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[2021] ZAWCHC 18
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Petroleum Oil and Gas Corporation of South Africa (Pty) Ltd v Odfjell Asia III Pte Ltd and Another (AC 78/2008) [2021] ZAWCHC 18 (9 February 2021)

Clerically corrected version
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
(Exercising
its Admiralty Jurisdiction)
Case
number: AC 78/2008
Related
to case no. AC 79/2008
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
11-14, 18-21 May;
8-11;
15, 17-18, 22-23 June;
3-5
August 2020
Judgment:
9 February 2021
Name
of Ship: MT “BOW SUN”
In
the matter between:
PETROLEUM
OIL AND GAS CORPORATION OF
SOUTH
AFRICA (PTY)
LTD
Plaintiff
and
ODFJELL
ASIA III PTE
LTD
Defendant
TRANSNET
LIMITED
Third
Party
JUDGMENT
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII.
The
judgment shall be deemed to have been handed down at 10h00 on
9
February 2021.)
BINNS-WARD J:
Introduction
[1]
The
Bow Sun
is a 30 000-ton oil / chemical tanker
[1]
owned by the defendant company, Odfjell Asia III Pte Ltd.  She
is 182,88 metres in overall length from bow to stern and
has a
beam or maximum breadth of 32,2 metres.  On 21 September
2005, she called at Mossel Bay to take on a cargo
of low aromatic
diesel products at the conventional buoy mooring (CBM) in the port.
On the following day, when the vessel
was in the process of unmooring
from the CBM, it was detected that her starboard bower anchor had
become snagged on a rigid pipeline
(the SPM pipeline) that runs on
the seabed from the plaintiff’s onshore facility, referred to
in the evidence as ‘the
oil tank farm’, to a single point
mooring (SPM) anchored in the bay.  The team of divers who
confirmed that the anchor
had fouled also noted that the outer casing
of the pipeline had been torn open.  The SPM pipeline is the
property of the plaintiff,
the Petroleum Oil and Gas Corporation of
South Africa (Pty) Ltd (PetroSA).  It is used to transfer
hydrocarbon products between
the oil tank farm and tankers moored at
the SPM.  PetroSA seeks in these proceedings to recover
compensation in damages from
the defendant in respect of part of the
cost of repairing the damage occasioned to the SPM pipeline.
Owing to the restrictions
imposed in respect of the Covid-19 related
state of disaster, the trial was conducted remotely using an
audio-visual computer program.
[2]
The anchor snagged because it had been let go too
early during the tanker’s approach to the CBM for the purpose
of taking
on her cargo at the pipeline end manifold (PLEM) there.
The PLEM is the terminal point of two other undersea pipelines from

the oil tank farm.
[2]
It is located on the leading line taken from the leading light
beacons situated above the shoreline at Voorbaai in the vicinity
of
the aforementioned oil tank farm.  That leading line, which runs
roughly from west to east on a heading of
±
108
°
true, was variously referred to in the evidence as the ‘Voorbaai
leading line’ or the ‘Bayview leading line’.

I shall use the first-mentioned label.
[3]
Both the SPM and the CBM and their related
supply lines lie within
the limits of the port of Mossel Bay.  The line of approach by
vessels intending to moor at the CBM
to take on cargo at the PLEM was
regulated according to a standard operating procedure issued by the
port authority.  I shall
discuss this procedure in some detail
later in this judgment.  At this stage it suffices to note that
had the
Bow Sun
’s approach followed the standard
operating procedure punctiliously, it would have had her sailing from
the point where the
pilot came on board on a course of 280
°
true on the 15 metre sounding towards a prominent physical
feature in the bay, Seal Island, until she arrived about seven
cables
off the island, where she would execute a turn hard to starboard to
put her on a north, north-easterly heading along another
leading line
referred to as ‘the De Bakke leading line’.
[4]
The De Bakke leading line runs roughly from
south to north on a
bearing of 18
°
true, taken from the De
Bakke leading lights.  The poles from which the De Bakke lights
are shone are situated on a slope
near a place on the shoreline
marked as Haaibanke on the Admiralty Chart for Mossel Bay and the
Approaches to Mossel Bay (exhibit
B).
[5]
The object of setting the approach along the De
Bakke leading line is to take vessels headed for the CBM to the point
of the intersection
of that line with the Voorbaai leading line,
whence, after making a starboard turn from the De Bakke leading line
onto the Voorbaai
leading line, they are manoeuvred astern with
assistance from a tug (the
Arctic Tern
)
to their berth at the CBM.  They are berthed at the CBM, with
the PLEM on the port side, by being tied at the stern and on
both
sides at the stern end (abeam and astern) to five mooring buoys.
[3]
The location of the PLEM itself is marked by a spar buoy.
[6]
The SPM pipeline runs over the seabed in
a north-easterly direction
from the tank farm at Voorbaai to the SPM, which is situated some
distance to the east, on the seaward
side of the CBM.  The De
Bakke leading line intersects the route of the SPM pipeline at a
point some 250 to 260 metres to
the southwest of the intersection of
that leading line and the Voorbaai leading line.
[7]
The pipeline lies at a depth of about 17 metres
and therefore
does not constitute a clearance hazard to a vessel such as the
Bow
Sun
which has a loaded draft of 11,5 metres.  It is
nonetheless crucial that any vessel approaching the CBM should drop
its starboard
anchor to the north of the pipeline so as to avoid the
anchor snagging the pipeline when it is retrieved in the course of
the vessel
unberthing from the mooring.  Accordingly, the
position of the pipeline is, or should be, a significant
consideration for
the master of any vessel coming in to moor at the
CBM.
[8]
The
Bow Sun
’s starboard bower anchor, as might be
imagined having regard to the tanker’s size, was a very
substantial object.
It was a spek anchor weighing 9 300
kilograms.  The anchor’s crown measured 2 332 mm from
side to side and
the tips of the flukes stood 2 210 mm above the
base of the crown.  It was therefore eminently foreseeable that
significant
damage might be occasioned should it come into
deleterious contact with the pipeline.  It should also have been
appreciated,
having regard to its function, that damaging the
pipeline could have serious environmental repercussions as a result
of the pollutant
effect of petrochemical product leaking into the
sea.
[9]
During the approach, and according to the
standard operating
procedure, the vessel’s starboard anchor should be dropped on
or near the De Bakke leading line at a point
approximately 80 metres
south of the intersection point with the Voorbaai leading line.
The port anchor is dropped after
the vessel has made its turn to
starboard to line up on the Voorbaai leading line, and as she begins
her movement astern towards
the PLEM.  The vessel must be moving
astern when the port anchor is dropped in order for the port anchor
chain to pay out
properly.  The ostensible objective is that the
port anchor should come to rest on the De Bakke line about 80 metres
north
of the intersection point.  Ideally, when the vessel has
been berthed at the CBM both bower anchors should be fixed forward
of
her bow at points on the De Bakke leading line more or less
equidistant on either side of the intersecting point of the De Bakke

and Voorbaai leading lines.  The so-called ‘perfect
mooring’ would have the two anchors about 192 m apart (the

equivalent of the length of seven shackles) in alignment with each
other more or less on the De Bakke leading line.  Captain
Cox
testified that it would be a rare event in reality for the port and
starboard anchors to be aligned precisely as shown in the
chartlet.
He actually said, ‘
it’s never going to happen
’.
Such an alignment would not be necessary for an effective mooring to
be achieved.  I did not understand Captain
Barker to have
maintained otherwise, hence his stated contentment with a mooring
with about nine shackles out.  The type of
mooring procedure
involved is called ‘a running moor’ or ‘a
Mediterranean moor’ in nautical parlance.
[10]
When an incoming tanker is expected at the CBM, a launch called
the
Snipe
, which is operated by the port authority, is sent out
from the harbour to mark the intersecting point of the two leading
lines
by dropping a marker buoy.  The marker buoy is tethered to
a clump weight, which makes it susceptible to drifting depending
on
the sea conditions.  If that happens it obviously negates the
object of the buoy as a navigational aid.  The launch
was
referred to in the pleadings as a ‘leader boat’.  It
is meant to stand close by the marker buoy during the
incoming
vessel’s approach and consequently serve as an additional
beacon of the intersecting point of the two leading lines.
[11]
The crew on the
Snipe
monitors the approach of the incoming tanker towards the point of
intersection using radar, and at given intervals radios to the
pilot
on the bridge of the tanker particulars of the narrowing distance
between the two vessels.  The distance, which is that
between
the position of the
Snipe
and the bow of the tanker, is called out in metres.  The first
call is usually given when the bow of the approaching vessel
is
approximately 196 metres from the intersection and thereafter in a
diminishing sequence that appears to correspond with intervals
of
approximately 0,01 nautical mile.
[4]
The evidence was that the practice is that the pilot gives the order
for the incoming vessel’s starboard anchor to
be let go when
the distance between the vessel’s bow and the intersection is
approximately 120 metres.  The pilot’s
order is relayed by
VHS radio from the bridge to an officer standing on the tanker’s
fo’c’sle who instructs the
boatswain to release the
windlass brake.  The evidence suggested that an efficient
execution of the pilot’s order to
let go of the anchor given at
120 metres would cause the anchor to come to rest on the bottom
approximately 90 metres (as
opposed to the 80 metres indicated in the
standard operating procedure) to the south of the intersection point
measured along the
De Bakke leading line and well to the north (by
±
170 metres) of the SPM pipeline.
[12]
The evidence was that the Bow Sun would probably have been
progressing
at about 1,5 knots (or 46 metres) per minute when
the instruction to let go the starboard anchor was given.  It
seems
to me that the pilot’s instruction would have to be
executed pretty smartly for the anchor to be let go at 90 metres
after
an instruction given by the pilot at 120 metres.  The
vessel would be in the course of slowing down as it approached the
intersection
and so would cover the intervening 30 metres in about 40
secs.  There would be little time for debate or double
checking.
If the vessel overshot the mark for dropping the
anchor, it would be necessary to take her back to the beginning of
the exercise
for a second attempt at the approach – something
that would take up upwards of two hours.
[13]
Both the Voorbaai and the De Bakke leading lines are clearly marked

on the nautical charts.  It would therefore be possible for the
officer of the watch on the bridge of the incoming vessel
to readily
chart the position of the ship in relation to them during the
vessel’s approach to the CBM.  The bridge team
should also
be able to visually check that the vessel is proceeding on a bearing
in line with the De Bakke leading lights.
It bears notice,
however, that a contemporaneous note made by one of the witnesses,
Captain Barker, indicates that he thought that
one of the beacon
lights at De Bakke had been very faint at the time of the incident.
Barker testified that this would make
the light difficult to see in
the early morning daylight, which were the conditions in which the
Bow Sun
made her approach.
[14]
At the time of the incident in September 2005 there were no physical

markers of the route of the SPM pipeline.  After the incident,
however, two permanently positioned buoys were installed at
the end
of January 2006 to provide a visible indication on the surface of the
position of the subsea pipeline.  The installation
of the buoys
followed on recommendations made by Mr Faan Herbst, the Safety Health
and Environment Quality manager for PetroSA.
It appears to have
been accepted by the port authority as a reasonable way to minimise
the chance of a similar mishap occurring
again.  The position of
these buoys is marked on the currently applicable nautical charts.
The deployment of the buoys
as navigational aids was accompanied by
an amendment to the standard operating procedure to require the
loading master on board
tankers incoming to the CBM to take up
position on the vessel’s fo’c’sle and to indicate
to the pilot when the
bow cleared the pipeline.
[15]
It is common ground that on the day in question
the
Bow Sun
did not
proceed along the De Bakke leading line towards its intersection with
the Voorbaai leading line, but sailed instead on
a course roughly
parallel to the line, about 60 metres to the east of it.  In the
result, owing to the angle at which the
SPM pipeline runs relative to
the De Bakke line, the point at which the vessel crossed the pipeline
would have been approximately
40 metres closer to the Voorbaai line
than would have been the case had she proceeded along the De Bakke
line.
[5]
It is also common ground, predicated on the deductions made from the
snagging of her starboard anchor on southern side of
the pipeline,
that the anchor must have been let go up to 20 metres before the
vessel’s bow passed over the pipeline.
[16]
The master of the
Bow Sun
, Captain Ingebrigtsen, was not a
complete stranger to Mossel Bay or the CBM berth.  He had been
in command of the tanker when
she had called at the port to take on
product at the CBM a few months earlier, in February 2005.  On
that occasion the vessel
had moored without incident, although nine
shackles of anchor chain had been paid out on each side, instead of
the seven shackles
contemplated in terms of the standard operating
procedure.
[17]
Captain Barker, an experienced master mariner who
testified for the plaintiff in the trial, had been on board as the
loading master
[6]
on the occasion of the
Bow Sun
’s
earlier visit.  He is an employee of a company then known as
Smit Amandla Marine (Pty) Ltd.
[7]
Smit Amandla were contracted by PetroSA to attend to the transfer of
product to the tankers which called at the CBM and SPM
terminals.
[18]
Captain Barker has been based in Mossel Bay since
2002.  He noted in a routine report in respect of the
Bow
Sun
’s call in February 2005 that the
starboard anchor had been dropped at 75 metres from the
intersection point, which was
somewhat later than the 80 metres
indicated on the chartlet
[8]
related to the port’s standard operating procedure, or the 90
metres, which the oral evidence suggested was the norm in practice.

In the circumstances the use of more anchor chain than usual when the
anchor was dropped closer to the intersection point than
recommended
suggests that the vessel probably approached the Voorbaai leading
line on a track slightly to the east of the De Bakke
leading line on
that occasion too.  An electronically captured record of the
mooring in 2002 of another tanker, the
Jo Eik
,
which Captain Barker happened to have kept because of his interest in
the then novel ECDIS navigational system
[9]
being used on that vessel, showed that she too had been brought in on
a track parallel to, and about 40 m to the east of, the De
Bakke
leading line.
[19]
The summary of the standard operating procedure
reflected in the chartlet (see para [39] below) that was
provided to the master
of every tanker intending to berth at the CBM
appears to have been settled at a time when vessels of only up to
32 000 tons
DWT were permitted to moor there.  That limit
had been increased to 42 000 tons DWT by the time of the
Bow
Sun
’s visits.
[10]
Captain McAllister, a master mariner of vast experience and
impressive pedigree who testified as an expert at the instance
of the
plaintiff, agreed with the proposition put by the defendant’s
counsel that it could well be more practical for larger
vessels to
proceed on a line parallel to and to the east of the leading line for
easier mooring purposes.  I do not recall
that any evidence was
adduced concerning the deadweight tonnage of the
Bow
Sun
and it is therefore not clearly
established that she would qualify as such a larger vessel,
[11]
but the speculation by the defendant’s counsel, based on the
evidence concerning the line of two earlier approaches (by the
Bow
Sun
in February 2005 and the
Jo
Eik
in October 2002), that an approach
somewhat to the east of the De Bakke leading line had become standard
was in any event not supported
by the evidence of the witnesses with
first hand exposure to the local practices.  According to the
evidence of Captain Barker
and Mr Karelse (a ship’s agent
with many years’ local experience), they would both have
expected the
Bow Sun
to track the De Bakke leading line on her approach.
[20]
The cost of repairing the damage done to the SPM
pipeline was allegedly in the sum of R17 212 944,31.
In the current
action, in case no. 78 of 2008, PetroSA has sued
the defendant for payment of the sum of R13 122 944,31 in
damages.
The difference between the alleged cost of repairing
and the sum claimed from the defendant is constituted by the amount
of R4 100 000
that was paid to the plaintiff by Transnet
Limited in settlement of an arbitration claim that the plaintiff had
instituted against
the latter predicated on the causal negligence of
the pilot who had taken charge of the vessel for the purpose of
bringing her
into the port and mooring her at the CBM.
[12]
The extent of Transnet’s exposure to PetroSA in respect of
damages occasioned by the negligence of its employees was
capped in
terms of a contract between those parties.
[21]
Mossel Bay was designated as a compulsory
pilotage port in terms of the Legal Succession to the South African
Transport Services
Act 9 of 1989 (‘the Legal Succession Act’).
Tankers coming in to moor at the CBM were therefore required to be

piloted.  The pilot concerned was an employee of the port
authority, a division of Transnet Ltd.
[13]
The crew of the
Snipe
were
also employees of the company.  As the port authority, Transnet,
through its Portnet division, was also responsible for
maintaining
Mossel Bay as a safely navigable port.
[22]
Transnet Ltd was joined by the defendant as a
third party in the current action.  It did not play an active
part in the litigation,
however, apart from appearing to seek from
the defendant the costs incurred as a result of its joinder.
The defendant’s
position is that the damages sustained by the
plaintiff were occasioned wholly as a result of the negligence of
Transnet’s
employees acting within the course and scope of
their employment.  It joined Transnet as a third party only for
the purpose
of seeking an apportionment of negligence contingent upon
this court finding against the defendant that the
Bow
Sun
’s crew had been causally
negligent.  In such eventuality, an apportionment could be
relevant for ascertaining the maximum
extent of the defendant’s
resultant liability in the context of the relevant limitation
provided in terms of s 2(10)
of the Apportionment of Liability
Act 34 of 1956.
[14]
[23]
PetroSA alleged that the damage to the SPM
pipeline was caused as a result of the negligence of the master,
officers and crew of
the
Bow Sun
acting within the course and scope of their employment by the
defendant.  It alleged that the master and officers of the
vessel failed to follow the standard operating procedure for mooring
at the CBM; in particular, by (i) failing during
the
vessel’s approach, after she had been steered to starboard to
approach the intersection with the Voorbaai leading line,
to track
the De Bakke leading line and instead sailing her approximately 50 to
70 metres to the east thereof; (ii) letting go the
starboard anchor
when the bow of the vessel was at a distance substantially greater
than 80 to 90 metres from the intersection
of the leading lines; and
(iii) letting the anchor go when the bow of the vessel was above
or marginally to the south of the
SPM pipeline and approximately 220
metres from the intersection of the leading lines.  All of these
matters concerned navigational
issues.  As will become clear,
the applicable statutory provisions made the navigation of the ship
at this stage the exclusive
responsibility of the pilot on board.
The master was permitted to override the pilot only in a defined
situation of emergency.
[15]
It was the defendant’s position that an emergency in the sense
contemplated by the legislation had not arisen.
[24]
PetroSA also alleged that the master and officers of the
Bow Sun
had been under a duty to keep a proper lookout so as to ensure
that no damage was caused to the plaintiff’s property arising

from the navigation and operation of the vessel, to give every
assistance to the pilot so as to ensure that he had ‘
all
information available to him for the safe navigation of the vessel’
and to intervene ‘
to prevent the pilot from carrying out
his duties in the case of an emergency or should the conduct of the
pilot endanger the ship,
the cargo and the person or property of
others
’.  It was alleged that the master and officers
of the vessel, had they been keeping a proper lookout, should have
appreciated
the standard operating procedure was not being followed
and the dangers that that posed for the SPM pipeline, and that they
should
have intervened by drawing the pilot’s attention to the
deviation from the procedure.  It alleged that they had failed

in that duty.
[25]
It was also alleged that in the course of the vessel’s
departure
from the CBM the vessel’s crew had acted negligently
when they ‘
continued to haul on the starboard anchor when it
should have been evident to them that the anchor had snagged on the
SPM pipeline
’.
[26]
In its third party notice to Transnet, the defendant alleged that

Transnet’s employees were causally negligent in respect of the
damage occasioned to the SPM pipeline.  In amplification
of that
allegation, the defendant pleaded as follows in paragraphs 20 - 23 of
the annexure to its third party notice:
20.
The usual procedure in berthing a vessel at the CBM is:
20.1        the
vessel takes on a compulsory pilot prior to entering Mossel Bay
harbour;
20.2        a tug
operating operated by the third party and referred to as a leader
boat drops
a marker buoy at a predetermined point in the sea in the
vicinity of the CBM in order to operate as a guide to the pilot in
regard
to the proper mooring position for a vessel berthing at the
CBM;
20.3        the
aforesaid guide to the pilot is intended to ensure that, in
determining the position
at which to instruct the vessel to let go
her anchors, the pilot will ensure that neither anchor will snag the
SPM pipeline;
20.4        the
master of the leader boat also advises the pilot as the vessel
approaches the
CBM of her distance from the marker buoy;
20.5        the pilot
employs that information to determine when or at what position to
instruct
the vessel to let go the starboard anchor;
20.6        the pilot
instructs the vessel to let go the starboard anchor at a position not
greater
than 120 meters from the market buoy; and
20.7        after
letting go the port anchor, the vessel is then turned onto a heading
108°
true in order for her to line up with the five mooring buoys
astern.
21
The master and crew of the leader boat are also employees of the
third party acting in the course and scope of their employment as
such.
22.
On 21 September 2005:
22.1        the
leader boat was the tug “
Snipe
”
and her Master was Captain Cairn
[16]
;
22.2        the
marker buoy was dropped from the leader boat in the incorrect
position, the precise
coordinates of which are unknown to the
defendant, but in a position closer to the pipeline than was safe or
appropriate;
22.3        the
distances furnished by Captain Cairn to the pilot on board the vessel
were misleading
as to the relative position of the vessel and both
the CBM and the SPM pipeline;
22.4        in
consequence of being misled by the information furnished by Captain
Cairn the
pilot instructed the crew of the vessel to let go the
starboard anchor at a point where the anchor could, and did, snag the
SPM
pipeline; and
22.5        moreover,
the pilot instructed the vessel to let go the starboard anchor when
the
vessel was greater than 120 meters from the market buoy and
accordingly at a position when it was unsafe and inappropriate.
23.
Accordingly the snagging of and/or the damage to the SPM pipeline by
the
starboard anchor of the vessel was occasioned by the gross
negligence, alternatively negligence of:
23.1        the third
party and its servants, the identity of whom are unknown to the
defendant,
who permitted the SPM pipeline to be laid without ensuring
that its location on the seabed was identified by buoys, lights or
other
appropriate navigational aids, in breach of their duty to users
of the harbour to make the harbour reasonably safe for navigation;
23.2        the
master and crew of the “
Snipe
” in failing to
ensure that the marker buoy was correctly positioned and in
consequence thereof in furnishing the pilot with
incorrect
information as to the position of the vessel in relation to the CBM
and the SPM pipeline;
23.3        the pilot
in instructing the vessel to let go the starboard anchor at a
position
that was unsafe and inappropriate;
23.4        the pilot
in failing to have regard to the number of shackles of anchor line
that
had been paid out when the vessel reached its eventual mooring
position, and in not instructing the divers to assess the position
of
the starboard anchor relative to the SPM pipeline at such time,
alternatively prior to permitting the undocking of the vessel
and the
hauling up of the anchors; and
23.5        the
master and crew of the “
Snipe
” in not advising the
pilot and/or the master of the vessel that the starboard anchor had
been let go at a position that was
unsafe and inappropriate in
circumstances where they knew or should have known that the starboard
anchor had been let go too early.
It
was convenient to quote extensively from the defendant’s third
party notice because, in the respects most material, the
matter
pleaded in para 22 was established by the evidence at the trial.  It
therefore serves as a useful summary of the pertinent
facts.
[27]
Transnet denied that its employees had been
negligent, but pleaded in the alternative that if any of them had
been causally negligent,
it could have been only the pilot.  As
by virtue of certain statutory provisions,
[17]
Transnet could attract liability to the plaintiff only in respect of
grossly negligent conduct by the pilots in its employ,
[18]
Transnet pleaded further that any negligence on the part of the pilot
that might be found to have been established had not been
of a gross
degree.  The third party furthermore confirmed in its pleading
that the compensation that it had paid to the plaintiff
had been paid
pursuant to the provisions of a contract entered into by it with the
plaintiff (then known as Mossgas (Pty) Ltd)
and another party in
1995.  Transnet’s plea concluded (in paragraph 26 thereof)
as follows:
Accordingly, and by virtue of the provisions of section
2(10) of the [Apportionment of Damages] Act:
(a)     The Plaintiff has no claim
against the Defendant for that portion of its loss caused by the
negligence
of the Third Party’s servants, and;
(b)
The
Defendant, consequently, has no claim against the Third Party in
terms of either sections 2(6) or 2(7) of the Act.
[19]
The third party prayed for the dismissal of the
defendant’s claim against it, together with an order that the
defendant pay
its costs of suit jointly and severally with the
plaintiff.  Whilst the defendant, on a contingent basis,
initially claimed
a contribution from Transnet as an alleged joint
wrongdoer, it was conceded at a pretrial conference that, by virtue
of the effect
of s 2(10) of the Apportionment of Damages Act,
that had been inappropriate.  The only practical issue between
the defendant
and the third party was therefore that of the costs
occasioned by the third party’s joinder.  The allegations
of causal
negligence made by the defendant against the third party
remained relevant, however, for the purpose of a determination to be
made
under the Apportionment of Damages Act as to the relative
degrees of fault between them should it be held, in the context of
the
plaintiff’s claim, that the defendant was in any degree to
blame for the damage to the SPM pipeline.
[28]
The plaintiff’s claim relates to ‘damage
caused by a ship’.  Therefore, by virtue of s 7 of
the English
Admiralty Courts Act of 1861, a court of admiralty in
South Africa would have had jurisdiction, immediately before the
commencement,
on 1 November 1983, of the Admiralty Jurisdiction
Regulation Act 105 of 1983 (the AJRA), to entertain the claims.
In the
result, subject only to s 6(2) of the latter Act, the
applicable law is that which would have been applied by the Supreme
Court of England and Wales
[20]
as at the commencement of the AJRA; see s 6(1) of the AJRA and
the commentary thereon in
Transnet Ltd t/a
Portnet v MV ‘Stella Tingas’ and Another
[2002] ZASCA 145
(27 November 2002);
[2003] 1 All SA 286
(SCA), at
para 6.  Section 6(2) confirms the primacy of any applicable
South African legislation for the purposes of the adjudication
of the
claim.
[29]
The First Schedule to
to the Legal Succession Act
that was in force at the time of the incident provided as follows in
the relevant respect:
10
Harbours
(1)
The harbours of the Company are compulsory pilotage harbours with
the
result that every ship entering, leaving or moving in such a harbour
shall be navigated by a pilot who is an employee of the
Company, with
the exception of ships that are exempt by statute or regulation.
(2)
It shall be the pilot's function to navigate a ship in the harbour,

to direct its movements and to determine and control the movements of
the tugs assisting the ship under pilotage.
(3)
The pilot shall determine the number of tugs required for pilotage
in
consultation with the Port Captain, whose decision shall be final.
(4)
A master shall at all times remain in command of his ship and neither

he nor any person under his command may, while the ship is under
pilotage, in any way interfere with the navigation or movement
of the
ship or prevent the pilot from carrying out his duties except in the
case of an emergency, where the master may intervene
to preserve the
safety of his ship, cargo or crew and take whatever action he deems
necessary to avert the danger.
(5)
Where a master intervenes, he shall immediately inform the pilot

thereof and, after having restored the situation, he shall permit the
pilot to proceed with the execution of his duties.
(6)
The master shall ensure that the officers and crew are at their
posts, that a proper look-out is kept and that the pilot is given
every assistance in the execution of his duties.
(7)
The Company and the pilot shall be exempt from liability for loss
or
damage caused by a negligent act or omission on the part of the
pilot.
(8)
For the purpose of this item, ‘pilot’ shall mean any

person duly licensed by the Company to act as a pilot at a particular
harbour.
[30]
By agreement between the plaintiff and the defendant, notice thereof

having been given to Transnet, a ruling in terms of Uniform Rule
33(4) was made at the commencement of the hearing in the following

terms:
1.       The
following issues are separated for prior determination:
1.1    All allegations of negligence,
causation and liability as appear from the pleadings including the
determination
of any apportionment of liability;
1.2    The nature and extent of the
physical damage to the SPM pipeline attributable to the conduct
complained of,
if any, and the manner in which any such damage was
caused; and
1.3    The costs [of suit] in relation to
the issues described above, including the costs of the third party.
2.
The determination of the remaining issues relating to
the nature and
extent of work required to remedy any physical damage found to be
attributable to the conduct of the defendant and
the damages
sustained by the plaintiff in consequence thereof, are stayed until
the issues referred to in paragraph 1 above have
been determined.
The
Bow Sun
’s approach to the CBM
[31]
The tanker had sailed to Mossel Bay from Durban.
A passage plan would have been prepared for the voyage from Durban to
Mossel
Bay before she sailed.  Unfortunately, the passage plan
was not available for use in the trial.
[21]
One can accept, however, that reference would have been had for the
purpose of preparing it to the relevant sailing directions
(either
the Admiralty Sailing Directions or the latter’s equivalent,
the South African Sailing Directions), which give quite
detailed
information to mariners of the conditions that obtain along the
coast.
[32]
Thus, in respect of Mossel Bay, the Admiralty Sailing Directions
gave
the following pertinent information:
2.64
The
Port Control Centre operates 24 hours, 7 days a week. Berthing at the
Oil Terminal SPM and CBM is daylight hours only; unberthing
from the
SPM is day and night.
Notice
of ETA required
2.65
See
1.35. Tankers bound for the oil terminal, at least 72 hours in
advance; other vessels 3 hours in advance. See
Admiralty List List
of Radio Signals
Volume 6 (3) for further details.
…
Pilotage
2.67
Pilotage
is compulsory. Pilots board about 2 miles N of Cape Saint Blaize
Light (34°1 I'S 22°10'E), Tankers bound for the
Oil Terminal
moorings are boarded 1 to 2 miles E of the mooring facility. See
Admiralty List of Radio Signals
Volume 6 (3).
Tugs
2.68
One
small tug is available.
…
Moorings
2.77
1.
An oil terminal at Voorbaai, 8 cables NW of Seal Island (34°09'·1S
22°07' 2E) is served by two offshore moorings
contained within
the prohibited anchorage area. Each mooring has a prohibited entry
area extending for a radius of 500 m.
2
Normal seamanlike precautions must be taken at all times at the
berths as they are in an open roadstead and strong winds may develop

with little warning, see 2.63.
2.78
1.
Oil terminal CBM.
A buoy (special, spar) moored 6 cables NE of
Seal Island marks the seaward end of a submarine oil pipeline
connected to the shore
9 cables W. Tankers up to 50 000 dwt can be
accommodated at the berth which is m depths from 15 to 18 m, sandy
bottom. Berthing
is normally only carried out by day.
2
Vessels moor with 250 m of cable out on each bow anchor [
[22]
]
and secure (ship's head ESE) to five mooring buoys abeam and astern;
ten full length mooring lines are required.
3
Berthing marks. Two pairs of beacons indicate where tankers should
drop their anchors. Lights are exhibited from the beacons between

arrival and departure of a tanker.
At
Voorbaai, in line bearing 288-5°:
Front
beacon (column) (34°08'·4S 22°06'-8E).
Rear
beacon (column) (240 m from front).
Close
WNW of Die Bakke, in line bearing 198°:
Front
beacon (column) (34°10'-2S 22°07'-3E).
Rear
beacon (column) (175 m from front).
[33]
The defendant’s counsel elicited from Captain Barker that
there
were certain deficits in the information provided in the sailing
directions.  In particular, the statement that the
leading
lights indicate where tankers should drop their anchors is
inaccurate.  The leading lights indicate the line of approach
to
be taken for a running moor at the CBM, but they do
not
indicate where the vessel’s anchors should be dropped.
[34]
The point was well made, but the information in the sailing
directions
does not reflect all the information that is available to
the master of an incoming tanker.  The master would also have
the
port authority’s chartlet, described below, as well as the
information furnished in the course of the master-pilot exchange
that
takes place when the pilot comes aboard to bring the vessel into the
mooring.
[35]
Captain Barker and the ship’s agent both testified that a
copy
of the chartlet would have been available to the master of the
incoming tanker during the pilot-master exchange that takes
place
immediately after the pilot comes aboard.  During the exchange
the pilot reviews the berthing procedure with the master
and obtains
details and confirmation from the latter of the vessel’s
relevant handling characteristics.
[36]
There are also inconsistencies, however, between the published
sailing directions and the port authority’s chartlet.
Most notably, the sailing directions have the vessels moored at
the
CBM with just over nine shackles of chain out to each anchor, whilst
the chartlet states that seven shackles of anchor chain
should be out
after a vessel has moored.
[37]
There were also anomalies in the information in the chartlet.

Thus, notwithstanding its indication that the mooring should be
achieved using seven shackles of anchor chain, the chartlet also

indicated that vessels mooring at the CBM were required to have a
minimum
of 10 shackles of bower anchor chain available on each
side, which, by deduction, could imply to a visiting ship’s
master
reading it that significantly more anchor chain than seven
shackles might need to be used.
[38]
In the context of considering the information available to incoming

vessels, it also bears mention that the Admiralty Chart in respect of
Mossel Bay carries a note, s.v ‘
SUBMARINE PIPELINES
’,
containing the following advice: ‘
Mariners are advised not
to anchor or trawl in the vicinity of submarine pipelines.
’
[39]
The master should have been familiar with the
chartlet even before the pilot came aboard, for the vessel owner’s
local agent,
Mr Karelse, had emailed a copy to the vessel ahead of
its arrival at Mossel Bay. The chartlet was a leaflet giving more
detailed
information concerning the approach to the CBM.
[23]
A copy of the document, as it was included in the documentary
exhibits, is inserted below:
The
SPM terminal is in the middle of the circular area labelled ‘ENTRY
PROHIBITED’.  The dotted line leading from
left to right
to the terminal point at the SPM represents the route of the SPM
pipeline from the shoreline, which is indicated
by the speckled
swathe on the left hand margin of the diagram.  (The handwritten
information in the box headed ‘
CBM
’, which might
be difficult to read in the reproduction above provides as follows:
‘
Max DWT = 32 000 t, Max draft = 12 m., Max length
= 200 m., Min chain L = 10 shackles, Min BS of 64 mm polyprop =
[?]
64t, 10 x 220 m x 64 mm polyropes
’.)
[40]
The defendant’s counsel highlighted that there are a number
of
deficiencies in the information provided in or omitted from in the
chartlet.  The endorsement in regard to seven shackles
is
irreconcilable with the indicated positions of the anchors at 80
metres if the indication is meant to represent the intended

post-berthing situation.  As already mentioned, the reference to
seven shackles is also inconsistent with the 250-metre  (
±
nine shackles) of chain indication in the sailing directions.
It is not clear from the document whether the 80 metre positions

indicate where the anchors are to be let go, or the distances from
the intersection at which the pilot will issue the instruction
for
them to be let go.  The chartlet does not depict the
Snipe
or make any reference to its role in the berthing process.
Furthermore, neither the chartlet nor the sailing directions give
any
information about the calling of distances by the
Snipe
, so it
would seem that the master would have been reliant on what he was
told by the pilot in this regard during the pilot-master
exchange.
[41]
The defendant’s counsel argued, with some justification in
my
judgment, that the aforementioned deficiencies and contradictions in
the documentary information provided to the master necessarily

heightened the degree of reliance that he and the bridge team would,
in consequence, have had on the pilot’s local knowledge
and
input.
[42]
Captain Barker, who has over a period of 18 years been on board
many
tankers approaching the CBM at Mossel Bay, testified that he would
have expected the pilot to discuss the position of the
pipeline with
the master and to advise him about the significance of the
intersection point between the two leading lines (presumably
as to
how it was marked by a marker buoy and the position of the
Snipe
).
He would also expect the pilot to advise the master where the
starboard and port anchors would be dropped.  Barker
considered
that it was probable that these matters would have been discussed
with the master of the
Bow Sun
, but there is no manner of
knowing what was actually discussed in the exchange because neither
of the parties to the exchange was
called to testify.  Mr
Karelse, who had also often been present during such exchanges,
confirmed that the pilot-master exchange
ordinarily included the
pilot giving the master the information that Captain Barker would
have expected him to.
[43]
In the circumstances I consider that it may be
inferred as a matter of probability - notwithstanding the defendant’s
refusal,
in its reply to the plaintiff’s request for trial
particulars, to admit that there had been an exchange - that the
exchange
included the master being provided with the information that
Barker and Karelse indicated was ordinarily given.  It may
therefore
be assumed that the master would have expected the pilot to
request the starboard anchor to be dropped when the
Snipe
called a distance of about 120 metres.
[24]
He would have appreciated, if he had properly prepared himself
for the approach to the CBM, that that would result in the
anchor
being dropped well to the north of the SPM pipeline.  Captain
McAllister and Captain Reid were agreed that the
position of the
SPM pipeline should, for the reasons I have already noted, have been
a matter of material importance to the master
in the latter’s
consideration ahead of time of the issues that would be entailed in
berthing the
Bow Sun
at the CBM.
[44]
A more detailed standard operating procedure document entitled
‘
Standard Operating Procedure: Docking CBM
(MBP-BS-SOP-6022)
’ has been issued by Transnet for use by
its employees in respect of berthing at the CBM.  The document
is not made available
generally, however.  The directions
contained in the document would have been available to the skippers
and crews of
the
Arctic Tern
and the
Snipe
and to
the pilot, but not to anyone engaged in the exercise who was not a
Transnet employee.  Captain Barker, for example,
first saw the
document during 2020 in the course of the trial preparation,
notwithstanding that the document was compiled in 2002,
which
coincided with Barker’s arrival in Mossel Bay as senior loading
master for Smit Amandla Marine.  The directions
were therefore
obviously not available to the master of the
Bow Sun
.  To
the extent relevant, the details that the directions set out
correspond essentially with the information that the pilot
would
ordinarily convey to a visiting master during the pilot-master
exchange with reference to the chartlet; although even here
there is
some discrepancy with other indicators such as the chartlet and the
oral evidence as to the prevailing practices, notably
in regard to
when the pilot will give the instruction for the starboard anchor to
be dropped.  In its plea the defendant alleged
that ‘
Standard
Operating Procedure: Docking CBM (MBP-BS-SOP-6022)
’ was the
‘usual procedure for mooring a vessel at the CBM’.
I would say that it would be more accurate
to characterise it as one
of the documents then in existence setting forth some of the usual
procedures for mooring at the CBM.
[45]
Paragraphs 2.10 to 2.14 of the port authority’s detailed
inhouse directions provide as follows:
2.10        The
Launch “Snipe” will leave the port simultaneously with
the tug on
its way to drop his (
sic
) marker buoy on leading
lights point. He will remain at the marker buoy to indicate the buoy
position to the Pilot and (
sic
) [?on]board the tanker.
2.11        The Pilot
will approach the CBM berth using:
(a)
“Snipe” at (
sic
) marker buoy
(b)
Leading lights at tanker stern
(c)
“Snipe” will constantly (
sic
) indicate the
distance from the buoy to pilot as the tanker approaches
2.12        Pilot
will instruct the tanker crew at
±
90 meters from buoy to drop the STBD Anchor.
2.13        Tanker
will proceed with headway until marker buoy is amid ship (
sic
)
STBD side.
2.14        Pilot
will now instruct tanker crew to drop port anchor.
[46]
The only eye witness account at the trial of the
Bow Sun
’s
approach to the CBM was that of Mr Jerome Karelse, the ship’s
agent for the defendant in Mossel Bay.
[25]
He boarded the vessel with the pilot at 6:30 in the morning of 21
September 2005.  He had been on board other vessels
approaching
the CBM on many previous occasions and was therefore very familiar
with the procedures and the local personalities
involved.
[47]
It seems safe to infer from Mr Karelse’s evidence
concerning
the approach that matters appeared to proceed routinely
until the instruction to drop the starboard anchor was given by the
pilot.
Karelse said that the De Bakke leading lights would have
been clearly visible on the morning in question, but his evidence in
this
regard was not consistent with that of Captain Barker, who, as
mentioned above, had testified that one of the lights was shining

dimly at the time and was the subject of a report.  The evidence
of Barker on this point, which is substantiated by the documentary

record, falls to be preferred as the more reliable in the
circumstances.  My impression was that Karelse’s evidence

concerning the leading lights was predicated on his routine
experience rather than his particular observations on the day in
question.
Karelse had no navigational responsibility and was
accordingly under no obligation to have paid particular attention on
the day
in question to the vessel’s position in relation to the
De Bakke leading lights.
[48]
Mr Karelse said that the pilot gave the
instruction to let go the starboard anchor when the crew on the
Snipe
radioed the distance to the intersection of the leading lines as 148
metres.  That was remarkable in his experience because
he had
never before witnessed the instruction to drop anchor being given at
so great a distance.
[26]
Karelse’s evidence in this regard was supported by that of
Captain Reid who was called as an expert witness by the
defendant.
Reid testified that he had been instructed that the ship’s
master had informed the defendant’s attorney
that the pilot had
given the instruction for the starboard anchor to be let go when a
distance of 148 metres had been called from
the
Snipe
,
and that the instruction had been complied with.  Captain
Cairns, who was skippering the
Snipe
on the day in question, stated at the port authority’s internal
enquiry after the casualty that the anchor had hit the water
when the
bow of the
Bow Sun
was
129 metres from the
Snipe
.
That is also supportive of the Karelse’s evidence because it
suggests that the call that prompted the anchor’s
release was
probably made when the bow of the Bow Sun was 20 to 30 metres further
distant from the
Snipe
.
[49]
It is evident that the distances were in any event materially
misleading
because it was subsequently established by deduction from
the objective evidence that the
Snipe
could not have been at
the intersection point or even in close proximity to it when the
148-metre call was made.  Captain
Reid illustrated in the
diagrams attached to his witness summary that the
Snipe
must
actually have been in a position considerably to the south of the
Voorbaai leading line when she called out the distances
to the pilot
aboard the incoming tanker.
[50]
The
Snipe
must therefore have been significantly distant from
the position it was meant to be in according to the standard
operating procedure.
It is about 243 metres from the point
where the anchor was dropped to the intersection of the leading
lines.  That suggests
that when the
Snipe
called 148
metres, the prow of the
Bow Sun
must have been at least 263
metres from the intersection.  If the
Snipe
had been on
the Voorbaai line or close to it, even at a position somewhat off the
intersecting point of the two leading lines,
the instruction to drop
the anchor at 148 metres would not have constituted a danger to the
SPM line.
[51]
The other thing that stood out in Karelse’s recollection of
the
berthing operation was the unusually extensive use of the ship’s
engine to manoeuvre the vessel into her berthing position.
He
spoke of the need for the ship to be ‘
forced into
position
’.
[52]
It is convenient at this stage to interpose that Captain Barker,
who,
as mentioned, was very familiar with the mooring procedure at the CBM
terminal stated that it was usual during the approach
for the brake
to be put on the starboard anchor chain at six shackles.  The
effect was to assist the incoming vessel to slew
to starboard at or
near the intersection of the leading lines at the point where the
port anchor would be let go.  Any further
length required to
correctly position the port anchor would be let out on the pilot’s
instruction shackle by shackle.
The entries in the
Bow Sun
’s
bell book in respect of her approach to the CBM indicate that the
windlass brake was applied to the starboard anchor chain
at nine
shackles.  In the circumstances I would agree with the
proposition put by Mr
Irish
to Captain Cox that if the pilot
gave the instruction to put the brake on the starboard anchor chain
at as much as nine shackles,
he should have been alerted to there
being something notably out of keeping with the usual at that stage
of the mooring process.
In particular, unless the chain had
been let out too quickly so as to gather in coils on the bottom (of
which there is no indication),
it should have suggested to him that
the starboard anchor had been dropped more than 80 m further south
than usual.  There
is nothing in the evidence, however, to
suggest that the master should have been aware of this deviation from
the standard berthing
procedure.  He was not alerted to it by
any documentary information and it is not something that the pilot
would necessarily,
or even just probably, have touched on in the
master-pilot exchange.
[53]
Karelse also remarked that the total amount of chain paid out was

exceptional.  He indicated that the use of about nine shackles
of chain was typical in the CBM berthing operation, but that
on the
occasion of the
Bow Sun
’s mooring, 10 to 11 shackles
were used.  Karelse said that this was ‘
a bit unusual
’.
However, in the context of his evidence as a whole I think that
turn of phrase might have been something of an understatement
of his
actual impression.  He pointed out that the length of chain paid
out was actually greater than the total length available
on many
vessels.  He mentioned that the unusual amount of chain paid out
in the berthing exercise had in point of fact been
the subject of
some discussion between the pilot and the tug master, Mr Billy
Jewell, during the journey back to port after the
completion of the
berthing exercise.  Captain Reid testified that the ship’s
master would not be concerned with
the length of chain out at 11
shackles as that would hold the ship more securely.  In my view
it should also be borne in mind
that the mooring exercise being
undertaken was of an uncommon nature, and apart from the occasion of
his single previous call at
the CBM, not one with which the master
was necessarily familiar.
[54]
Captain Kieron Cox, an expert who testified at the instance of the

plaintiff, used the position at which the snagged anchor was located
to deduce that the vessel had probably approached the Voorbaai
line
on a track parallel to the De Bakke line and about 70 metres to the
east of it.  He also established that the anchor
must have been
dropped approximately 220 metres to the south east of the
intersection point.  On the basis of his reconstruction,
which
took into account the furthest points on an arc drawn using
11 shackles of cable from the starboard hawse pipe of the
vessel
at its likely position after being berthed, and allowing for some
catenary effect on the chain, in relation to the position
of the
snagged anchor marked by the
Arctic Tern
(S34
◦
8,800’, E22
◦
7,867’), it was
established that the anchor was probably dropped about 20 metres
south of the SPM pipeline.  Having
regard to the likely vector
of the force applied on the anchor when it was sought to retrieve it
when the vessel unberthed, Captain
Cox conceded that his original
deduction that the vessel had approached 70 metres to the east
of the De Bakke line should
be adjusted westward onto a track 50 to
60 metres to the east of the De Bakke line.  The concession
brought his opinion
on this point into accord with that of Captain
Reid.
[55]
Captain Reid conceded to the proposition put by the plaintiff’s

counsel that the master of the vessel would have a ‘
heightened
sense of caution
’ engendered by the appreciation that in
its approach to the mooring the vessel required to cross over an
undersea pipeline.
He agreed with counsel’s statement
that he (ie the master) ‘
would want to make sure that
nothing went wrong
’.  Captain McAllister said that the
issue was of such critical importance that if he were the master, he
would have
caused a limiting latitude to be endorsed boldly on the
chart to highlight for the benefit of the bridge team to emphasise
the
position south of which it would be hazardous for the starboard
anchor to be let go.  It would be necessary, of course, if

marking a limiting line of latitude were to properly serve its
intended safeguarding purpose, for care also to be taken that the

vessel’s line of approach to be on the De Bakke leading line,
for if the vessel approached to the east of it she would cross
the
SPM pipeline to the north of the limiting line.  The witnesses’
opinions in this regard seem to me to bear on an
important aspect of
the nature of the master’s acknowledged duty to keep a proper
lookout while the ship was under pilotage.
It required him and
the bridge crew to be acutely aware of the position of the pipeline
relative to the ship when the starboard
anchor was dropped.
[56]
The
Bow Sun
was equipped with two radars and a GPS which gave a continuous
digital display on an LCD screen of the vessel’s position
by
latitude and longitude.  It would accordingly be easy, subject
only to the limitations of the technology and the scale
of the chart,
for the officer of the watch to confirm the vessel’s position
on the chart in an instant.
[27]
[57]
Captain Reid said that radar would be accurate to within 50 to 100

metres, whereas Captain Cox, who has specialised in radar systems,
opined that a tolerance of 10 to 20 metres would apply.
Having
regard to the witnesses’ respective backgrounds and areas of
specialisation, I consider that insofar as there is a
difference on
this point, the evidence of Captain Cox may be accepted as the more
authoritative.
[58]
Captain Reid emphasised that, relative to the tanker’s length,

the distance between the SPM line and the point of intersection of
the two leading lines was actually very small.  He several
times
pointed out that marking positions only 50m or so apart on the chart
would be difficult and impractical.  The distance
of 260 metres
measured along the De Bakke leading line between the SPM pipeline and
the point of intersection of the De Bakke line
with the Voorbaai line
would be reflected by only 26 millimetres on the nautical chart.
To put the matter into further perspective
the distance falls to be
considered relative to the length of the vessel itself (viz. nearly
183 metres).  The point was confirmed
by Captain Cox who
testified as an expert for the plaintiff.  He used a blown-up
overlay of the chart to illustrate the positions
identified in his
evidence.
[59]
Captain Reid repeatedly met plaintiff’s counsel’s
cross-examination
concerning the bridge team’s failure to
realise that the vessel was south of the SPM line when the pilot gave
the instruction
to let go the starboard anchor with the answer that
‘
very fine navigation
’ would have been involved
for them to have been able to do so.  I consider that there is
validity in the point that
he made.
[60]
It appeared to be common cause that the anchor must have been let
go
about 20 metres south of the SPM line at a place about 60 metres east
of the De Bakke leading line.  In considering these
measurements
it needs to be remembered that 20 metres would be represented by only
2 mm on the nautical chart.  The vessel’s
radar sets
are situated in the bridge area and the readings indicated would
therefore also be related to the position of the bridge.
The
bridge of the
Bow Sun
is about 148 metres aft of the bow,
which means that the radar reading would have indicated the vessel
about 168 metres south of
the SPM pipeline when the anchor was
dropped.  That distance would have been represented by about
17 mm on the chart.
[61]
I also think that in assessing the crew’s compliance with
the
pilot’s instruction to let go the anchor one must realistically
acknowledge that there was not much time available for
cross-checking
and debate.  I consider that the master and bridge team were
entitled to repose substantial confidence in the
pilot in the absence
of an indication of something obviously untoward.  Indeed, had
the
Snipe
, which was the visual target that the master would
presumably have believed marked the intersection, been in the place
that it
should have been, a call of 148m would have had the bow of
the tanker well to the north of the SPM line.  It was not in
dispute
between the plaintiff and the defendant that the pilot was
negligent and also that the
Snipe
cannot have been position in
the place it should have been at the intersection of the leading
lines during the critical stage of
the
Bow Sun
’s
approach to the CBM on 21 September 2005.  There was an
unfortunate concatenation of inauspicious circumstances
that the
ship’s master could not have anticipated or reasonably
expected.
[62]
I nevertheless consider, having regard to the
admitted importance of the fact, that a reasonable ship’s
master would have
independently assured himself, or required the
officer of the watch to have independently assured himself, that the
bow of the
vessel had crossed to the north of the pipeline when the
starboard anchor was dropped, and that he would be negligent if he
did
not do so.  I arrive at that conclusion applying the basic
principles famously enunciated by Holmes JA in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F in a
passage that has since been endorsed in countless subsequent
judgments, including at least three of the Constitutional
Court since
it became the sole apex court:
[28]
For
the purposes of liability
culpa
arises if –
(a)     A
dilgens paterfamilias
in the position of the defendant –
(i)      would foresee the
reasonable possibility of his conduct injuring another person 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.
The
master should have foreseen the reasonable possibility that the
pipeline would be damaged if the anchor were dropped south of
it, and
it required only the simplest of checks to be certain that the anchor
had been dropped after the pipeline had been crossed
over, and to be
able to advise the pilot that things were amiss if the anchor had
been dropped too soon.  The events have
shown that such simple
and reasonable precautions cannot have been taken.  The
indications are that the master and bridge
crew must have placed
unquestioning reliance on the pilot’s judgment and
instructions.  If that were not the case, I
cannot see that the
problem would not have been identified before the vessel berthed.
This justifies the conclusion on a
balance of probabilities that a
proper look out was not being kept.  In the circumstances a
proper look out includes a properly
informed look out.
[63]
The first basis of the plaintiff’s claim is that the master
and
crew of the approaching vessel were contributorily negligent by
failing to point out to the pilot that he was not bringing
the vessel
in in accordance with the standard operating procedure and, in
particular, by not cautioning him that the prow of the
vessel was
still to the south of the SPM pipeline when he gave the instruction
to let go the starboard anchor.  The issue
brings to the fore a
question recognised in previous cases as one of some difficulty:
It concerns the extent to which the
master of a vessel might be
expected to assert his command when the vessel is under the
navigational control of a compulsory pilot.
In this case the
question has to be addressed in the context of the relevant
provisions of the First Schedule to the Legal Succession
Act quoted
above.
[64]
The unwholesome character of a divided command
and the subverting effect of a dichotomy of control on the safety
objects of compulsory
pilotage were recognised by the courts early on
in the pertinent jurisprudence.  Thus, in
The
Peerless
[1860] EngR 494
;
(1860) Lush. 30
;
176 ER 16
, Dr Lushington
[29]
said ‘
There may be occasions on which
the master of a ship is justified in interfering with the pilot in
charge, but they are very rare.
If we encourage such interference we
should have a double authority on board,
a
divisum imperium
, the parent of all
confusion, from which many accidents and much mischief would surely
ensue. If the pilot is intoxicated, or is
steering a course to the
certain destruction of the vessel, the master no doubt may interfere
and ought to interfere, but it is
only in urgent cases.
’
[30]
[65]
The inherent tension in the relationship of
responsibility between the master and the compulsory pilot is readily
discernible from
the provisions of Item 10 to the First Schedule to
the Legal Succession Act.  Paragraph 2 unambiguously places the
navigation
of the ship including the direction of its movements
within the remit of the pilot.  Paragraph 4, however, confirms
that the
master remains in command while the ship is under pilotage
but subject to the critical qualification that he or she is not
permitted
to interfere with the navigation or movement of the ship
while it is under pilotage or to prevent the pilot from carrying out
his
duties ‘except in the case of an emergency, where the
master may intervene
to preserve the safety of
his ship, cargo or crew
and take whatever
action he deems necessary to avert the danger’.
[31]
The limited leeway given to a master to intervene is underscored by
paragraph 5 of the Item.  It provides that as soon
as the cause
for any intervention allowed in terms of paragraph 4 has been
addressed the master must permit the pilot to proceed
with the
execution of his duties.  But the preservation of a right of
intervention by the master that does allow him to supersede
the
pilot’s functions confirms that the master retains overall
command at all times.  That is also borne out by the
provisions
of paragraph 6, which provide that ‘
the
master shall ensure that the officers and crew are at their posts,
that a proper look-out is kept and that the pilot is given
every
assistance in the execution of his duties’
.
It is clear that the master is not expected, nor indeed permitted, to
adopt a passive role while the vessel is under compulsory
pilotage.
[66]
The pilotage provisions in the Legal Succession Act mirrored, in
the
respects relevant, the statutory provisions that pertained under the
various statutes in place from time to time that were
considered in
the English authorities to which I was referred in argument.
The changes in the English statutory regime over
time would appear to
have borne on the matter of the allocation of liability for the
compulsory pilot’s acts or omissions,
rather than on the ambit
of the pilot’s responsibilities.  Counsel did not direct
my attention to any difference between
the iterations of the United
Kingdom legislation on the topic and the Legal Succession Act
concerning the extent to which the master’s
responsibility is
displaced by the compulsory pilot’s functions.
[67]
It is evident from Lord Alverstone CJ’s judgment in the Court

of Appeal in
The Tactician
[1907] P 244
(CA);
[1904-1907] All
ER 743
that a ship’s master might incur a duty in law to take
measures falling short of interference with or usurpation of the
pilot’s
duties to avoid his ship being involved in any incident
causing harm to the property of others.  In that case, which
arose
out of a collision between a ship under compulsory pilotage in
the Thames Estuary and another ship that was lying at anchor in the

river, the plaintiff, in suing the owners of the ship under pilotage,
alleged that the defendant’s servants had not kept
a proper
look out and failed to take other measures necessary and available to
avoid the collision.  The owners of the
Tactician
pleaded
the defence of compulsory pilotage available at that time to an owner
who could show that the casualty was entirely due
to the fault of the
pilot.  They contended that the master and crew of their ship
were entitled in the circumstances to repose
their trust in the
navigation of the pilot.  The argument advanced on their behalf
appears to have emphasised the hazards
of a divided command of which
Dr Lushington had made mention in earlier cases.  The defence
failed, however, because it was
apparent from the evidence that
proper observation would have revealed to anyone on board that the
lights on the anchored vessel,
which the pilot apparently mistook to
be those of a moving vessel, were in fact stationery.  The
evidence demonstrated that
the true position - which could have been
deduced from the constant juxtaposition of the lights with an
identified navigational
light - had been observable for a period of
at least nine minutes while the
Tactician
traversed a distance
of an entire mile towards the ship with which it came into collision.
[68]
The headnote to the report of the case in the All England reports

summarises the import of the judgment at first instance (per Bargrave
Dean J) as follows: ‘  …
that the collision
was caused by the default of the pilot, but it also might have been
avoided if the master of the
Tactician
had done
his duty in giving his advice and opinion to the pilot. By failing to
do that he did not do his duty, and did not assist
the pilot as the
pilot ought to have been assisted, and, therefore, the learned judge
found that the master was to blame as well
as the pilot, and gave
judgment for the
[plaintiffs]’.  In dismissing the
appeal from that judgment, Lord Alverstone, having reiterated the
observation in earlier
cases about the dangers of a divided command,
stated, ‘
But side by side with that principle is the other
principle that the pilot is entitled to the fullest assistance of a
competent
crew, of a competent lookout, and a well-found ship. I
agree with counsel for the defendants that the cases in which the
master
has to interfere at all with the pilot are very rare and very
few, but I think the passages he has cited from the cases show there

is a distinction, or may be a distinction, between interference and
bringing to the pilots notice anything which the pilot ought
to
know.
’
[69]
In
SS Alexander Shukoff v SS Gothland, SS Larenberg v SS Gothland
[1921] AC 223
; (1920) 5 Ll.L.Rep. 237, Lord Birkenhead LC offered
further acknowledgment of the aforementioned ‘other principle’
when, remarking on the responsibility for the navigation of the
vessel being taken over by the pilot in circumstances of compulsory

pilotage, he said ‘
... this rule, which is intended as a
measure of security, does not mean, and must not be taken to mean,
that a pilot when once
he is in charge of a vessel is so
circumstanced that the master and crew owe him no duty to inform him
of circumstances which,
whether he has noticed them himself or not,
are material for him to know in directing the navigation of the
vessel. The master
and crew are not mere passengers when a pilot is
on board by compulsion of law. The pilot is entitled to their
assistance, and
to apply the defence of compulsory pilotage to a case
where the accident would have been averted if such assistance had
been given,
though in fact it was not, would defeat the policy which
has created the defence, and so far from increasing the safety of
navigation
would actually increase its risks.
’  The
point was reiterated by Lord Normand in
Workington Harbour and
Dock Board v Owners of the Towerfield (The Towerfield)
[1950] 84
Lloyd’s Rep. 233;
[1950] 2 All ER 414
(HL) who, citing
The
Tactician
, said (at 430 All ER) ‘[t]
he master is not
merely, entitled, but is bound to point out to the compulsory pilot
that he may be mistaken in an opinion he has
formed
’.
[70]
The principle was also recognised in the United States Supreme Court

decision,
The Oregon
[1895] USSC 140
;
158 U.S. 186
, in which Brown J,
citing
Marsden,
Collisions
, 255, (presumably the (1891)
third edition ) noted ‘
In an official report made by a
maritime commission in 1874, the Elder Brethren of Trinity House are
said to have expressed the
opinion “that in well-conducted
ships the master does not regard the presence of a duly-licensed
pilot in compulsory pilot
waters as freeing him from every obligation
to attend to the safety of the vessel; but that, while the master
sees that his officers
and crew duly attend to the pilot’s
orders, he himself is bound to keep a vigilant eye on the navigation
of the vessel, and,
when exceptional circumstances exist, not only to
urge upon the pilot to use every precaution, but to insist upon such
being taken.”
’  (That passage has, of course, to
be understood cognisant of the Legal Succession Act’s provision
that the master
would be entitled to override the pilot only in a
situation of ‘emergency’ (Item 10(4) in the First
Schedule).)
[71]
It seems to me that ‘the other principle’
on which the result in
The Tactician
turned was expressly incorporated in the South African legislation in
paragraph 6 of Item 10 to Schedule 1 to the Legal Succession

Act.
[32]
It is reiterated in paragraph 2 of Annexure 2 to resolution
A. 960(23) of the International Maritime Organisation,
[33]
dated 5 December 2003, which set out recommendations on the training,
certification and operational procedures for maritime pilots.
[34]
The implication is that whilst the pilot takes over responsibility
for the navigation of the vessel, the officer of the watch
is not
relieved of his duties in the sense that it is necessary that they
continue to be discharged in order that the master and
crew be
enabled to carry out their monitoring and assisting role.
Captain Reid agreed with the proposition put to him by
the
plaintiff’s counsel that keeping a proper lookout entailed not
only maintaining a visual awareness of the surroundings,
but also
using the ‘navigational instruments and electronic means
[available] on the bridge’.  As Captain McAllister
put it,
the management of the charts remains at all times the responsibility
of the bridge team.
[72]
A court must have regard to the peculiar facts of
each particular case in determining whether or not the conduct of the
master and
crew was in due compliance with the principle concerned.
I think that in doing so it has to be mindful of the practical role

of the pilot and the master’s entitlement, in discharging his
duties, to depend on its diligent fulfilment by the pilot.
In
Thom v J&P Hutchison Ltd
1925 SC 386
, Lord Cullen, in a passage referred to by Lord Jauncy of
Tullichettle in the House of Lords in
Esso
Petroleum Co Ltd V Hall Russell & Co Ltd (Shetland Islands
Council, third party) The Esso Bernicia and conjoined appeal
[1989] 1All ER 37
(HL); [1989] 1 Lloyd's Rep. 8, described the
role of a voluntarily engaged pilot by saying that ‘[h]
e
is employed to take up
pro tempore
the captain’s function of navigator in circumstances where
special local knowledge is required
’.
The significance of the role of special local knowledge appears to be
equally accepted in the realm of compulsory
pilotage, as exemplified
in the judgment in
The Hans Hoth
[1953] 1 All ER 218
(PDA); [1952] 2 Lloyd’s Rep. 341.
[35]
However, as also stated in that judgment,
[36]
reposing their confidence in the pilot in respect of matters on which
reliance fell to be had on the latter’s local knowledge,
does
not exclude or diminish the duty on the master and crew to such
things as might reasonably be regarded as ‘
matters
of ordinary navigation
’.  In my
judgment the duty would also extend to any other matters on which the
ship’s personnel, with the knowledge
at their disposal, should
reasonably regard as issues of concern.  As noted, the position
of the SPM pipeline was one such
issue during the anchoring process.
[73]
Captain Reid expressed the opinion that effecting a running moor
was
a complicated manoeuvre of seamanship, in which the local knowledge
of the pilot would be critical.  I accept that; especially
in
respect of the manoeuvres required to bring the tanker into a
position in which its port manifold was appropriately aligned
to take
on or offload product at the PLEM, but I do not consider that the
complicated aspects of the mooring exercise would in
any manner
detract from the bridge team’s ability to check and verify when
the vessel’s bow had crossed over the SPM
pipeline.  I
think the point is illustrated in the following exchange between the
plaintiff’s counsel Mr
Wragge
SC and Captain Reid
as to what might have been expected to happen in respect of a
deviation by the approaching vessel from the
De Bakke leading line
after it had made its turn to starboard for the approach to the
intersection between the two leading lines:
MR
WRAGGE: The factual evidence suggests or points to the fact that
after the starboard turn, the vessel was on a track that was
to the
east of the De Bakke leading line.  Is that right?
MR
REID: That is correct, and I am sorry, I misunderstood the question,
M’Lord.
MR
WRAGGE: No, I might have put the question badly. So now if the
passage plan and the chartlet says that the way that the vessel

should proceed to the CBM, is in fact following the De Bakke leading
line; one now has a deviation from the passage plan and from
the
chartlet, not so?
MR
REID: That would be correct, M’Lord.
MR
WRAGGE: Yes. Now the ship should be monitoring its position. It would
know if the people on the bridge, the bridge team of the
vessel are
doing their job properly, they would know by reference to the GPS and
by reference to radar bearings and so forth, that
the vessel had in
fact executed its turn not so as to bring the vessel onto the De
Bakke leading line, but so as to bring [the
vessel] to a position
onto a track which is to the east of the leading line, not so?
MR
REID: They would know that, M’Lord.
MR
WRAGGE: Yes. And if this was a deviation from the passage plan and
they have noted it, then this is something that the master,
and I
think it is the master who deals with the pilot, would bring to the
attention of the pilot.  Not so?
MR
REID: I would believe the master would bring it to the attention of
the pilot, M’Lord.
[74]
That said, I am unable to find that the master did not mention to
the
pilot that the vessel was to the east of the De Bakke line.
There was no direct evidence on the point.  And if the
master
did draw Mr Bergstedt’s attention to the issue, it is by no
means clear that the pilot would have treated it as a
matter for
concern.  Nor is it apparent if the pilot were to have assured
the master, in response to any query by the latter,
that vessels were
sometimes brought in on a track east of the line, that the master
should have had reason to challenge the pilot’s
assurance.
I did not understand any of the experts to have suggested anything to
the contrary.  The fact that two positions
east of the line were
in point of fact plotted by the crew during the vessel’s
approach suggests that the officer on the
watch would have been aware
that the tanker was not tracking De Bakke line.  There should
have been an equivalent awareness
of the ship’s position
relative to the SPM pipeline when the anchor was dropped.  An
appreciation that the anchor had
been dropped south of the pipeline
could not have been dismissed with reassuring words from the pilot
had it been drawn to his
attention.
[75]
The defendant’s counsel emphasised that the master’s

position in relation to the pilot’s instruction to let go the
starboard anchor fell to be assessed bearing in mind that the

instruction was predicated on what the master would have appreciated
were ‘
two complementary local inputs
’, that of the
pilot and that of the crew of the
Snipe
.  They submitted,
with some force in my judgment, that that would have contributed to a
sense of confidence by the master
in the integrity of the
instructions.  It does not explain however how the master, or
the officer of the watch as the latter’s
representative, should
not have become astute to the fact that the anchor was being dropped
to the south of or very close to the
pipeline.  The problem
might not have become apparent soon enough for the execution of the
pilot’s order to let go the
anchor to be forestalled, but it
should have been apparent before the mooring process progressed to
the stage of the dropping of
the port anchor and soon enough for the
pilot to be alerted to the necessity for the tanker to be taken back
south of the pipeline
to allow the anchor to be safely retrieved.
It is not as if a deviance of only 10 to 20 metres, or even 50 metres
from the
standard operating procedure had been involved.  The
deviance was upwards of 170 metres, or put differently, upwards of
three
and a half minutes’ sailing time at a speed of 1,5 knots.
[76]
The negligence of the crew of the
Snipe
in evidently placing
the marker buoy in the incorrect position significantly away from the
intersection point was significant.
It had ample opportunity to
line the buoy up with the Voorbaai leading lights and also with the
CBM PLEM, which should have been
only 90m away and the number 3
mooring buoy, which should also have been more or less in line with
the PLEM on the Voorbaai leading
line.  The
Snipe
must
have been so markedly out of position that I would have thought that
this should have been evident to the pilot who would
have been able
to see not only the
Snipe
, but also the PLEM buoy and the
mooring buoys during the vessel’s approach and could certainly
not have been unaware that
the marker buoy was out of position when
the ship was turned to starboard about it when the port anchor would
be let go.
Captain Barker, with whom Captain Reid concurred,
described the degree of error by the crew of the
Snipe
as
‘
inexplicable
’.  They agreed with the
proposition put by the defendant’s counsel that ‘
the
aberration was extraordinary
’.
The
Bow Sun
’s departure from the CBM
[77]
The usual procedure on departure from the CBM berth is for the vessel

to move forward after being released from the mooring buoys so as to
clear the PLEM.  This has to be done in a controlled
manner,
taking care that the stern of the vessel does not swing to port and
come into collision with the PLEM.  The initial
forward movement
is controlled by winching in both anchor chains simultaneously.
[78]
The usual unberthing procedure at the CBM terminal involved first

releasing the tanker from the stern mooring buoys and then winching
the vessel forward and clear of the PLEM by weighing in
simultaneously
and equally on both the anchors.  The starboard
anchor chain would then be slacked off to limit the vessels tendency
to swing
towards the anchor being weighed while the port anchor was
weighed and brought aboard.  The starboard anchor would then be

weighed.  On a vessel like the
Bow Sun
that was fitted
with a bow thruster, the bow thruster would be used to hold the
vessel on a steady heading while the starboard
anchor was weighed.
The evidence is that by virtue of the laws of physics most of the
anchor chain is hauled in before the
anchor itself is lifted from the
seabed.  It is also apparent that only just over one shackle of
chain was out when it was
discovered that the starboard anchor was
snagged.  It follows that at that stage the anchor chain must
have been in a more
or less straight up and down position between the
ship’s bow and the anchor on the seabed.
[79]
It was alleged that the crew of the vessel should have been aware
of
the snagging earlier and acted to avoid further damage to the
pipeline by desisting from their attempt to weigh the starboard

anchor well before the bow of the vessel came into a straight up and
down position above the anchor.  An increased noise from
a
straining motor on the winch was posited as a tell-tale sign.
Captain Barker admitted under cross-examination that there
was no
objective evidence available to confirm these allegations and that in
the result they were speculative.  In my judgment
the paucity of
evidence makes impossible to find that there was causal negligence on
the part of the master and crew of the tanker
during the exercise of
attempting to weigh the starboard anchor.
Apportionment of liability
[80]
It will be apparent from the findings and remarks recorded thus
far
that I consider that the master and crew of the
Bow Sun
were
causally negligent to a degree in the snagging of the starboard
anchor on the SPM pipeline.  It will also be evident that
I
consider the negligence of the pilot and the skipper and crew of the
Snipe
to have been causally contributory.  It seems to me
furthermore that the port authority was at fault in its failure to
devise
a safer and more reliable method of assisting incoming vessels
to navigate the approach to the CBM.  The use of moving objects

by way of the floating marker buoy and the Snipe as position
indicators was inherently fallible and the desirability of having
the
track of the SPM pipeline visibly indicated on the surface by means
of fixed buoys was obvious and apparently readily achievable.
[81]
When it comes to the question of the
apportionment of blame for the purposes of the application of s 2(10)
of the Apportionment
of Liability Act,
[37]
the defendant’s counsel submitted that because the causation of
the damage to the SPM has been found to have been due in
part to the
concurrent negligence of various other employees of Transnet acting
within the course and scope of their employment
as well as that of
the pilot, the exclusion of liability provided for in paragraph 7 of
Item 10 of the First Schedule to the Legal
Succession Act does not
apply.  The argument was founded on the analysis undertaken by
Cloete J in
Shell Tankers Ltd v South
African Railways and Harbours
1967 (2) SA 666
(E) of the effect of the comparable provisions in s 43 of the
Railways and Harbours Control and Management (Consolidation)
Act 70
of 1957.
[38]
The analysis appears to me, with respect, to be sound, and I did not
understand Mr
Wragge
for the plaintiff to contend otherwise.  It is not necessary in
this matter to go into the issue of which of the parties bore
the
onus of proving negligence on the part of the third party’s
employees.  Their negligence was either common cause
or plainly
established on the evidence that was adduced in the trial.
[82]
The conduct of the pilot and the crew of the
Snipe
in
particular deviated to a great degree from the standard of what would
have reasonably been expected from them in the circumstances.

The extent of the deviation from the standards of the notional
reasonable person by the master and crew of the
Bow Sun
was in
comparison considerably less.  In all the circumstances I
consider that an 80/20 apportionment of fault as between
the third
party and its employees on the one hand and the employees of the
defendant on the other would be just and equitable,
with the result,
if regard is had to section 2(10) of the Apportionment of Damages
Act, that the defendant shall be liable to compensate
the plaintiff
in a sum equivalent to twenty percent of its proven damages.
The damage to the SPM pipeline
[83]
The snagging of the starboard anchor was noted during the unberthing

process, when it was discerned that the anchor could not be weighed.
The persons on board the
Bow Sun
were alerted by the bubbling
to the surface near the vessel of a dark liquid substance that
smelled of fuel to the fact that the
SPM pipeline may have been
damaged.  The
Arctic Tern
marked the position of the
spill with a buoy.  The marked position was at S34, 8, 800;
E22,7,867.  The
Pentow Malgas
, a buoy tender vessel
operated by Smit Amandla Marine, marked the position of the anchor at
a slightly different spot.  The
difference between the two
marked positions was not material.
[84]
The attempt to complete the weighing of the anchor was stopped,
and
divers were called in to undertake an inspection.  The
inspection revealed that one of the starboard anchor’s flukes

was wedged under the pipeline from the southern (i.e. seaward) side.
[85]
The SPM pipeline is a steel carrier line, 36
inches in diameter.  It encases three product lines used to
convey product for
loading onto vessels moored at the SPM: a 14-inch
pipeline used for the transfer of distillates (i.e. automotive diesel
or diesel),
a 12-inch line for the transfer of motor engine gas or
petrol (‘Mogas’), and an 8-inch ballast water line (which
was
not in use), respectively.
[39]
There was some uncertainty about the arrangement of the product lines
within the carrier line casing because it is inconsistently
described
in the documentation.  Mr Mark Ball, a maritime civil engineer
with a wealth of experience in the investigation
of damage in
maritime accidents, who was called by the defendant as an expert
witness, expressed the opinion that it appeared that
the 12-inch line
was on the northern (or Hartenbos) side of the carrier in what Mr
Ball described as a central position, the 14-inch
line on the
southern (or Mossel Bay) side and the 8-inch ballast water line also
to the southern side above the 14-inch line.
Mr Durandt de Wet,
a professional diver and qualified diving supervisor in the employ of
Smit Amandla who inspected the pipeline
after the snagging was
reported, and who testified at the instance of the plaintiff,
appeared to agree with Mr Ball’s assessment.
The
configuration is diagrammatically depicted at p. 82 of the
defendant’s core evidence bundle, and the diagrammatic
representation
may be correlated with the top photograph at p. 153
of the plaintiff’s core evidence bundle.
[86]
The bubbling to the surface of a foreign
substance that smelled of hydrocarbons virtually contemporaneously
with the discovery that
the anchor had snagged
[40]
would indicate that it must have been during the attempt to weigh the
anchor that the outer casing of carrier line was ruptured.
I
understood it not to have been in real contention that the substance
in question was most probably the rust or corrosion inhibiting
liquid
with which the carrier line was filled.  Mr
Irish
did suggest to the plaintiff’s witness, Mr Govender, that the
carrier line may have contained leaked product that would have

escaped when the casing was ruptured, but that hypothesis was not
pursued with any of the other witnesses and it is not supported
by
the probabilities if regard is had to the results of the hydro
testing of the 14 and 12-inch product lines, to which reference
will
be made presently.
[87]
The
Bow Sun
remained at Mossel Bay until the evening of 23
September 2005 in the hope that the starboard anchor could be
recovered and returned
on board.  The ship’s agent’s
records suggest that three attempts were made by Smit Amandla divers
during the
course of 23 September 2005 to retrieve the snagged
anchor.  Mr Karelse reported to the ship’s owners that the
process
of retrieval was taking a long time because the divers were
working with great caution to avoid causing further damage to the SPM

pipeline.  He confirmed that his report was in accordance with
what he was being told about the retrieval efforts at the time.
[88]
It was ascertained in a dive inspection
undertaken on the afternoon of 22 September 2005 that the
carrier line’s casing
had been ruptured when the Bow Sun’s
starboard anchor became fouled up with it.  The diver, Mr de
Wet, described that
when he located the anchor under the water it was
in a position consistent with it having snagged with the carrier line
from the
Mossel Bay side.  He related that one of the flukes was
completely hooked under the carrier line
[41]
and that the shank was in an upright position angled towards the
direction of Hartenbos.  Mr Ball considered that the orientation

of the product lines within the carrier line as described above
assessed together with the aforementioned position of the anchor

‘
best explains the large indentations
noted in the bottom and side of the 14” pipeline, the
indentations in the bottom and
side of the 12” pipeline and the
dent in the top of the 8” pipeline
’.
[89]
Mr de Wet observed that the carrier line casing
had broken across its entire circumference (i.e. what the plaintiff’s
counsel
referred to in their heads of argument as ‘a 360
°
split’).
On the upper section of the line the break was a clean one, almost as
if the casing had come apart at
a welded join in the metal,
[42]
whereas in the lower section the character of the break was jagged.
De Wet noted that the product lines within the carrier
line had been
‘
all bundled up together, held together
by the anchor and sort of up and to the Hartenbos side
’.
[90]
De Wet, who was very familiar with the pipeline by virtue of being

involved in regular maintenance inspections along its length, also
remarked that ‘
there
[were]
quite a lot of sort of
scrape marks – scratch marks, a number of dents on both sides
of the carrier
[were]
very clearly visible
’.
De Wet subsequently made a drawing of the observed position of the
anchor relative to the carrier line.  He
explained that the
drawing was not intended to depict the actual position of the product
lines at the time, which was something
that he was not concerned with
at that stage.  It is also not to scale nor intended to be
technical drawing.  De Wet
described it as ‘an artist’s
rendition’.  A copy of the drawing is reproduced below (I
have inserted a text
box to indicate ‘the Hartenbos side’):
Hartenbos
[91]
The commentary of a later dive inspection conducted by Mr de Wet
on
28 September 2005 records that De Wet reported that the pipeline
had been lifted off the seabed at the place where the
carrier line
was ruptured.  De Wet reported ‘
There appears to be no
major physical damage on these
[product and ballast water]
lines
.’  He found some minor dents on the 12-inch
line.  He reported ‘
some major dents in the 6 o'clock
position on the 14 inch line in the area where the anchor is touching
it
’.  It should be recorded that it is evident from
the video footage of the 28 September dive inspection (Exhibit

C) that the underwater visibility was very poor and that De Wet was
not in a position to have a good look at the product lines.
He
said that underwater visibility in the port of Mossel Bay was
notoriously bad most of the time.
[92]
Mr de Wet confirmed that the drawing at p. 68 of the plaintiff’s

core bundle depicted the places at which he had identified dents in
the casing of the carrier line.  The drawing also shows
that he
estimated that there was about 100 mm of free span under the break in
the casing, which falls to be contrasted with the
800 mm noted in a
report by Subtech Diving & Marine, who undertook an inspection
for the port authority approximately a month
later, in October.
De Wet described the area of free span as ‘short’,
which also contrasts with the area
described in the Subtech report,
which was at least 10 metres on either side of the break in the
carrier line casing.  He
related that ordinarily the pipeline
was embedded in the sea sand for up to half of its 36-inch
circumference.  The fact that
the pipeline was found to be
standing partly above the seabed when De Wet saw it on 22 September
suggests that it must have
been pulled upwards; a deduction endorsed
by Mr Ball.
[93]
The drawing showing the dents was done from memory after a dive

undertaken without a camera.  It therefore falls to be regarded
as a rough reconstruction of Mr de Wet’s observations
at the
time.  After watching the video of his dive on 28 September
2005 (exhibit C), Mr de Wet remarked that he noted
that were in fact
at least four more dents in the pipeline than he had shown in his
drawing.
[94]
Mr de Wet also noted areas on the carrier line some distance from
the
break where marine growth appeared to have been rubbed off.  Mr
Ball considered that these scuff markings could be consistent
with
the anchor chain having rubbed across the line, but he was unable to
say whether that was more likely to have happened during
the mooring
or unmooring of the vessel or during the attempts to free the anchor
after the snagging problem had been identified.
It is obvious
that the chain would have been dragged over the carrier line after
the anchor was dropped and the vessel continued
on its path
northwards over the SPM pipeline in the direction of the CBM.
Mr Ball conceded the correctness of the proposition
put to him by Mr
Wragge
in cross-examination that the chain between the anchor
and the pipeline would also have pulled over the SPM carrier line
surface
when the anchor was pulled towards the pipeline during the
weighing process.
[95]
At a later stage, after the vessel was released from the snag on
the
SPM pipeline, which, after unsuccessful attempts to free the anchor,
was ultimately achieved by separating it from the anchor
chain, it
was ascertained that the encased product pipelines were also
damaged.  I shall discuss the process of the freeing
of the
anchor from the pipeline and the circumstances in which the damage to
the product lines was ascertained later in this judgment.
[96]
Mr Ball opined, on the basis of the documentary and photographic

evidence that was available to him, that ‘
the embedment of
the anchor caused a full circumferential split in the carrier line as
well as dents in and deformation of the two
product pipelines and the
ballast water line
’.  After viewing video footage
taken of the damage, Mr Ball considered that footage taken on 28
September 2005 ‘
showed that the break in the carrier
pipeline was “jagged” at the point where the anchor
appeared to have entered and
exited the pipe, below the 14”
distillate pipeline. However, the break in the carrier pipeline along
the top section of the
pipe was “clean and straight”.
... this was not the location of a circumferential weld and I
therefore believe
that this indicates that the split in the pipeline
in this location was opened up by stress rather than blunt force
indicating
in turn that the pipeline was subject to significant
upward force
’.
[97]
That would be consistent with the force that would have been applied

if it had been sought to retrieve the snagged anchor when it was in a
‘straight up and down’ positional relationship
to the bow
of the
Bow Sun
.  The evidence concerning the attempted
weighing of the anchor which indicated that the attempts were
abandoned at a stage
when there was about one shackle of chain still
out appears to have been accepted by both sides as indicative that
the vessel must
have been in a more or less ‘
straight up and
down
’ (i.e. vertical) positional interrelationship with the
anchor.
[98]
Mr Ball was unable to say whether the stress damage to the pipeline

was likely to have been caused during the mooring or unmooring of the
vessel or later.  De Wet saw the damage described by
Ball when
he first dived to inspect the damage on the afternoon of 22 September
2005; that is before any retrieval attempts
were made by Smit Amandla
Marine.
[99]
Mr Ball also noted though that additional video footage (ie tape
45
clip 5) showed that ‘
the 12” petrol pipeline, which
has been repaired at the time of the footage (the other lines are
cut) to have a long radius
bend in a roughly horizontal plane which
appears to be consistent with the entire pipeline (the carrier
pipeline and the internal
pipelines) having been displaced to the
north such that the line
was locally plastically deformed
’.
The displacement of the pipelines to the north suggests to me that
this is likely to have occurred during the attempt
by the Bow Sun to
weigh the anchor from its position north of the pipeline.
[100]
Service tests were undertaken on the 14- and 12-inch product lines
before the removal
of the anchor.  The service tests, in which
the lines were pressure tested at levels consistent with the pressure
to which
they would be subject in ordinary operational conditions,
showed that the two product lines appeared to be intact and
serviceable.
There was what was regarded as an acceptable
pressure drop of 0.4 bar on the distillate line and 0.2 bar on the
petrol line over
the period of the service tests.
[101]
As noted in Mr Ball’s summary of evidence, ‘
Following
the removal of the anchor, PetroSA undertook Hydro Tests at elevated
pressures of approximately 2 times working pressure
[it was in
fact more in the region of 1,5 times working pressure]
; 29.25 bar
for the distillate line and 23 bar for the petrol line, held for 2
hours. The test medium for the hydro tests was potable
water mixed
with green marine dye. During the 2- hour hold period,
divers from Smit Amandla Marine monitored the
pipeline route in the
vicinity of the damage for evidence of green dye indicating leakage.
No dye was detected
[leaking]
from either line and both
product lines were considered to have successfully passed the hydro
tests with acceptable pressure drops
of 0.75 bar on the distillate
line and 0.3 bar on the petrol line. The pressure losses were
attributed to an initial loss of pressure
when the test pump was
disconnected, temperature effects within the lines, expansion of the
lines and a small leak from a test
fitting on the distillate line
’.
[102]
Consequent upon the apparently reassuring results of the
aforementioned tests, PetroSA
applied to the port authority for
permission to take the distillate product line back into operation.
After undertaking its
own inspection of the SPM pipeline (conducted
on 21 October 2005 by Subtech Diving & Marine), the port
authority granted
the requested permission.  PetroSA elected to
defer bringing the 12” petrol line back into operation until a
finite
element analysis test had been carried out to ascertain
whether it might not reveal evidence of stress fractures.  Mr
Govender,
an engineer in PetroSA’s employ at Mossel Bay,
testified that PetroSA’s concern in this regard was founded in
the more
serious denting of the 12” product line.
[103]
The first use of the SPM thereafter was when the aforementioned
Cape
Benat
called at the port on 25 October 2005 and took on
product transferred through the distillate line.  The product
transfer
operation, which was conducted over the period
25-26 October, went off without incident and all appeared to be
well.
On 27 October 2005, however, a slick was noted on the
water.  The position of the slick was close to the SPM, and
about a
kilometre from the location where the
Bow Sun
’s
anchor had snagged on the pipeline.  Further investigation led
PetroSA to conclude that there had been leakage from
the distillate
line due to the development of hairline cracks in the area where the
anchor had snagged.  The location of the
cracks or ‘bursts’
was visible in a video taken by a Smit Amandla diver, Mr O’Kennedy,
on the same day.
[104]
In the context of the subsequent events described below which led to
the discovery of
some cracking in the distillate line, Mr Ball
considered that it was ‘
feasible that a leak in the
distillate line could have occurred at the location of the anchor
damage following the loading of the
Cape Benat
on 26 October 2005 despite the line previously passing two pressure
tests
’.  He explained that the line could have
subsequently perforated ‘
due to propagation resulting from
the cyclic stressing of a pre-existing crack which had not previously
penetrated the full depth
of the pipe wall
’.  This
could have happened during the extended process of transferring
product to the
Cape Benat
.  The position of the slick
made him question, however, whether any such perforation was
attributable to the anchor-snagging
incident.  The witness
fairly allowed, however, that the slick could have been ‘
blown
by the wind and/or moved by currents on the surface and only noticed
at the SPM
’.  In a subsequent report given after the
witness had been afforded the opportunity of viewing further video
footage
demonstrating where product was found to be leaking from two
or more cracks or ‘bursts’ in the distillate line, Mr
Ball confirmed that this was occurring in the area where the anchor
had snagged the pipeline.  In my judgment it is probable
in all
the circumstances that the identified leaks were causally associated
with the anchor snagging incident.
[105]
That discovery led to the plaintiff’s engagement of Rosen
Europe to carry out an
investigation of both product lines and the
ballast water line using pigging techniques.  Mr Ball
described pigging in
these terms in his witness summary:
Pigging is the practice of using
pipeline inspection gauges (pigs) to perform various maintenance and
inspection operations on pipelines.
The operation involves inserting
the pig into a ‘pig launcher’ (an oversized section in
the pipeline, reducing to the
normal diameter) and then pressurised
flow in the pipeline is used to push the pig along the pipeline until
it reaches the end
of the pipeline where it is collected in the
receiving trap (the ‘pig catcher’).
[106]
The pigging investigation entailed an initial
process of ‘gauge pigging’ to ascertain that the lines
would be able to
accommodate the ‘intelligent pigs’ used
for the purposes of the intended diagnostic investigation.
[43]
The subsequent intelligent pigging consisted of ‘corrosion
detection pigging’ and ‘axial flaw detection
pigging’.
The latter type of pigging is directed at the detection of any flaws,
especially cracks along the axis of
a pipeline.
[107]
Mr Ball reported on the information available to him in respect of
the pigging of the
distillate product line as follows in his expert
witness summary:
‘
[The] pigging of the Distillate Pipeline recorded
a number of “severe defects” in the 14” Distillate
Line at the
location of the anchor damage but also confirmed that
this was limited to the immediate location of the anchor damage and
not further
afield. The report does not describe what these ‘severe
defects’ were but also notes that “a fracture mechanics

assessment was done to ensure the line can operate with these defects
and the pipeline can be returned to service safely”.
This
statement would appear to imply that the “severe defects”
were not full depth splits, cracks, bursts or other
penetrating
breaches of the pipe wall.’
He
noted that the pigging results in respect of 12” petrol product
line had not been available to him but recorded his understanding
of
the ‘PetroSA Technical Summary Report ‘Metal Loss
Inspection on 12” Petrol Pipeline from Voorbaai to SPM’,

dated 10 January 2006, as follows:
‘
[T]he AFD pigging of the Distillate Pipeline
(
sic
) recorded a number of “severe defects” in the
12” Petrol Line at the location of the anchor damage but also
confirmed
that this was limited to the immediate location of the
anchor damage and not further afield. The report does not describe
what
these “severe defects” were but, as with the 14”
Distillate Pipeline also notes that ‘a fracture mechanics

assessment was done to ensure that the line can operate with these
defects and the pipeline can be returned to service safely’.

This statement would appear to imply that the “severe defects”
were not full depth splits, cracks, bursts or other
penetrating
breaches of the pipe wall.’
[108]
The pigging report expressed concerns about certain areas of
corrosion in both the distillate
and petrol lines.  However, the
places where corrosion was a significant concern were at some
distance from the location of
the anchor snagging.  Some repairs
to these areas were subsequently undertaken, but they are unrelated
to any repairs that
might be attributed as necessary in consequence
of the anchor snagging incident.
[109]
Mr Govender, who was in charge of PetroSA’s investigation of
the damage to the SPM
pipeline, testified that an intelligent pigging
of the distillate line had in fact not been possible because it had
been determined
during the preliminary gauge pigging of the line that
the deformation of the line was such that it would not be possible to
run
an intelligent pigging device through it.  Govender
confirmed, however, that the axial flaw detection pigging results in
respect
of the petrol line suggested that that product line retained
sufficient integrity to be taken back into service.  The
decision
to nevertheless replace the dented section of the petrol
product line was taken before the intelligent pigging results had
come
in because of concerns about the possible adverse effect on the
integrity of the line that might have attended the severe deformation

of that line.  Sections of the distillate and petrol lines at
the place where the carrier line had been torn asunder were
cut out
to be replaced by new sections of pipe inserted using a sleeve
method.
[110]
Finite element analysis tests had also been undertaken of the petrol
line at the instance
of PetroSA.  The results indicated that the
line was fit for use despite some denting and physical deformation.
Mr Ball
stated that it was not clear in the circumstances why PetroSA
had the affected section of the petrol line cut out and replaced.

Mr Govender explained that the plaintiff was not content to proceed
on the basis of the finite element analysis test results in
respect
of the petrol line because of the unhappy experience of taking the
distillate line back into service after test reports
that it was
apparently intact.  PetroSA considered a more cautious
assessment was necessary because of the realisation that
the
stressors attendant on prolonged use might identify stress fractures
that had not been exposed on hydro testing.  On the
basis of the
receipt of more evidence as to the physical damage to petrol line
(which it will be recalled was outwardly worse than
that to the
distillate line), PetroSA decided that it would be prudent to
physically replace the dented section of the line in
the vicinity of
the anchor snag point.  Mr Govender supported PetroSA’s
precautionary approach pointing out that the
use of the line for the
transfer of hydrocarbon products meant that consideration had to be
given to the pollutive consequences
of putting the line back into
service in the face of the possibility of there being an undetected
flaw in the integrity of the
damaged section of the line.
[111]
Bursts were detected in the 12-inch product line
in a subsequent examination (a magnetic particle inspection) to which
I shall come
shortly.  Mr Ball’s understanding (to which
the plaintiff’s counsel took no exception) was that a ‘burst’

was a crack or fissure that perforated through the entire wall of a
pipe.  I gained the impression that such defects might
be
minuscule and not necessarily apparent to the naked eye, hence the
need for sophisticated testing to detect their presence.
It was
apparent that such defects might manifest after a section of pipe
containing less than fully penetrative flaws had been
subject to some
degree of stress, such as that generated during the use of the line
when product is pumped through it under pressure.
It seems to
me as a matter of logic that a bending force, such as would tend to
be induced when a section of pipe was unsupported
and in free span,
could also lead to such stress induced effects.
[44]
[112]
Mr Ball asserted that he did not believe that any
‘bursts’ or perforations found in the 12-inch petrol line
could have
been connected with the anchor-snagging incident as it had
not been used in the period between passing the hydro test and the
subsequent
discovery of cracks in it.  It seems to me, however,
that Mr Ball did not take into account the prolonged effect of the
free
span created under the lines after the snagging incident.
As mentioned, this was initially noted by Mr de Wet to have been
of
the order of up to 100 mm on 22 September 2005, but that had
been increased to about 800 mm by the time of the Subtech

inspection a month later.  The uncontested evidence was that a
free span situation was inimical to the welfare of the lines
because
of the stress to which it would subject them.  That would
obviously apply to carrier line while it was intact, but
after the
rupture of the casing the lines within the carrier would, in the
affected area, thereupon be subject to similar stresses.
I
consider that it is significant that the bursts detected in the
petrol line were in the visibly worst damaged part of the pipe,
about
1.7 metres in length.
[45]
[113]
The report by Subtech Diving & Marine in respect of its diving
team inspection of
the pipeline recorded that the following
indentations on the product lines had been observed:
‘
8” Pipeline
A small indent was noted on the top of the pipeline.
10” Pipeline
[This was an erroneous
description of the 12-inch pipeline.]
Indent 1 – Location: Top of pipeline, exposed area
Size: 170mm x 50mm
Indent 2 - Location: Side of pipeline, exposed area
Size: 70mm x 70mm
Indent 3 - Location: Bottom of pipeline, exposed area
Size: 20mm x 30mm
Indent 4 - Location: Side of pipeline, inside carrier
line
Size: 50mm x 50mm
Thickness measurements were taken in these areas. ... .
14” Pipeline
Indent 1 – Location: Side of pipeline, inside
carrier line
Size: 130mm x 180mm
Indent 2 - Location: Bottom of pipeline, exposed area
Size: 150mm x 140mm
Indent 3 - Location: Side of pipeline, inside carrier
line
Size: 50mm x 30mm
Indent 4 - Location: Side of pipeline, inside carrier
line
Size: 150mm x 100mm
Mr Ball noted that ‘
the report of damage /
indents on internal pipes in the Subtech report does not describe any
“longer radius” bending
/ deformation of the pipelines
’
identified in subsequent reports, but he allowed that ‘
such
deformation may not have been obvious when the internal pipelines
were only visible through the “tear” in the carrier

pipeline as was the case during the Subtech survey
’.
[114]
As already mentioned, the Subtech inspection
report also noted that there was a free span of about 800 mm above
the seabed under
the pipeline for at least 10 metres in either
direction from the place where the carrier line had been severed by
the anchor.
As also mentioned, the evidence was that any free
span under the pipeline would cause stress to the structure and was
accordingly
an undesirable situation.  Mr Ball believed ‘
that
the force applied to the pipelines might have caused the carrier line
to be lifted from the seabed and this could have resulted
in plastic
deformation which could have caused the pipeline to free span
’.
That is a plausible explanation of the extent of free span noted by
De Wet in September 2005.  It seems
likely, however, that
the quite extensive length of much greater free span described by
Subtech would have resulted from the activity
connected to the
eventual freeing of the anchor from the pipeline which was achieved
on 3 October 2005 by divers cutting away the
snagged fluke.
[46]
Mr de Wet described that it had been necessary to airlift quite a bit
of sand from the vicinity in order to afford the divers
‘clear
and free’ access to undertake the task of cutting away the
fluke.
[47]
[115]       PetroSA’s
Technical Report ‘Repairs to SPM Product & Carrier
Pipelines’
dated 28 August 2006 (sometimes referred to in
the course of the evidence as ‘the Govender report’),
which as
the title suggests was in the nature of an historic summary,
variously lists the damage to the 14” distillate product line

[i.e. the cut out section] as:
•
Minor dents.
•
Severe indented damage.
•
Bursts 250mm and 110mm in length.
•
The depths of the indentations were measured at
146mm max.
•
The pipe section was severely flattened.
[116]       The same
report variously lists the damage to the 12” petrol product
line as:
•
Two 40mm dents and other minor damage
•
Severe indented damage
•
Bursts 25mm and 20mm in length
[117]
The ‘bursts’ in both the 14” and 12” lines
were detected as a
result of a magnetic particle inspection that was
undertaken on the worst damaged sections of the lines after they had
been cut
out and removed to PetroSA’s workshops.  The
ballast water line was not subjected to a magnetic particle
inspection.
[118]
Having regard to the purpose of the exercise in this stage of the
trial of determining
the nature of the damage and attributing causal
responsibility therefor, I do not consider that there is anything
material in the
slight discrepancy between the description of the
visible damage to the product lines in the Subtech report and
PetroSA’s
August 2006 Technical Report.
[119]
Before moving onto the question of causal attribution, I should note
that there was very
little evidence in respect of the damage
occasioned to the ballast water line, which it will be recalled was
not in use in any
event.  The evidence is that the water ballast
line showed some denting.  I do not think it is necessary to
dwell on
the damage to the 8-inch line because Mr Govender conceded
that for reasons entirely unrelated to the anchor-snagging incident
the ballast water service to the SPM could not be restored until the
line had been substantially, if not entirely, replaced.
Causal attribution of the damage
[120]
It is evident, when paragraphs 1 and 2 of the ruling made in terms of
rule 33(4) on the
separation of issues are read together, that the
intention was that the court should in this stage of the trial,
should it determine
that the defendant had been causally negligent in
respect of the damage occasioned to the SPM pipeline, also determine
which part
of the damage occasioned was attributable to such causal
negligence.  The defendant approached the case on the basis that
the questions pertaining to factual causation could be
compartmentalised into three areas: (i) damage occasioned during the
mooring
process; (ii) damage occasioned during the unmooring process
and (iii) damage occasioned during the attempts to retrieve or
release
the snagged anchor.  Both parties focussed their
submissions on the question of factual causation and little, if any,
attention
was paid to the interrelated matter of ‘legal
causation’, which in my judgment on the facts of this case, and
for the
reason I shall explain presently, brought the second and
third of the aforementioned areas of factual causation very much into
interplay.
[121]
Apart from the likelihood that some of the rubbing off of marine
growth from the outer
casing of the carrier line observed by the
divers would have been caused by the anchor chain running over the
carrier line during
the mooring process after the anchor was dropped
on the wrong side of the pipeline and the possibility that the
carrier line may
have been dented in the process, it seems to me that
all the other damage to the SPM pipeline that was identified in the
evidence
was occasioned either during the unmooring process or in the
attempts to extricate the snagged anchor.  It seems clear,
judged
by the timing of the bubbling to the surface of what would
appear to have been the corrosion inhibitor liquid contained within
it, that the rupture of the carrier line occurred during the
unmooring process.  I have understood the evidence to suggest

that the damage to the product and ballast water lines inside the
carrier line could have been caused only contemporaneously with,
or
subsequent to, the rupture of the carrier line and thus either during
the unmooring process or the subsequent endeavours to
extricate the
snagged anchor.
[122]
In his initial summary of evidence Mr Ball expressed the following
conclusions in regard
to the damage to the SPM pipeline:  ‘
I
believe that the damage to the product pipelines is consistent with a
vessel’s anchor impacting the pipelines, possibly
by being
dragged into the lines in a westerly/ north-westerly / northerly
direction. The bends in the sections of pipeline apparently
removed
during the repairs seen in the photographs in the plaintiff’s
rule 36 (10) notice appear to indicate that following
initial contact
by the anchor on the pipeline, transverse and upward force was
applied to the anchor and hence to the snagged pipelines.
It appears
that this force might have caused the carrier line to be lifted from
the seabed and the product lines to bend in the
longitudinal plane
’.
His evidence concerning the northward displacement of the pipeline
referred to earlier suggests that the transverse
force mentioned in
the passage just recited must have been a force applied from the
north, which would tend to indicate that it
had probably occurred
during the attempt to weigh the starboard anchor during the unmooring
process.
[123]
Mr de Wet, who had been involved in the attempts to retrieve the
anchor before the Bow
Sun departed from Mossel Bay, testified that
the efforts were undertaken with acute awareness of the need to take
care not to occasion
further damage to the pipeline.  This is
consistent with indications given at a very early stage that Smit
Amandla personnel
were conscious of the need to take care that
further damage not be caused to the pipeline in the effort to release
the anchor.
I refer in this regard to the instruction by the
Smit Amandla terminal manager, Mr Burns, at 13h33 on 22 September
2005, that is
minuted in the
Bow Sun
incident log, to the
effect that it should be ‘
ensure
[d]
that damage is
reduced by not causing further damage, i.e. ripping anchor out
’.
De Wet said that the recovery team was fully aware that it would be
counter-productive to try to release the anchor
by trying to pull it
directly upwards.  Mr de Wet’s evidence, when the question
was raised with him in cross-examination,
was ‘…
I
think for a team of divers and a team of mariners, we would have all
been very silly to just pick it up on the shank and just
pull up
straightaway. We … everybody would know that it’s not
going to happen. So it’s an educated guess of
what we wanted to
achieve. And anything other, if we would just nilly willy pulling
straight up on the thing, we … all of
us on the vessel at the
time would have known that it wasn’t going to work’
.
Mr
Irish
, the cross-examiner, appeared to accept the truth and
cogency of that evidence.  I certainly do.
[124]
De Wet said that there were ‘multiple attempts in multiple
configurations’
to release the snagged anchor.  He was
understandably unable to remember the detail nearly 15 years after
the event.
Whilst he was involved in the attempts to release
the anchor, he was not in charge of them.  De Wet, however, took
issue with
the suggestion in Captain Barker’s evidence that one
of the means used to try to release the anchor had involved the
pulling
of the anchor chain over the pipe.  He corrected Mr
Irish’s understanding that Captain Barker had been in charge of
the operation and pointed out that Barker had only been on board the
Pentow Malgas
as a guest when the attempts to release the
anchor were being made.  That indeed, was my understanding of
Barker’s own
description of the capacity in which he had been
present on the buoy tender during the attempts to release the anchor
on one Saturday
after the snagging incident (either 24 September or 1
October 2005).  The retrieval operations would have had no
identified
connection with his responsibilities as the senior loading
master.
[125]
Mr Ball appeared to have difficulty in being able to reconcile
Captain Barker’s
description of the anchor retrieval efforts
with the objective practicalities.  Certainly, any attempt to
free the anchor
by heaving from the south of the pipeline on four
lengths of anchor chain is most unlikely to have had any effect on
shifting the
anchor at all.  De Wet’s evidence was that
all of the attempts to extricate the anchor intact failed, save to
the most
insignificant extent, to shift the object at all from the
position in which he had first seen it during a dive on the afternoon

of 22 September, which was before the commencement of any
retrieval efforts.
[126]
Mr Ball had his own theory about how the anchor might most safely be
extricated from the
product lines using a line or cable attached to a
deadman weight so as to induce a pulling force on the anchor
horizontally to
the seabed, but he acknowledged the operation would
be difficult and not guaranteed to succeed.  He also described
his suggested
method as ‘
not without risks
’ and as
one that he considered might be executed with ‘
the least
amount of damage
’, by which I understood him to mean damage
additional to that which had already been occasioned when the anchor
had snagged
when it was being weighed.
[127]
As it was, the anchor was not extricated in an intact state from the
pipeline, and, as
mentioned, it was eventually released only by
cutting away the fluke that was lodged under the product lines.
[128]
It is not an issue in this part of the trial, and I make on findings
concerning it, but
the evidence adduced before me suggested that the
repairs effected to the SPM consisted of:
(a)    Removing and replacing 15 metres
of the carrier line.
(b)   Cutting out a 9,2 metre section of the
distillate line in the area of the anchor snag point and inserting a
replacement
section using a sleeving method.
(c)    A shorter section of line
(apparently between 5 and 6 metres) was cut out of the petrol line
and replaced
using the same method as that used for the distillate
line.
(d)   A section of unutilised ballast water
line had to be cut out to enable access for the repairs effected to
the distillate
and petrol lines.  The cut out section of the
ballast line was also replaced.
The
cutting out of the damaged product lines was undertaken by a German
company, Nordseetaucher.  The damaged sections that
were removed
were taken ashore, whence they were transported by lorry to PetroSA’s
workshops approximately 15 kilometres
outside Mossel Bay.
[129]
Mr
Irish
suggested to Mr Govender in cross-examination that
the some of the damage identified on the sections of the product
lines that
were cut out could have been caused in the process of
removing them and transporting them to the plaintiff’s
workshop.
I think he had in mind particularly the bursts
subsequently identified in the 12-inch petrol line.  In my view
the proposition
was entirely speculative.  Having regard to
their sturdy appearance, which can be discerned, for example, in the
photographs
at p. 146 of the pleadings, it seems unlikely that
they could be easily further damaged in the context postulated by the
defendant’s
counsel.
[130]       In my judgment
it is probable that all of the damage to the SPM carrier line and to
the
distillate and petrol product lines in the close vicinity of the
break in the carrier line (i.e. within those sections of the product

lines that were cut out and subjected to magnetic particle
inspection) was attributable to the causal negligence of the
employees
of the defendant and the third party identified earlier in
this judgment.  It seems to me that there is no dispute between

the parties as to the nature of the damage to the carrier line at the
place where it was circumferentially split.  As to the
product
lines, it is not altogether clear what caused the bursts identified
on the petrol line, but the probabilities are that
it was related to
the damage to the SPM line because they were found in areas closely
proximate to where the metal had been stressed
and deformed by
denting and bending.  I have suggested that the extended period
in which that part of the line was in free
span might explain why the
bursts were not identified during the hydro testing.  It is also
possible that they were the result
of some of the stressing of the
lines that must inevitably have attended the efforts to release the
anchor from the pipeline.
As I shall explain, I do not consider
that the precise cause matters if it is accepted as a general
proposition, as I have done,
that the damage was probably related to
the chain of events precipitated by the anchor snagging incident.
[131]
Mr Ball, the defendant’s witness, whose assessments impressed
me in all respects
as appropriately impartial and objective, admitted
that he was unable in several respects to opine whether the damage
identified
occurred during the mooring and unmooring processes or in
the anchor retrieval attempts.  It should be of little surprise
then that I am similarly unable to make such determinations in
respect of the product line damage.  However, I consider that
it
was entirely foreseeable that if the anchor snagged in the pipeline,
it could be difficult to release it, and that in the attempt
to do so
further damage might be occasioned; cf.
OK Bazaars 1929
Limited v Standard Bank of South Africa Limited
[2002] ZASCA 5
(12 March 2002) in para 33 and the other authorities cited
there.  That much was illustrated in Mr Ball’s description

of the method that he would have preferred to use to extricate the
anchor.  He did not pretend it was without risk and he
described
it as a method that would minimise the further damage that would be
occasioned by the extrication, thereby implying that
some additional
damage might nevertheless be expected to be caused in the extrication
process.  I therefore would not regard
the causation of any of
the damage that might have been occasioned in any reasonably
undertaken attempts to remove the anchor as
a
novus actus
interveniens
.
[132]
In other words, I am of the view that all of the
damage to the SPM pipeline that is attributable to the anchor
snagging incident
- whether it was caused in the mooring, unmooring
or anchor-release efforts - was directly and foreseeably
consequential on the
causal negligence of the defendant and the third
party as joint wrongdoers.  It did not matter that their
employees were not
involved in the release attempts, it was
sufficient that the retrieval attempts were necessitated by their
employees’ wrongful
and negligent acts and omissions and that
it was foreseeable that further damage would be occasioned in that
process.  I consider
that the two enquiries in respect of
causation described by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA
680
(A) at 700E-I
[48]
fall to be answered in the plaintiff’s favour in respect of all
of the damage to the pipeline defined in paragraphs [115],
[116][130]
and [130] above.
[133]
I do not agree with the contention by Mr
Cooke
, who argued
this aspect of the case for the defendant, that ‘
it was
incumbent upon PetroSA to prove that the damage they assert, was
caused during the mooring / unmooring, and not subsequently
[during the anchor retrieval operation].’  In my judgment
it was incumbent on the defendant, if it wished to rely on
any of the
damage that might have been caused in the release attempts as not
falling within what was a foreseeable and sufficiently
direct
consequence of any snagging of the anchor, to allege and prove the
intervention of causal negligence on the part of those
involved in
the efforts to release the anchor.  It did not plead such
allegations, although some effort was made in the course
of the
cross-examination of Captain Barker and Mr de Wet to establish such a
case. In any event, such intervening causal fault
was not established
by the evidence adduced in the trial.
Costs
[134]
The only remaining question reserved for determination at this stage
in terms of the separation
of issues is the incidence of costs.
[135]
The plaintiff and the defendant were agreed that in general the costs
should follow the
result in accordance with what might be called the
general rule.  They were also agreed, with justification in my
view, that
the engagement of two counsel had been warranted.
The defendant’s counsel argued, however, that the plaintiff
should
pay the wasted costs that the defendant might be able to show
the taxing master that it had incurred as a consequence of the
adjournment
of the hearing on 21 May 2020.
The
wasted costs occasioned by the adjournment of the trial on 21 May
2020
[136]
The adjournment had to do with the defendant’s insistence on
discovery of or access
to certain videotape material related to the
dive inspections of the SPM pipeline after the anchor snagging
incident.  The
defendant had served a notice in terms of rule
35(3) on 15 October 2019 in which it had required the discovery
by the plaintiff
of, amongst other things, all video footage showing
the position in which and the manner in which the
Bow Sun
’s
starboard anchor hooked on the SPM pipeline and/or any work to remove
the anchor from the pipeline.  In addition to
the request in the
aforementioned general terms for such further discovery, the rule
35(3) notice also specified that discovery
of videotapes related to
several identified dives was required.
[137]
The plaintiff’s Acting Head: Legal Counsel deposed to an
affidavit in response to
the rule 35(3) notice in which he said in
the relevant part that ‘
The Plaintiff has no further
documents, than those already discovered in Plaintiff's Discovery
affidavit and trial bundles, served
on both Defendant and 3rd
Party
’.  He added that the plaintiff nevertheless
reserved ‘
the right to file a further supplementary
discovery affidavit
’, by which I understand him to have
meant that the plaintiff would make discovery of any additional
relevant documents that
might be turned up in the course of its
preparation for trial.  In the event, the plaintiff did make
additional discovery
of a considerable number of videotapes in early
December 2019.
[138]
On Monday, 9 May 2020, which was two days before the commencement of
the hearing, on Wednesday,
11 May 2020, the defendant delivered a
further notice in terms of rule 35(3) in which the plaintiff was
asked in the following
terms to make additional discovery:
‘
...
the Defendant requires the Plaintiff to make the following documents
(or copies thereof) available for inspection by the Defendant:
1.
All documents and/or correspondence and/or video footage
and/or
sketches relating to and/or depicting the alleged bend in the SPM
carrier pipeline, and/or sketches depicting details such
as the
distance of unsupported pipe and the maximum distance from the sea
bed, as referred to on page 16 of the Plaintiff’s
supplementary
discovered documents in an email from the Plaintiff to Smit Amandla
Marine dated 28 September 2005;
2.
All video footage relating to the alleged damage to the
carrier line
and product lines, where various indentations can allegedly be noted,
referred to at paragraph 7 of page 38 of the
Plaintiff’s
supplementary discovered documents in the minutes of the meeting held
on 12 October 2005 between the Plaintiff
and Smit Amandla
Marine;
and
2.
All video footage that was
viewed in the meeting held on 30 September
2005 between the Plaintiff and Smit Amandla Marine referred to in
paragraph 2 of the
minutes of that meeting on page 39 of the
Plaintiff’s supplementary discovered documents.’
An
informal request had been addressed by email to the plaintiff’s
attorney earlier, on 7 April 2020, but it seems that might
not have
enjoyed a prompt or efficient response due to the conditions of
strict lock down that prevailed at that time.
[139]
The plaintiff’s reply to the last-mentioned rule 35(3) notice
was provided on Sunday,
24 May 2020, after the defendant’s
counsel had indicated that it would object to the calling of Mr de
Wet as the plaintiff’s
next witness on Thursday, 21 May, until
it had been provided with a response to its demand for further and
better discovery.
Mr
Wragge
informed me at that stage
that the plaintiff had indeed located a number of videotapes that
would be provided to the defendant
in response to the notice.
One of those tapes turned out to be the tape of Mr de Wet’s
dive on 28 September 2005, which
was later introduced into evidence
as exhibit C.
[140]
By agreement, the hearing was thereupon adjourned at 14h35 on the
Thursday afternoon,
little more than an hour before the time that the
court would ordinarily in any event have risen for the weekend.
I was informed
on the following Monday that the hearing would need to
be further adjourned to allow the defendant’s representatives
and
the relevant expert witness, Mr Ball, to consider the material
that had been made available.  In the event it was agreed on

Tuesday the 22
nd
of May that the hearing would resume only
two weeks later on Monday, 8 June 2020.  The intervening period
was to some extent
used by the parties for a number of other
trial-related purposes, and in oral argument Mr
Irish
informed
me that the defendant would only be seeking its wasted costs for the
first week of the adjournment.
[141]
It is, of course, for the taxing master to decide what should be
allowed as wasted costs.
The decision that I have to make is
one of principle; whether there should be an order allowing the
defendant to recover any wasted
costs occasioned by the adjournment.
[142]
As I understood Mr
Wragge
in argument, he was initially under
the belief that all the video material had actually been disclosed as
early as sometime during
2016, but when Mr
Irish
interjected to say that the non-discovery of the particular video of
Mr de Wet’s dive on 28 September 2005 had been
picked up
only in April 2020, he admitted that he could not comment.  Mr
Wragge
then said ‘
I cannot comment because I don’t
have the list of videos in front of me, so I don’t know what
was discovered in 2016.
If my learned friend tells Your
Lordship that, I undoubtedly accept.
’
[143]
It would appear then that at least the videotape of the 28 September
2005 had not been
discovered previously and there was no reason given
as to why it was first made available so late.  It is a hard
call because
there was a vast amount material that had been
discovered in this matter, including a great number of videotapes,
and there is
no indication that the plaintiff was in any way
deliberately remiss in its failure to make the particular tape
available earlier.
On the contrary, having regard to the very
long interval between the incident and the trial, it is not
altogether surprising that
there were problems with locating all of
the material that might have been relevant and discoverable.
That said, and despite
having a measure of sympathy for its position,
I can think of no reason why the plaintiff should not bear the wasted
costs that
were occasioned by the adjournment that followed on the
late discovery of the videotape.  As I have said, what those
costs
might be is for the taxing master to determine if the parties
are unable to agree on them.
The costs of the defendant’s application to set
aside a subpoena
[144]
There was also a question of the costs of an application by the
defendant in terms of
Admiralty Proceedings Rule 20 (which pertains
to vexatious or irregular proceedings) to set aside a subpoena that
had been issued
by the plaintiff purporting to require Mr Karelse to
attend on an interview with the plaintiff’s legal
representatives and
to bring with him certain documents.  The
application was successful, but the costs of it were inexplicably
ordered to stand
over for determination at the trial.  The
parties were ad idem that they fell for determination at this stage.
They
were also agreed, quite appropriately, that there was no reason
why they should not follow the result of the application.
The
plaintiff will therefore be ordered to pay the defendant’s
costs of suit in that application.  I do not know whether
two
counsel were engaged, but nothing in the nature of what was involved
in that minor skirmish suggests that the award of the
fees of more
than one counsel would be merited.  The procurement of the
subpoena was undoubtedly misguided, and the failure
to withdraw it
when called upon to do so, unwise, but I am not persuaded that a
punitive costs order, as sought by the defendant,
is called for.
Costs will be awarded on the usual scale, as between party and party.
The third party’s claim for costs against the
defendant
[145]
As mentioned earlier in this judgment, the third party, Transnet,
seeks the costs that
it has incurred as a consequence of its joinder
by the defendant.
[146]
The defendant (Odfjell), qua plaintiff, had
originally instituted proceedings against the third party, qua
defendant, by summons
dated 17 September 2008 in case no. AC
79/2008, in which it claimed a declaratory order that the third party
was obliged to
indemnify it in respect of any amount in which the
court might find Odfjell to be liable to PetroSA in respect of the
damage to
the SPM pipeline.  Transnet delivered a plea in case
no. AC 79/2008 in May 2009, in which it denied liability to
Odfjell.
Transnet pleaded that by virtue of Transnet’s
1995 limitation of liability agreement with PetroSA, Odfjell was
entitled to
limit its liability to PetroSA in terms of s 2(10)
of the Apportionment of Damages Act, and that by reason thereof
Odfjell
had no claim for a contribution or indemnity from
Transnet.
[49]
The action in case no AC79/2008, as well as the current action by
PetroSA against Odfjell under case no. AC 78/2008,
were
thereafter stood in abeyance pending the outcome of the
abovementioned arbitration claim by PetroSA against Transnet.
[147]
After the arbitration proceedings were settled, apparently sometime
in 2015, PetroSA’s
legal representatives informed Odfjell’s
legal representatives of their client’s intention to continue
with its claim
against Odfjell under case no. AC 78/2008.  That
information precipitated an application by Odfjell for the
consolidation
of case no. AC 79/2008 with case no. AC 78/
2009 on the basis that its particulars of claim in case no. AC79/2008

would stand as a third party notice in case no. AC78/2008.
The application was granted in May 2016.
[148]
Subsequent to the consolidation of the actions on the basis just
described the third party,
in September 2016, filed two pleas in
terms of Admiralty Rules 11(5)(a) and 11(5)(b) respectively.
[149]
Assuming that the 1995 agreement between Mossgas (i.e.PetroSA) and
Transnet did engage
s 2(10) of the Apportionment of Damages Act,
there was no basis for Odfjell to claim an indemnity or contribution
from Transnet
as a joint wrongdoer.  I do not agree with
Mr
Irish
’s submission that it was nevertheless
necessary for Odfjell to join Transnet as a party in the proceedings
if only for the
limited purpose of obtaining a declaration on an
apportionment of fault.  Odfjell would have been entitled to
seek an apportionment
as an incident of the reliance it was entitled
to make on s 2(10) in the circumstances.  At the very most
all that might
have been required of Odfjell, and I doubt that even
that much was in fact required, was to have given Transnet notice of
the proceedings
in terms of s 2(2) of the Act.
[150]
Be that as it may, PetroSA was initially
unwilling to admit that its claim against Odfjell was limited by
virtue of s 2(10).
It persisted in that position until 27
November 2017, when, at a rule 37 conference, it conceded that it had
no claim against Odfjell
for that portion of its claim which was
‘
attributable to the negligence of the
third party’s servants
’.
[50]
[151]
The defendant thereafter delivered a replication to the third party’s
plea in terms
of Admiralty Rule 11(5)(a) in which it recorded the
aforesaid concession by PetroSA and indicated that in the light
thereof it
did not persist with the relief sought against the third
party, ‘
save for the conditional claim of
[a declaration
of]
an apportionment of liability
’ and a costs order
should the third party oppose the defendant’s case.
[152]
In my judgment, the third party is entitled in the circumstances I
have described to its
costs against the defendant up to and including
the delivery of the defendant’s aforementioned replication.
There was
no need, however, for the third party to have delivered a
plea in terms of Admiralty Rule 11(5)(b) to the plaintiff’s
particulars
of claim, and the costs attendant on the delivery of such
plea will therefore be excluded from the costs for which the
defendant
will be held liable.
Order
[153]
In the result, the following order is made:
(a)     It is declared that the
snagging of the starboard bower anchor of the MT
Bow Sun
on
the plaintiff’s SPM pipeline at Mossel Bay in September 2005
and the resultant damage to the pipeline were caused by the

negligence of the master and crew of the defendant’s vessel and
that of Transnet Limited (‘the Third Party’)
and its
employees.
(b)     For the purpose of the
determination of the defendant’s limited liability in respect
of the plaintiff’s
damages by virtue of the incidence of
section 2(10) of the Apportionment of Damages Act 34 of 1956, the
apportionment of fault
between the aforementioned joint wrongdoers is
hereby determined as to 80% on the part of the Third Party and 20% on
the part of
the defendant.
(c)     It is declared that the
damage to the SPM pipeline attributable to the negligent conduct of
the aforementioned
joint wrongdoers is that which has been described
in paragraphs 115, 116 and 130 of this judgment and that it was
caused in
the process of unmooring the vessel from the CBM or the
subsequent attempts to extricate the snagged anchor from the
pipeline.
(d)     No order is made in respect
of any damage to the ballast water line.
(e)     Save as specially provided
in paragraphs (f) and (g) of this order, the defendant shall be
liable to
pay the plaintiff’s costs of suit, including the fees
of two counsel and the qualifying fees of Captains GJ Barker, ESR
McAllister
and KMT Cox.
(f)      The plaintiff shall be
liable to pay the wasted costs incurred by the defendant related to
the
adjournment of the trial from 21 May to 8 June 2020, including
the fees of two counsel.
(g)     The plaintiff shall be
liable to pay the defendant’s costs of suit in the application
brought
by the defendant in terms of Admiralty Rule 20 by notice of
motion dated 11 February 2019 to set aside the subpoena served

on Jerome Karelse to attend at a consultation with the defendant.
(h)     The defendant shall be
liable to pay the Third Party’s costs of suit incurred up to
and including
the service upon the Third Party of the defendant’s
replication, dated 26 March 2018, but excluding any costs in respect
of the Third Party’s plea to plaintiff’s particulars of
claim, in terms of Admiralty Rule 11(5)(b).
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Plaintiff’s
counsel:

M. Wragge SC
J. de Vries
Plaintiff’s
attorneys:

Liesel Scoltz Inc.
George
Nawaal Cloete & Associates
Cape Town
Defendant’s
counsel:

D.F. Irish SC
D.J. Cooke
Defendant’s
attorneys:

Edward Nathan Sonnenbergs Inc
Cape Town
Third
Party’s counsel:

M. Aggenbach
(Heads of argument drafted by I. Pillay SC)
Third
Party’s attorneys:

Woodhead Bigby Inc
La Lucia, Durban
Webber Wentzel
Cape Town
[1]
The given tonnage is the vessel’s ‘international
tonnage’, not her deadweight tonnage (DWT).
[2]
An 8-inch pipeline for industrial alcohol and a 10" pipeline
for refined distillate.  Obviously, each pipeline has
its own
end manifold, but I shall refer to ‘the PLEM’ in the
singular throughout this judgment for convenience.
[3]
The mooring buoys were numbered sequentially from 1 to 5, with no.1
being the foremost buoy on the starboard side and no.3 being
the
buoy directly astern the vessel.
[4]
The distance of 0,01 nautical mile converts to approximately 18,52
metres.
[5]
The evidence was that the pipeline traversed the De Bakke leading
line approximately 260 m measured along the leading line from
the
intersection of that line with the Voorbaai leading line.
Captain Barker testified that a line drawn parallel to and
70 m east
of the De Bakke line would traverse the pipeline 220 m south of the
Voorbaai leading line.
[6]
A loading master is the person charged with supervising the transfer
of petroleum product between a tanker and a shore-based
terminal.
In the case of transfers at the CBM at Mossel Bay the loading master
boards the incoming tankers together with
the pilot and the ship’s
agent approximately two sea miles east of the breakwater at Mossel
Bay harbour.
[7]
The business of Smit Amandla Marine was subsequently acquired by
African Marine Solutions Group (Pty) Ltd (AMSOL), Captain Barker’s

current employer.
[8]
The term ‘chartlet’ was used by the witnesses to
describe the small extract from the nautical chart that was used
to
illustrate the standard operating procedure used for berthing
vessels at the CBM.  The word, which appears to have originated

in American English, is defined in
The Oxford
Pocket Dictionary of Current English
as ‘
n.
a small chart, as for navigation, highlighting a particular
feature
’.  The chartlet pertinent
to this case is reproduced in para [39], below.
[9]
ECDIS is an acronym for
‘Electronic Chart Display and Information System’.
ECDIS ‘
is a
computer-based navigation system that complies with IMO regulations
and can be used as an alternative to paper navigation
charts.
Integrating a variety of real-time information, it is an automated
decision aid capable of continuously determining a
vessel’s
position in relation to land, charted objects, navigation aids and
unseen hazards
’;
https://www.martek-marine.com/blog/what-is-ecdis/
(accessed 17 January 2021).
This online summary of ECDIS adequately precises the descriptions of
the system given in evidence.
[10]
The Admiralty Sailing Directions indicate that vessels of up to
50 000 tons DWT can be accommodated at the CBM.
[11]
It is probable, however, that the vessel’s deadweight tonnage
would significantly exceed her 30 000-ton international

tonnage.  The
Bow Sun
’s
dimensions correspond closely to what PetroSA’s SHEQ manager,
Mr Herbst, described in an incident report as
‘
the
normal size of an average tanker that moors at the CBM
’.
[12]
Paragraph 11A of the
plaintiff’s particulars of claim.
[13]
Transnet Limited was established as a company in terms of s 2
of the Legal Succession to the South African Transport Services
Act
9 of 1989.
[14]
Section 2(10) provides: ‘
If by reason
of the terms of an agreement between a joint wrongdoer and the
plaintiff the former is exempt from liability for
the damage
suffered by the plaintiff or his liability therefor is limited to an
agreed amount, so much of that portion of the
damages which, but for
the said agreement and the provisions of paragraph (c) of subsection
(6) or paragraph (b) of subsection
(7), could have been recovered
from the said joint wrongdoer in terms of subsection (6) or (7) or
could have been apportioned
to him in terms of subparagraph (ii) or
(iii) of paragraph (a) of subsection (8), as exceeds the amount, if
any, for which he
is liable in terms of the said agreement, shall
not be recoverable by the plaintiff from any other joint wrongdoer
’.
[15]
Paragraph 4 of Item 10 of the
First Schedule to the
Legal Succession to
the South African Transport Services Act 9 of 1989 defines the
emergency as a situation of danger in which
the intervention of the
master would be justified to intervene ‘
to
preserve the safety of his ship, cargo or crew
’.
[16]
Actually ‘Cairn
s
’.
[17]
Paragraph 10(7) of the First Schedule to the Legal Succession to the
South African Transport Services Act 9 of 1989.  The
exclusion
of liability of the Port Authority and the pilot for the negligence
of the latter is probably even wider in terms of
the currently
applicable provisions in
s 76
of the
National Ports Act 12 of
2005
, which came into operation on 26 November 2006.
[18]
Cf.
Yung Chun Fishery Co Limited v
Transnet Limited t/a Portnet
(unreported
judgment, per Davis J, in case no. AC 30/1997) and
Owners
of the MV Stella Tingas v MV Atlantica and another (Transnet Ltd t/a
Portnet and another, Third Parties)
2002 (1)
SA 647 (D).
[19]
Sections 2(6) and 2(7) of the Apportionment of Damages Act provide
as follows insofar as relevant in terms of the provisions
of section
2(10) (quoted in note 14 above):
s 2(6)(c):
Any joint wrongdoer from whom a contribution is claimed may raise

against the joint wrongdoer who claims the contribution any defense
which the latter could have raised against the plaintiff.
s 2(7)(b):
[20]
As constituted by the Supreme Court Act 1981 (now called the Senior
Courts Act 1981 (c.54)).
[21]
The defendant pointed out in
its heads of argument that it had been open to PetroSA, immediately
after the incident to apply in
terms of s 5(5) of the Admiralty
Jurisdiction Regulation Act 105 of 1983, for the passage plan and
any other potentially
relevant documents in current use to be made
available for inspection.  The defendant was also not asked to
retain any documents
when PetroSA addressed a letter of protest to
the master on 27 September 2005.
[22]
250 m of cable = 9,11 shackles.  (A shackle is 27,432 m.)
[23]
Mr Karelse testified that he also sent a diagram depicting the
layout of the berthing buoys and showing how the ship’s

anchors should be positioned when the vessel was berthed at the CBM.
[24]
The relevant call would actually probably be 128 or 129 metres; see
paragraph [11] above.
[25]
The ship’s master, a Norwegian who is no longer in the
defendant’s employ, indicated that he was not interested in

making himself available as a witness.  The loading master on
board, a Mr Francois Jacobs, who at the time had been an employee
of
Smit Amandla Marine, had consulted in relation to the matter with
the defendant’s legal representatives, but reportedly
had
indicated that he was unwilling to be interviewed by the plaintiff’s
representatives.  In the event, Jacobs was
not called by either
of the parties.  It is not discernible from the evidence that
was adduced whether Jacobs would have
been qualified to give any
relevant evidence.
[26]
At the internal enquiry held on 27 September 2005 the pilot
testified that he ordinarily gave the instruction to let go the
starboard anchor at the 150m mark.
[27]
Captain McAllister described the exercise involved in these words:
‘
It takes but a few moments to do that.
In my experience I have had a GPS device in close proximity to where
the chart space is
and it is a matter of looking at the LCD screen
and moving one’s navigational instruments to plot it very,
very quickly
and to that degree of accuracy
’.
[28]
Loureiro and Others v
Imvula Quality Protection (Pty) Ltd
2014 (3) SA 394
(CC) in
para 58,
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC) in para 69 and
Mashongwa
v Passenger Rail Agency of South Africa
2016 (3) SA 528
(CC) in para 31 (fn. 36).
[29]
Judge of the High Court of Admiralty from 1838 to 1867.
[30]
[1862] EngR 71
;
176 ER 16
at 17.
[31]
My italicisation for emphasis.
[32]
Quoted in paragraph [29] above.
[33]
The IMO is a specialist United Nations secretariat charged with
regulating maritime safety internationally.  South Africa

ratified the Convention on the International Maritime Organization
in 1995.
[34]
Paragraph 2 provides as follows:
2.1
Despite the duties and obligations of a pilot, the pilot’s
presence on board does not relieve the master or officer
in charge
of the navigational watch from their duties and obligations for the
safety of the ship. It is important that, upon
the pilot boarding
the ship and before the pilotage commences, the pilot, the master
and
the
bridge personnel are aware of their respective roles in the safe
passage of the ship.
2.2
The master, bridge officers and pilot share a responsibility for
good communications and understanding of each other’s
role for
the safe conduct of the vessel in pilotage waters.
2.3
Masters and bridge officers have a duty to support the pilot and to
ensure that his/her actions are monitored at all times.
[35]
Compare also
Wood and others v Smith and
others (the City of Cambridge)
[1874] UKPC
24
(20 March
1874); (1874) LR 5
PC 451 (at 459-460), where the Privy
Council quoted the following remarks of Baron Parke in
The
Christiana
(1850) 7 Moore’s PC Cases
160 at 171 with approval: ‘
The duties
of the master and the pilot are in many respects clearly defined.
Although the pilot has charge of the ship, the owners
are most
clearly responsible to third persons for the sufficiencies of the
ship and her equipments, the competency of the master
and crew, and
their obedience to the orders of the pilot in everything that
concerns his duty, and under ordinary circumstances
we think that
his commands are to be implicitly obeyed. To him belongs the whole
conduct of the navigation of the ship, to the
safety of which it is
important that the chief direction should be vested in one only ...
. The pilot has unquestionably the
sole direction of the vessel in
those respects
where his local
knowledge is presumably required
. The
direction, the course, the manoeuvres of the vessel when sailing
belonged to him. It was also his sole duty to select the
proper
Anchorage place and mode of anchoring and preparing for anchoring,
as was held to be clear in the case of
The
Gypsy King
.
’
(Bold font for emphasis.)
[36]
At p. 221 (All ER).
[37]
See paragraph [22] above.
[38]
Cloete J quoted s 43 as being in the following terms: ‘
The
East London Harbour (within the Buffalo River and the entrance
thereto) and the Durban Harbour are hereby declared to be compulsory

pilotage harbours (together with such other harbours as may from
time to time be declared by the Governor-General by Proclamation
in
the
Gazette
to be compulsory pilotage harbours) save and except in respect of
such ships as may be exempted by statute or regulation; provided

that the administration and the pilot who is a servant thereof shall
be exempt from liability for any loss or damage that may
arise or be
caused through the act, omission or default of such pilot
’.
[39]
The evidence suggested that, for reasons entirely unrelated to the
anchor-snagging incident, the ballast water line would have
to
completely replaced before it could be taken back into use.
[40]
A problem with the hauling in of the starboard anchor was noted by
the loading master at 10h10 and ‘a spill [was] observed
in the
water with bubbles’ at 10h30.  These observations were
recorded in the loading master’s time sheet or
‘statement
of facts’ for the tanker’s unberthing operation.
There were corresponding entries in the ship’s
port log.
The log indicates that the emergency response management team (ERMT)
was summoned at 10h10.
[41]
His words were that the fluke was ‘
completely
encapsulating the carrier line
’.
[42]
Despite appearances, the break was not actually on a weld.  The
nearest weld was about one metre to the seaward side of
the rupture.
[43]
The gauge pigging is actually
preceded by a process called ‘brush pigging’, which it
would appear is directed at removing
any debris that might be in the
line preparatory to the gauge and intelligent pigging exercises
being undertaken.
[44]
The unchallenged evidence of
Mr de Wet was to the effect that regular inspections of the SPM
pipeline were carried out to check
that there were no areas of free
span.  He explained ‘
You
don’t want a pipeline to be suspended without something
underneath it because it introduces undue stress.
’
[45]
See the ‘Damage
Inspection Report – Petrol Line’ at p. 17 of vol 1. of
the Quantum Reports, referred to in Mr
Ball’s expert witness
summary.
[46]
The freed anchor was
thereafter towed clear of the SPM pipeline on 10 October 2005.
[47]
The process of sand removal
is illustrated conceptually at p. 162 of the defendant’s
core bundle, which is part of
a dive summary document prepared by Mr
de Wet, dated 11 April 2019.
[48]
The learned Chief Justice
said the following in the passage cited:
‘
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is
a factual
one and relates to the question as to whether the defendant’s
wrongful act was a cause of the plaintiff’s
loss. This has
been referred to as “factual causation”. The enquiry as
to factual causation is generally conducted
by applying the
so-called ‘but-for’ test, which is designed to determine
whether a postulated cause can be identified
as a
causa
sine qua non
of the loss in
question. In order to apply this test one must make a hypothetical
enquiry as to what probably would have happened
but for the wrongful
conduct of the defendant. This enquiry may involve the mental
elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis
plaintiff’s loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause
of the plaintiff’s loss;
aliter, if it would not so have ensued. If the wrongful act is shown
in this way not to be a
causa
sine qua non
of the loss
suffered, then no legal liability can arise. On the other hand,
demonstration that the wrongful act was a
causa
sine qua non
of
the loss does not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked

sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote.
This is
basically a juridical problem in the solution of which
considerations of policy may play a part. This is sometimes called

“legal causation”.
’
[49]
I have not seen the plea
filed by Transnet in May 2009 and rely for my description of its
content on the description of it given
by
Odfjell’s
attorney in her affidavit in support of the application for the
consolidation of the actions in case no.s 78/2008
and 79/2008, to
which I was referred by Mr
Irish
during his address on the issue of costs.
[50]
I quote from para 3 of the
defendant’s replication to the third party’s plea in
terms of Admiralty Rule 11(5)(a).