The Owners of the MV Banglar Mookh v Transnet Ltd and Another (AC 100/2007) [2010] ZAWCHC 485 (12 October 2010)

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[2010] ZAWCHC 485
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The Owners of the MV Banglar Mookh v Transnet Ltd and Another (AC 100/2007) [2010] ZAWCHC 485 (12 October 2010)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
(Exercising its
Admiralty Jurisdiction)
CASE
No.
AC
100/2007
Name
of Vessel:
MV
Banglar
Mookh
Before:
Mr
Justice A.G. Binns-Ward
In the matter between:
THE
OWNERS OF THE MV
BANGLAR
MOOKH
…............................................
Plaintiff
And
TRANSNET
LIMITED
…...........................................................................
First
Defendant
THE
NATIONAL PORTS AUTHORITY OF SA
…...............................
Second
Defendant
JUDGMENT
delivered
on 12 OCTOBER 2010
BINNS-WARD
J:
[1] On the morning of 5 September
2005, during the course of a voyage from Ho Chi Minh City to Gambia,
the MV
Banglar
Mookh,
a vessel
belonging
to
the Bangladeshi Shipping Corporation, put in to Cape Town to take on
water. It is common ground that there was a strong north-westerly

wind of 30 to 40 knots blowing at the time and that the sea state
was consistent with Beaufort Wind Force Scale 7 conditions.
Cape
Town is a compulsory pilotage port. Accordingly, during its approach
to the harbour, the vessel was boarded by a pilot in
the service of
Portnet, a division of Transnet Limited. The pilot was Captain
Tadeusz Grelecki. He came on board when the vessel
was still some
distance out from its intended berth alongside the Eastern Mole of
Duncan Dock.
[2] The entrance to
Duncan Dock lies between two 'knuckles', which mark the respective
end points of the A berth Wall to the west
and the Eastern Mole to
the east. The waterway between the two knuckles is 180 m wide.
During the vessel's passage through the
entrance to Duncan Dock,
while it was being piloted by Mr. Grelecki, the starboard side of
the bow came into a glancing collision
with the knuckle of the A
Berth Wall. As a consequence of the collision, the vessel sustained
certain structural damage and was
delayed in Cape Town while repairs
were effected.
[3]
The current proceedings are the trial of the action for damages
subsequently instituted by the owner of the vessel against
Transnet
Limited.
1
The
claim is a 'maritime claim' as defined in paragraph (e) of the
definition of the term in s 1 of the Admiralty Jurisdiction

Regulation Act, No. 105 of 1983 ('the AJRA'). The action is one
brought
in
personam
within
the meaning of s 3 of the AJRA. The determinative effect on the
claim of the incidence of item 10(7) of Schedule 1 ('the
Schedule)
to the Legal Succession to the South African Transport Services Act
9 of 1989 means that South African law is the applicable
law for the
purpose of the determination of liability. This follows from the
provisions of s 6(2) of the AJRA. Cf.
MV
Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas
2003
(2) SA 473
(SCA),
2
at
para. [6]. During the course of the trial, which was limited to the
issue of liability, the quantum of damages in issue was
agreed in
the amount of US$399 576,55.
3
[4] Although a claim
based on the alleged negligence of the port authority was pleaded in
the particulars of claim, the evidence
led by the plaintiff was
relevant only in respect of the alleged gross negligence of the
pilot. Unsurprisingly therefore, counsel
for the plaintiff did not
advance any argument in support of the claim premised on alleged
negligence by the port authority.
[5] Item 10 of the
Schedule provides:
10
Harbours
(1)
The harbours of the Company
4
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.
[6]
The applicability of the exemption from liability in item 10(7) of
the Schedule to the current claim was not in contest. In
Yung
Chun Fishery Co Limited v Transnet Limited t/a Portnet
(unreported
judgment in case no. AC30/97, delivered on 1 September 2000), this
court (per Davis J, sitting alone) held that 'wilful,
reckless or
grossly negligent acts or omissions on the part of the pilot fall
outside the exemption' provided in terms of item
10(7). The
KwaZulu-Natal High Court subsequently adopted the same restrictive
interpretation of item 10(7); see the judgment
of Booysen J in
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).
[7]
The High Court's finding in the
Stella
Tingas
that
the pilot in that matter had been grossly negligent was subsequently
reversed on appeal: see
MV
Stella Tingas: Transnet Ltd v Owners of the MV. Stella Tingas and
Another,
supra.
The Appeal Court's judgment, however, left unaffected the High
Court's construction of the applicable statutory exclusion
of
liability for negligence. The Appeal Court assumed, without
deciding, that the exemption provided by item 10(7) of the Schedule

would not apply if the pilot were found to have been grossly
negligent.
5
[8]
The defendant proceeded in the current matter on an assumption of
the correctness of the construction of item 10(7) of the
Schedule
applied in the cases just cited. The proper construction of item
10(7) is a question of law and the aforementioned assumption
by the
defendant is therefore neither binding, nor determinative. Thus, in
the event of my being convinced that the two High
Court judgments
mentioned earlier were premised on an incorrect interpretation of
the statutory provision, I would be bound to
depart from them.
6
Despite
some reservations whether item 10(7) has been properly construed,
7
and
because of the conclusions I have reached on the facts of the case,
I have been able to determine the action assuming that
the provision
falls to be construed in accordance with existing authority, and
without the necessity, which would otherwise have
arisen, to call
for argument in order to give the issue fresh consideration.
[9] The pleaded
particulars of the pilot's negligence were widely cast. I agree with
the submission by the defendant's counsel
that, as developed during
the trial, the relevant allegations came down to these (the summary
is taken broadly, with some re-arrangement,
from the defendant's
heads of argument):
1. The pilot obtained
and maintained a relatively high speed in the approach channel as
the vessel came closer to port which was
inappropriate in the
circumstances.
2. Had the vessel been
piloted correctly, it should have been placed in the channel
considerably to starboard; so as to pass close
to the end of the
breakwater in order to counter the eastward drift occasioned by the
'easterly set' experienced by the vessel
as a consequence of wind
and sea effect as it came up the channel.
3. The pilot failed to
line the vessel up properly in the approach channel taking into
account the prevailing conditions.
4. As the vessel
approached the entrance to the port of Cape Town (being a line drawn
between the edge of the breakwater and buoy
no. 4) the uncorrected
effect of the easterly set resulted in it coming much too close to
the North Wall so that the pilot was
forced to give reactive orders
both so as to avoid a collision with the North Wall and to attempt
to regain the leading line
of approach into the Duncan Dock.
5. After failing to line
up the vessel properly, the pilot was unable to regain control of
the vessel and should have aborted
the entry before the vessel
passed the breakwater.
6. The continuation of a
high speed of advance and a growing loss of control of navigation
was in direct contradiction of a need
to slacken the speed of
advance in the channel and thus gain sufficient control to take the
forward way off the vessel after
passing the breakwater and allowing
the tugs the chance to make fast in an orderly fashion so as to
render timely assistance.
7.
The progress of the vessel was 'headlong over-fast, un-cautious and
almost helter skelter'
8
with
a singular lack of control.
8. Having failed to line
up the vessel correctly, and thereafter increased speed recklessly,
the pilot compounded the problem
by attempting to enter the port
without the tugs being made fast, which he should not have done.
9. The speed of the
vessel played a role in the inability of the tugs to make their
lines fast before the vessel reached the entrance
to the Duncan
Dock.
10. At the time that the
vessel experienced a sheer to starboard within the harbour basin
within the breakwater and outside the
entrance to the Duncan Dock,
whatever the cause, any effort to regain control by use of
tug/and/or wheel and/or engine was doomed
to failure by reason of
the excessive speed of the vessel.
The evidence
[10]
The plaintiff adduced the evidence of the master of the vessel at
the time of the collision, Captain Shahidul Islam, and
that of
Captain McAllister, a master mariner. Captain McAllister gave
evidence as an expert. Captain Mohamed Rahman, the general
manager
of the plaintiff company also gave evidence, but his evidence was
limited to explaining that certain of the crew members
of the vessel
who might have been expected to testify were no longer in the
plaintiff's employ and that, despite the engagement
of tracing
agents, it had proved impossible to locate them. The plaintiff also
called Mr. Kieron Cox. Mr. Cox's evidence was
also not contentious.
He is an expert on the vessel traffic service (VTS) provided by the
port. He explained what records of
the vessel's movements and speed
the system used by the port would have provided and how it would
have been within the ability
of the defendant to have preserved
these for discovery in the trial. He alsoexplained how exhibit E was
compiled; and in connection
therewith, in particular, how he had
adjusted the times reflected on the tapes of the radio transmission
voice recordings to
times more consistent with true time. This
resulted in a three minute fifty second forward synchronisation of
the recorded times
at which the several transmissions audible on the
tapes commenced.
9
With
regard to the adjusted times thus determined, the witness also
worked out the times at which the various statements made
in the
transmissions were made during each transmission. The results of the
exercise would not give a precisely true indication
of the timing of
events, but certainly one that appears to me, when correlated with
the available records, to be true probably
within a deviance of less
than 60 seconds.
[11] The defendant
called five witnesses. These were the pilot; the master of one of
the two tugs deployed to assist in bringing
the vessel alongside,
Captain Le Blond; the engineer on the other tug, Mr. Anthony Stein;
Captain Woodend, a master mariner and
erstwhile port captain of Cape
Town harbour, who gave evidence as an expert; and Mr. Hendrik
Hickman.
[12] In essence there
are two conflicting versions of how the collision occurred.
[13] On the plaintiffs
version, which is founded on the evidence of the master of the
vessel, the pilot found himself obliged,
during the crossing of the
basin that lies inside the breakwater but outside the entrances to
the Ben
Schoeman and Duncan
Docks, to order the execution of a turn hard to starboard because
the vessel was approaching too close to
one of the outer structures
of the harbour, identified on the charts as the 'North Wall'.
According to the master, the effect
of the turn hard to starboard
was to then place the vessel on a course, within the relatively
narrow confines of the basin, which
required a subsequent corrective
hard to port manoeuvre if the vessel was to avoid another hard
structure, known as the 'North
Spur', on the opposite side of the
basin. Captain Islam's evidence had it that while the turn hard to
port resulted in a successful
clearance by the vessel of the North
Spur the vessel was, however, thereby put on the course that
resulted in the glancing blow
of the starboard bow against the A
berth knuckle when the ship passed into the Duncan Dock. The opinion
evidence of Captain McAllister,
a master mariner with vast
experience, was adduced to confirm or establish the feasibility of
Captain Islam's account. Captain
McAllister's evidence was also led
by the plaintiff with the object of establishing that the pilot's
causal negligence in the
collision was of a gross degree.
[14] The defendant's
version, established principally through the evidence of Pilot
Grelecki, also had the vessel turning sharply
to starboard when it
entered the basin after passing the breakwater. On the defendant's
version, this occurred involuntarily,
due to the effect of
prevailing conditions, and was corrected by putting the vessel hard
to port and back on the leading line
through the entrance to Duncan
Dock. Grelecki's evidence is that because the vessel was to be
berthed alongside the Eastern Mole
(also known as 'landing wall 1'),
which would be to the portside as the vessel entered the
Duncan Dock, he gave the
helmsman orders to move the wheel gradually to port as the ship
approached the entrance to the dock.
According to Grelecki, he
noticed, however, that the bow of the vessel instead started to veer
to starboard. He shouted orders
of 'hard to port' to correct this.
He simultaneously rushed over to the wheel from the position at
which he had been standing,
on the port side of the bridge, only to
find that the helmsman had swung it hard to starboard. Grelecki
testified that he had
then pushed the helmsman aside and himself
swung the wheel hard to port, but too late to avoid the glancing
collision with the
A-berth knuckle.
[15] The defendant
called Captain Woodend, a master mariner with extensive experience
as a pilot in various southern African harbours,
including Cape
Town, as an expert witness with the purpose of providing objective
confirmation of the reasonableness of Pilot
Grelecki's conduct in
regard to bringing the vessel into harbour.
[16] It was common
ground that two tugs had been sent out to assist with the docking of
the vessel and that it had been the intention
that the tugs make
fast as the ship traversed the basin before reaching the entrance to
Duncan Dock. It was also common ground
that the tugs in fact were
able to make fast only after the collision and at a time when the
vessel had already passed inside
the Duncan Dock.
[17] To understand the
evidence, it is necessary to have an idea of the physical
interrelationship of some of the salient features
around the harbour
basin outside the entrance to Duncan Dock. What the parties referred
to as
'the
basin' is defined on its seaward aspect by the breakwater on the
north western side and by the North Wall, which is part
of the
seaward wall of the Ben Schoeman Dock, to the south east. The
breakwater runs out from the land at an angle in a north
easterly
direction, while the North Wall runs outward from the seaward
boundary of the Ben Schoeman Dock in a north westerly
direction,
pointing towards the end of the breakwater wall on the opposite side
of the mouth of the basin. A vessel sailing in
an easterly direction
so as to pass the breakwater from the west, as did the
Banglar
Mookh,
would
ordinarily turn to starboard at an obtuse angle to cross the basin
following the leading line into Duncan Dock. The North
Wall and the
entrance to the Ben Schoeman Dock would be on the vessel's port side
as it crossed the basin; and the North Spur
on its starboard side.
The part of the basin immediately outside the entrance to Duncan
Dock is characterised by the North Spur,
which is a wall running out
in a north easterly direction from the seaward side of the A Berth
wall of Duncan Dock and, on the
southern aspect, by the South Spur,
being a wall running out in a generally north westerly direction
from the end of the quay
that comprises the boundary between the
southern edge of the Ben Schoeman Dock and what is known as the
Eastern Mole of Duncan
Dock. The walls of the North Spur and the
South Spur define, in effect, an inner basin immediately outside the
entrance to Duncan
Dock. As mentioned, the entrance to Duncan Dock
is between the knuckle of the A Berth wall and the knuckle of the
Eastern Mole.
10
[18]
Captain McAllister used the Google Earth internet program and the
nautical charts to establish the following measurements
of the
distances between the salient points. The differences between the
measurements obtained using these sources were minor,
but those
determined with reference to the Google Earth programme were, with
rare exception, either the same as, or consistently
a little bit
longer than those derived from the charts. As the longer distances
favour the defendant when it comes to calculations
directed at
estimating the average speed of the vessel as it traversed the
basin, I shall set out and refer only to the Google
Earth based
measurements
11
or
the only longer chart based one. These were:
from
the end of the A Berth knuckle to the end of the breakwater 1071,5m
from
the end of the breakwater to the end of the North Wall 722m
from
the end of the breakwater to the end of the North Spur 851m
from
the end of the North Wall to the end of the North Spur 509m
from
the end of the North Spur to the end of the A Berth knuckle 230m
from
the end of the North Wall to the end of the A Berth knuckle 676,3m
from
the No. 4 buoy to the end of the A Berth knuckle
1180m
(These distances were
calculated in straight-line measurements between the given points;
in other words, as the proverbial crow
would fly.)
[19]
It is also of assistance in understanding the evidence to have
regard to the distance a vessel will cover travelling at various

speeds. A table was produced in evidence describing these distances
at constant speeds varying between 5 knots and 9,5 knots.
12
It
suffices for present purposes to give three examples which afford a
sufficiently illustrative insight: at a constant speed
of 5 knots a
ship covers 154m a minute; at 7 knots, 216m a minute and at 9 knots,
278m a minute.
Captain Islam
[20]
Captain Islam is a young man; he was born in December 1973 and
therefore only 31 years of age at the time of the incident.
After
leaving school, he had undergone two years training at a maritime
academy in Bangladesh, whereafter, in 1995, he had commenced

employment with the plaintiff as a deck cadet. He had worked his way
up the ranks, serving on a variety of types of vessels,
until he was
given command of the MV
Banglar
Mookh
in
July 2005. The collision occurred during the vessel's first
assignment under his command. Captain Islam was still in the employ

of the plaintiff at the time he gave evidence. He had retained
command of the
Banglar
Mookh
for
a year or so after the collision and then gone on to command three
other vessels, including a container ship and a tanker.
[21] The general import
of Captain Islam's evidence has already been summarised. He
testified, with reference to extracts from
the ship's logs and
charts, that the pilot had come on board at 10h54, when the vessel
was outside the southern approaches to
the Cape Town harbour
somewhere off a marker described on the charts as 'the fairway
buoy'. Islam's evidence was that the instructions
received from port
control advised him to prepare for the pilot to board on the port
side. He stated that a radio message from
the pilot boat
subsequently countermanded this advice and indicated that the pilot
would board instead from the starboard side.
His evidence was that
due to the rough sea conditions the pilot was unable to board on his
first attempt and succeeded in doing
so only during a second pass by
the pilot boat. I should mention that Pilot Grelecki (supported by
Mr Hickman) disputed this
evidence and maintained that he had
boarded on the first (and only) pass of the pilot boat. The conflict
is curious, but nothing
turns on it.
[22] Captain Islam
testified that he met the pilot on the bridge and, in accordance
with usual practice, handed the pilot an information
sheet ('pilot
card') which set out the salient characteristics of the vessel,
including its mass and dimensions and the manoeuvring
speeds at the
various settings of the engine. A copy of the pilot card allegedly
handed to Grelecki was produced in evidence.
(The handover of the
pilot card was not minuted in the ship's bridge log, as required by
the owner's standing instructions.)
The pilot card reflected the
full sea speeds of the vessel in loaded condition as follows in
knots:
Full
ahead
9.0
Half
ahead
7.5
Slow
ahead
6.5
Dead
slow ahead
4.5'
(The speeds were also
given in respect of movements astern, but these were
indistinguishable from the speeds in respect of movements
ahead.)
Captain Islam testified that he had also explained to the pilot that
the engine operated in such a manner that if the
vessel was
travelling at a speed higher than 3 to 4 knots it was impossible to
alter the engine movements from ahead to astern
without first
stopping the engine.
[23] Pilot Grelecki
denied having been handed a pilot card and stated that Islam had
answered his enquiry as to the vessel's speed
at dead slow ahead by
giving the vessel's speed at that engine setting as 7.5 knots.
Grelecki's evidence at one stage was that
he had discounted this
advice as obviously incorrect. There might easily have been a
misunderstanding in communication between
the two witnesses on the
point. English is the first language of neither; and it was indeed
sometimes difficult during the evidence
of both witnesses to
decipher some of what they were saying. On any basis, I am
surprised, in the context of his rejection of
the reliability of
what his understanding of Islam's intimation was, that Grelecki did
not ask for a pilot card, or some similar
objective indication of
the vessel's handling characteristics. Under cross-examination,
Grelecki sought to assert that he had
in fact asked for a pilot
card. His evidence in this respect was unconvincing. It is
improbable that he would not have testified
to this effect during
his evidence in chief had his instructions to the defendant's legal
representatives indeed been as he claimed
under cross-examination. I
also have little doubt that the proposition that Grelecki had asked
the master for a pilot card would
have been put to Captain Islam had
the defendant's counsel been so instructed.
[24] Grelecki's version
was in any event undermined by his later statement under
cross-examination that he did in fact accept
the correctness of the
information passed to him by the master. This altered position was
later changed yet again when Grelecki,
in further evidence under
cross-examination, subsequently sought to revert to his initial
version that he had not believed the
master's advice. His
inconsistency under cross-examination makes it difficult to accept
his assertion that he took the vessel
up the channel at 6-7 knots at
half ahead, which is a speed less than the 7,5 knots it should have
reached with the engine at
half ahead if performance was in accord
with that indicated in the pilot card. I was left with the
impression that Pilot Grelecki
was in fact in no position to
reliably state the speed at which he took the vessel up the approach
channel.
[25] The relevant
approach channel towards the breakwater at the harbour mouth is
designated by four markers, being buoys no.s
2 and 4 on the portside
of vessels approaching the harbour and buoy no.1 and the end of the
breakwater wall on the starboard
side. Buoy no. 4 is directly
opposite the end of the breakwater. Captain Islam described that the
vessel entered the channel
under the pilot's control with the no.2
buoy on its port side. He described that the vessel proceeded up the
channel at half
ahead. The wind conditions had the effect of driving
the vessel to the east (i.e. towards the port side) while it made
its way
up the channel (the so-called 'easterly set'). Captain Islam
said that the pilot countered this by a combination of speed changes

and helm movements to keep the ship inside, but nevertheless towards
the eastern (i.e. seaward) side of the channel. In cross-examination

it was put to the witness that the pilot would deny that the vessel
had tended to drift to the east as it made its way up the
channel.
There is nothing in the engine log to support the making of changes
to the speed of the vessel at this stage, but it
would appear from
the evidence that slight alterations of course would, by themselves,
have the effect of steadying, or diminishing
the speed.
[26]
The master testified that the vessel had passed the breakwater at 11
hi6. There was some confusion and uncertainty apparent
when his
testimony in this regard was tested under cross-examination. It
seems probable that the witness fixed the time by reference
to the
entry to that effect made by the duty officer in the ship's record,
rather than by direct and contemporaneous observation,
or
independent recollection. One has no idea on the evidence precisely
what was denoted by the passing of the breakwater; that
is whether
the ship was regarded as having passed the breakwater when its bow
was abreast the breakwater, or whether it was when
the breakwater
was amidships, or only when the stern passed by the breakwater. This
was of some significance in respect of the
calculations to
reconstruct the vessel's average speed during the approach, but,
having regard to the vessel's overall length
of only 159 m, I
consider that the determination of the debate is hardly critical in
the context of the evidence assessed in
its totality. It is
convenient to mention at this point that there was also some
suggestion by the defendant's counsel that the
port authority
regarded the breakwater line as a line drawn obliquely across the
harbour basin towards the north wall rather
than in a straight line
from the end of the breakwater across to buoy no. 4. The evidence
confirms, however, that the concept
that the breakwater line fell to
be drawn obliquely is somewhat esoteric; and may only be applicable
for the purpose of the calculation
of port fees. In my view it is
evident that the ordinary person would draw the line to buoy no.4;
and it seems that is mostlikely
to have been the line the duty
officer would have had in mind when recording the passage of the
vessel past the breakwater.
13
[27] Captain Islam does
not appear to have been disconcerted or alarmed by the speed at
which the vessel travelled up the approach
channel. Nor does he
appear to have taken exception to the hard to starboard manoeuvre he
described as having been executed at
the pilot's instruction to
clear the North Wall. (It was put to him in cross-examination that
Grelecki would deny having given
an order of hard to starboard.)
However, Islam does appear to have been concerned about the speed of
the vessel thereafter as
it bore down on the North Spur. In fact he
says he checked on the speed just before the collision and noticed
that it was about
9 knots. According to his evidence, he asked
Grelecki whether the anchor should not be dropped to break the
vessel's forward
movement. On Islam's evidence it would appear that
it was apparent to him for some time after the vessel had entered
the basin
that there was a danger of collision with the harbour
walls.
[28]
Captain Islam maintained that he remained in the pilot's company and
engaged in how the ship was being navigated at all times.
This
evidence was contradicted by Pilot Grelecki, who testified that the
master of the vessel showed no interest in what he was
doing and
stood aside talking to one of his fellow officers during the passage
towards the harbour entrance. Whatever the actual
situation, it is
clear that the master took no steps to assert command as he was
legally entitled to do, and also enjoined to
do in terms ofthe
plaintiff company's standing instructions, in the event of his
perceiving that the pilot was putting the ship
in danger. Captain
Islam's explanation was that when it became apparent that matters
were going awry there was no time for him
to intervene effectively.
In this regard I consider that the evidence does suggest that when
the likelihood of a collision became
imminent, Pilot Grelecki
appears to have taken the appropriate measures to avoid it, and
when, notwithstanding these measures,
a glancing blow with the A
Berth knuckle nevertheless occurred, Grelecki acted expeditiously
and appropriately to avoid the stern
of the vessel also coming into
collision with the harbour structure as the ship cleared the
entrance to Duncan Dock. The ship's
master's failure to take back
control of the ship from the pilot when he became conscious of
impending danger therefore does
not seem to have played any
causative role in the unfolding events. Indeed, it is apparent from
the evidence of Grelecki, as
well as of both the expert witnesses,
McAllister and Woodend, that by the time Islam became concerned, the
approach to the entrance
of Duncan Dock could not feasibly have been
aborted.
14
[29] Captain Islam
testified that the helmsman and duty officer punctiliously complied
with the pilot's instructions. He denied
that that the helmsman had
at any stage steered hard to starboard in contradiction of an
instruction from Pilot Grelecki to steer
to port. He pointed out
that Grelecki should at all times have been able to observe the
course being steered by the helmsman
by referring to the rudder
indicator set in the deckhead in the bridge room and replicated
outside the bridgeroom on both the
port and starboard wings. He
disputed the proposition put to him in cross-examination that the
rudder indicator was impossible
to read from Grelecki's position in
the bridge room and uttered the opinion that basic requirements of
naval design would render
it imperative that the rudder indicator be
readily visible from all positions on the bridge. He disputed that
Grelecki had at
any stage physically taken control of the wheel and
swung it over from a hard to starboard to a hard to port position.
[30] When asked as
whether Grelecki had at any time complained about the helmsman in
connection with the collision, Islam confirmed
that there had been
such a complaint. He said that the complaints had been uttered
shortly before and then again after the collision.
The record of the
radio voice transmissions confirms that Grelecki complained about
the helmsman after the collision. The nature
of any complaints he
made before the collision was not explored. I shall treat presently
with Grelecki's evidence in this regard.
[31] Captain Islam
testified under cross-examination that Pilot Grelecki had returned
to the vessel on the evening of the day
of the collision and had
wandered about the vessel taking photographs. He noticed that
Grelecki was behaving strangely and was
giving off what Islam
regarded as an unpleasant odour, Islam expressed the opinion that
Grelecki may have been intoxicated. It
is common cause that Grelecki
returned to the vessel and took some photographs. Some of them were
produced in evidence and I
shall refer to them in the discussion of
Grelecki's testimony.
[32] The master of the
vessel confirmed that as a result of inspections by the maritime
safety authority in the port, the ship
was issued with a detention
notice until certain defects in the vessel and its equipment had
been rectified. Captain Islam was
reluctant to admit that these
faults were serious enough to warrant the action taken, but pointed
out that nothing is ever served
by arguing against a port
authority's requirements, the priority, instead, being to do
whatever might be necessary enable the
ship to resume its voyage as
soon as possible.
[33] It was evident that
the defendant's counsel sought to emphasise the defects found in the
vessel, not to suggest that they
were directly relevant to the
collision, but to support the evidence by the defendant's witnesses
that suggested general incompetence
and neglect of duty by the
ship's crew. The incidence of such incompetence, if established,
would, as I understood the defendant's
case, tend to support the
delay in making the tugs fast and the probability of the truth of
Grelecki's claim that the helmsman
acted in absolute contradiction
of his course directions.
[34] Captain Islam,
despite some faults, made a reasonably good impression in the
witness box. An assessment of his performance
was complicated by
evident language difficulties. His English was quite good, but so
heavily accented that there were frequent
occasions when both
counsel and I struggled to decipher his answers. Our evident
difficulties must have been rather disconcerting
for him. He also
had apparent problems, which I perceived to be linguistically based,
with lengthy or hypothetical questions.
He was, however, clearly
discomforted under cross-examination at times; most notably, when
the flaws in his evidence concerning
the document setting out the
manoeuvring characteristics of the vessel (Exh. A192) were exposed.
He also showed signs of holding
a cynical view of the attitude of
the port authorities, including the maritime safety inspectors. In
some respects this evident
cynicism was probably unjustified; on the
other hand, however, the failure by the port management, despite its
undertaking to
do so, to preserve the vessel tracking service
information that would have confirmed the exact movements of the
vessel in its
approach to Duncan Dock did afford a cogent basis for
this detectable attitude on the part of Captain Islam. Islam's
description
of the vessel's approach to the port and the collision
was not marked by any noticeable confabulation and was not upset in
cross-examination.
Pilot Grelecki
[35] Mr. Grelecki is
Polish by birth. He received a formal training in seamanship at an
academy in Poland, graduating with the
equivalent of a degree or a
diploma. He saw service on ships in Poland until the consequences of
his political affiliation with
the anti-government Solidarity
Movement during the 1980's led him to defect to what was then West
Germany. After a short time
in Germany, he secured a position
working with the harbour tugs at the port of Cape Town and
immigrated to South Africa.
He has worked as an
employee of the port authority at Cape Town since January 1990. He
became a tug master in Cape Town in 1995.
He obtained his first
pilot's licence for vessels with a gross tonnage of up to 10 000
tons in 1997 and started to act as a pilot
in 2000. At the time of
the incident which gave rise to the current litigation, Mr. Grelecki
was licensed to pilot vessels of
up to 30 000 tons. He had been
carrying out the duties of a pilot in the port fulltime since May
2005; and was formally appointed
as a fulltime pilot in November
2005. At the time of the trial, in May 2010, Mr. Grelecki continued
to hold the position of pilot;
and had by then obtained a licence to
pilot vessels with a gross tonnage of up to 80 000 tons.
[36]
I have already indicated in broad outline earlier in this judgment
the version of events given by Pilot Grelecki and also
discussed
some of his evidence in the context of treating with that of Captain
Islam. Grelecki took no issue with the entries
in the ship's records
indicating that he had boarded the vessel at 10h54. He accepted that
he had come on board shortly before
11h00; he had no reason to note
the time precisely. Grelecki testified that the helmsman, under his
instruction, turned the ship
to starboard to enter the approach
channel at the point between buoys no. 1 and 2 and made steady
progress up the middle of the
channel at a speed of 6-7 knots. The
steady course was maintained with minor movements on the wheel. He
testified that he was
completely satisfied with the helmsman's
response to the given course instructions. He described that the
modus
operandi
was
that he would call out the course instruction and that as it was
executed the helmsman would repeat the instruction to confirm
that
he had understood it. There were no problemswith communication.
[37]
Mr. Grelecki testified that at the stage the vessel crossed the
breakwater line (which he defined, consistently with what
have
indicated I would expect most people would do, as being the line
between the end of the breakwater and buoy no.4) it was
sailing in
the middle of the approach channel. He said that as the vessel
passed the breakwater he gave an instruction that the
engine be set
at full ahead. He explained that this was what he usually did at
that point to counteract the swell effect at the
end of the
breakwater, which he described as tending to push the bow of the
vessel towards the breakwater (i.e. to the starboard
side). Grelecki
had earlier testified that this particular type of vessel steered
more easily at speed and the intended effect
of the order to full
ahead at the passing of the breakwater was to improve the handling
of the vessel in the context of the aforementioned
swell effect. He
described the position as using a burst of the engine. The ship's
records suggest that the engine was kept at
full ahead for nearly
two minutes, which seems to me to be something quite different from
a burst of the engine.
15
When
he was testifying under cross-examination, however, Grelecki
testified that the veer to starboard just past the breakwater
had
taken him by surprise and stated that he had ordered the wheel to be
turned hard to
port, which he found it
expedient to assist with increased engine speed, hence the order at
that stage to set the engine at full
ahead.
[38] According to
Grelecki, the vessel was met by the two attending tugs as it reached
the breakwater. Grelecki explained that
the tugs remained within the
harbour basin and had not ventured out into the approach channel
because it would have been unsafe
for the tugs' deck crews to work
in the prevailing rough sea conditions outside the basin. Neither of
the tugs had been able
to make fast as the vessel passed into the
harbour basin. Mr. Grelecki ascribed this to the incompetence of the
vessel's crew;
the relevant deck stations, fore and aft, having
reportedly concentrated their attention on the bridge instead of on
the tugs
close alongside waiting for the heaving lines to be thrown
down to them from the vessel.
[39]
The failure of the tugs to make fast did not concern Grelecki. He
claimed that in respect of vessels the size of the MV
Banglar
Mookh
16
in
eight cases out of ten the tugs made fast only inside the dock. If
this is indeed the case, no explanation was given as to
why the two
tugs awaited the vessel at the breakwater, or as to why they made
valiant attempts to make fast to the ship before
it entered through
the entrance into Duncan Dock. As will become apparent presently, it
is evident from Grelecki's radio messages
to the forward tug at a
stage when it had become apparent that matters had gone seriously
awry he was under the impression (or
at least hoped) that the tug
was made fast and he sought to invoke its assistance to avoid the
collision. Indeed, I consider
that the concession by Captain
Woodend, who was called by the defendant, to the effect that the
tugs ideally should have made
fast with the vessel during the
crossing of the basin was properly made. I also accept Woodend's
evidence that Grelecki should
have been conscious of this and, in
ordinary circumstances, should, when it became apparent during the
crossing and before entry
into the Duncan Dock that the tugs had not
made fast, have concerned himself with finding out the reason why
the tugs had not
made fast.
[40] Pilot Grelecki
testified that once he had taken the vessel beyond the breakwater
line he was committed to proceeding into
the Duncan Dock and would
be unable to abort the approach. His evidence was that after he had
regained the leading line, having
corrected the spontaneous veer to
starboard that had occurred just inside the breakwater, the vessel
proceeded smoothly across
the basin towards the entrance to the
Dock, being maintained on the approach line by minor course changes
of no more than 5 to
10 degrees either to port or starboard. As he
anticipated entering the Dock and thereafter turning to port to
reach the berth
station, Grelecki gave orders during the approach to
the entrance for the vessel to commence a general and gradual turn
to port,
but was disconcerted that, notwithstanding his instructions
to the helmsman, the bow was turning to starboard. He rushed over to

the wheel and saw that the vessel was being steered to starboard.
Defendant's counsel twice asked him whether the wheel was hard
to
starboard and Grelecki answered on both occasions that he could not
remember. He said that he took hold of the wheel and swung
it hard
to port. The vessel started to correct itself, but too slowly to
avoid a glancing blow with the knuckle of the A Berth
wall. Grelecki
was adamant that when he took the wheel and swung it to port the
danger of imminent collision was with the knuckle,
and not with
North Spur.
[41] I have to say that
I perceived that Grelecki was noticeably discomforted in the witness
box during his evidence in chief
when describing the vessel's
approach across the basin to the point of collision. He became more
so under cross-examination.
I also found that his description of the
events markedly vague. It is clear that the collision was a
traumatic event in Mr. Grelecki's
life. He showed every sign of
still finding difficulty working through the experience nearly five
years after the event.
[42] His professed
inability, during his evidence in chief, to recall whether the wheel
had been turned hard to starboard was
perplexing and appeared to be
inconsistent with the answers counsel expected to elicit. As a
matter of inherent probability the
detail of the cause of the
incident would be one deeply engrained in the witness's mind. On
Grelecki's version it was the alleged
putting of the wheel to
starboard, instead of steering to port, that was the fundamental
cause of the collision. If Grelecki
had indeed seen the wheel swung
hard to starboard, I consider it most improbable that he would have
forgotten the fact. Grelecki's
written report to the port authority
made on the day of the collision, or the day thereafter, describes
the wheel having been
swung hard to starboard.
[43] A further
difficulty with Grelecki's allegation of a turn to starboard in
conflict with an order to steer to port is that
such an action by
the helmsman would be unlikely if the helmsman had repeated the
order in the manner described earlier. In his
written report to the
port authority Grelecki stated that he had repeated the instruction
three times and that the helmsman had
confirmed the instruction.
Such a blatant and persistent error on the part of the helmsman with
whom there had been no communication
problems whatsoever in the
preceding 20 minutes or so of sailing is improbable. That said, the
radio transmissions between Grelecki
and port control and the tug
boats show that he referred more than once in the few minutes after
the collision to the helmsman
having swung hard to starboard instead
of to port. In one of those of those transmissions Grelecki said the
helmsman had swung
the wheel to starboard despite having repeated
Grelecki's instruction to turn to port. In his comments on the radio
Grelecki
suggested that the helmsman had turned hard to starboard
when he had been instructed to turn hard to port. In the context of

his evidence in chief, however, the order hard to port was given
only in reaction to the bow having already noticeably veered to

starboard, in other words after the helmsman had already steered the
vessel in the wrong direction. This, in turn, was in contradiction

of the import Grelecki's reports soon after the collision.
[44] All in all Mr.
Grelecki's evidence in respect of the alleged error by the helmsman
was vague and inconsistent. As a result
it falls to be regarded as
unsatisfactory and unconvincing.
[45] As already
mentioned, equally unsatisfactory was Mr. Grelecki's evidence in
respect of the speed at which he piloted the
vessel into the basin.
He gave inconsistent
answers on the issue of whether or not he had accepted what he
testified was the information given to him
by the master as to the
speed of the vessel fully loaded at dead slow ahead. He stated that
he had used his wrist watch and the
estimated distance of the vessel
from various fixed points to work out the speed of the vessel. He
also said that he had a 'feel'
for what would be a comfortable speed
and that he had the ability, by adjusting the engine speed, to
either slow down or accelerate
the approach should he at any time
consider it necessary. He estimated that he achieved a speed of
between 6 and 7 knots in the
approach channel. He did not at any
stage have regard to the GPS instrumentation on board, which would
have given him an accurate
reading of the speed at which the vessel
was covering the ground.
[46] Having maintained
the vessel at half ahead throughout the voyage up the approach
channel, it seems probable that the vessel
would have achieved, or
closely approximated, the speed of 7,5 knots indicated in the
vessel's pilot card as the speed attainable
at that engine setting.
The relatively short period at the end of that transit during which
the engine was set at dead slow ahead
is unlikely to have taken much
speed off the vessel's advance because of the effect of its forward
way, or momentum. The evidence
of Captain McAllister, which seemed
to me in this respect to be fully in accord with what might be
expected, was that the combined
wind and sea conditions would have
tended to slightly assist the forward movement of the vessel up the
channel thereby slightly
increasing the speed at which it travelled.
[47] It follows from the
fact that during most of the period when it was traversing the basin
the vessel was piloted with the
engine at full ahead that the speed
reached during that part of the passage was probably in excess of
the approximately 7,5 knots
attained by the vessel when it passed
the breakwater. Indeed, the evidence by Captain Islam that he noted
that the speed of the
vessel was 9 knots shortly before the
collision is not implausible in the circumstances.
[48] Mr. Grelecki
confirmed Captain Islam's evidence that he (Grelecki) had returned
to the vessel, then tied up alongside, on
the evening of the date of
the collision. He denied that he had been drinking. He brought with
him his camera and took some photographs.
The evidence focussed on
his photographs of the rudder angle indicator inside the bridge
room. The point of the evidence appeared
to be to support the notion
that the rudder angle indicator was positioned in a manner that it
could not have been seen from
the position Grelecki had taken up on
the portside of the bridge room during the vessel's approach across
the harbour basin.
This notion, which, as I have mentioned, was
ridiculed by Captain Islam, was contradicted by the following
exchange between the
defendant's counsel and Grelecki:
Q.
You described, Mr. Grelecki, how as you were approaching the
entrance to Duncan Dock you took up a position on the port side
of
the bridge?—That's correct, Sir.
Q.
Why did [you] not take up a position nearer the helmsman or where
you could see the rudder indicator?—Because I could
see the
rudder indicator whilst staying right on the portside of the bridge,
the last window or the second window, because the
superstructures of
the cranes, they were obstructing my view and I couldn't see the bow
if I would be standing by the helmsman,
so I wouldn't be able to see
where I am going to
[49] Grelecki affirmed
the correctness of the proposition put to him by the plaintiffs
counsel, premised on Captain McAllister's
opinion, that a pilot
should position himself on the bridge in a position from which he
could see and read not only the rudder
angle indicator, but also the
gyro compass repeater and the rpm counter. This is the so-called
'conning position'. Grelecki conceded
that he had not taken up such
a position during the time that the vessel proceeded past the
breakwater and across the basin to
the entrance to Duncan Dock. He
denied that he had been negligent in this respect. His explanation
was that he had been entitled
to assistance from the bridge team,
who should have alerted him to any matter for concern. This was
hardly a satisfactory explanation
in circumstances in which the
pilot's evidence suggested he had no reason to repose any confidence
in the expectation of assistance
from the master or other officers
on the bridge.
[50] I found Mr.
Grelecki's evidence of the course of the vessel across the basin
most unconvincing. He was unwilling to make
concessions which
objective factors impelled should have been made. He was extremely
reluctant, for example, to concede that
after the first veer to
starboard described in his evidence the vessel must have been taken
to the westward side of the approach
line. He was at something of a
loss, when taxed on the point by the plaintiff's counsel, to explain
how his described manoeuvres
allowed him to regain the approach line
without a corrective turn to starboard after he had made what he
described as his first
turn hard to port. His description of where
the vessel was in the basin at the time of the emergency allegedly
caused by the
helmsman's aberration was irreconcilable with the
distance the vessel must have covered during the final two to two
and half
minutes even if it were travelling at a speed of only about
5 knots at that stage, as maintained by Grelecki, and not at the

much higher speed described by Captain Islam. His refusal to concede
that the vessel was to the side of the approach channel furthest

from the end of the breakwater as it came into the basin was
inconsistent with his description to Captain Woodend that he had
had
the vessel steered on a course to put the no. 4 buoy 'fine on the
port bow'.
Mr. Le Blond
[51]
The defendant also adduced the evidence of Mr. Pierre Le Blond, who
was the master of the tug boat,
Enseleni,
which
was one of the two tugs despatched by port control to assist in the
docking of the
Banglar
Mookh.
The
Enseleni
was
designated to attach itself to the rear or stern of the
Banglar
Mookh.
This
entailed bringing the tug up very close to the transom of the
Banglar
Mookh
to
receive the heaving line to be thrown down to the tug by the
vessel's deck crew. In my judgment, Le Blond's evidence contributed

nothing material to assist in the determination of liability in this
case. It is evident that Le Blond's main concern during
the material
stages of the
Banglar
Mookh's
approach
across the basin towards the entrance to Duncan Dock was to secure
an attachment to the vessel. There were problems in
this regard,
which Le Blond ascribed to incompetence on the part of the crew
station posted for this purpose on the aft deck
of vessel. Le
Blond's forward view was entirely blocked by the bulk of the
Banglar
Mookh.
Apparently,
because of that, and because his attention was focussed on the issue
of making fast, Le Blond was unaware of the two
sharp turns executed
by the
Banglar
Mookh
as
it made its way across the basin. He was also unaware of anything
unusual in the approach of the vessel to the entrance of
Duncan Dock
that might explain the occurrence of the collision. While he
admitted that he was alerted by the content of radio
transmissions
by Grelecki during the two to three minutes before the moment of
collision that some sort of emergency situation
had arisen, he said
that he was unaware of its nature, or what might have given rise to
it.
[52]
It would seem that the main purpose that the defendant sought to
achieve through Le Blond's evidence was to contradict the
evidence
adduced by the plaintiff, which suggested that Grelecki had steered
the vessel under pilotage at an excessive speed
across the basin to
the point of collision. While Le Blond testified that he recalled
nothing untoward in the speed of the
Banglar
Mookh,
it
is apparent that he was taking no special notice of the speed and
that it would have been well within the capacity of the tugs
to
follow the vessel at any speed up to that of 9 knots mentioned by
Captain Islam. Under questioning in re-examination, Le Blond
stated
that he would have noticed if the vessel had been going 9 knots when
it passed the breakwater because he would have had
difficulty
catching up with it before it reached a place well into the basin. I
did not find this evidence particularly illuminating,
as the
evidence suggests that an increase in the speed of the vessel would
have occurred after it had already entered the basin
and at a time
when it was being steered at full ahead; having passed the
breakwater at a stage when the engine was set to half
ahead or dead
slow ahead. As already observed,
the increase in speed would have
been one from an already relatively high
rate of about 7,5 knots.
Le Blond, perhaps because he was distracted for the
reasons
already mentioned, did not pertinently notice any increase in
the
speed of the vessel.
J
Mr.
Anthony Stein
'
[53]
The defendant also called the chief engineer of the forward tug, the
Pinotage.
(The
master of the forward tug had passed away in the period intervening
before the trial.) I do not consider it necessary to
say much about
the evidence of the engineer, Mr. Stein. His evidence was to the
effect that at the time of the collision, the
bow of the
Banglar
Mookh
was
still pointed to starboard. That observation is quite inconsistent
with the evident mechanics of the collision and with the
evidence of
both Captain Islam and Pilot Grelecki. Stein's recollection that the
bow of the
Banglar
Mookh
sheered
to starboard just after the bow passed the point of the North Spur
is also irreconcilable with the evidence that a period
of
approximately two and a half minutes intervened between Grelecki's
urgent call to the
Pinotage
to
assist in pulling the bow to port and the moment of impact. The
distance between tip of the North Spur and the tip of the A
berth
knuckle with which the starboard bow came into collision was about
230m and even had the vessel been moving at only 5 knots
is a
distance its bow would have traversed it in just a minute and a
half.
Mr. Hendrik Hickman
[54]
Mr. Hickman was the skipper of the pilot boat,
'Petrel,
which
had delivered Mr. Grelecki to the
Banglar
Mookh.
His
evidence added nothing of substance. It is not necessary to describe
it.
Captain Stuart
McAllister
[55] Captain McAllister
has been a master mariner since 1979. He was an employee of the
erstwhile South African Marine Corporation
(Safmarine) for many
years - and between 1995 and 2000 was marine manger responsible for
maritime safety on all the Safmarine
vessels. Since 2000 he has
worked continuously as a ship's master engaged in international
trade in the employ of the international
container shipping company,
Maersk. He has extensive experience, as a ship's master, in bringing
vessels in and out of the port
of Cape Town.
[56] The essence of
Captain McAllister's evidence was that it is important that a pilot
should not bring a vessel into port at
excessive speed. Captain
McAllister pointed out that while proceeding at a relatively high
speed might give rise to good steerage,
it reduces the pilot's
ability to control the vessel within the dangers presented by the
confines of a harbour. The pre-eminent
duty of a pilot, so testified
Captain McAllister, to is to keep the vessel under full control and
to manage its progress in a
pro-active, rather than a re-active,
[57]
Captain McAllister had regard to the following information: the
boarding of the vessel by the pilot at approximately 10h54,

approximately one nautical mile distant from the fairway buoy
indicated on chart 1846 (Exh. A 194), and the occurrence of the

collision thereafter at a reported time of 11h20. He also had regard
to the engine room log and bridge note book of the vessel,
which
recorded the engine room movements and corresponding engine orders.
Captain McAllister also had regard to the voice recordings
of
exchanges between the pilot, the tugs and port control and, of
course, to the layout of the port and the approach thereto,
as
apparent on the charts.
17
(There
are some inconsistencies between the engine room log and the bridge
note book. There is also at least one demonstrable
inaccuracy in the
bridge note book. Nevertheless, read together, with appropriate
caution, and in the context of the evidence
as a whole, the
documents do provide a source of relevant insight.) In formulating
the opinion set out in the summary of his
evidence delivered in
terms of rule 36(9)(b), Captain McAllister had reference to what he
was informed would be the evidence
of Captain Islam. A synopsis of
the report of Islam's evidence set out in paragraph 37 of the rule
36(9)(b) summary corresponded
in essential respects with the
evidence actually given by Islam, which has already been described.
[58] On the basis of the
prevailing weather conditions, the description provided by Captain
Islam and the cross-checking control
afforded by the voice
recordings, Captain McAllister opined that the vessel had been
brought up the easterly (seaward) side of
the approach channel with
the use of a combination of speed and steering to starboard to
counter the easterly drift. In the witness's
opinion the high speed
of approach, coupled with the positioning of the vessel to the
eastern side of the approach channel as
it arrived at the position
at which a turn to starboard was required to line up with the
leading lights of the approach into
the Duncan Dock, resulted in a
loss of control manifested in the vessel's drift towards the North
Wall on the eastern side of
the basin, which necessitated reactive
steps by the pilot in the form of an increase of speed to improve
steerage and a hard
turn to starboard. The limitations imposed by
the physical confines of the basin required the last-mentioned
manoeuvre to be
followed by a turn hard to port to avoid the vessel
coming into collision with the North Spur on the south western side
of the
basin.
[59] Captain McAllister
submitted a number of calculations made with reference to the
determined distances between various points
on the chart (Exh. J).
These suggested that the average speed of the vessel during the
passage from the pilot pick up point to
the point of collision was
more than 7 knots. The witness did not suggest that these
calculations were definitive. He could not
do so because it was not
possible to precisely determine various factors such as the exact
place at which the pilot had boarded,
the speed of the vessel when
the pilot boarded and the precise course of the vessel. Captain
McAllister also accepted that the
times he had to work on, whether
from the ship's records or those determined from the port's voice
recordings, were also approximate,
even if closely approximate.
Despite these acknowledged shortcomings, Captain McAllister
suggested that the calculations provided
a useful guide, which
corroborated his assessment that the vessel had been brought in by
the pilot at a speed which was excessive
in the circumstances.
[60] Captain McAllister
was further of the opinion that the aforementioned inappropriately
high speed of advance was responsible
for the failure of the tugs to
make fast and be in a position 'to render timely assistance'.
[61]
According to Captain McAllister, the pilot's errors were
cumulative.
This was an approach echoed in argument by the
plaintiff's counsel, who
submitted that it was the cumulative
character of a succession of negligent
acts that justified the
characterisation of the alleged negligence of Pilot
Grelecki as
gross.
'
[62] Captain McAllister
impressed as an articulate and self-confidant witness, who succeeded
in providing a rational and easily
comprehensible foundation for the
opinions which he ventured. He candidly conceded that his approach
was reconstructive in nature
- that he had worked backwards from the
given fact of the collision to determine why it had happened. In
assessing the witness's
opinion I have been astute to caution myself
against the danger of being led by it into judging the conduct of
the pilot too
stringently with the benefit of wisdom after the
event.
Captain John Woodend
[63] Captain Woodend has
been active in shipping for more than 50 years. He qualified as a
master mariner (foreign going) in 1964.
He immigrated to South
Africa from England in 1966 and was an employee of the defendant and
its various predecessors as the port
authority in this country from
then until 2000. During that time he served variously as a tug
master and pilot in a number of
ports in the Cape, including Walvis
Bay. He has served as Port Captain/Manager in the ports of Saldanha
and Cape Town. Since
2000 he has been in private practise as a
marine consultant.
[64] Captain Woodend
agreed with the proposition put by the plaintiff's counsel in
cross-examination that the summary of events
set out in paragraph 6
of the summary of evidence filed in terms of rule 36(9)(b) was
premised on the version he had been given
by Pilot Grelecki. Captain
Woodend conceded that having listened to Grelecki's evidence in
court there were certain differences
between the version originally
given to him by Grelecki, as he had understood it, and the latter's
testimony in the witness box.
[65]
In evidence Captain Woodend stated that there would have been
nothing amiss about the vessel reaching the breakwater and
entering
the basin at a speed of up to 7,5 knots. This differed somewhat from
the tenor of his expert summary, in which a speed
of approximately 6
knots was given as the speed which the witness would have been
comfortable with. I gained the impression from
Woodend's evidence
that the matter of speed was very much one of value judgment on the
part of the pilot, having regard to the
manner in which a particular
vessel handled in the prevailing conditions. Nevertheless the
adjustment from 6 to 7,5 knots was
but one of a number of
indications of a tendency by Captain Woodend to tailor his opinion
to support Grelecki's evidence, whichever
version of the events such
often inconsistent evidence might offer. Another example of this
tendency was Captain Woodend's trenchant
defence of Grelecki's
failure to check the actual speed of the vessel on the available
instrumentation rather than by relying
on his observation of the
passage of the vessel 'over its transit' relative to various fixed
features. I found this really overdriven
when Captain Woodend
maintained he would himself not check the instrumentation even if he
were in doubt about the given speed
of the vessel as at dead slow
ahead and half ahead provided by ship's master. The most glaring
example of Captain Woodend's tailoring
of opinion to fit the
evidence of Mr. Grelecki was his indication of the point at which he
thought the bow of the vessel would
have been when the hard to port
orders would have been given before the collision as being at the
'o' of the 'to' in the notation
Dredged
to 14,6m (1998)'
on
chart 1846 (Exh. A 194), just outside the entrance to the Duncan
Dock. That indication tallied with the indication marked with
an 'F'
by Grelecki on the chart (with reference to the adjusted time of
11h17 55 indicated in green on Exh. E). Captain Woodend
did retreat
from that indication when its non-feasibility was demonstrated to
him with reference to the time of approximately
two minutes between
the time of that order and the collision, but it was extraordinary
that he could initially have ventured
the opinion which he did in
this respect. The witness however then compounded the adverse effect
on the cogency of his testimony
by subsequently reverting to his
initially stated entirely untenable hypothesis. His explanation for
doing so was that he had
nothing to go by except the information
given to him by Grelecki. He seemed extremely reluctant, when
pressed, to question the
reliability of what he had been told by
Grelecki; even in the context of the difficulties posed for
Grelecki's version by the
objectively established considerations of
time and distance.
[66] Captain Woodend
confirmed that a course to set the vessel, during its approach up
the channel, fine off the number 4 buoy
(meaning less than half a
point - i.e. less than five to six degrees off the buoy) would
result in the vessel passing the breakwater
on the eastern side of
the approach channel. He also conceded that for the vessel to be in
the position marked by Grelecki with
the letter 'B' on the chart at
Exh. A194, the vessel must have approached it from the eastern side
of the channel.
[67]
In my judgment, the effect of Captain Woodend's evidence was
undermined by an a
priori
and
generally inflexible presumption in favour of the factual
correctness of Mr. Grelecki's version of events. Towards the end
of
his evidence, and in answer to a question from the court, Captain
Woodend fairly conceded that his opinion would have been
different
in certain respects were it to have been premised on an acceptance
of Captain Islam's evidence. Despite the identified
shortcomings in
Captain Woodend's testimony, I have been conscious, where it is has
been possible in the context of the factual
findings, to weigh the
judgments of the two expert witnesses against eachother remembering
that Captain Woodend's evidence is
that of an experienced pilot; an
advantage not enjoyed by Captain McAllister.
The VTS records
[68]
The material differences in the evidence of the two principal
witnesses in respect of the vessel's approach in the lead up
to the
collision are by this stage clearly apparent. An objective and
reliable record of the relevant detail should have been
available in
the form of the information collected by the vessel tracking service
(VTS). The plaintiff's legal representatives
sought insight into the
VTS record on the very day of the occurrence of the collision. The
port authority declined to allow the
VTS record to be inspected, but
undertook to ensure that a copy of the record was preserved for
production at the appropriate
time should litigation ensue. As it
happened, for reasons that were not satisfactorily explained,
18
the
VTS record was not retained and was not available for production at
the trial.
[69]
Relying on a line of English authority reviewed in
Arrow
Nominees Inc & Anor v Blackledge & Ors
[2000]
EWCA Civ 200
(22 June 2000)
[2000] EWCA Civ 200
; ;
[2000] 2 BCLC 167
(CA);
[2001] BCC 591
,
at para.s 30-34, Mr. MacWilliam SC, counsel for the plaintiff,
argued that the defendant's failure to preserve and discover
the
complete VTS records should result in the defendant forfeiting its
right to defend the action and in judgment in the plaintiff's

favour; effectively, as if by default. In this regard Lord Justice
Chadwick, writing the principal judgment in
Arrow
Nominees,
observed
(at para. 54):
I
adopt, as a general principle the observations of Mr Justice Millett
in
Logicrose
Ltd v Southend United Football Club Limited (The Times, 5 March
1988)
that
the object of the rules as to discovery is to secure the fair trial
of the action in accordance with the due process of the
Court; and
that, accordingly, a party is not to be deprived of his right to a
proper trial as a penalty for disobedience of those
rules - even if
such disobedience amounts to contempt for or defiance of the court -
if that object is ultimately secured, by
(for example) the late
production of a document which has been withheld. But where a
litigant's conduct puts the fairness of
the trial in jeopardy, where
it is such that any judgment in favour of the litigant would have to
be regarded as unsafe, or where
it amounts to such an abuse of the
process of the court as to render further proceedings unsatisfactory
and to prevent the court
from doing justice, the court is entitled -
indeed, I would hold bound - to refuse to allow that litigant to
take further part
in the proceedings and (where appropriate) to
determine the proceedings against him. The reason, as it seems to
me, is that it
is no part of the court's function to proceed to
trial if to do so would give rise to a substantial risk of
injustice. The function
of the court is to do justice between the
parties; not to allow its process to be used as a means of achieving
injustice. A litigant
who has demonstrated that he is determined to
pursue proceedings with the object of preventing a fair trial has
forfeited his
right to take part in a trial. His object is inimical
to the process which he purports to invoke.
In
Arrow
Nominees,
the
petitioner had falsified documentary evidence in support of an
application for a buy-out order in terms of the English Companies

Act. When this was exposed, an application had been made for the
striking out of the claim. The striking out application was
refused
and that refusal was, in part, the subject of the appeal heard by
the Court of Appeal. It gave rise to a debate about
the
circumstances in which a court might exercise a power to strike out
a claim or defence in circumstances such as one in which
a party
failed to make proper discovery, thereby prejudicing thepossibility
of a fair hearing before the court. As Mr. MacWilliam
illustrated
with reference to other authority, including Australian and American
cases, the concept of a striking out has not
been restricted to
deliberate or fraudulent conduct by the offending party. It has also
been applied, irrespective of fault,
to a party which, even for
innocent reasons, fails to make discovery of material the production
or availability of which is necessary
for the conduct of a fair
hearing. There is no South African jurisprudence directly on point;
although, of course, rule 35(7)
of the Uniform Rules does put a
party in default of its discovery obligations in jeopardy of having
its claim or defence struck
out by the court in the exercise of its
judicial discretion.
[70]
I have found it unnecessary to decide whether, or how the approaches
evident from the various foreign authorities referred
to by Mr.
MacWilliam should, or might be applied in this country. The
plaintiff's counsel predicated his invocation of that authority
on
the 'fair hearing' component of the right enshrined in s 34 of the
Constitution.
19
I
am not persuaded by the available evidence that the loss of the VTS
records, culpable and inexcusable as it was, happened in
bad faith.
The notion that the inability of a party to make full discovery by
reason of the negligent loss of documentation should
result in the
arbitrary adverse determination of the case against such party does
not sit easily. In the current case it is possible
to determine the
facts on the basis of the available direct evidence by
eye-witnesses, which is amenable to analytical scrutiny
in the
context of objective factors and the surviving recordsin the form of
voice transmission recordings. That the result might
be less safe
than it might have been if the VTS records been available is
insufficient reason to hold that a fair hearing was
not achieved. By
way of analogy it might be observed that, ideally, the court would
also have been assisted in arriving at a
'safe' result by a
consideration of the evidence of the helmsman and the duty officer
on board at the time of the incident. The
fact that they could not
be traced necessitated the determination of the case in less than
ideal circumstances, but their absence
did not exclude a fair
hearing in the relevant sense. The conclusion to which I have come
in this respect is, in my view, entirely
consistent, albeit
incidentally, with the approach enunciated in the
dicta
in
Arrow
Nominees,
quoted
above.
20
In
the circumstances, it is also unnecessary to consider the argument
by the defendant's counsel that in the absence of a substantive

application by the plaintiff to strike out the defendant's defence
it was incompetent for the plaintiff to contend for judgment
on the
basis that the defendant's defence fell to be struck out by reason
of its failure to retain the VTS records.
[71]
Fortunately, as mentioned, a record of radio transmissions between
the pilot and the tugboats and port control did survive.
It affords
important assistance in any attempt to reconstruct the events; and
also as a valuable crosscheck against the eye witnesses'
testimony.
The record of radio transmissions reflects the times that the
transmissions were made. The time indications are not
true however.
I have already referred to the adjustments worked out by Mr. Cox so
as to render a more accurate chronology. While
the precise moment of
impact of the vessel against the knuckle cannot be established to
the exact second, it is accepted by all
parties that it was closely
approximate to 11h20. The adjustments were predicated on the
assumption that the collision had occurred
at precisely 11h20.
Therefore, while the adjusted radio transmission times offer
material assistance, they do not suffice completely
to compensate
for the precisely accurate reflection of the chronology and
sequencing of events and movements that the missing
VTS records
would have provided. The times are, of course, a true reflection of
the relative times in abstract
vis
a vis
each
other of the respective radio transmissions. I shall hereafter refer
to the transmission record with reference to the adjusted
(or
'synchronised') times calculated by Mr. Cox, and indicated in green
font on Exh. E.
[72] The radio
transmission records do tend to confirm the accuracy, certainly to
the nearest minute, of the material entries
in the ship's records
that would have been made as the vessel made its approach to the
Duncan Dock.
[73]
The initial exchanges between the pilot from the bridge of the
Banglar
Mookh
and
the pilot boat ('the
Petrel)
took
place between 10h54,38 and 10h54,42, which confirms that the pilot
probably came on board at about 10h54 as reflected in
the ship's
log.
[74]
The first exchange between the pilot and the tugboats about making
fast took place at 11 hi7,32. The master of the forward
tug reported
that his messenger line was going up at 11h17,36. Having regard to
the evidence that the tugs were expected to make
fast after the
Banglar
Mookh
had
crossed the breakwater line and the evidence that the process of
making fast ordinarily took between two and three minutes
if
efficiently carried out, the time of the exchange between the
forward tugboat and the pilot supports the reasonable accuracy
of
the entry in the ship's bridge notebook reflecting that the vessel
passed the breakwater at 11h16.
[75] The recording
demonstrates that at 11h19,18 Grelecki was shouting (apparently to
the forward tug, which it will be recalled
had not made fast before
the collision) 'Bow full to port' and that at 11 h20,19 he
instructed 'Pull the bow to starboard now.
(Eh!) (an exclamation)'.
This falls to be understood in the context of Grelecki's evidence,
supported in this instance by Captain
Islam, that the vessel was
being put hard to port immediately before the collision and
Grelecki's further evidence that immediately
after the collision he
put the bow of the vessel hard to starboard to avoid the stern also
coming into collision with the hard
structure of the harbour. The
latter manoeuvre being one which everyone seems to have accepted as
an appropriate and quick­witted
decision by Grelecki in the
circumstances immediately after the collision. These recordings
therefore support the collision having
occurred after 11 hi9,20 and
before 11h20,19.
[76] Having regard to
the measured distance in a straight line between the end of the
breakwater and the knuckle with which the
vessel came into collision
(1070m), and bearing in mind that on either version the vessel must
have traversed a greater distance
than that in its passage between
the breakwater and the knuckle, it is evident that the average speed
of the vessel during its
transit of the basin was certainly in
excess of 7 knots (assuming the transit took 5 minutes rather than
four), and quite possibly
as high as 9 knots (assuming the transit
took precisely four minutes). Having regard to the slowing effect of
two extreme rudder
movements executed during the transit, the
average speed is likely to have been higher than lower within that
range.
Conclusions on the
facts
[77] For the reasons
given earlier in this judgment concerning its inherent improbability
and lack of reliability, I reject the
evidence of Mr. Grelecki that
he was placed in a situation of sudden emergency as a consequence of
the helmsman steering the
vessel in direct contradiction of the helm
orders.
[78] I also reject Mr.
Grelecki's evidence as to the position of the vessel in the approach
channel as it went by the breakwater.
The evidence of Captain Islam
that the vessel passed the breakwater close to the seaward boundary
of the channel furthest away
from the end of the breakwater, rather
than in the middle of the channel as testified by Grelecki, is
supported by the instructions
given by Grelecki to Captain Woodend
that he had steered a course up the approach channel so as to place
the portside bow fine
on the no. 4 buoy; and also by the position in
which the vessel found itself, to the west of the leading line and
bearing down
on the North Wall, when the turn from the channel into
the basin was commenced.
[79] Accepting that the
vessel entered the basin from the approach channel in that position
tends to exclude the sea effect at
the end of the breakwater, which
Mr. Grelecki sought to ascribe as the most likely cause of what he
alleged was the spontaneous
veer to starboard just after the vessel
had entered the basin. Instead, the description of events given by
Captain Islam to the
effect that the veer to starboard during the
first part of the vessel's transit of the basin followed a helm
order by Grelecki
of hard to starboard coupled with an order to
increase the engine speed impresses as being in accordance with the
probabilities.
This is because in the prevailing conditions it is
apparent that by proceeding up the approach channel at half ahead
for about
17 minutes it is probable that the vessel must have
entered the basin at a speed of at least 7 knots. That the vessel
must have
been covering the ground at a speed exceeding 7 knots when
it passed the breakwater is also supported by its achievement of the

range of speed referred to earlier at which it can be calculated it
crossed the basin between the breakwater and the point of
collision.
The combination of relatively high speed and the effect of the near
gale force wind on the ship's accommodation as
the vessel commenced
a turn from a position on the seaward aspect of the approach channel
to line up with the leading lights
would quite feasibly result in a
drift to the eastern side of the leading line with the vessel
thereby being placed in the position
of concern with regard to the
North Wall, as described by Captain Islam.
[80] It is common ground
that once Mr. Grelecki had commenced a turn to enter the basin, he
was committed to proceeding and there
could, at that stage, be no
aborting the entry into the basin. In those circumstances a turn
hard to starboard with increased
speed would present as the obvious
and necessary means of countering the easterly set which had put the
vessel in danger of collision
with the North Wall. The difficulty,
however, is that within the relatively narrow confines of the basin
- the distance between
the North Wall to the east and the North Spur
to the west being of the order of only 500 metres - the turn to
starboard would
place the vessel on a bearing towards the North
Spur. At a speed of 7 knots the vessel would cover the distance in
approximately
two minutes. The distance between the structures was
too narrow to allow the vessel to be sufficiently slowed down
because of
the effect of its forward way. That would explain, as
described by Captain Islam, why Grelecki, shortly after the turn
hard to
starboard had been executed, ordered a further turn hard to
port.
[81] Having regard to
the dimensions of the basin and the fact that the turn hard to port
was ordered more than two minutes before
the collision, and
therefore at a time when, even accepting an average speed of 7
knots, the bow of the vessel was more than
430 metres steaming
distance from the A berth knuckle, I am left in little doubt that
Mr. Grelecki's immediate concern, at the
time he gave the orders of
hard to port, was to avoid a collision with the North Spur.
[82] If am incorrect in
this regard, and the position was instead, as maintained by
Grelecki, a concern about a collision with
the A Berth knuckle, the
misdirection would be of little moment. It is evident from
Grelecki's enquiries, commencing at 11h17:32,
as to whether the
forward tug had made fast that he already at that stage considered
that tug assistance to move the bow to port
to clear the entrance
into Duncan Dock would be necessary.
Grelecki's evidence was
that in ordinary circumstances he would not concern himself with
whether the tugs had made fast during
the transit of the basin and
would wait for the tug masters to inform him of the fact rather than
initiate an enquiry. This conduct
is an impelling indication that
Grelecki appreciated at least three minutes before the collision
that the entry into Duncan Dock
was not going to be uncomplicated.
Indeed, listening to the voice recording (Exh. D), a tone of
increasing anxiety is evident
in Mr Grelecki's speech from the
transmission at 11 hi8:12 (a stage when he had been informed he
forward tug was not yet fast)
until after the collision had
occurred.
[83] I therefore hold,
consistently with the opinion articulated by Captain McAllister,
that the collision occurred as a consequence
of a loss of control of
the vessel by the pilot during its transit of the passage to the
entrance to Duncan Dock. The loss of
control was essentially a
result of Mr. Grelecki having made the approach at an excessive
speed in the circumstances. There is
no doubt that Grelecki's
conduct in this regard fell short of that expected of a pilot and
that he was therefore causally negligent
in respect of the damages
sustained by the plaintiff as a consequence of the collision.
[84] The glancing nature
of the collision suggests that with tug assistance the casualty
would probably have been averted. It
is common ground that in the
ordinary course a tug should be able to make fast within two to
three minutes. In the current case
it is evident that it took much
longer than usual for the tugs to make fast. I consider that it is
probable that a number of
factors contributed to this. The speed and
course taken by the vessel over the basin is likely to have hindered
rather than assisted
the process. This is exemplified by the fact
that the forward tug had to take avoiding measures to escape being
caught between
the vessel and the harbour structures shortly before
the collision occurred. I am also of the view that the making fast
of tugs
was impeded by inefficiency on the part of the crew of the
vessel stationed fore and aft. There were adverse comments on this
by the crew of the tug boats within the course of the radio
exchanges on the voice recordings. Their tenor is consistent with

the evidence of Captain Le Blond and Mr. Stein about their
observations. However, in view of the result of the case, it is

unnecessary to determine whether it has been proven that this
inefficiency constituted contributory negligence as alleged in

paragraph 10.2 of the defendant's amended plea.
Gross negligence
[85] It will be recalled
from the discussion in the introductory section of this judgment
that, in order for it to avoid the exemption
from liability in terms
of item 10(7) of the Schedule, read as construed in preceding cases,
the plaintiff was required to prove
that the pilot had been grossly
negligent in a relevant sense.
[86]
In
MV
Stella Tingas: Transnet Ltd v Owners of the MV. Stella Tingas and
Another,
supra,
at para. [7], Scott JA noted that 'Gross negligence is not an exact
concept capable of precise definition.' After describing
the
treatment of the concept in a number of judgments and also by
textbook writers on Roman Law, the learned judge of appeal

concluded:
'It
follows, I think, that to qualify as gross negligence the conduct in
question, although falling short of
dolus
eventualis,
must
involve a departure from the standard of the reasonable person to
such an extent that it may properly be categorized as extreme;
it
must demonstrate, where there is found to be conscious risk-taking,
a complete obtuseness of mind or, where there is no conscious

risk-taking, a total failure to take care. If something less were
required, the distinction between ordinary and gross negligence

would lose its validity.'
Implicit
in that statement in the current context, just as it was in the
context of the
Stella
Tingas,
is
a caveat that in matters like this the court has to be astute not to
render the applicable statutory exemption from liability
nugatory.
[87] In assessing the
extent of Mr. Grelecki's departure from the conduct reasonably to
have been expected from a pilot properly
fulfilling his duty I do
not consider that the case is one in which it can fairly be said
that Grelecki involved himself in what
could be described as
conscious risk taking. The evidence did not establish that Grelecki
brought the vessel into the port conscious
of a danger that his
manner of piloting risked bringing the vessel into collision with
the harbour structures, but unreasonably
judging that the risk
entailed in his method was justified by the means. Thus, in my view,
the relevant enquiry is whether it
has been established that there
was a total failure to take care by Grelecki, such as to justify the
categorisation of his negligence
as extreme. In undertaking the
exercise, it is, of course, necessary to do so on an established
basis of fact. I should make
it clear that, where there is a
conflict in the factual evidence, my assessment is based on an
acceptance of the account of Captain
Islam, save only that I have
been unable to determine, one way or the other, whether the pilot
was handed a pilot card.
[88]
Mr. Grelecki brought the vessel up the approach channel and dealt
with the easterly set by using rudder movements to keep
within the
channel. Nothing about the speed of his approach, or his piloting
method alarmed the master of the vessel at that
stage. Taking into
account the various factors to which reference has been made in the
context of the summary of the evidence
set out earlier, Captain
McAllister concluded that the speed in the approach was excessive by
reason of the fact that the collision
occurred. He did not, however,
venture what an appropriate or acceptable speed would have been,
save to say that the approach
should have been slower so as to allow
the pilot latitude to deal safely with the unexpected and to give
the tugs adequate opportunity
to make fast before the entrance to
the Duncan Dock was reached. The evidence of Captain Woodend, an
experienced pilot, was to
the effect that it was feasible to bring a
vessel like the
Banglar
Mookh
in
at a speed of up to 7,5 knots. I gained the impression though that
this opinion fell to be qualified by the effect of prevailing

conditions and the angle of approach from the breakwater. It seems
to me that in approaching the basin at or about the upper
limit of
what Captain Woodend would regard as an acceptable range of speed
Grelecki failed to position the vessel within the
channel so as to
be able to line it up with the leading lights with a less acute turn
to starboard than was required if the vessel
were set to the seaward
aspect of the space between the end of the breakwater and buoy no.
4. I have already described the effect
of this error above. It is
also pertinent to note that in venturing the opinion he did, Captain
Woodend must be taken to have
implied that a pilot would be
conscious of the speed at which the vessel under control was
entering the basin.
[89] I consider that in
the reasonable and professional discharge of his duty Grelecki
should have had regard to the instrumentation
to check his speed of
approach. I have already held that Grelecki does not appear to have
had a reliable estimation of the speed
of approach. Captain Woodend
opined that a pilot will have a 'feel' for the right speed and will
not always have a need to consult
the instruments. I have no reason
to doubt that in the case of a highly experienced pilot like Woodend
that might well hold true.
It seems evident that Grelecki proceeded
on the application of that school of thought, but without the depth
of experience to
sustain it. It was unreasonable of him not to have
consulted the instrumentation to check the speed; more particularly,
if, as
he testified, he had not been handed a pilot card and his
questions to the master on the performance of the vessel had been
met
with dubious responses. Had he done so there is every reason to
believe he would have reduced the speed of advance. It is evident

from Captain Woodend's witness summary that Grelecki must have
indicated in the course of describing events to Woodend that the

speed of the vessel up the channel was of the order of 6 knots.
That, in my view, is an indication of what Grelecki no doubt
would
have considered an appropriate speed in the circumstances. Although
one cannot precisely determine the speed, for the reasons
discussed
the probabilities are that he actually took the vessel up the
channel appreciably faster than 6 knots. This happened
because he
took insufficient care, and by disregard of the tools available to
him, exhibited foolhardy overconfidence.
Had he checked the speed
at any time before committing the vessel towards a turn into the
basin he could and should either have
achieved a timeous reduction
in speed, or if that were not possible, aborted attempting entry
into the basin. In failing to do
these things he was guilty of
negligence in a substantial degree, but it does not automatically
follow, accepting the facts to
have been as described by Captain
Islam, that the degree of negligence falls to be categorised as
extreme.
[90]
Had Mr. Grelecki's loss of control of the vessel been complete, or
unmitigated, that would have been a compelling indication
that he
must have shown a total failure to take care. In the conclusion to
his expert witness summary, Captain McAllister does
characterise the
pilot's loss of control as 'complete'. He regarded the loss of
control as complete because the pilot had created
a situation in
which he was unable to correct the problem caused by his approach
into the basin at excessive speed by the use
of 'the rudder, engine
or even anchors'. I understand the basis for Captain McAllister's
characterisation. It is confessedly
based fundamentally on the
outcome of the approach to the port under the pilot's direction;
that is that the pilot was unable
to avert a collision. Captain
McAllister's reasoning in this respect went along
res
ipsa loquitur
lines:
there was a collision,
ergo,
unless
evidence is accepted of an external causative factor which the pilot
could not reasonably have anticipated or overcome,
the pilot must
have failed in his duty to keep the vessel under control.
21
(Of
course, if that line of reasoning - which draws no reasoned
distinction between negligence and gross negligence - were applied

in determining the case, the exemption provided in item 10(7) in the
Schedule would be a dead letter.) The court's enquiry is
a different
one. Having found that the collision occurred as a result of the
negligence of the pilot, with a resultant loss of
control of the
vessel, the court's task is to go further and ask itself did the
conduct of the pilot in the circumstances evidence
a total failure
to take care, so as to justify categorising his causal negligence in
the collision as extreme. To that end an
assessment of the pilot's
state of mind is relevant; cf. S
v
Dlamini
1988
(2) SA 302
(A) at 308D-E. The determination entails making a value
judgment; see
Bickle
v Joint Ministers of Law and Order
1980
(2) SA 764
(R) at 771
fin.
I
consider that in undertaking the exercise one has to look in the
broad at Grelecki's conduct in regard to bringing the vessel
into
port. That seems to me the appropriate manner in which to provide
the foundation for the required assessment of his state
of mind so
as to decide whether a finding of a total failure to take care is
justified, or not.
[91]
The master's evidence confirms that Mr Grelecki concerned himself,
as he should have done, with the workings on the bridge
when he came
on board. He walked around the bridge checking that instrumentation
was operational. He interacted with the helmsman
in bringing the
vessel up the channel and kept the vessel at all times within the
channel. As soon as the effect of the approach
at an excessive speed
became apparent, he took immediate remedial measures which, in fact,
almost succeeded in averting the collision.
To find in these
circumstances that he was piloting the vessel with a total failure
to take care would be do him an injustice.
I consider that
Greleckireacted expeditiously and generally appropriately to the
crisis situation that had resulted from his
negligently misjudged
decision to take the vessel into the basin. It is unlikely that he
would have been able to do so had he
been showing a total failure of
care to the task in hand. It was somewhat tentatively suggested by
Captain McAllister that Grelecki
could have dealt with the situation
so as to avert the collision by dropping the anchors, or reversing
the engine, but, for the
reasons given by both Grelecki and Captain
Woodend, I am not persuaded that these measures were feasible. On
the contrary, I
consider that in the circumstances they may have
instead compounded the problem rather than alleviating it. I also
consider that
Captain McAllister's description of the increase in
speed in and after the emergency turn hard to starboard as
'reckless'
22
was
inappropriate. The increase in speed should not be judged in
isolation, but rather with regard to the context in which it
was
applied. Indeed, my impression is that had the increased speed not
been applied at that stage a resultant lesser degree of
turn and
steerage would have reduced the prospect of the pilot succeeding in
bringing the vessel into Duncan Dock with just a
glancing blow to
the hard structure at the entrance; in other words, the
consequences, had increased speed not been applied at
that stage,
might have been worse. As I have already remarked, it is not
disputed that once the glancing collision of the bow
against the
knuckle had occurred, Grelecki acted promptly and appropriately to
avoid the stern also colliding with harbour structure.
[92]
I have found that the failure of the tugs to make fast in time to
help avert the collision was probably in part related to
the
excessive speed of the
Banglar
Mookh,
but
also, in part, probably the consequence of unexplained delay and lack
of efficiency of the deck crew on the vessel. Had the
tugs made fast,
and certainly it was within their capacity to have done so, it seems
likely that the collision would have been
narrowly averted by
Grelecki's reactive measures, rather than narrowly achieved.
[93]
Having regard to all the aforementioned factors, I am not persuaded
that it has been established that Mr Grelecki's conduct
evinced 'an
entire failure to give consideration to the consequences of his
actions, a total disregard of duty'; cf.
Rosenthal
v Marks
1944
TPD 172
at 180. In my judgment therefore the plaintiff has not
succeeded in proving that the degree of negligence on the part of Mr.
Grelecki
was 'extreme' in the sense that it might properly be
characterised as gross negligence. Consequent upon the exemption from
liability
afforded in terms of item 10(7) of the Schedule, the action
is therefore dismissed with costs, including the qualifying fees of

Captain John Woodend and Mr Paul Coxon,
23
A.G.BINNS-WARD
Judge
of the High Court
1
It
was agreed that Transnet Limited was the party which would be
responsible in the event of a basis for liability being established

by the plaintiff. I have therefore referred to that company in this
judgment as if it had been the only party cited as a defendant.
2
Also
reported at SCOSA A59 and
[2003] 1 All SA 286
(SCA)
3
Mr
Wragge SC, who appeared for the defendant, pointed out that both
sides had employed expert witnesses in respect of the issue
of
quantum, in respect of whom notices in terms of rule 36(9) had been
filed. He submitted - without opposition from the plaintiffs
counsel
on this point - that the qualifying fees of the successful party's
expert on quantum should be allowed as part of the
awarded costs.
4
Transnet
Limited is identified in the Legal Succession to the South African
Transport Services Act, by definition, as 'the Company'.
5
See
para. [7] of the SCA judgment.
6
Cf.
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para. 67 and the authority
cited in fn. 40 to the judgment of Ngcobo J (as he then was).
7
Cf.
First
National Bank of SA Ltd v Rosenblum and Another
2001
(4) SA 189
(SCA), in which a contractual clause excluding liability
by one of the parties for negligence was held to afford no
foundation
for a restrictive application on the basis of a
distinction between
culpa
levis
and
culpa
lata,
with
the result that the exemption applied effectively also to gross
negligence. See also
Masstores
(Pty) Ltd v Murray & Roberts Construction (Pty) Ltd
[2008] ZASCA 94
;
2008
(6) SA 654
(SCA) at para.
[30]
.
8
The
somewhat colourful description is taken from the expert witness
summary of the evidence of Captain Stuart McAllister, who
testified
at the trial at the instance of the plaintiff.
9
I
have referred to 'tapes' for convenience. The radio exchanges are in
fact recorded by computer in a series of audio files. These
were
copied to a CD, which was produced in evidence as Exhibit D.
10
The
locality of the knuckles at the entrance to the Duncan Dock is
indicated by the notations FG and FR, respectively, on chart
1846 at
Exh. A194, being the layout document most frequently referred to in
the course of the evidence during the trial.
11
See
Exh. G.
12
See
Exh. F1 and F2.
13
Defendant's
counsel seems to have accepted as much for the purposes of treatment
of the evidence in his submissions at the conclusion
of the
evidence; cf. the quotation from his heads of argument in para. [4],
above.
14
Captain
McAllister thought that it might have been viable, in theory, to
arrest the movement of the vessel towards the entrance
by dropping
anchor, but it is evident that that option would probably have been
feasible only if tug assistance had also been
available. As already
mentioned, the tugs made fast to the vessel only after she had
passed inside the Duncan Dock.
15
In
evidence given by Captain Woodend under cross-examination it was
stated that in order to 'kick' the vessel in a certain direction,
by
which was meant increasing the revolutions of the engine so as to
accentuate the effect of a rudder position, an engine burst
of
approximately 20 seconds would be used. Captain Woodend said that
such use of the engine would result only in an accentuated
angle of
movement and not an increase in the speed of the vessel. It is
evident that the relatively extended periods at which
Mr. Grelecki
maintained the engine at full ahead while crossing the basin did not
correspond with the method of giving the vessel
a 'kick' described
by Captain Woodend. Captain Woodend stated that increased speed for
longer periods could be used to improve
steerage, a quite different
concept from accentuating a sharp rudder effect.
16
The
vessel has a gross tonnage of 13125 tons, a summer draft of 9,016
metres, overall length of 159 metres and is 22,86 metres
in breadth.
17
The
content of the documents and records in question were admissible in
terms of s 6(3) of the AJRA; cf.
MV
Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas,
supra,
at para. [9].
18
The
explanation given was that there had been a problem with the
recording drive mechanism in place at the time of the incident
and
that the radar system had subsequently been upgraded. Further, such
recordings as may have existed had been lost when the
port upgraded
and replaced the VTS in the first quarter of 2006. The defendant
extracted a concession from the plaintiffs witness,
Mr. Cox that it
would have been difficult to read the records today due to changes
in technology, but in the context of the opportunity
to make hard
copy records by way of so called 'screen dumps' at the time, this
hardly served as mitigation for the defendant's
extraordinary and
deplorable neglect to honour its undertaking to preserve the
records.
19
Section
34 of the Constitution provides: Everyone has the right to have any
dispute that can be resolved by the application of
law decided in a
fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.'
20
At
para. [69].
21
See
para. 64 of Captain McAllister's summary; and, in particular, the
first sentence: As the collision with the A Berth knuckle
indicates,
it is obvious that the pilot had totally lost control of the
approach, a situation which he should never have allowed
to happen.'
22
See
para. 56 of Captain McAllister's summary.
23
See
fn 3.