that one saw waves like that after and during north-west
storms. On the day in question, a light south-easterly wind that

normally flattens the sea was blowing but, he added, that ‘definitely
was not the case that day’.
[39]
He conceded that conditions could vary from one spot to another, even
over a fairly short distance.
As a result, he said that all he could
speak about were the conditions prevailing where
Swallow
lay.
[40]
Mr Coenie Coetzee was the dive master aboard
White
Shark
which had left Kleinbaai harbour
at 09h05 on 13 April 2008. He described the trip to the Geldsteen as
‘a nice ride’
but on arriving and anchoring there he
found a bigger swell than he had anticipated. He estimated the
south-westerly swell to have
been about four metres in height and
said that a ‘very, very slight’ south-easterly wind blew.
On arrival the crew
began to chum and motored round for a while to
see what the sea was doing.
White Shark
then anchored astern of
Megalodon
.
A period of time after the vessel had anchored, however, four larger
swells passed her. This alarmed Coetzee and Lennox. A decision
was
taken not to put the cage over the side and to abort the trip as well
as the afternoon’s trip. Shortly thereafter –
‘a
couple of minutes’ later, according to Coetzee –
Shark
Team
was struck by the wave and
capsized.
[41]
Despite the four swells coming through,
White
Shark
remained at anchor until
Shark
Team’s
capsize. Coetzee was
explaining to his clients why the shark viewing had been cancelled
when he saw the wave striking
Shark Team
some 300 metres away. Lennox was talking to Smuts, or had just
finished doing so. It was put to Coetzee in cross-examination that

the swell that was running at the Geldsteen had not caused concern
for him ‘until that set of swells came through’
to which
he answered: ‘Correct.’ Coetzee agreed that conditions
could vary from boat to boat, depending on position,
and that what
was experienced on
Shark Team
could have been different to what was experienced on
White
Shark
.
[42]
Lennox did not testified but was interviewed by Captain K J Coates,
who investigated the capsize
on behalf of the South African Maritime
Safety Authority (SAMSA). Lennox also made a statement to the police,
which is more or
less consistent with the evidence of Coetzee.
[43]
Colyn, the skipper of
White Pointer
testified that, after he had arrived at the Geldsteen, Tuckett called
him by cellphone to offer him
Shark
Team’s
position. He stated that a
swell of about four metres was running. He described this as ‘quite
a big swell’. His assessment
of the conditions was that it was
‘pretty safe’ for shark viewing if one was in deeper
water. He accepted that if a
boat was in a depth of ten to 12 metres,
it would not be on a reef and would be safe. He described the
position where
Shark Team
lay as being a prime spot for shark viewing and one that he had used.
He testified that on 13 April 2008, the wind was a light

south-easterly wind and it would have had no effect on the swell.
[44]
On his arrival at the Geldsteen that day, he first motored to the
northern-most end of the line
of shark boats before turning and
coming down the line to the vicinity of
Shark
Team
and
Shark
Fever
. The area looked safe to him. He
accepted that if there was an absence of breaking swells and a boat
lay in sufficient depth of
water it could be accepted that it was in
a safe position. He did not see any warning signs that a massive wave
may be imminent
but said that he had not been in the area long
enough.
[45]
As the skipper of
Shark Team
,
Tuckett was the defendants’ main witness. His version of
events, and of the prevailing conditions, on the day in question
was
supported by various crew members of
Shark
Team
and
Shark
Fever
, as well as a passenger aboard
Shark Fever
.
[46]
It is apparent that Tuckett is a well-qualified and experienced
para-medic, diver and skipper.
He began to work for White Shark
Projects in late 2003 and so, by the time of the capsize of
Shark
Team
,
he had close to four and a half years of experience in the shark
diving industry. All of that experience was obtained in the area
in
which the capsize occurred. The shark boats tended to operate in an
area called Joubert’s Dam, which is inshore of the
Geldsteen
and north of Dyer Island, and around Dyer Island, including the
Geldsteen. The Joubert’s Dam area is favoured in
the summer
months and the area around Dyer Island, including the Geldsteen, is
the preferred area in the winter months.
[22]
[47]
From Tuckett’s experience, it can be accepted that he had local
knowledge of the areas
in which he operated, including the Geldsteen
– and the spot where the capsize occurred. Smuts, for instance,
testified that
Tuckett had extensive knowledge of shark-diving in the
Geldsteen area. Mr Michael Hartnett, an expert witness called by the
defendants,
testified that Tuckett had local knowledge as he had
‘thousands of hours working in the same area’ and that,
on this
basis, he would have been in a position to ‘discern
certain conditions and what effect they will have on his vessel’.

(He considered local knowledge to be perhaps the most important
factor when a skipper has to decide on a safe place to lie at
anchor.) Chivell, speaking more generally of all of the shark boat
skippers, said that they had been going to sea in the Geldsteen
area
for ‘many, many, many years over hundreds and hundreds of days
and thousands of hours’. As a result of their experience,
they
‘got to know where [are] the safe areas; where can you do what
in certain weather conditions’. For him too, the
most important
aspects of understanding the workings of the sea on the Geldsteen,
and what is safe and what is not, are historic
and local knowledge.
[48]
Tuckett testified that he tended to be a cautious skipper and White
Shark Projects was known
among the local shark diving community as
being the first to cancel or postpone trips on account of weather and
sea conditions.
This was confirmed by a number of the witnesses
called by both the plaintiff and the defendants. The witnesses on
both sides regarded
Tuckett as a good skipper. Their assessment of
his abilities as a skipper ranged from him being described as a ‘fine
skipper’
by Smuts; a competent skipper according to a member of
his crew, Ms Megan Laird; a responsible skipper, according to
Christina
Rutzen; and a competent and responsible skipper according
to Colyn. The witnesses also agreed that Tuckett was a cautious
skipper.
Indeed, Chivell regarded him as being ‘too careful’
and a ‘very cautious skipper’. This is confirmed by

Zietsman who correlated swell heights and the instances of boats
going to sea, both before and after the capsize:
Shark
Team
only went to sea occasionally when
the swell height was bigger than 3.75 metres, and less often than the
other shark boats.
[49]
On the day in question, Tuckett followed a routine that appeared to
be standard among the shark
boat skippers. He checked the forecast on
the program that White Shark Project used, Buoy Weather. That
indicated, with a green
flag, that conditions were suitable for most
marine activities. When he arrived at the harbour, at about 06h00 or
possibly earlier,
he looked at the sea. There was nothing in the
conditions that concerned him: a moderate south-east wind blew and it
was overcast.
The launch was uneventful, as was the trip to the
Geldsteen. He saw no waves breaking over a rock called Black Sophie,
which was
an indicator of rough sea. He regarded it as ‘an
average trip on the Geldsteen’, and the ‘shark action was
fantastic’.
Everyone on board ‘seemed to be quite happy
with what they were seeing’. Neither the wind nor the sea
conditions at
the Geldsteen gave him cause for concern.
[50]
When he arrived in the area that he had decided upon, he motored
around for ten or 15 minutes
and checked the swell direction, the
current and the wind direction. He first went to a spot where
Barracuda
later lay. He decided that it was a bit rough there so he motored 100
to 150 metres to the south-west where conditions looked flatter.
Both
spots were entered as markers into his global positioning system
(GPS) and had been since he started work in the industry.
He had
never seen the south-westerly swell break in that area and nothing in
the sea state indicated to him that there may be shallower
water to
the west of
Shark Team
.
[51]
Once he had decided on where he wished to lie, he motored, with the
aid of his GPS and with his
fish-finder functioning, into the wind
for 200 metres – the length of his anchor line – and gave
an order for the anchor
to be deployed. The anchor was in nine metres
of water. He then went astern back in the direction in which the wind
was blowing
and lay in the spot he had chosen, on the bridle
anchoring system which kept the bow into the swell. He lay in 11.1
metres of water.
He felt that this was safe: the shark boat skippers
have a rule of thumb that one should, in order to be safe, lie in
over nine
metres of water.
[52]
In dealing with where the boat lay, he denied the evidence given by
Coetzee that
Shark Team
lay close to the kelp – and hence shallow water. Tuckett said
that it lay over 200 metres from the kelp: the anchor, being
in 9
metres of water, was probably 30 to 50 metres from the kelp and the
boat was a further 200 metres from the anchor. He denied
that
Shark
Team
was on a reef and said that he was
not aware of any reef nearby. The bow of
Shark
Team
faced into the south-westerly
swell at all times up to the capsize.
[53]
None of the passengers experienced any difficulties from the swell
when moving around the boat.
Indeed, he said that ‘often when
we’re out there and it’s a little choppy, people who are
not used to being at
sea, do need to hold on to handrails – we
have to constantly tell them to hold on, don’t move around too
much, and
there was nothing noticeable on that particular day’.
None of the passengers indicated a concern with either the weather
conditions or the state of the sea. Nobody experienced difficulties
climbing into or out of the cage as a result of the swell.
[54]
When everyone had had a chance to view sharks from the cage, Tuckett
decided that it was time
to leave. The videographer wanted more
footage and Tuckett gave him a few minutes to do so. If he had been
in any way concerned
about the conditions, he would not have acceded
to this request. He issued instructions to the crew to prepare for
the return trip
to Kleinbaai. By that stage,
Shark
Team
had been at that spot for about
two and a half hours. Tuckett had seen
White
Pointer
approaching and was speaking to
her skipper Colyn, to offer him
Shark
Team’s
spot, when the capsize
occurred.
[55]
After the capsize, the surviving passengers and crew of
Shark
Team
were rescued by
White
Shark
which had slipped its anchor on
seeing the wave strike and was on the scene very quickly. The sea
conditions at this stage were,
according to Tuckett, flat. This is
borne out, by and large, by the photographs depicting the rescue.
[56]
Tuckett testified that conditions vary from place to place on the
Geldsteen, even over fairly
short distances. He described the spot
where
Shark Team
lay as being sheltered.
[57]
When testifying about the conditions, he pointed to various features
of the
Shark Team
video that had been handed in as an exhibit. It showed a fairly flat
sea, with a small swell, people getting into and out of the
cage with
ease and the cage itself being stable rather than ‘swinging and
slapping around’ when in the water. It also
depicted a crew
member standing easily on an engine while he worked the bait line.
This was possible in good sea conditions but
if the sea is ‘very
up and down or choppy then we actually have to stand down on the deck
behind the cage’. He described
the swell as ‘a slow
rolling swell’. These conditions, he said, remained constant
throughout the trip.
[58]
While he made it clear that it was difficult to estimate the swell
size with accuracy, especially
from photographs or videos, and his
estimates came with no guarantee of accuracy, he guessed that the
swell size was between two
and two and a half metres. In some of the
photographs that he was taken to, he estimated swells of three
metres.
[59]
When a video taken from
Barracuda
came to light towards the end of Tuckett’s examination in
chief, he was taken through it. It showed, much like the
Shark
Team
video, passengers who seemed to be
comfortable in the conditions, and who stood with ease, and with no
support, on the deck. The
cage looked stable and divers were entering
and leaving it easily. The sea, he said, looked calm where
Barracuda
was lying. He identified one swell that he described as ‘a
moderate swell’ that was not peaking which looked to him
like
an ‘average, moderate, slow, lazy swell’. He estimated
that other swells going past
Barracuda
were in the region of two and a half metres but said that he was
making ‘educated guesses’. One had some white water
on
it, created, he believed, by the wind.
[60]
Tuckett was subjected to a long, arduous cross-examination that
traversed both the relevant and
the irrelevant. It lasted five days.
[61]
In cross-examination, he stated that: his employer had not placed
pressure on him to go to sea
on 13 April 2008; he was satisfied that
his crew was competent; he was alert, as he always was, when he was
at sea that day;
Shark Team
was never in danger; there were no warning signs of possible breaking
waves; there was no deterioration in the conditions; and
there were
no breaking waves anywhere near
Shark
Team
. He said that there was nothing
that he could have done to have prevented the capsize and that the
wave was one he ‘could
never have expected or never have
avoided’. He made it clear that, being the first to arrive on
the Geldsteen, he was able
to choose the calmest spot, that the
swells were not very big where
Shark
Team
lay and that he saw no peaking or
feathering swells: all he saw were slow, lazy swells. He did notice,
however, that the boats
astern of him were ‘riding in higher
swells than where I was’.
[62]
Tuckett had testified in chief that he had been to the spot where the
capsize occurred many times
in the past. It was one of his waypoints
in his GPS and a favourite spot of his. He was taken to task on this
evidence on the basis
that the logs for
Shark
Team’s
trips from 7 March 2008 to
the date of the capsize showed that he had been to spots all over the
Geldsteen but not to that exact
one. These spots varied from 40 to
770 metres away.
[63]
I turn now to the evidence of Scholtz, the skipper of
Shark
Fever
, which had taken up a position
about 40 metres ahead of
Shark Team
and about 20 metres across (off
Shark
Team’s
starboard bow). His
evidence is important because of
Shark
Fever’s
proximity to
Shark
Team
.
[64]
He testified that, on the morning of 13 April 2008,
Shark Fever
launched without incident and ‘had a very pleasant ride’
to the Geldsteen. There was, he said, some swell but it was
not
uncomfortable or anything to worry about. On arrival, he saw that
Shark Team
was lying almost exactly on a way point of his –
a spot he described as one of the ‘safe spots’ – so
he
moved to another way point in front of
Shark Team
. He lay
in 12 or 12.5 metres of water. He described the conditions as calmer
than where
Barracuda
and
Swallow
lay at The Point. He
said:
‘
Where
myself and Shark Team were lying, the water was calmer there than
where Barracuda and Swallow was lying, because I could see
their
boats’ noses go up and down and up and down, and we were almost
stationary at times. And yes we also went a little
up and down at
times but give and take 80% of the time we were lying, we were almost
lying still.’
He
estimated the swell size to be about two and a half metres on
average.
[65]
He said that he knew the area where he lay and that it was a ‘safe
area for me’.
He had been there in conditions similar to those
prevailing on 13 April 2008, and worse. He had never seen feathering
swells in
that area: while swells break close to the island and on
the kelp, they do not break in the area where he lay. Later, he said
that
over a period of five years prior to the capsize, he had not
seen a swell break in that area, so he assumed it to be a safe area.
[66]
On the day in question, he never saw any swells ‘standing up’
near his boat and nothing
in the conditions caused him any concern.
The swell posed no danger. He knew he was safe from experience and
because
Shark Team
,
being so close to him, had been there for longer than him. He could
not recall conditions deteriorating in any way and he did
not notice
any increase in the swell height. He stated, however, that the swell
was not consistent in that while the average was
about two and a half
metres, some swells as big as about four metres came through at
times. He stressed that ‘[w]hile we
were lying there I felt
very safe and comfortable being there at the time, no matter if the
swell was 1 metre or 4 or 5 metres’.
Conditions remained
constant from before the capsize to afterwards. From an hour and a
half before the capsize to a half hour after
it,
Shark
Fever
lay in that area and, ‘there
was nothing for me to really feel worried about, to really move out
of the area to get to the
harbour, to land’.
[67]
It was put to him that when he saw the swell that capsized
Shark
Team
getting bigger, it must have
reached a shallower area. He said that he had difficulty responding
to this as ‘I was lying
there the whole day’ and
‘[n]othing out of the ordinary happened’. It was also put
to him that
Shark Team
should never have been where she was. His answer was that there was
no doubt in his mind that the vessel was ‘not in danger
at all’
and that the swell that capsized
Shark
Team
‘was according to me an
unexpected swell or as it was referred to as well, as a freak swell’.
[68]
The evidence of both Tuckett and Scholtz concerning the wind and sea
conditions as well as a
lack of deterioration in them was supported
by: Ms Megan Laird, who was on
Shark
Team
as a volunteer and dive master; Mr
Adrian Hewitt, who was a crew member aboard
Shark
Team
; Ms Alison Towner, the dive master
aboard
Shark Fever
;
and Ms Sara Dix, the videographer aboard
White
Pointer
. Laird, Hewitt and Towner were
marine biologists engaged in research into great white sharks and all
three had sea-going and diving
qualifications and experience. Their
research and their duties entailed recording data concerning their
boat’s position,
water depth, swell size and wind direction.
They also had to keep a lookout for these types of factors and
conditions. While Dix
may not have had the research involvement of
the others, she too had extensive sea-going experience. A passenger
aboard
Shark Fever
,
Ms Bridget Willcox, who had some sea-going experience, gave evidence
that was consistent with that of the crew of both vessels.
[69]
Their evidence, taken together, was to this effect: the wind was
light to moderate; there were
no concerns about the swell on the
Geldsteen; it was estimated to be two metres, two to three metres;
two and a half to three metres
by Laird, Hewitt and Towner
respectively and described as moderate by Dix and Willcox; the swells
were long, lazy swells; all felt
comfortable on their boats; none of
them noticed any deterioration in the conditions or any increase in
wind speed; nobody on the
respective boats were seen to experience
condition-related difficulties; no breaking, peaking or feathering
swells were observed;
and none of them recalled any larger swells
coming past their boats.
[70]
Laird said that if the swell had deteriorated she would have noticed
because she was working
as the dive master and this would have had an
impact on people who were trying to get in and out of the cage, and
on those inside
the cage. Hewitt recorded details of the conditions
for his research. He was interested in correlating shark sightings
and prevailing
conditions. One of Towner’s duties was to fill
in data sheets that recorded conditions, including the depth of
water, the
nature of the swell and its direction, wind direction,
current direction and underwater visibility. She said that after the
capsize,
the sea returned to the state it had been in before the
event. Dix said that the sea returned to normal, and said of the wave
that
‘[i]t really was just like something that came out of
nowhere and then went again’.
[71]
Michael Rutzen’s evidence concerning conditions on 13 April
2008 has been alluded to above.
He also gave evidence concerning the
Geldsteen, based on more than 20 years of experience. In his
experience, the swells break
only on the kelp lines and the
south-east wind tends to flatten the south-westerly swell. He had
only experienced an extraordinarily
large wave once on the Geldsteen
and that was in 1998 when it broke and ‘washed white water’
towards the moving boat
he was in. Swells of between three and four
metres are normal in the area where the capsize occurred.
[72]
Chivell is also a mariner with a great deal of experience of the
Geldsteen. He said that he was
familiar with the spots where
Shark
Team
and
Shark
Fever
lay and, in his opinion, they are
safe spots. He had never seen breaking swells there or heard of a
shark diving or whale watching
boat experiencing problems with
breaking swells in that area.
[73]
Concerning the deterioration of conditions, he made two points:
first, that deteriorating conditions
per se are not a problem but it
is only when a ‘massive change in swell conditions’
occurs that it becomes problematic;
secondly, he saw no signs of
deteriorating conditions by the afternoon of 13 April 2008, no
deterioration of significance was forecast
and only a slight increase
of wind speed, which would have been irrelevant to boats lying in the
lee of Dyer Island, was predicted.
He also saw no evidence of
dangerous conditions in the photographs taken immediately after the
capsize.
[74]
He was of the opinion that three metre swells could not be said to be
big and four metre and
bigger swells could be said to be big but
there was no reason why skippers could not go to the Geldsteen in
four metre swells:
it all depended on a range of factors whether it
was safe or not. Large swells on their own are not a problem. They
only become
a problem when they break.
[75]
He found it strange that Smuts and Lennox could have thought that
conditions were dangerous but
yet had anchored. This, he said, would
have led him to institute a disciplinary process if one of his
skippers had done that. He
made the point, however, that both Smuts
and Lennox were new to the industry, that they had only a few months
experience in the
area and that
White
Shark
was smaller than the other shark
diving boats, as well as lower in the water, and thus susceptible to
‘feeling’ the
conditions more than the others.
Swallow
was also a smaller boat, according to Smuts.
[76]
Chivell was sceptical about the ability of lay people to gauge that
conditions were deteriorating.
First, he expected that experienced
skippers and crew would become aware of deteriorating conditions
before a lay person. Secondly,
he said that if ‘you’ve
never been at sea . . . and you’re sitting on the boat and
you’ve done your dive
and you’re starting to feel
seasick, then everything becomes a problem’.
[77]
When asked to comment on one of the swells in the
Barracuda
video, he conceded that ‘[f]rom the angle of the video it looks
like a big swell’ but he insisted that conditions could
be
different where other boats were lying and that if the swell ‘is
not breaking, if it’s not feathering, if it doesn’t
give
you any indication of breaking, I wouldn’t mind these swells’.
He added, however, that while the bigger swells
that showed signs of
feathering posed no threat to
Barracuda
,
the boats astern of her should have been ‘very much alert’.
[78]
Hartnett was an expert by virtue of his long and varied experience as
a mariner. He was not at
sea on the Geldsteen on the day of the
capsize but was required to give his expert opinion on a number of
aspects relating in one
way or another to the reasonableness of
Tuckett’s conduct that day.
[79]
He believed that there were no indications in the weather forecast of
possible danger. He considered
that the size of the swell, on its
own, is a meaningless measure of whether conditions are dangerous.
What would indicate danger
are such features as feathering swells or
the shortening of swells, and of course, breaking waves. Big swells
pose no threat on
their own. As other witnesses had testified, he
also pointed to the fact that conditions at sea may vary from spot to
spot: while
swells may be breaking in one spot, they may not be doing
so elsewhere.
[80]
He regarded a boat lying in 11 metres of water to be safe. He was of
the view that in choosing
a spot, Tuckett ought to have been guided
by his local knowledge. The fact that he had found his chosen spot to
be safe in the
past, and had never experienced breaking swells there
before, were important indicators that he acted reasonably.
[81]
Hartnett made the point that inexperienced people, being in a foreign
environment, are not well
placed to judge whether conditions are
deteriorating. Skippers and crew, being more attuned to the marine
environment, are far
better placed to do so.
[82]
He did not consider it inappropriate for a skipper to be checking on
the cage diving. He considered
this to be one of a skipper’s
duties. He also saw no problem in a skipper working a bait line. This
did not create a conflict
with his duty to keep a proper lookout:
indeed, by virtue of the nature of the task, it could make the
skipper more alert to ‘strange
waves or big swells’
because these would affect his balance while he throws, works and
retrieves the bait line.
Proper
lookout: the pinnacles and motoring into the swell
[83]
After Zietsman, a civil and ocean engineer, had been engaged as an
expert witness by the defendants,
he commissioned a bathymetric
survey of the area in which the capsize occurred. This brought to
light the existence of slightly
shallower water to the north-west of
Shark Fever
and to the west of
Shark Team
.
More importantly, it brought to light the existence of two pinnacles,
each about five square metres in area, and approximately
6,8 and 7,2
metres under the water. Neither Tuckett nor any of the other skippers
who testified, including Chivell, knew of these
pinnacles. They all
had used this area for shark viewing over a number of years, and
considered it a perfectly safe place to lie.
The remainder of the
shallower area was over eight metres deep.
[84]
Tuckett was asked whether he had ever seen, with the aid of his
fish-finder, shallower areas
in the vicinity of the capsize. He said
he had not and the sea state to the west of
Shark
Team
had not indicated the presence of
shallower water either. He saw nothing, he said, that ‘gave me
any indication that there
[were] any shallow reefs there’. This
evidence was supported – perhaps indirectly – by Scholtz
when it was put
to him that the swell that caused the capsize must
have reached a shallower area when he saw it getting bigger. As
previously noted,
he answered that he had difficulty responding
because ‘I was lying there the whole day’ and ‘[n]othing
out of
the ordinary happened’. He had not seen a wave breaking
in that area for the previous five years during which he had used

that spot.
[85]
It was put to Chivell, in the context of the assertion that Tuckett
should have spotted the shallower
water off his starboard bow, that a
skipper of a boat will see shallower water because the swell would
‘rise up’ over
a reef. Chivell, with reference to a
recent trip he made to the Geldsteen (in conditions similar to those
prevailing of 13 April
2008) to try to locate the pinnacles
identified by the bathymetric survey, said that one would have
expected this to be the case
but he found on his trip that it was not
necessarily so. He then stated, with obvious reference to
Shark
Team
, that if a boat has been lying in
a place for two or two and a half hours and no swells had looked like
they were going to break,
there would be no danger signs to induce a
skipper to move away. When it was put to him that a swell is going to
break sooner or
later over a shallow reef, his answer was that he had
not seen that happen in the Geldsteen area.
[86]
Hartnett was of the view that given the depth, size and spire-like
shape of the pinnacles off
Shark Team’s
starboard bow, and on one of which the swell had begun to break, it
was not to be expected that a person would be aware of their
presence
by reading the water: there would have been no discernible
disturbances of the surface when swells passed over them in
the
conditions prevailing on 13 April 2008. It could well have been
different in a very big sea, but nobody would be there to observe.
[87]
It was suggested to Tuckett that he had been remiss in failing to
proceed from the spot he had
chosen into the swell to ensure that no
shallow water lay ahead. He stressed that he had not been aware at
the time of any shallow
areas in the vicinity of
Shark Team
‘so I was one hundred percent confident with the area where I
came to lay’. The court then asked him whether he should
have
‘scouted around, to use lay language’ and whether, if he
had done so, his knowledge would have been different.
To this he
said:
‘
Yes,
M’Lord, but I had been riding around that area in years
previously and I’ve never picked up anything like that,
so the
thought never entered my mind that there was anything there that I
needed to worry about. And because I’d anchored
previously on
that marker in those conditions with that wind, with those swell
conditions, I was quite happy to go straight to
that point and I felt
quite safe there, M’Lord. And we did motor around. We motored
around off The Point. We did motor coming
over. We did go a little
bit further out to start our chum line coming into that point. So we
did look for a good 15 minutes before
actually dropping our anchor in
the 9 metres of water, M’Lord.’
[88]
He made the point that ‘as soon as I came anywhere near to the
Geldsteen and started .
. . choosing my anchor point and checking the
wind, then the depth-finder would go on’. When asked by the
court what his
fish-finder had shown him on the day in question, he
said that he had definitely not seen ‘any shallow pinnacles or
anything’.
[89]
He was asked whether, with the benefit of hindsight and the
bathymetric survey, he thought it
would have been prudent to proceed
into the swell for a while. He said:
‘
Yes,
M’Lord, but you’ve got to also bear in mind, M’Lord,
that I was one hundred percent convinced in my mind
that the only
swell that was going to break anywhere near me that day would have
been behind me and on my portside. And I never
saw anything peaking
or swirling or any indication of anything south or west of my
position to give me any concern. And I would
have been looking in
that direction as I came in to pick my spot to lay anchor as well,
M’Lord.’
[90]
In re-examination, he was taken to this issue again. He made two
points. First, he said, when
he chose his spot, he motored around it
for anything from five to 15 minutes focusing on the area in front of
where the vessel
was to lie. Secondly, he said that going into the
swell to check depth would not have led to the discovery of the
shallower area
and the pinnacles because they lay to the west –
in other words, off
Shark Team’s
starboard bow.
[91]
As far as spotting the pinnacles was concerned, Chivell was of the
opinion that it would have
taken sheer luck for anyone to have done
so: one would have to sail directly over one of them with the
fish-finder on and be watching
it at the precise moment. This is so
because the fish-finder uses a single beam trained directly
downwards. That was why it was
more important to read the sea.
[92]
According to Zietsman, one pinnacle was about 37 metres from
Shark
Fever
and the other was about 48 metres
from
Shark Team
.
One does not know how accurate these figures are but they will
suffice as a rough guide. He explained that while the fish-finders
on
the shark boats use a single beam, the bathymetric survey was done
with a high resolution multi-beam system that gives a swathe
of the
sea bed.
The
wave and the capsize
[93]
In his judgment, Freund AJ expressed the view that the size of the
wave that struck
Shark
Team
was not relevant but he accepted that it was ‘both a very large
wave, and that it was considerably larger than the largest
swell
observed in the preceding or succeeding few hours’.
[23]
[94]
It is, in my view, necessary to canvass the evidence concerning the
size of the wave and its
effect on
Shark
Team
. It is noteworthy that, as I shall
show, every person who saw and testified about the wave described it
as extraordinarily large.
[95]
Coetzee described the wave as unique and said that the unique thing
about it was ‘the size,
the height and the white water that was
going continuously non-stop for a long period of time’. Smuts
said that he had seen
waves of that size and bigger during
north-westerly storms but on that day a light south-easterly wind,
which usually flattens
the sea, was blowing. Colyn said that the wave
that capsized
Shark Team
was ‘massive’. It had been put to him that in a
consultation with the defendants’ legal team, he had said that

the wave was the biggest he had seen in the area. He conceded that he
may have said so.
[96]
Dix, the videographer on board
White
Pointer
, testified that she was in the
wheelhouse with Colyn when the wave struck
Shark
Team
and that Colyn described it as a
‘freak wave’. This made sense to her because ‘there
was nothing else after it
really . . . it was just out of the blue’.
She described it as a ‘massive wave’. When asked what
drew her attention
to the swell, she said: ‘Well, it was
massive. It was massive. I’d never seen anything so big.’
[97]
It was put to Coates, who investigated the capsize on behalf of
SAMSA, that Tuckett had experienced
nothing untoward at sea and then
saw a ‘wall of water’ coming towards
Shark
Team
, and he was then asked how
Shark
Team
could have escaped in these
circumstances. He answered: ‘With a lot of luck, Sir.’
[98]
Tuckett said that he had never seen a wave of that size in his life,
before or since the capsize
of
Shark
Team
. He continued shark viewing in
that very area after the capsize and has never seen a breaking swell
of that nature there.
[99]
Laird was on the bow of
Shark Team
when the wave struck. She estimated that it was about 10 metres high.
(In an interview with ‘You’ magazine, she had
apparently
said the wave was about eight metres high but, in my view, little
turns on this. On the basis of this discrepancy, the
court below
called her credibility into question. In my view, the discrepancy was
immaterial.)
[100]
Hewitt described the wave as ‘this huge wave heading straight
towards us’ and said that ‘you
could hear it roaring’.
He described it as being ‘incredibly large’. He estimated
its height to be the height
of the White Shark Projects lodge ─
which was about 10 metres high. He also estimated the height of the
wave to be about
the same as the length of
Shark
Team
─ about ten to 11 metres. He
had never seen a wave like that at the Geldsteen and had only seen
something similar once before
─ 20 nautical miles off Cape
Point in ‘very, very rough conditions’.
[101]
Scholtz referred to the wave as ‘the freak swell’. He was
on the viewing deck when he saw the swell
which was ‘out of the
ordinary compared to the other swells’. It was catching up to a
swell in front of it. Then, when
the swell was 15 to 20 metres from
Shark Fever
it ‘just suddenly became very big, just like rose up’. He
told his passengers after the capsize that they had witnessed

something that he as a skipper had never witnessed, either in that
area or elsewhere. Finally, he described the swell as a ‘freak

swell’ and as being ‘out of the ordinary for me’.
[102]
Towner was on the viewing deck of
Shark
Fever
when she saw the swell that
capsized
Shark Team
.
She said that she saw ‘a very, very large what can only be
described as “a wall of water” coming towards us’.

When asked about its size, she said she was on the viewing deck and
‘I had to look up and actually strained my neck to look
up at
this thing’. In cross-examination, it was established that the
viewing deck was about four metres above the waterline
and she was
1,6 metres tall ─ and she still strained her neck looking up at
‘this thing’. She described it as
‘significantly
higher’ than the viewing deck and as a ‘very, very large
wave, abnormally large’. She resisted
estimating its height
until she was pushed to do so by the court. She accepted that a swell
of eight metres would be ‘extraordinarily
large’ and said
that this swell was ‘larger than 8 metres’: it was
‘certainly not something normal out
there’.
[103]
Wilcox was a passenger on
Shark Fever
.
She described the swell as ‘massive’ and huge in
comparison to anything they had seen earlier.
[104]
Michael Rutzen did not see the wave. He was asked, however, if he had
ever seen abnormally large waves in the
Geldsteen area. He said that
he had, on one occasion in 1998 when he ‘heard a big thunder’,
a wave broke and ‘washed
white water towards us’. He said
that three to four metre swells are normal in the area where the
capsize occurred but the
wave that capsized
Shark
Team
was not normal.
[105]
Chivell, the owner of
Shark Fever
,
was not at sea when the capsize occurred. In his view, it would have
taken a wave of a height more or less equal to the length
of
Shark
Team
to cause her to capsize. He had
never seen a wave of that size at the Geldsteen.
[106]
Although Tuckett said that the wave had struck
Shark
Team
head-on, other witnesses spoke of
it striking the starboard bow. Tuckett appears to have been
incorrect. Given that it is now known
that the swell began to break
on a pinnacle which was west of
Shark
Team
and that it passed under
Shark
Fever
which was off
Shark
Team’s
starboard bow, it is
probable that it struck
Shark Team’s
starboard bow – as Hewitt put it, ‘somewhere directly off
the bow to slightly off the starboard bow’.
[107]
Smuts described the wave as having pitch-poled
Shark
Team
. By this he meant that it went
over along its length. Coetzee said the same: that the wave flipped
Shark Team
over, bow over stern and that ‘the bow ended up in the stern’s
direction upside down’. This is consistent with
the evidence of
Laird, who was on the bow of
Shark Team
when the wave struck. She said that it ‘hit Shark Team on the
bow and flipped it over, capsized the vessel’.
[108]
It is clear from the evidence given by those who saw the wave that
capsized
Shark Team
that it was extraordinarily large and was the only wave of its kind
to be seen that day. Indeed, most of the witnesses testified
that
they had either never seen a wave of that magnitude or had only seen
one once. Clearly, it was not the product of the prevailing
swell:
not a single swell, even those that were bigger than the norm, broke
that day in the vicinity of
Shark Team
.
Only one, or perhaps two, showed signs of feathering, but those were
some distance beyond
Shark Team
,
and astern of
Barracuda
– and posed no threat to
Shark
Team
.
[109]
Zietsman proffered an explanation for the large wave, what its
probable size was and how it broke. His explanation
is summarised in
his report at the conclusion of an analysis of the swells and the
wind conditions on 13 April 2008 and reads as
follows:
‘
The
most important findings of these analyses is that the crossing of the
South West swell and the South East wind sea, at right
angles, would
create a wedging effect. Observers on the boat would have felt the
relatively short period wind generated waves from
the SE at a period
of about 8 seconds and a wave height of 1.5 m. The much longer wave
swell from the SW at about 14 seconds and
a significant wave height
of 3.5 m would have been less evident to someone on the boat, at
least until the two coincided and created
a superposition of the
components.
The
wedging effect would have resulted from the merging of the incoming
swell from the South West with the wind sea from the South
East. The
combination of wind and wave swells is an infrequent occurrence and
is only likely to occur at less than 2% of the time.
The
confluence of these effects, together with the reflection of other
waves from the NE (i.e. from the Gansbaai/Danger Point Peninsula)
as
modelled by ZAA, would have increased the most probable maximum wave
height to give a swell of Hs=3.5m (and most probable maximum
height
7m) and when this is further combined with their localised
superimposition at a point where the water depth is reduced,
it would
cause wave break.
The
result of the combination of all these factors at the same time and
same point most probably resulted in the wave breaking over
the reef,
which as noted in Section 2.2.1 above is a rocky outcrop to the north
west of Shark Fever and to the west of Shark Team,
where the water
depth is about 5.3m LAT or about 6.5m at the time of the incident. We
believe that it is this outcrop that caused
the combined wind and
wave swells coming from directions at right angles to each other to
break. Shark Fever was able to avoid
a potentially similar scenario
because the wave had not yet broken as it was positioned to seaward
of Shark Team and in deeper
water.
In
summary, if the wind sea had not been present from the South East and
superimposed on the wave swell from the South West, with
both
occurring simultaneously and at a location where the water was
shallow enough to cause wave break, then the possibility of
the wave
breaking when and where it did and the consequences for Shark Team
would have been much reduced.’
[110]
When Zietsman testified, he said that what made the wedging occur,
and explains why this was a relatively rare
phenomenon, was the
confluence of the south-westerly swell of a particular height –
over about three and a half metres –
and a south-easterly wind
of a sufficient velocity – capable of generating a wind swell.
In other words, it is not a phenomenon
associated with every
south-westerly swell and south-easterly wind.
[111]
Zietsman was not surprised to be told that neither Tuckett nor Laird
aboard
Shark Team
were aware of any short period wind-generated swells, despite the
fact that, he said, one could see in the video the effect of
the wind
swell in the rocking of the boats. People on the boats probably only
noticed and experienced the larger swell and would
not have been
aware of the wind swell cutting across the sea swell.
[112]
During the course of his cross-examination, Zietsman was asked
whether, with the full knowledge at his disposal
and with the benefit
of hindsight which, it was conceded, Tuckett ‘couldn’t
possibly have known’, he would have
thought it dangerous to lie
where
Shark Team
had
on the day of the capsize. His answer was that on the basis of what
he knew ‘with hindsight, having done all this work,
that under
these conditions I wouldn’t moor there’.
[113]
The cross-examination proceeded thus:
‘
Now,
I understand that and I understand, of course, that even you if you’d
been out there as a skipper wouldn’t have
known all those
things. --- Exactly.
And
far less would Mr Tuckett have known all of those things. I
understand that. --- Yes, I understand, M’Lord. Yes.
But
you do accept that if hypothetically – and it would be a very
strange scenario – if hypothetically one had all of
that
knowledge. --- Yes.
It
would be apparent it’s risky. --- Yes, you wouldn’t moor
in that location.’
[114]
He was asked about how easy it was to identify the interaction of the
sea swell and the wind swell. He said that
although it was correct
that the hump effect, where the two meet, was ‘quite dramatic’,
nobody but he noticed it and
nobody wanted to accept it. He said that
‘nobody could see it’ and it was only when he pointed it
out that people noticed
it. The cross-examination proceeded as
follows:
‘
But
what happens is, it is quite a dramatic effect if you’re
looking for it, as you said. --- Well, if you know what you’re

looking for.’
[115]
That the phenomenon was not generally known about was clear from the
evidence of Chivell. He testified that he
had never experienced a
cross sea on the Geldsteen but, if it occurred, that would be when
the sea is very big as a result of a
‘massive cold front’.
[116]
Zietsman explained that the swell began to break on the deeper of the
two pinnacles, which was closest to
Shark
Fever
. In order for it to start to
break, the swell had to be at least 8,41 metres high. (He departed
from the rule of thumb that the
break height of a swell is determined
by the depth of water divided by 1,3 because other factors were
present, such as the slope
of the sea bed, which increased the break
height.) He calculated the break height where
Shark
Team
lay to be 10,81 metres. What stood
out for him, however, was that the break continued even as the swell
moved into deeper water.
This attested to the size of the swell
because, if it had been smaller, it would have reformed into a swell
and passed under
Shark Team
.
The fact that it continued to break confirmed for him that it was
bigger than ten metres. He believed that it would have taken
a wave
of that size to have capsized a boat of the size of
Shark
Team
.
[117]
It is perhaps not surprising that, on being asked what conclusions he
drew from his evidence about the size of
the swell and how it broke,
he answered that it suggested to him that ‘it was an unusual
event’. He also was of the
view that given the size of the
swell, it ‘would have broken whether or not that pinnacle of
7,2 existed’.
The
court below’s judgment
[118]
In his judgment, Freund AJ’s starting point was what he
described as ‘a fundamental question’
as to ‘what
swell size would be large enough to serve as a warning to a
reasonably prudent skipper of a shark-cage vessel
at anchor that he
should weigh anchor and depart’.
[24]
His key finding in this respect was that the reasonable skipper, with
tourists on his boat and at anchor on the Geldsteen, ‘would

regard passing waves of 4m or more as a clear warning that conditions
were, or were becoming, unsafe and therefore a warning that
he should
depart’.
[25]
[119]
On the basis of the evidence of the Meyers, the up-country passengers
aboard
Shark
Team
,
as well as that of Smuts on
Swallow
,
which lay astern and to the port of
Barracuda
,
Coetzee on
White
Shark
,
the vessel at the northern end of the line of shark boats, and the
hearsay evidence of Lennox, the skipper of
White
Shark
,
Freund AJ found that, on the probabilities, ‘swells in excess
of 4m must have passed Shark Team in the period preceding
the capsize
reasonably frequently’ and that ‘these swells were
sufficiently threatening that a prudent skipper would,
prior to the
time of the capsize, have taken steps to depart from the scene’.
[26]
[120]
He was ‘in little doubt’ that Coetzee and Lennox on
White
Shark
‘regarded the conditions where they were in the period
preceding the capsize of Shark Team as dangerous’
[27]
and that, on the basis of the evidence of Coetzee and Smuts,
‘conditions where they were deteriorated alarmingly in the few

minutes immediately preceding the capsize’.
[28]
He was prepared to accept that conditions may have been different
where
Shark
Team
and
Shark
Fever
lay but regarded it as ‘improbable that they were very
different’.
[29]
[121]
He found that, having regard to the probabilities, the ‘swell
conditions prior to the capsize had become
noticeably dangerous and
that the evidence of Tuckett, and those who supported him to the
effect that the conditions were benign,
cannot be accepted’.
[30]
[122]
On this basis, Freund AJ found that there was force in the contention
advanced on behalf of the plaintiff that
Tuckett and his crew were
not keeping a proper lookout in respect of the swell conditions as a
result of complacency; that the
swell conditions were large and
threatening enough to serve as a warning to a prudent skipper and,
that being the case, Tuckett
should have ‘foreseen that a wave
breaking over Shark Team was a reasonable possibility’.
[31]
[123]
The crux of Freund AJ judgment appears in the following passage:
‘
189
If Tuckett had been keeping a proper lookout, he would have been
aware of the risk posed by the swell
conditions. He would have
foreseen the reasonable possibility that, if Shark Team stayed where
it was, a wave might break over
his vessel. He should have taken
reasonable steps to guard against this risk. The reasonable steps
which should have been taken
were to weigh anchor and to depart from
Geldsteen as soon as possible.’
190
It is common cause that Tuckett took no steps to depart. Though his
passengers had completed their
dives, he was content to allow the
videographer to continue filming in the cage.
191
A reasonable skipper would, by the time of the arrival of the
capsizing wave, have departed. At
the very least, a reasonable
skipper would already have weighed anchor and been at the wheel, and
therefore, on the probabilities,
in a position to avoid or “
punch
through
” an approaching wave.
192
Tuckett was, therefore, negligent. His negligence was causally
connected to the capsize which
resulted in the plaintiff’s
husband’s death.’
[124]
Freund AJ held that because the Geldsteen is described in charts as
being foul ground, ‘care must be taken
to establish the depth
of the position where the vessel comes to rest and the depth in the
direction from which the swell is proceeding’.
[32]
A prudent skipper would therefore, he said, have ‘taken care to
establish the depth in the direction from which the swell
is
proceeding’.
[33]
As
Tuckett had not looked at the depth south and west of his chosen
spot, he could not have known whether there was shallow ground
in
those directions, and so was negligent.
[34]
[125]
The court then held that what was ‘considerably less clear’
was whether that negligence was causally
connected to the capsize
[35]
and whether, with the equipment available to him, Tuckett would have
found the pinnacles had he explored to the west of his spot.
[36]
Freund AJ held that it was not necessary to make findings on these
issues as he had already concluded that Tuckett had been negligent
in
another respect and that his negligence was causally linked to the
harm. He suggested, however, that he inclined towards a finding
of
liability on this ground too.
[37]
Analysis
Factual
findings
[126]
Freund AJ accepted as more probable the evidence of the plaintiff’s
witnesses and rejected as improbable
the evidence of the defendants’
witnesses as to the sea conditions and whether they deteriorated. In
particular, he rejected
the evidence of Tuckett in its entirety. He
also appears to have rejected the evidence of every witness whose
evidence supported
Tuckett’s version. He accepted, and relied
heavily on, aspects of the evidence of Zietsman as to swell heights.
[127]
The factual findings of trial courts are presumed on appeal to be
correct and will only be interfered with if
they are the product of
misdirection. In
Santam
Bpk v Biddulph
[38]
Zulman JA held:
‘
Whilst
a Court of appeal is generally reluctant to disturb findings which
depend on credibility it is trite that it will do so where
such
findings are plainly wrong (
R v Dhlumayo
and Another
1948 (2) SA 677
(A) at
706). This is especially so where the reasons given for the finding
are seriously flawed. Overemphasis of the advantages
which a trial
Court enjoys is to be avoided, lest an appellant's right of appeal
“becomes illusory” (
Protea
Assurance Co Ltd v Casey
1970 (2) SA
643
(A) at 648D-E and
Munster Estates
(Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 623H-624A). It is equally true that findings
of credibility cannot be judged in isolation, but require to be
considered
in the light of proven facts and the probabilities of the
matter under consideration.’
[128]
In my view, there are a number of criticisms that may be levelled
against the judgment of the court below in respect
of its assessment
of the evidence and consequent factual findings. They amount to
misdirections.
[129]
The first is that the court below did not evaluate and assess the
evidence of the witnesses properly. Freund AJ
simply accepted the
evidence of the plaintiff’s witnesses and rejected the evidence
of the defendants’ witnesses without
giving reasons of any
substance as to why he preferred the one over the other: he referred
to the probabilities as favouring one
side and being against the
other without justifying his conclusion.
[130]
For instance, he stated that, having regard to the probabilities, the
‘swell conditions prior to the capsize
had become noticeably
dangerous and . . . the evidence of Tuckett, and those who
supported him to the effect that the
conditions were benign, cannot
be accepted’.
[39]
He did
not say on what basis he had decided that the probabilities favoured
this conclusion, especially when it was accepted by
all of the
witnesses with sea-going experience that conditions differ from spot
to spot, that Smuts and Coetzee could only speak
about conditions
where their vessels lay and that Tuckett had testified that he had
chosen his spot precisely because it was calmer.
[131]
In accepting the evidence of Smuts, Coetzee and Lennox that the sea
condition was deteriorating Freund AJ overlooked
the incorrect
premise on which they based their opinion ─ the dropping tide.
The evidence was that the capsize occurred shortly
after high tide.
The tide could not have dropped significantly by then and certainly
was not dropping when they claim the deterioration
of conditions
caused them concern. This undermines Smuts’ evidence that ‘with
the tide dropping, the chances of swells
breaking in that area were
large’
[40]
and Lennox’s
hearsay evidence (to which, admittedly, little weight was attached)
that ‘with the tide dropping, it was
not going to be good to
lie around any of the reefs’ and that ‘[o]n low tide the
swell would pick up’.
[41]
Low tide was still almost six hours away.
[132]
All of this is gainsaid by the fact that the evidence of those aboard
Shark Team
and
Shark Fever
,
the closest boat to
Shark Team
,
was that they experienced no breaking swells over the entire period
that they were on the Geldsteen – over two hours in
the case of
Shark Team
prior to the capsize, and more or less the same time, but both before
and after the capsize, in the case of
Shark
Fever
. They also saw no peaking or
feathering swells where they lay.
[133]
The grounds upon which Freund AJ rejected Tuckett’s evidence
are flawed. They were that Tuckett had testified
in chief that he
had, on the request of his employer, filled in training logs after he
had given crew members training and not
contemporaneously, had not
had the appropriate skipper’s licence for a period while he
skippered
Shark Team
and had been shown to be incorrect in his evidence that he had gone
to the precise spot of the capsize numerous times before in
the weeks
preceding the incident. He had filled in the training logs some time
after the capsize and the problem with his skipper’s
licence
had occurred, and been rectified, about two years before the capsize.
[134]
These grounds accord no basis whatsoever for rejecting his evidence
as a whole. Whether Tuckett filled in the
training logs after the
event, and not contemporaneously with the training being given, and
whether he was properly certified as
a skipper at some stage prior to
the capsize had no material bearing on his credibility and were
irrelevant to the issues before
the court. In the second place, there
was no suggestion that Tuckett was untruthful. Ironically, his
forthrightness in disclosing
these facts seems to have been held
against him and was used as the basis for a finding that he was ‘not
unwilling to mislead’.
[42]
[135]
As for Tuckett’s evidence about going previously to the precise
spot of the capsize, it must be borne in
mind that he was testifying
about six years after the capsize occurred. When he was confronted
with his boat’s logs, they
showed that in the five weeks or so
preceding the capsize he had been to numerous spots all over the
Geldsteen including spots
close to his position on 13 April 2008. He
had an explanation for that too. He said that one could not always go
to a spot because
it could already be taken by another boat or the
wind or the swell prevented one from lying there. He also said that
in the previous
winter months he had used that spot many times. It
was not suggested to him in cross-examination that he had tried to
mislead the
court deliberately, as opposed to making a sincere
mistake.
[136]
Even if it were to be accepted that he had been untruthful about
lying on the precise spot of the capsize during
the preceding five
weeks, that does not mean that everything else that he said must be
rejected: evidence can be ‘good in
parts’.
[43]
The ultimate question that must be answered ‘is not whether a
witness is wholly truthful in all that he says, but whether
the court
can be satisfied . . . on a balance of probabilities in a civil
matter, that the story which the witness tells is a true
one in its
essential features’.
[44]
[137]
It is obviously so that Tuckett had an interest in the outcome of the
case. That is not unusual at all. The matter
concerns his personal
liability and also affects his professional reputation. This does not
mean that his evidence must be treated
with suspicion, much less
disregarded or discounted. It must still be dealt with on its merits,
bearing in mind his interest.
[45]
[138]
He was also criticised for downplaying the size of the swell on the
Geldsteen on the day in question. His evidence
in this respect is,
however, consistent with the evidence of everyone else who was aboard
either
Shark Team
or
Shark Fever
and who testified. There is no suggestion – much less evidence
of – a conspiracy between all of these witnesses.
[139]
Evidence of the swell size must also be viewed in its proper context.
Throughout Tuckett’s evidence he was
at pains to say, when
asked to estimate the size of a swell, that he found it difficult to
do this, that he was taking an educated
guess and that his estimates
came with no guarantee of accuracy. All of the witnesses with
sea-going experience confirmed that
it is extremely difficult to
estimate swell sizes, particularly from photographs and videos, and
that the result may not be accurate.
Not surprisingly, in the
circumstances, the estimates of the size of the swell varied
considerably from witness to witness: at
one stage, Smuts, whose
evidence was accepted and relied upon, spoke of an eight metre swell
but his estimate was shown to be based
on an erroneous assumption.
[140]
I have read the evidence of Tuckett – and re-read parts of it
more than once – and I can see no proper
basis for its
rejection. To say, as Freund AJ did, that he has a propensity to
mislead is, with respect, neither borne out by the
evidence as a
whole and nor is it fair. He may be subject to criticism in certain
respects, but his evidence was supported in all
material respects,
and not only regarding swell size, by a number of witnesses who were
aboard
Shark Team
and
Shark Fever
.
I do not understand why that evidence apparently counted for naught
and was rejected.
[141]
If a reason for the rejection of the evidence of those who supported
Tuckett’s version is discernible, it
appears to have been their
supposed interest in a favourable outcome for the defendants, or
sympathy for or loyalty towards Tuckett.
This is especially so in
respect of Towner, Tuckett’s partner. I could find nothing in
the record that established any hint
of these forms of bias on the
part of Laird, Hewitt, Scholtz, Towner, Dix and Willcox. In addition,
Laird and Dix had had nothing
to do with Tuckett for a number of
years and Willcox did not even know him. Even if criticism could be
levelled against some of
the witnesses in some respects, their
evidence taken as a whole constitutes an impressive, consistent and
weighty edifice.
[142]
Freund AJ accorded far too much weight to the evidence of the Meyers,
and far too little weight to its deficiencies
and their fairly made
concessions. They spoke of windy conditions whereas every other
witness spoke of a slight wind blowing. Their
lack of sea-going
experience made their evidence of deteriorating conditions worth
little, even though I do not doubt their honesty.
Their evidence of
the conditions was vague. They conceded, fairly, that the crew would
have had a better understanding of the conditions
than them.
Interestingly, Ms Meyer first thought that she had noticed conditions
deteriorating when she was on the viewing deck
where, because of its
height above the deck she had been on, the movement of the boat is
likely to have been exaggerated. Every
other person aboard
Shark
Team
did not experience any marked
deterioration, and testified about a long, lazy swell, no breaking
swells and no indications of peaking
or feathering swells.
[143]
This evidence is largely consistent with the weather forecast for the
area for 13 April 2008 and with the observations
of Christina Rutzen
and Chivell from the shore. Every witness who went from Kleinbaai to
the Geldsteen that day spoke of it being
a pleasant and easy trip.
The evidence accords too with the conditions that Michael Rutzen
encountered shortly after the capsize
and that Dix spoke of at the
precise spot of the capsize for about half an hour after the event.
Zietsman’s research reveals
that if there was any deterioration
in conditions it was marginal and would not have been discernible to
the skippers at the time.
The photographs taken after the capsize,
particularly those depicting the rescue, show a calm sea.
[144]
What precisely was the evidence of Smuts and Coetzee? Smuts was at
anchor for sufficient time to complete shark
viewing. He was probably
about 150 metres away from
Shark Team
.
Swallow
lay
astern of and north-east of
Barracuda
which lay in a spot which Tuckett had felt was too rough. Smuts
testified that the swell was bigger than he had anticipated but
said
that conditions were ‘threatening’ but not dangerous. The
threat was the dropping tide, which as I have discussed
above was
factually incorrect. He saw no swells breaking, although he spoke of
some swells peaking. It would appear from his evidence
that he
believed there to have been a deterioration in the conditions in the
five to ten minutes before the capsize. The threatening
conditions
could not have been a serious concern for him or else he would not
have anchored and allowed shark viewing for nearly
an hour and a
half.
Swallow
was
still at anchor when the capsize occurred.
[145]
Coetzee’s evidence of deteriorating conditions is similarly
sparse. Boiled down to its essentials, it is
confined to four large
swells that came past
White Shark
shortly before the capsize and persuaded him and Lennox to abort
their trip. Before that the vessel lay at anchor for about half
an
hour and was still at anchor when the wave struck
Shark
Team
.
[146]
It is not necessary, in my view, for the evidence of Smuts, Coetzee
and Lennox to be rejected in order to accept
the evidence of Tuckett
and the witnesses who supported him. I say this because the evidence
of Smuts, Coetzee and Lennox concerned
conditions where
Swallow
and
White Shark
lay, some distance away from
Shark Team
and
Shark Fever
;
and everyone accepted that conditions in the two locations could be
different. By the same token, the evidence about the conditions
they
experienced cannot be taken to be evidence of the conditions that
Tuckett, Scholtz and their crew and passengers experienced.
In my
view, Freund AJ erred when he held that despite the evidence, the
probabilities pointed to conditions being much the same
in the two
different spots.
[147]
The only evidence adduced by the plaintiff of conditions where
Shark
Team
and
Shark
Fever
lay was that of Colyn who
believed conditions to have been safe, even though he estimated the
swell to have been about four metres
in height. He never saw any
breaking swells. He remained in the area of the capsize for about
half an hour. He intended to put
his cage down and to view sharks.
The only reason why this did not happen, according to both Colyn and
Dix, was that no one felt
like viewing shark after the tragedy that
befell
Shark Team
,
not because it would have been dangerous to do so.
[148]
In my view, for the reasons that I have set out, the evidence of
Tuckett and those who supported his version should
not have been
rejected by the court below. The rejection of this body of evidence
constituted a misdirection. Once that evidence
is accepted, as it
should have been, it establishes that there were no signs, in the
position where
Shark Team
lay, that would have alerted a reasonable skipper to the possibility
of danger.
Swell
size and foul ground
[149]
In my view, Freund AJ’s starting point was an incorrect
formulation of the test to be applied as to the
foreseeability of
harm when he stated that ‘[t]he swell conditions were
sufficiently large and threatening that Tuckett should
have foreseen
that a wave breaking over Shark Team was a reasonable
possibility’.
[46]
Earlier in his judgment he had said that the question was not
‘whether the defendants could reasonably have foreseen a wave

as large as the wave which actually capsized Shark Team’ but
whether ‘the conditions were such that the skipper could

reasonably have been expected to foresee the risk of a wave breaking
over Shark Team’.
[47]
[150]
In the light of the facts of this case, and in line with the flexible
approach advocated by this court in
Sea
Harvest
,
[48]
a more precise formulation of the harm that should have been foreseen
by Tuckett is required. He should, in order to be held culpable,
have
foreseen the possibility of a wave breaking that was sufficiently
large to capsize a boat of the size of
Shark
Team
.
That, according to Zietsman, could not have been achieved by a
south-westerly swell on its own: in the prevailing conditions such
a
swell could not achieve the required size.
[151]
The incorrect formulation led Freund AJ to focus on the swell size as
the determinant of foreseeable harm. All
of the evidence of those
with sea-going experience was that swell size on its own is not the
problem: shark boats could work in
big swells as long as they were
long swells, as was the case on 13 April 2008. The danger lies in the
swells breaking. The signs
that this may happen ─ and that the
potential for danger is present ─ are either swells starting to
feather or to peak.
[152]
The focus on swell size led Freund AJ to take a swell size of four
metres as some sort of safety cut-off. He then
proceeded, on the
basis of Zietsman’s conclusions as to the significant wave
height
[49]
to find that the
four metre cut-off was exceeded, not on the basis of the significant
wave height (which he had calculated to be
in the region of three
metres) but the assumed maximum wave height of twice the significant
wave height. By doing this, he reduced
what is really a matter of
judgment by experienced skippers with local knowledge who take into
account a range of factors, into
a simplistic, formulaic process ─
when the swell is four metres, it is time to leave. What is worse, he
calculated the cut-off
according to the maximum wave height, rather
than the significant wave height. In other words, on this approach,
shark boats should
return home if the significant wave height is two
metres because the maximum wave height will be about double that.
This is entirely
unrealistic: if this were the standard that skippers
had to adhere to, the shark boats would never put to sea. It is also
unconnected
to the foreseeability of any harm eventuating: some of
the witnesses testified that one can have a dangerous sea with a
small swell
and a perfectly safe sea with a much larger swell. It
will often depend on the period of the swell (and other factors like
wind).
[153]
In fixing on the size of the swell as the determinant of imminent
danger, he appeared to ignore the obvious safety
measure of skippers
making sure that their boats lie in sufficiently deep water. The rule
of thumb of the shark boat skippers was
that anything deeper than
nine metres was good enough and considered safe. He also ignored the
evidence that at the spot where
the capsize occurred, no swells had
broken that day or looked like breaking, and generally did not break,
except in very big seas,
when nobody would be at sea anyway.
[154]
He attributed a great deal of importance to the
Barracuda
video in particular. It showed a limited number of big swells astern
of
Barracuda
and a bit of feathering on one of them. This video has limited value
because
Barracuda
was probably about 120 metres astern of
Shark
Team
: the fact that the vessels astern
of her may have seen danger signs, does not mean that Tuckett should
and could have, being some
distance ahead of
Barracuda
.
[155]
On the other hand, Freund AJ made no mention of the fact that on both
the
Barracuda
and
Shark
Team
videos one sees passengers and crew moving around with ease and
comfort, and a stable deck. Despite referring to the affidavit
of the
videographer who made the
Barracuda
video stating that the two big swells visible in the video appear
more dramatic than they were,
[50]
he simply discounted this evidence
[51]
and relied on the video as a primary piece of evidence of
deteriorating conditions. My colleagues and I have also viewed the
video
and do not share Freund AJ’s observations.
[156]
Freund AJ made much of the assertion that the Geldsteen is inherently
dangerous because it is foul ground. In
this he read too much into
the concept of foul ground. As a number of witnesses testified, it
signifies an uneven sea floor that
creates difficulties for anchoring
but if a skipper places his or her boat in a sufficient depth of
water and is careful to anchor
properly, it poses no dangers. He also
read too much into the evidence that breaking waves are experienced
all over the Geldsteen
in bad conditions. In the type of
circumstances when the waves break all over the Geldsteen, no one
puts to sea.
Conclusion
[157]
The evidence establishes that at the spot where the capsize occurred,
there were no danger signs that would have
alerted a reasonable
skipper to the need to depart in order to avoid the harm of a
sufficiently large wave breaking, capsizing
the boat and causing the
death of a person. To this must be added the evidence of Zietsman
that the south-westerly swell on its
own could not have produced the
type of wave that could have capsized
Shark
Team
. Negligence on the part of Tuckett
has thus not been established in this respect.
[158]
Even if the evidence of Smuts and Coetzee as to warning signs of
danger is accepted, then another issue arises.
According to both
witnesses, the deterioration occurred over a short period –
what Chivell and Zietsman would regard as impossibly
short periods.
Both Smuts and Lennox had decided, in the light of the warning signs
they had just seen, to leave. They had not
had time even to weigh
anchor when the capsize occurred. If they are taken as the epitome of
the reasonable skipper, then the warning
signs came too late for
Tuckett. Even if he had the same knowledge as them, the wave would
have struck
Shark Team
before he could have weighed anchor. He could not have avoided the
catastrophe. So, on these facts, which are favourable to the

plaintiff, causation would not have been established.
[159]
The evidence establishes that no one knew of the pinnacles, that it
would have taken sheer chance for anyone to
find them with a
single-beam fish finder, that all of the skippers believed from past
experience that where
Shark Team
lay was safe and that no signs of danger were seen there at the time
or before. On this basis, a reasonable skipper would have
believed
that he or she was lying in a safe spot: the depth where
Shark
Team
lay was 11 metres and there were
no indications of shallower water, and nor would there have been as a
result of the depth, size
and shape of the pinnacles. It would have
made no difference if Tuckett had motored into the swell – in a
south-westerly
direction. The pinnacles lay to his west and as the
swell was not coming from that direction, no danger could reasonably
have been
foreseen from that quarter.
[160]
The evidence establishes, thus, that a reasonable skipper in
Tuckett’s position would not have known of
the pinnacles, would
have had no way of knowing about them and would have believed himself
or herself to be safe in the position
where
Shark
Team
lay. He or she would have done no
more than Tuckett had done in motoring around his or her chosen spot
with the fish-finder on,
and would have had no reason to explore
further to the west where the pinnacles were. Consequently,
negligence on the part of Tuckett
has not been established in this
respect either.
[161]
Furthermore, the evidence of Zietsman was that the wave that capsized
Shark Team
was so big that it would have broken in the deeper water whether the
pinnacle was there or not. That establishes an absence of
causation,
even if negligence had been established.
[162]
The wave was extraordinarily large. Its origin, it would appear, was
not the south-westerly swell but the confluence
of that swell, when
it had attained a critical height, and the south-easterly wind, when
it had attained a critical velocity, resulting
in a wedging effect –
a relatively rare occurrence and one that was unknown to even the
most experienced of the skippers
who testified. From the evidence of
Zietsman, a civil and ocean engineer of immense experience, who
identified the phenomenon with
some difficulty, it may be concluded
that a reasonable skipper in the position of Tuckett could not have
been expected to know
of this phenomenon, would not have known when
the sea swell and wind had reached a critical height and velocity
respectively, and
would not have been able to recognise the signs of
the phenomenon, let alone guard against the risk it posed. On that
account,
negligence on the part of Tuckett has not been established
in relation to this issue either.
[163]
As a result of my conclusions on the negligence issue, it is not
necessary to deal with the second issue, whether
or not White Shark
Projects’ liability was limited in terms of s 261(1)(
a
)
of the Merchant Shipping Act.
[164]
The appeal must, accordingly, succeed.
The
order
[165]
I make the following order:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following order:
‘
(a)
The plaintiff’s action is dismissed.
(b)
The plaintiff shall pay the defendants’ costs, including the
costs of two counsel and the qualifying expenses of:
(i)
Dr John Zietsman;
(ii)
Mr Michael Fiontann Hartnett;
(iii)
Professor Michael Tipton;
(iv)
Dr Cleeve Robinson;
(v)
Mr Robert Fine;
(vi)
Mr Wilfred Chivell; and
(vii)
Dr Linda Liebenberg.’
C
M Plasket
Acting
Judge of Appeal
APPEARANCES:
For
Appellants: M Wragge SC (with him D Cooke)
Instructed
by:
Edward
Nathan Sonnenbergs, Cape Town
Webbers,
Bloemfontein
For
Respondent: D Melunsky
Instructed
by:
Webber
Wentzel, Cape Town
McIntyre
& Van der Post, Bloemfontein
[1]
Rudi
van der Elst
A
Guide to the Common Sea Fishes of Southern Africa
2 ed (1993) at 54. It is described as a ‘huge, spindle-shaped
shark with small conspicuous black eyes, a blunt, conical
snout and
large triangular, saw-edged teeth’ and grows to as much as 7.1
metres in length. (L J V Compagno, D A Ebert and
M J Smale
The
Sharks and Rays of Southern Africa
at 44).
[2]
Van
der Elst (note 1) at 54.
[3]
Phil
and Elaine Hiemstra
Coastal
Fishes of Southern Africa
at 70. The authors point out that similar protection is afforded
this shark in Tasmania and New South Wales in Australia, in

California and Florida in the United States of America, and in
Namibia (at 70-71).
[4]
Ms
Sara Dix, the videographer aboard
White
Pointer
,
whose skipper was considering taking the spot that
Shark
Team
was about to leave when the capsize occurred, testified that she saw
five great white sharks in the vicinity of
Shark
Team’s
up-turned hull.
[5]
Section
261(1)(
a
)
of the Merchant Shipping Act provides:
‘
(1)
The owner of a ship, whether registered in the Republic or not,
shall not, if any loss of life or personal injury to any person,
or
any loss of or damage to any property or rights of any kind, whether
movable or immovable, is caused without his actual fault
or privity-
(
a
)
if no claim for damages in respect of loss of or damage to property
or rights arises, be liable for damages in respect of loss
of life
or personal injury to an aggregate amount exceeding 206,67 special
drawing rights for each ton of the ship's tonnage.
. .’
[6]
Admiralty
Jurisdiction Regulation Act, s 1, item (f) of the definition of
‘maritime claim’.
[7]
MT
Argun: Sheriff of Cape Town v MT Argun, her owners and all persons
interested in her & others; Sheriff of Cape Town &
another v
MT Argun, her owners and all persons interested in her & another
[2001] ZASCA 81; 2001 (3) SA 1230 (SCA).
[8]
Para
14.
[9]
JJ
Fawcett and JM Carruthers
Cheshire,
North & Fawcett: Private International Law
14 ed (2008) at 766-768; Sir Lawrence Collins (General Editor)
Dicey,
Morris and Collins: The Conflict of Laws
14 ed (Vol 2) (2006) at 1893-1900.
[10]
Perlman
v Zoutendyk
1934 CPD 151
at 155;
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371
(D) at 377D-E.
[11]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F.
[12]
See
Cape
Town Municipality v Paine
1923 AD 207
at 216 in which Innes CJ equated the
diligens
paterfamilias
of Roman Law with the reasonable man – what we now refer to as
the reasonable person.
[13]
Van
Wyk v Lewis
1924
AD 438
at 444;
Charter
Hi & others v Minister of Transport
[2011] ZASCA 89
para 32. See too P Q R Boberg
The
Law of Delict
at 346-347; Jonathan Burchell
Principles
of Delict
at 87-89.
[14]
Mitchell
v Dixon
1914 AD 519
at 525.
[15]
S
v Bochris Investments (Pty) Ltd & another
1988 (1) SA 861
(A) at 866J-867B.
[16]
Sea
Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold
Storage (Pty) Ltd & another
[1999] ZASCA 87
;
2000 (1) SA 827
(SCA) para 22.
[17]
Para
23.
[18]
Para
24.
[19]
I
have named the skippers who gave evidence in the trial. One of them,
Lennox, was not available to testify but two statements
made by him
were placed before the court.
[20]
Rutzen
said that great white sharks ‘don’t eat people’
but react aggressively when angered.
[21]
A
swell peaks when its face steepens. A swell feathers when white
water develops on its crest. Both are signs that a swell is
likely
to break.
[22]
The
Geldsteen area was described differently by various witnesses.
Nothing turns on this. It is common cause that the spot where
the
capsize occurred is on the Geldsteen, howsoever it may have been
defined.
[23]
Judgment
of the court below, para 65.
[24]
Judgment
of the court below, para 45.
[25]
Judgment
of the court below, para 51.
[26]
Judgment
of the court below, para 186.
[27]
Judgment
of the court below, para 152.
[28]
Judgment
of the court below, para 160.
[29]
Judgment
of the court below, para 162.
[30]
Judgment
of the court below, para 151.
[31]
Judgment
of the court below, paras 187-188.
[32]
Judgment
of the court below, para 193.
[33]
Judgment
of the court below, para 194.
[34]
Judgment
of the court below, para 195.
[35]
Judgment
of the court below, para 196.
[36]
Judgment
of the court below, para 197.
[37]
Judgment
of the court below, para 198.
[38]
Santam
Bpk v Biddulph
[2004] ZASCA 11
;
2004 (5) SA 586
(SCA), para 5.
[39]
Judgment
of the court below, para 151.
[40]
Judgment
of the court below, para 76.
[41]
Judgment
of the court below, para 88.
[42]
Judgment
of the court below, para 165.
[43]
H
C Nicholas ‘Credibility of Witnesses’
(1985) 102
SALJ
32
at 35.
[44]
Nicholas
(note 43) at 35.
[45]
Nicholas
(note 43) at 37-38.
[46]
Judgment
of the court below, para 188.
[47]
Judgment
of the court below, para 65.
[48]
Note
16, paras 22-24.
[49]
Significant
wave height is a concept used to describe the sea state. It is the
average of the one-third highest swells over a
period.
[50]
Judgment
of the court below, para 144.
[51]
Judgment
of the court below, para 159.