Transnet Ltd t/a Portnet v MV 'Stella Tingas' and Another (378/01) [2002] ZASCA 145; [2003] 1 All SA 286 (SCA) (27 November 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 145
|

|

Transnet Ltd t/a Portnet v MV 'Stella Tingas' and Another (378/01) [2002] ZASCA 145; [2003] 1 All SA 286 (SCA); 2003 (2) SA 473 (SCA) (27 November 2002)

Case No 378/2001
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the
matter between
TRANSNET
LIMITED t/a PORTNET APPELLANT
and
THE
OWNERS OF THE mv ‘STELLA
TINGAS’
FIRST RESPONDENT
THE
mv ‘ATLANTICA’ SECOND RESPONDENT
CORAM : HEFER AP, SCOTT, FARLAM, CONRADIE, JJA et
LEWIS AJA
HEARD : 4
NOVEMBER 2002
DELIVERED : 27 NOVEMBER 2002
___________________________________________________________
Admiralty - collision in Durban harbour - negligence of pilot -
whether gross negligence - s6 of Act 105 of 1983 - non applicability
of UK Pilotage Act of 1983
J U D
G M E N T
______________________________________________________________
SCOTT
JA/
…
SCOTT JA
:
[1]
Shortly after midnight on 17 June 1997 the mv Atlantica,
a bulk carrier, 224 metres in length and displacing some 65 000
metric tons,
collided with the mv Stella Tingas in Durban harbour.
At the time the latter vessel was alongside loading cargo at Island
View berth
3. The Atlantica was in the process of entering the
Island View Channel and was headed for berth 7 where she was to take
on bunkers.
Durban harbour is a compulsory pilotage port. The pilot
navigating the Atlantica, Captain Peter Buffard, was an employee of
the
harbour authority, Transnet Limited, which is the present
appellant. Both vessels were damaged in the collision. The owners
of
the Stella Tingas, the first respondent, (to whom I shall refer as
the plaintiffs) instituted action in the Durban and Coast Local
Division against the Atlantica, as first defendant (now the second
respondent), and against Transnet, as second defendant, the action
against the former being
in rem
and against the latter
in
personam.
[2] The claim against the Atlantica was founded on two grounds. The
first was that the collision was caused by the negligence of
the
master and crew. The second was that it was caused by the negligence
of the pilot for whose negligence the owners of the Atlantica
were
liable by reason of s 35 of the United Kingdom Pilotage Act of 1983
which, it was alleged, was applicable by virtue of the provisions
of
s 6(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983
(‘the Act’).
[3] With regard to the claim against
Transnet, the principal ground and the only one relied upon in this
Court, was that the collision
was caused by the gross negligence of
the pilot. The reason for the allegation that the negligence was
gross was an attempt to
avoid the exemption of liability afforded to
both Transnet and the pilot by subpara 10(7) of the First Schedule to
the Legal Succession
to the South African Transport Services Act 9 of
1989 (‘the Succession Act’). The subparagraph reads:
‘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.’
The company referred to is Transnet,
the company established in terms of s 2 of that Act. Another ground
upon which the plaintiffs
sought to hold Transnet liable was the
negligence on the part of the master and crew of each of the two tugs
in attendance at the
time of the collision. However, this ground was
formally abandoned during the course of the trial.
[4] In addition to denying
liability, the Atlantica caused a Third Party notice to be issued
citing Transnet and the pilot as third
parties and claiming from them
inter alia
damages in respect of the damage caused to the
Stella Tingas.
[5] The Court
a quo
(Booysen
J) was asked to decide only the question of liability. The learned
judge found that the pilot had been grossly negligent
and that
Transnet was accordingly liable to the plaintiffs for their damages.
As to the claim against the Atlantica, he found that
negligence on
the part of the master had not been established and that the
provisions of s 35 of the United Kingdom Pilotage Act
of 1983 were
not applicable in South Africa. The Atlantica was accordingly held
not to be liable to the plaintiffs. No order was
apparently sought
in terms of the Third Party notice, nor was one granted. The
judgment of the Court
a quo
has been reported:
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). Transnet
now appeals against the order holding it liable to the plaintiffs.
The plaintiffs, in turn, appeal
against that part of the judgment in
which the Atlantica was held not to be liable to the plaintiffs.
This appeal is conditional
on Transnet’s appeal succeeding. Both
appeals are with the leave of the Court
a quo
.
[6] Subsections 6(1) and (2) of the
Act provide as follows:
‘6(1) Notwithstanding anything to the contrary in any law or the
common law contained a court in the exercise of its admiralty
jurisdiction shall -
(a) with regard to any matter in respect of which a court of
admiralty of the Republic referred to in the Colonial
Courts of Admiralty Act, 1890, of the United Kingdom, had
jurisdiction immediately before the commencement of this Act, apply
the
law which the High Court of Justice of the United Kingdom in the
exercise of its admiralty jurisdiction would have applied with regard
to such a matter at such commencement, in so far as that law can be
applied;
with regard to any other matter, apply the Roman-Dutch
law applicable in the Republic.
(2) The provisions of subsection (1) shall not derogate from the
provisions of any law of the Republic applicable to any of
the
matters contemplated in paragraph (a) or (b) of that subsection.’
The plaintiffs’ claims relate to
‘damage done by a ship’. Accordingly, and by virtue of s 7 of
the English Admiralty Courts
Act of 1861, a court of admiralty in
South Africa would have had jurisdiction to entertain the claims
immediately before the commencement
of the Act on 1 November 1983.
It follows that in terms of s 6(1)(a) the law to be applied is the
law which the ‘High Court of
Justice of the United Kingdom’
would have applied. (The reference to that Court is presumably
intended to be a reference to the
Supreme Court of England and Wales
as constituted by the Supreme Court Act 1981. See
Brady-Hamilton
Stevedore Co and Others v mv Kalantiao
1987 (4) SA 250
(D) at 253
D.) It is clear that regard is to be had to the law as it existed on
1 November 1983. (See
Transol Bunker BV v mv Andrico Unity and
Others
1989 (4) SA 325
(A) at 334 H.) Subsection 6(1) of the Act
is, however, subject to ss 6(2). Paragraph 10 of the First Schedule
to the Succession
Act contains detailed provisions relating to
compulsory pilotage harbours and in particular any negligent act or
omission on the
part of a pilot. These provisions are clearly
provisions within the meaning of ss 6(2) of the Act and the former
must accordingly
prevail over what for convenience may simply be
referred to as the English admiralty law. Paragraph 10 is, of
course, part of a
South African statute and must be construed as
such, despite the provisions of s 6(1) of the Act. It follows that
for the purpose
of determining what is ‘a negligent act or omission
on the part of the pilot’ within the meaning of subpara 10(7)
(quoted above)
or whether an act or omission amounted to gross
negligence so as not to enjoy the benefit of the exemption conferred
by subpara 10(7),
regard must be had to the South African law.
[7] I shall assume, without
deciding, that the exemption would not apply if the pilot were found
to have been grossly negligent.
Gross negligence is not an exact
concept capable of precise definition. Despite dicta which sometimes
seem to suggest the contrary,
what is now clear, following the
decision of this Court in
S v Van Zyl
1969 (1) SA 553
(A), is
that it is not consciousness of risk-taking that distinguishes gross
negligence from ordinary negligence. (See also
Philotex (Pty) Ltd
and Others v Snyman and Others
[1997] ZASCA 92
;
1998 (2) SA 138
(SCA) at 143 C -
J.) This must be so. If consciously taking a risk is reasonable
there will be no negligence at all. If a
person foresees the
risk of harm but acts, or fails to act, in the unreasonable belief
that he or she will be able to avoid the
danger or that for some
other reason it will not eventuate, the conduct in question may
amount to ordinary negligence or it may
amount to gross negligence
(or recklessness in the wide sense) depending on the circumstances.
(
Van Zyl
’s case,
supra
, at 557 A - E.) If, of
course, the risk of harm is foreseen and the person in question acts
recklessly or indifferently as to whether
it ensues or not, the
conduct will amount to recklessness in the narrow sense, in other
words,
dolus eventualis
; but it would then exceed the bounds
of our modern-day understanding of gross negligence. On the other
hand, even in the absence
of conscious risk-taking, conduct may
depart so radically from the standard of the reasonable person as to
amount to gross negligence
(
Van Zyl
’s case,
supra
, at
559 D - H.) It follows that whether there is conscious risk-taking
or not, it is necessary in each case to determine whether
the
deviation from what is reasonable is so marked as to justify it being
condemned as gross. The Roman notion of
culpa lata
included
both extreme negligence and what today we would call recklessness in
the narrow sense or
dolus eventualis
. (See Thomas
Textbook
of Roman Law
at 250.) As to the former, with which we are
presently concerned,
Ulpian’s
definition, D 50. 16. 213. 2,
is helpful : ‘
culpa lata
is extreme negligence, that is not
to realise what everyone realises’ (
culpa lata est nimia
neglegentia, id est non intellegere quod omnes intellegunt
).
Commenting on this definition, Lee in
The Elements of Roman Law
4
ed at 288 describes gross negligence as being ‘a degree of
negligence which indicates a complete obtuseness of mind and
conduct’.
Buckland in
A Textbook of Roman Law
3 ed at 556
suggests that what is contemplated is a ‘failure to show any
reasonable care’. Dicta in modern judgments, although
sometimes
more appropriate in respect of
dolus eventualis
, similarly
reflect the extreme nature of the negligence required to constitute
gross negligence. Some examples are: ‘no consideration
whatever
to the consequences of his acts’ (
Central South African
Railways v Adlington & Co
1906 TS 964
at 973); ‘a total
disregard of duty’ (
Rosenthal v Marks
1944 TPD 172
at
180); ‘nalatigheid van ’n baie ernstige aard’ or ‘’n
besondere hoë graad van nalatigheid’ (
S v Smith en Andere
1973 (3) SA 217
(T) at 219 A - B); ‘ordinary negligence of an
aggravated form which falls short of wilfulness’ (
Bickle v
Joint Ministers of Law and Order
1980 (2) SA 764
(R) at 770 C);
‘an entire failure to give consideration to the consequences of
one’s actions’ (
S v Dhlamini
1988 (2) SA 302
(A) at
308D). 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.
[8] Against this background, I turn
to the facts. It was common cause that ships entering Durban harbour
bound for a berth in Island
View Channel follow more or less the same
route. After proceeding through the harbour entrance channel and
upon entering the area
known as Basin B they steer several degrees
to starboard to keep clear of the coal berths along the
Bluff on the port side, then alter
back to port before steering again to starboard in order to line up
with the leading lights and
proceed up Island View Channel. The
leading lights are placed beyond the channel and indicate its centre
line. Because there are
berths on the port side of the channel it is
usual for ships to proceed up the channel slightly to the starboard
of the centre line.
The distance between the entrance to Basin B and
the entrance to Island View Channel was not given in evidence, but
from other
distances given it would appear to be in the region of
just under a sea mile.
[9] By the time the trial commenced
the pilot, captain Buffard, had died. Nonetheless, from his
statement made shortly after the
incident, his evidence at a
subsequent inquiry, the Atlantica’s logs and a transcript of the
conversation between the pilot and
the masters of the two tugs in
attendance, it is possible to obtain a fair idea as to both the route
taken by the Atlantica and the
events in the critical period
immediately preceding the collision. I pause to mention that these
documents, if for no other reason,
were admissible in terms of s 6(3)
of the Act. (
Cf
C
argo Laden and Lately Laden on Board the
mv Thalassini Avgi v mv Dimitris
1989 (3) SA 820
(A) at 842 B -
D.)
[10] It appears that whether as a
result of a misunderstanding between the pilot and the helmsman or
otherwise, the Atlantica on
entering Basin B proceeded further to
starboard than is usual and had to alter back to port a
correspondingly further distance.
Just what the extent of the
deviation was is not clear. Ultimately its consequence was that the
angle at which the vessel approached
the mouth of Island View Channel
was different from the usual and, in turn, required a harder turn to
starboard in order to proceed
up the channel. According to the pilot
(as appears from the transcript of his evidence at a subsequent
fact-finding commission),
by the time he had steadied the ship
following the turn back to port, she was abeam of coal berth 2 on the
Bluff and heading in the
direction of Island View berth 2. A
reference to a chart of the harbour suggests that the deviation had
been corrected and the ship
set on course for the channel when still
some distance from its mouth. The pilot said he maintained this
course until he was ready
to turn to starboard into Island View
Channel, by which time the starboard bow was approaching buoy I1.
This was then positioned
off the point and adjacent to the starboard
side of the channel. The Stella Tingas, as I have said, was moored
at Island View berth
3 on the port side of the channel. According
to the duty officer who was standing on the starboard side of that
vessel, he saw
the Atlantica rounding buoy I1 and approaching at an
angle of about 25 degrees.
[11] On the face of it, there would
appear to be nothing untoward about the manoeuvre the pilot sought to
execute. Indeed, there
was evidence to the effect that ships coming
from other parts of the harbour would not infrequently approach the
channel at a similar
angle before steering to starboard and
proceeding up the channel to take on bunkers.
[12] In the event, the Atlantica
failed to respond to the helm and sheered to port. The duty officer
on the Stella Tingas saw that
a collision was imminent and fled. The
Atlantica struck the Stella Tingas a glancing blow before proceeding
up the channel.
[13] The experts were agreed that
the sheer to port was caused by phenomena referred to respectively as
‘squat’ and ‘bank effect’,
both of which were related to
speed. The former can occur in shallow water and particularly in a
narrow channel. I interpose that
what is shallow or narrow is, of
course, related to the ship’s size and draft. A ship displaces its
own weight in water. Simply
put, as it moves forward it leaves a
void behind which has to be filled. In a confined area the flow of
water to fill the void is
retarded by the bulk of the ship and this,
in turn, as it was said, plays havoc with the steerage. The ‘bank
effect’ in the
instant case would have been caused by water
displaced by the ship, as she entered the channel and rounded the
starboard point of
the so-called island, pushing up against the bank,
which presumably shelves steeply, and then returning to create
pressure on the
bow forcing it to port. As it appears that the sheer
to port commenced as the Atlantica was in the process of entering
Island View
Channel, it would seem likely that the cause of the
sheer, at least initially, was the ‘bank effect’, rather than the
‘squat’.
[14] Much of the evidence by the
experts, mainly former pilots, related to the question of the
Atlantica’s speed as she proceeded
through the entrance channel of
the harbour and across Basin B. It is necessary to mention at this
stage that the only witness at
the trial who was on board the
Atlantica at the time was the master. Admittedly he was not in
control of the navigation of the ship
and may not have paid as much
attention to what was happening as he would have had the pilot not
been in charge. Nonetheless, he
was familiar with Durban harbour;
he said that the speed seemed reasonable to him and that he had
entered the harbour before at
the same speed. The master impressed
the Court
a quo
as a good witness.
[15] Prior to the Atlantica entering
the harbour the fuel supply was changed from heavy to diesel oil.
The latter would have enabled
the ship to achieve a speed of
approximately 9 knots. According to the ‘engine room movement
book’ (‘the engine book’) and
the ‘deck bell book’ (‘the
bell book’), as the Atlantica approached the harbour entrance she
proceeded at full speed ahead
for some 8 minutes. The speed of the
engine was then reduced to half speed ahead and then almost
immediately thereafter to slow
ahead. This was some 10 minutes
before the vessel, according to the ship’s log, passed the
breakwater light. A change in the
engine speed would not have had an
immediate effect on the speed of the ship through the water,
particularly having regard to her
size and displacement. Much of
the debate in the evidence related to the extent to which the ship
would have lost headway while
proceeding through the harbour entrance
and across Basin B. The engine book and the bell book reflect
several changes from slow
ahead to half ahead, then back to slow
ahead. The pilot’s report confirms that these were made not so
much to increase or reduce
the speed of the ship through the water
but rather to maintain control of the steering. Indeed, after the
initial period of full
ahead the ship would have been steadily losing
headway. The engine changes in relation to when the ship entered the
port and when
the collision occurred are, in any event, far from
clear. The reason is that not only were the clocks on the bridge and
in the
engine room not synchronised but some of the entries were
presumably not made immediately so that the time difference between
the
two logs is not constant. In addition, entries in the engine
book are not always recorded in the bell book.
[16] Based on the engine speed of
full ahead for eight minutes prior to the Atlantica entering the
entrance channel, Captain Dominy,
who testified on behalf of the
plaintiffs, estimated that the ship proceeded through the entrance
channel at a speed of about 9 knots.
Captain McGregor, who testified
for Transnet, thought that the speed was more likely to have been in
the region of 7 knots. Both
estimates are little more than guesses.
Captain Martin, another of the plaintiffs’ witnesses, noted that
according to the ship’s
log the vessel passed the breakwater light
at 00h21 and collided with the Stella Tingas at 00h35, ie a
difference of 14 minutes.
Although the actual times differed, the
port record similarly showed a difference of 14 minutes between the
time the ship ‘crossed
into port’ and the collision. Captain
Martin assumed the reference to the breakwater light to be the light
on the south breakwater
and measured the distance between that light
and where the collision occurred to be 1,69 sea miles. This gave him
an average speed
of 7,24 knots. If the measurement was taken from
the light on the north breakwater he arrived at an average of 6,3
knots. No evidence
was led as to the point at which the port
authority regarded the ship as having crossed into port. Captain
Dominy did a similar
exercise, but measured the distance between the
south light and the point where the collision occurred at 1,67 sea
miles, which gave
him an average of 6,7 knots. However, counsel for
Transnet pointed out, correctly I think, that because the times,
00h21 and 00h35
were recorded to the nearest minute, there could have
been a difference of up to one minute between the two points in time;
in other
words, it could have taken the ship closer to 15 minutes to
cover the distance in question. In view of the short time involved,
he argued, this could have made a considerable difference to the
calculation of the average speed. In this regard, it is not without
significance that the master rejected the suggestion that the ship
covered the distance in question at an average speed of as much
as
7,24 knots. Finally, with regard to the actual speed of the
Atlantica, it was recorded in the log that her speed ‘as per GPS
[Global Positioning System] during the collision’ was 3,4 knots.
No attempt was made to explore when the system was activated
or over
what distance the speed was measured. Captain Martin conceded that
he was unable to dispute that when the collision occurred
the speed
of the Atlantica was 3,4 knots.
[17] The evidence of what would have
been an appropriate speed in the circumstances is also somewhat
contradictory. Captain Martin
expressed the view that a reasonable
speed, if the ship had followed the usual route, would have been
about 5 knots. The Atlantica’s
expert, Mr Fiddler, on the other
hand, regarded it not unreasonable for the ship to have proceeded
through the entrance channel at
7,5 knots. Both Captain Martin and
Captain Dominy testified that ships normally proceed up Island View
Channel at a speed of approximately
3 to 4 knots, but that, of
course, was the speed registered on the GPS when the collision
occurred at a point close to the mouth
of the channel.
[18] On the basis of the aforegoing,
I am unpersuaded that the evidence establishes that the Atlantica
proceeded through the harbour
entrance and across Basin B at a speed
which would have been excessive had the ship followed the usual
route. I am also unpersuaded
that the angle at which the Atlantica
approached Island View Channel or the turn to starboard which the
pilot proposed to execute
was shown to have been so untoward as to
give rise to an inference of negligence on his part. On the other
hand, the very fact that
the ship was unable, whether as a result of
the ‘squat’ or ‘bank effect’ or both, to execute the turn to
starboard safely
is indicative of a speed which was excessive for the
manoeuvre contemplated. For this the pilot must take the blame; he
was accordingly
guilty of negligence.
[19] The plaintiffs’ experts
expressed the view that once the pilot became aware of the deviation,
he should have stopped the ship
by putting the engine astern and
then with the assistance of the tugs manoeuvred the ship to port so
as to enable her to enter
Island View Channel in the usual way.
This, of course, was a view expressed with hindsight and strikes me
as perhaps requiring a
standard of excellence which is not reasonably
required. But it is nonetheless clear that when approaching the
channel at the angle
he did, the pilot by whatever means should have
ensured that the ship was proceeding at a slower speed and if
necessary maintained
steering control by using what was described as
‘short kicks on the engine’.
[20] The question remains whether
the pilot’s negligence amounted to gross negligence. In finding
that it did, Booysen J said
the following:
‘He knew that he was about to enter a narrow and shallow channel
where the danger of a sheer caused by the suction effect or the
banking effect, or both, was always present if he went too fast. He
knew that in the event of a sheer he would have very little
time and
space to avoid a collision. He knew that the consequences of a
collision in the harbour involving a vessel of the size
of the
“Atlantica” would be considerable. It does seem that he had
somewhat of a dare-devil attitude.
The pilot knew that he was going too fast; he knew that he was not
aligned with the leading lights; he knew that he was about to
enter
a narrow, shallow channel with a huge ship; he knew that in the
event of a sheer there was likely to be a collision, yet
in true
dare-devil spirit he tried to perform a manoeuvre which had little
chance of success. I find pilot Buffard’s actions
[not] to have
been reckless but at least grossly negligent in the circumstances.’
[21] This finding appears to
attribute to the pilot a conscious taking of a risk in circumstances
which would amount to
dolus eventualis
. The judge says, for
example, the pilot ‘in true dare-devil spirit’ attempted ‘to
perform a manoeuvre which had little chance
of success’. In my
view, there is no justification for such a finding on the evidence.
The passage quoted contains a number
of misdirections. The statement
that the pilot knew that he was going too fast is presumably based on
the fact that in his evidence
before the fact-finding commission he
appears to have understated his speed. But, by then, of course, he
had the advantage of hindsight.
The actual speed of the ship as she
approached the mouth of the channel is unknown. All we do know is
that it was excessive to
the extent that it contributed to the
‘squat’ and ‘bank effect’ which, in turn, caused the sheer to
port. Indeed, there
is nothing to suggest that in the absence of the
sheer the speed was such that the ship would not have completed the
turn to starboard
and proceeded up the channel without mishap. I can
see no justification for the conclusion that the pilot knew in
advance that he
was going too fast. The master certainly did not get
the impression that the speed was excessive. Nor, as I have said,
was there
anything to suggest that the pilot in a dare-devil spirit
was attempting to perform a manoeuvre which had little chance of
success.
[22] Much was made in evidence of
the phenomena of ‘squat’ and the ‘bank effect’. But it was
not a common occurrence and
would not necessarily have been at the
forefront of the pilot’s mind. No doubt he ought to have foreseen
this as a possibility.
But it is clear that he did not. This much
appears from the transcript of the conversation between the pilot and
the masters of
the tugs. When the Atlantica failed to respond to
the helmsman’s turn to starboard, the pilot’s first reaction was
to assume
that the aft tug was ‘up against’ the port quarter.
This, it was explained, would have caused the tug to serve as a
rudder and
to force the ship to port. The pilot immediately ordered
that tug ‘to take the weight off the ship’s back’. It was only
when
the tug master responded that he was not touching the ship that
the pilot would have realised that there was something else causing
the sheer. It was at this stage that he announced that things were
‘going wrong’. In the event, the tugs were unable to arrest
the
sheer and the forward tug, which was attempting to ‘push in’ the
port bow, had to abandon the attempt and move to the stern
in order
to avoid being crushed.
[23] The trial judge’s observation
that the pilot knew that he was not aligned with the leading lights
also requires comment.
It is true that because of the deviation the
ship did not follow the route usually followed by vessels coming into
port to berth
in Island View Channel. But there was nothing
untoward, as such, about the angle at which the Atlantica approached
the mouth of
the channel. As previously mentioned, there was
evidence that ships moving from elsewhere in the harbour would
approach the channel
at a similar angle.
[24] A further point raised in
argument was that the pilot erred or demonstrated a lack of caution
by electing to bring the Atlantica
in at night, having regard to the
size of the ship, the fact that she was 22 years old with a single
propeller and was not fitted
with bow-thrusters to facilitate lateral
movement. The short answer to this is that at all times there were
two tugs in attendance
and there is nothing in the evidence to
suggest that darkness played a role or that the collision would not
have occurred had the
Atlantica been brought into harbour in
daylight.
[25] There can be no doubt that the
evidence establishes that the pilot was negligent. In my view,
however, the plaintiffs failed
to discharge the burden of showing
that the pilot was negligent to such a degree that his conduct
constituted gross negligence.
[26] In passing I should mention
that the pilot was also criticised for not adopting one or more other
measures to combat the sheer
once it had begun. These included
putting the engine astern and dropping the port anchor. Counsel for
the plaintiffs conceded,
correctly in my view, that the evidence did
not establish that any of these measures would have had the desired
effect of preventing
the collision. In any event, the failure of the
pilot to adopt one measure rather than another to combat the sheer
would not in
the circumstances have amounted to gross negligence.
[27] It follows that Transnet’s
appeal against the judgment of the Court
a quo
in favour of
the plaintiffs must be upheld.
[28] It accordingly becomes
necessary to consider the plaintiffs’ conditional appeal against
the finding of the Court
a quo
that the Atlantica was not
liable to the plaintiffs for the latter’s damages. The principal
ground upon which it was contended
that the Atlantica was so liable,
shortly stated, is the following. The maritime claim in question
relates to damage done by a
ship. In terms of s 6(1) of the Act,
English admiralty law is therefore applicable. Section 35 of the
United Kingdom Pilotage Act
of 1983 (which became law prior to 1
November 1983) imposes liability on the owner of a vessel under
compulsory pilotage for damage
caused by the vessel or by the fault
of the navigation of the vessel in the same manner as the owner would
be liable if the pilotage
were not compulsory. Accordingly, so it
was argued, the Atlantica is liable for the damage caused by the
negligence of the pilot.
[29] Subsections 6(1) and 6(2) of
the Act are quoted in para 6 above. I shall return to them later but
it is first necessary to
say something about the English admiralty
law relating to compulsory pilotage. At common law a shipowner is
liable for the negligence
of a pilot voluntarily engaged just as it
would be liable for the negligence of the master. Where, on the
other hand, the pilotage
is compulsory, the shipowner would not be
liable for the negligence of the pilot. The reason for the
distinction was explained by
Dr Lushington in
The Maria
[1839] EngR 1025
;
(1839)
1 W Rob 95
at 99
[166
ER 508 at 510]. Simply put, in the case of
compulsory pilotage the master is compelled to take the pilot on
board and the owners
are not liable for the acts of a person over
whom they have no control and whom they are compelled to employ. A
voluntary pilot,
by contrast, is employed in the discretion of the
master and is considered a servant of the owners. The immunity of
owners for damage
caused by the fault of compulsory pilots was
furthermore reinforced by various statutes in the 19
th
century, including the Merchant Shipping Act of 1894. This immunity
was abolished with effect from 1 January 1918 by the Pilotage
Act of
1913 following the International Collisions Convention signed at
Brussels in 1910. (For details of the Convention and its
implementation, see
Owners of the Steamship Towerfield v
Workington Harbour and Dock Board
[1949] P 10
at 22 - 23, 46 -
47. See generally McGuffie
Marsden on the
Law of
Collisions at Sea
10 ed 246 - 248.) Section 15(1) of the 1913
Act was repeated in identical terms in s 35 of the Pilotage Act of
1983 which repealed
the earlier Act. Section 35 reads:
‘Notwithstanding anything in any public or local Act, the owner or
master of a vessel navigating under circumstances in which pilotage
is compulsory shall be answerable for any loss or damage caused by
the vessel or by any fault of the navigation of the vessel in
the
same manner as he would if pilotage were not compulsory.’
The effect of the section is to
render the shipowner liable for loss or damage caused by the fault of
a compulsory pilot in the same
way as the shipowner would be liable
at common law for loss or damage caused by a voluntary pilot. For
the purpose of the present
case it is important to emphasize that the
basis of such liability is that a voluntary pilot (and now by statute
a compulsory pilot)
is regarded as the servant of the shipowner.
This is, and has been for many years, the basis of the shipowner’s
liability. It
was expressly confirmed to be so by the House of Lords
in
Esso Petroleum Co Ltd v Hall Russell & Co Ltd
[1989] AC
643
(HL) at 683 C - 685 H,
[1989] 1 All ER 37
(HL) at 58 f - 60 g.
[30] As previously indicated, the
provisions of para 10 of the First Schedule to the Succession Act
are provisions within the meaning
of s 6(2) of the Act and must
prevail over the English admiralty law. For convenience I quote para
10 in full.
‘(1) The harbours of the Company are compulsory pilotage harbours
with the result that every ship entering, leaving or moving in
such a
harbour shall be navigated by a pilot who is an employee of the
Company, with the exception of ships that are exempt by statute
or
regulation.
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.
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.
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.
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.
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.
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.’
It will immediately be observed that
the pilot is expressly stated to be an employee of the Company, ie
Transnet, (subpara 1). In
terms of subpara 2 the pilot is to
navigate a ship in the harbour. Subparagraph 4 prohibits the master,
who is the shipowner’s
agent, from in any way interfering with the
navigation or movement of the ship or preventing the pilot from
carrying out his duties
while the ship is under pilotage except in a
case of emergency. These provisions are wholly inconsistent with
the position in England
where the pilot, whether voluntary or
compulsory, is
pro hac vice
the shipowner’s servant.
Expressed differently, to hold the shipowner liable for the
negligence of a compulsory pilot would be
contrary to the provisions
of para 10. Indeed, if the shipowner were vicariously liable,
subpara 10(7), to the extent that it exempts
the Company, would be
unnecessary.
[31] It follows that the effect of s
6(2) of the Act, read with para 10 of the First Schedule to the
Succession Act, is to preclude
the application of s 35 of the 1983
Pilotage Act in South Africa. The plaintiffs’ first ground of
appeal must therefore fail.
[32] The further ground on which it
was contended that the Atlantica was liable to the plaintiffs was
that the master was negligent
for failing to take steps to prevent
the collision. In terms of subpara 10(4) of the Schedule quoted
above, the master was in effect
prohibited from interfering in the
navigation or movement of the ship until such time as there was an
emergency. The evidence of
the master was that he had full
confidence in the pilot and believed that with the assistance of the
tugs the ship would be able
to execute the turn to starboard and
proceed up Island View Channel; it was only when the forward tug
abandoned the attempt to push
the bows around to the starboard that
he realised that there was going to be a collision. It was common
cause that by then a collision
was inevitable. The master denied
having heard the pilot say to the tug masters that things were ‘going
wrong’. But even if
he had, I do not think he can be held to have
been negligent for failing to intervene. The words in question were
uttered no more
than some three minutes before the collision. The
pilot was then heavily engaged in issuing commands to the tugs in
order to retrieve
the situation. No doubt there were various options
available in the attempt to avoid a collision, but in my view the
master was
entitled to assume that the pilot knew what he was doing.
As a master of a ship he would have appreciated the dangers of
wrongly
interfering with the conduct of the pilot. Nearly a century
ago Lord Alverstone CJ in
The Tactician
[1907] P 244
(CA) at
250 said the following:
‘The cardinal principle to be borne in mind in these pilotage
cases, that raise difficult questions of law, and very often
difficult
questions of fact, is that the pilot is in sole charge of
the ship, and that all directions as to speed, course, stopping and
reversing,
and everything of that kind, are for the pilot; and
I entirely agree, if I may say so, with great
respect, with the opinions of the very learned judges, from Dr
Lushington downwards, to which attention has been called, as to the
danger of a divided command, and the danger of interference with the
conduct of the pilot; and that if anything of that kind amounts
to an
interference or a divided command serious risk is run of the ship
losing the benefit of the compulsory pilotage.’
I readily endorse these views. In my
view the collision was not caused by any negligence on the part of
the master. On this ground,
too, the appeal must therefore fail
[33] In the result the following
order is made.
(a) The appellant’s appeal against the judgment of the Court
a
quo
in the first respondent’s favour is upheld with costs.
(b) The first respondent’s appeal against the dismissal by the
Court
a quo
of the first respondent’s claim against the
second respondent is dismissed with costs.
(c) The order of the Court
a quo
is altered so as to read as
follows:
(i) The plaintiffs’ claim against the first defendant is
dismissed with costs, such costs not to include the costs

incurred in consequence of the first defendant’s Third Party
Notice.
The
plaintiffs’ claim against the second defendant is dismissed with
costs.
D G SCOTT
JUDGE OF APPEAL
CONCUR:
HEFER
AP
FARLAM JA
CONRADIE
JA
LEWIS
AJA