Tallman v MV "Shark Team" and Others (AC 40/2009) [2014] ZAWCHC 202 (23 December 2014)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 202
|

|

Tallman v MV "Shark Team" and Others (AC 40/2009) [2014] ZAWCHC 202 (23 December 2014)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
EXERCISING
ITS ADMIRALTY JURISDICTION
Case
no: AC 40/2009
Name
of ship:
MV “SHARK TEAM”
In
the matter between:
SARAH
TALLMAN
.................................................................................................................
Plaintiff
and
MV
“SHARK
TEAM”
....................................................................................
First
Defendant (in rem)
GRANT
TUCKETT
...........................................................................
Second
Defendant (in personam)
WHITE
SHARK PROJECTS
CC
.......................................................
Third
Defendant (in personam)
Heard:
Between 12 February 2004 and 29 July 2014
JUDGMENT
DELIVERED ON TUESDAY 23 DECEMBER 2014
FREUND
AJ:
Introduction
1.
At about 07h30 on Sunday 13 April 2008 a
shark-cage diving vessel, “Shark Team”, set out from
Kleinbaai (near Gansbaai),
taking a party of ten tourists to sea on a
shark viewing expedition.  A little over 2 hours after
departure, while the vessel
was at anchor with a videographer in the
shark cage attached to its side, it was struck by a large wave which
caused it to capsize.
Three of the tourists on board drowned. One of
those tourists was the plaintiff’s husband, Christopher Matthew
Tallman (“Tallman”).
2.
The plaintiff instituted an action
in
rem
against the vessel, and an action
in personam
against both the skipper of Shark Team that day, Mr Grant Tuckett
(“Tuckett”) and the owner of the vessel, White Shark

Projects CC (“the owner” or “the CC” ).
3.
The quantum of the plaintiff’s claim,
if she succeeds on the merits is, by agreement and in terms of an
order previously made,
to be held over for later determination.
The issues to be determined at the trial were the following:
a.
Whether Tallman was married to the
plaintiff;
b.
Whether Tallman’s death was caused by
negligence on the part of the defendants (or any of them);
c.
Whether an indemnity signed by Tallman
absolves the defendants (or any of them) from liability; and
d.
Whether the first and third defendants are
entitled to limit their liability on the basis of section 261 of the
Merchant Shipping
Act, No 57 1951
4.
Well into the course of the trial the first
question referred to above was admitted.  No submissions were
ultimately made on
behalf of the defendants in respect of the
possible defence raised by the third issue. It follows that the
issues which require
to be determined are the second and fourth
issues listed above, as well as questions related to costs.
THE
FACTUAL BACKGROUND
5.
Shark Team is a catamaran 10.7m long with a
beam of 3.7m.  It was the first shark-cage diving vessel to
depart from Kleinbaai
on the morning of 13 April 2008.  It was
followed by several other shark-cage diving vessels namely, Barracuda
at about 08h00,
Swallow at about 08h20, Shark Fever at about 08h45,
Megalodon 2 at about 08h55 and White Shark at about 09h05.
These times
are derived from harbour records, the approximate
correctness of which is not in issue.
6.
On leaving the harbour Shark Team had
nineteen persons aboard: ten tourists, four crew (including the
skipper, Tuckett), four “volunteers”
(shark enthusiasts
participating in a volunteer programme) and a videographer.
7.
Shark Team proceeded about 4½
nautical miles (8½ kilometres) from Kleinbaai in a southerly
direction to a position
approximately 0,9 nautical miles (1.6
kilometres) west of Dyer Island. There it anchored and came to rest
in an area known to the
local boating fraternity as “the
Geldsteen”, an extensive reef system. This area is described on
the South African
Navy (SAN) 120 chart as an area of “foul
ground”. The other vessels mentioned above also all went to the
Geldsteen.
8.
The prevailing swell was a long period
south westerly swell.  Shark Team was anchored so that its bow
faced into this swell.
A relatively light wind from the south
east was coming over the vessel’s port side.
9.
The crew succeeded in attracting sharks by
chumming.  This is explained as follows in a report into this
matter prepared on
behalf of the South African Maritime Safety
Authority (“SAMSA”) by Captain Coates (“Coates”):
“
Sharks
are attracted to the area using ‘chum’ which is a mulch
of seafood products.  This is shovelled into the
water at
various intervals and creates a ‘chum line’ which
attracts sharks to the vessel.  A bait line, consisting
of
approximately 15m of rope attached to a small tuna is also thrown
into the water and rapidly recovered.  This encourages
the
sharks to grab the tuna.  A small bag containing shark liver oil
is hung over the stern as an added attraction.”
10.
Once at anchor tourists on board Shark Team
entered the shark cage attached to the starboard side of the vessel
to view sharks.
As is explained in the SAMSA report:
“
The
cage consists of a rectangular steel enclosure, the gaps between the
bars being of sufficient size to keep sharks out and allow
good
visibility.  The cage was lowered into the water and then
manhandled around to the starboard side of the vessel and made
fast
using ropes.  The cage had several floats lashed to the side of
it to ensure it was always buoyant.  Approximately
30cm of the
cage was clear of the water.  The cage has a hinged lid to allow
easy access for the divers.  Diving is done
using a mask and
wetsuit with a maximum of 5 people in the cage at one time.
”
11.
Shark Team was hit by a wave and capsized
after it had been conducting shark-cage diving operations for about 2
hours.  By
this time all the passengers had completed their
dives but, at the time of the capsize, the vessel’s
videographer was in
the cage obtaining video footage.
12.
According to Tuckett, for the 10 minutes or
so prior to the capsize he had been standing on the stern of the
vessel, on the starboard
outboard engine, throwing a bait line to
attract sharks to the cage. The shark activity was good.
13.
It appears from digital data retrieved from
a camera that the capsize took place at or about 09h58.
14.
The wave which hit Shark Team and caused it
to capsize was, by all accounts, very large. It had narrowly missed
Shark Fever, which
was at rest nearby.  The wave broke near or
over Shark Team.
15.
When Shark Team capsized all the persons on
board were thrown into the sea.  The survivors immediately
started trying to climb
onto the capsized hull.   Several
of them found themselves under the vessel. Some of them managed to
escape from under
the vessel by swimming out.
16.
The videographer was trapped in the cage,
which remained attached to the stern of the vessel, and partially
buoyant.  Tuckett
and Mr Adrian Hewitt (“Hewitt”), a
crew member, opened the lid of the diving cage and assisted the
videographer out
of the cage and removed his diving weights.
Tuckett then swam around to the stern of the capsized hull.  He
saw that
a woman passenger was struggling with a rope around her leg
and assisted a volunteer, Megan Laird (“Laird”), in
disentangling
her.
17.
By this stage White Shark, which had been
at anchor several hundred metres away, had motored to Shark Team to
assist with the rescue.
It was at the capsized hull within 2
minutes.  Those who clambered onto the capsized hull were
assisted to climb onto White
Shark.
18.
During the rescue operation, Tuckett
noticed a passenger who had appeared in the water some metres from
the hull and was disorientated.
He jumped back into the water,
dragged him onto the hull and helped to get him onto White Shark.
Tuckett is clearly to be
commended for his brave conduct after the
capsize.
19.
People on the vessels that had come to
assist saw a number of great white sharks around the upturned hull.
20.
Altogether sixteen survivors made their way
onto White Shark.  Though this was not immediately understood by
those on the scene,
three passengers drowned.  They were
Tallman, his close friend and best man at his recent wedding, Mr
Casey Lajeunesse (“Lajeunesse”)
and Mr Kenneth Rogne
(“Rogne”), a Norwegian.  No-one at the scene,
including Tuckett and those in charge of the
rescue vessel, White
Shark, took the steps necessary to establish whether everyone on
board Shark Team had been rescued.
21.
White Shark left the scene approximately 8
minutes after the capsize.  As it was leaving, or fairly shortly
thereafter, it
was realised that Rogne was missing.  Once this
was realised, the other shark cage vessels in the vicinity were
alerted to
search for him.  It took an hour or more after this
for anyone to realise that Tallman and Lajeunesse were missing.
22.
Barracuda, which had left the area a little
while before the capsize, returned and towed the capsized hull of
Shark Team into deeper,
and therefore safer, water.  It was
suggested that the hull was towed approximately 1.1 kilometres, but
there is doubt as
to this distance. Tallman and Lajeunesse would,
unbeknown to anybody, have been under the hull as it was being towed.
23.
Mr Mike Rutzen (“Rutzen”), a
local shark diving expert and skipper, and Mr Koos de Kock (“de
Kock”), a local
SAMSA official, were at Kleinbaai at the time
of the capsize and were requested to assist with the search for
Rogne.  They
went out on the vessel Stan and arrived at the
capsized hull where it had been towed into deeper water.  They
tried banging
on the capsized hull but there was no response.
Rutzen prepared to dive under the hull.  De Kock manoeuvred Stan
against
the hull and at that moment a foot washed out between the
engines of Shark Team.  The foot belonged to Tallman, who was
then
pulled from beneath the hull and onto Stan.  He had no
pulse but two doctors who happened to be on Barracuda attempted to
administer CPR to him on the way back to Kleinbaai, without success.
At the time it was assumed that this individual was Rogne
and that
all persons on board Shark Team had been accounted for.
24.
The absence of Tallman and Lajeunesse
became apparent more than an hour after the capsize and only when a
friend of theirs came
looking for them at the harbour.  Rutzen
then launched a different vessel, Mako, to conduct another search (at
11h30, according
to the harbour records).
25.
The next body found was that of Rogne.
He was found floating in the water, about 2 hours after the capsize.
He was found by
De Kock, about 100m southeast of the position at
which the hull then was.
26.
The body of Lajeunesse was found under the
hull by Rutzen some time after 12h00.  Rutzen found Lajeunesse
with his arm entangled
in rope inside the cabin, which was still
intact but without air pockets.  Rutzen had two encounters with
sharks whilst extricating
Lajeunesse’s body and getting it onto
the rescue vessel.
THE
PARTIES’ CORE CONTENTIONS
27.
The plaintiff’s case is that the
defendants were negligent in numerous respects, not all of which were
ultimately pursued.
One aspect that was vigorously pursued was
the contention that the sea conditions at the Geldsteen, if they were
not sufficiently
threatening when Shark Team arrived there, became
noticeably threatening during the course of its stay.
Accordingly, so it
was argued, Shark Team should have left the
Geldsteen area before the capsizing swell arrived.
28.
The plaintiff also contends that the
skipper ought to have realised that Shark Team was lying in the
vicinity of a shallow part
of the Geldsteen reef, and that this is an
area known to be dangerous in large swells.  Having regard to
the preceding swell
pattern and the nature of the foul ground in
which Shark Team was anchored, the plaintiff contends that a breaking
wave large enough
to capsize the vessel was reasonably foreseeable.
29.
The plaintiff also contends that the owner
of Shark Team, knowing that the vessel from time to time visited the
Geldsteen in large
swell conditions, negligently failed to provide
safety instructions to the skipper and crew; failed to assess the
hazards faced
by the vessel, specifically capsize; and generally
failed to take steps to regulate the operations or navigation of the
vessel,
or to ensure that this was done safely.
30.
The defendants dispute all this.  In
particular, they dispute that a person having the general diligence
and level of skill
of a reasonable shark-cage diving vessel skipper,
in the position of Tuckett (at the location where Shark Team was
situated, with
her bow pointing into the oncoming swell and in the
prevailing swell and wind conditions) ought to have foreseen the
reasonable
possibility of Shark Team capsizing.
31.
The owner contends, in the alternative,
that even if the skipper acted negligently, it is entitled to limit
its liability in terms
of section 261 of the Merchant Shipping Act.
It accepts that, in this regard, the onus rests on it to prove on a
balance
of probability that the death of Tallman was caused without
its actual fault or privity.
THE
APPLICABLE LAW
32.
A claim based on the loss of life at sea is
a maritime claim; accordingly this is an admiralty action, which
falls to be disposed
of in accordance with the Admiralty Jurisdiction
Regulation Act, 105 of 1983 (“the AJRA”).
33.
Section 6(1) of the AJRA provides as
follows:
“
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 in 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 matter
at such commencement, insofar as that law can be
applied;
(b)
with regard to any other matter,
apply the Roman-Dutch law applicable in the Republic.”
34.
The AJRA came into force on 1 November
1983.   The law to be applied is therefore the law which
the High Court of Justice
of the United Kingdom would have applied in
the exercise of its admiralty jurisdiction on 1 November 1983.
This requires
the application of the rules of English private
international law as they stood on 1 November 1983.
The
“Argun”
2001(3) SA 1230
(SCA) at 1239 I-J.  It is common cause between the parties that,
applying the rules of English private international
law as they were
on that date, South African law must be applied in the determination
of the present action.
35.
In
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E,
the following test was laid down in respect of a delictual claim
founded on negligence:
“
For
the purposes of liability
culpa
arises if –
(a)
a
diligens paterfamilias
in the position of the defendant –
(i)
would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such steps.”
36.
In
Joffe &
Co Limited v Hoskins and Another
;
Joffe
& Co Limited v Bonamour, NO, and Another
1941 AD 431
at 450 the Court held as follows:
“
In
Cape Town Municipality v Paine
(1923 A.D. at p.217) Innes, CJ, formulated the test as follows:-
‘
The
question whether in any given situation a reasonable man would have
foreseen the likelihood of harm and governed his conduct
accordingly,
is one to be decided in each case on a consideration of all the
circumstances.  Once it is clear that the danger
would have been
foreseen and guarded against by the
diligens
paterfamilias
, the duty to take
care is established, and it only remains to ascertain whether it has
been discharged.’
The
word ‘likelihood’ which is used in the first sentence of
the above quotation is, it seems to me, not used in the
ordinary
dictionary sense of ‘probability’ but in the sense of
a possibility of harm to another against the happening
of which a
reasonable man would take precautions. That this is the sense in
which that word is used appears clearly from the second
sentence of
the quotation.
”
37.
In
Herschel v
Mrupe
1954 (3) SA 464
(A) at 477 A - C,
the Court held as follows:
“
No
doubt there are many cases where once harm is foreseen it must be
obvious to the reasonable man that he ought to take appropriate

avoiding action.  But the circumstances may be such that a
reasonable man would foresee the possibility of harm but would

nevertheless consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable
lack of
seriousness if it did, would require no precautionary action on his
part.  Apart from the cost or difficulty of taking
precautions,
which may be factor to be considered by the reasonable man, there are
two variables, the seriousness of the harm and
the chances of its
happening.  If the harm would probably be serious if it
happened, the reasonable man would guard against
it unless the
chances of it happening were very slight.  If, on the other
hand, the harm, if it happened, would probably be
trivial the
reasonable man might not guard against it even if the chances of its
happening were fair or substantial.  An extensive
gradation from
remote possibility to near certainty and from insignificant
inconvenience to deadly harm can, by way of illustration,
be
envisaged in relation to uneven patches and excavations in or near
ways used by other persons.
”
38.
In
Ngubane v
South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 776 G-I the Court endorsed the following
formulation of the applicable principles by Prof. JC van der Walt (in
Joubert (ed)
“
The Law of South
Africa”
, Vol 8
sv
“Delict
” para 43 at 78):
“
Once
it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have
taken
measures to prevent the occurrence of the foreseeable harm.  The
answer depends on the circumstances of the case.
There are,
however, four basic considerations in each case which influence the
reaction of the reasonable man in a situation posing
a foreseeable
risk of harm to others:
(a)
The degree or extent of the risk
created by the actor’s conduct;
(b)
The gravity of the possible
consequences of the risk of harm materialises;
(c)
The utility of the actor’s
conduct; and
(d)
The burden of eliminating risk of
harm
”
39.
The precise or exact manner in which the
harm occurs need not be foreseeable.  It is the general manner
of its occurrence which
must be reasonably foreseeable.
Sea
Harvest Corporation v Duncan Dock Cold Storage
2000 (1) SA 827
(SCA) at para [22].
40.
Our courts have adopted the “
relative
”
approach to negligence as a broad guideline.  This was confirmed
by the Supreme Court of Appeal in
Premier
of the Western Cape Province and Another v Loots NO
[2011] ZASCA 32
(25 March 2011) in which it held as follows (at para
[13]):
“
The
relative approach does not require that the precise nature and extent
of the actual harm which occurred was reasonably foreseeable.

Nor does it require reasonable foreseeability of the exact manner in
which the harm actually occurred.  What it requires is
that the
general nature of the harm that occurred and the general manner in
which it occurred was reasonably foreseeable.
At some earlier
stage there was a debate as to whether our courts should follow the
relative approach as opposed to the so-called
abstract or absolute
approach to negligence. But it now appears to be widely accepted by
academic writers, on good authority, that
our courts have adopted the
relative approach to negligence as a broad guideline, without
applying that approach in all its ramifications.
”
THE
FORESEEABLE CONSEQUENCES OF A BREAKING WAVE WHEN AT ANCHOR
41.
Shark Team was at anchor when the wave
struck it, causing it to capsize.  A shark-cage diving vessel at
anchor cannot take
steps to avoid or to “
punch
through
” an approaching breaking
wave.  This was the view of experts who testified for the
plaintiff and was accepted by the
defendants.  Tuckett himself
testified that “…
once you
are on anchor, if there is a swell that could in any way possibly
break on you, there’s nothing you can do about
it.  You
have to be off anchor to be able to get away from the swell.”
42.
Asked to comment on the view expressed by
Mr Johnson, an expert who testified for the plaintiff, that “…
when you’re there at anchor with a
cage over the side, you’re a dead duck if a wave comes along
”,
Tuckett answered:
“
That
is correct, M’Lord, that’s why when you pick your anchor
spot, you have to be 100% sure, and as soon as anything
happens, like
you get a peaking swell anywhere near you, then you move, M’Lord,
you don’t sit and rev your engines,
you pack up and you move.
”
43.
Tuckett also accepted that a prudent
skipper would endeavour to avoid any sort of breaking wave:
“
So
what you know when you’re out there at sea is, you must avoid a
broken wave – a breaking wave. ---Yes, ja, something
that can
cause damage and hurt somebody.
Whether
or not it’s a capsize or whether its structural damage or
whether its knocking somebody off their feet or knocking
them
overboard or whatever it is, you know when you’re out there,
avoid any wave, any swell that’s going to break.
--- That is
correct.
”
44.
Asked by the Court whether he accepted that
a skipper should be alert to the risk of any breaking wave, he
answered:
“
Oh,
most definitely.  Ja, most definitely.  You’ll
understand, M’Lord, that the idea of a capsize is such
a huge
event and it’s so difficult to do. When we’re talking
about being nervous at sea, that’s what we’re
nervous of.
We’re nervous of a wave breaking on us and knocking somebody
over.  That’s what we’re scared
of.  If we’re
scared of a wave coming that could capsize us, then we’re never
going to be there…”
WHAT
SWELL SIZE WOULD HAVE INDICATED DANGER?
45.
A fundamental question in this matter is
what swell size would be large enough to serve as a warning to a
reasonably prudent skipper
of a shark-cage vessel at anchor that he
should weigh anchor and depart.
46.
Tuckett testified that, whilst the vessel
was at anchor, he would regard a 4m wave as dangerous and to be
avoided. He said that:
“…
if
there was a chance of a 4m wave coming anywhere near me while I was
on anchor, I would have moved away.
”
Shortly
thereafter he continued as follows:
“…
and
if you’ve anchored and you’re looking at a 2m wave, and
it’s a constant 2m wave and maybe to a 3m wave and
then all of
a sudden you see a 4m wave, then that would be a warning, M’Lord,
and it would be a good reason for me to either
move away or choose
another spot, M’Lord.
”
47.
At another stage he was asked:
“
A
swell of what height would have given you a cause for concern?”
He
answered:
“
Anything
from about 3.5m to 4m and above, M’Lord.”
48.
Similar evidence was given by Hewitt, a
senior crew member on White Shark that day, who has a class C
skipper’s licence.
He was asked in cross-examination up
to what size swell would cage diving on Shark Team be permissible.
He said that he “
wouldn’t
really know
” because they did not
go out in “
big swell conditions
”.
The cross-examination continued:
“
What’s
big conditions? - - - I would say anything over 3m/4m, I mean its . .
.
Anything over 3m
or 4m would be big conditions? - - - Over 4m, you’re getting
pretty big conditions.
Well I don’t
know Mr Hewitt, I wasn’t a crew member on Shark Team.  I
want to know how you operated.  3m,
4m, which is it? - - -
We were very, very rarely out in 4m.
What
about 3m, anything over 3m, is that large? - - -It depends on the
day, on the conditions.
”
49.
Evidence was given by several witnesses of
a conversation which took place on the viewing deck of Shark Team not
very long before
the capsize, between Tuckett and a volunteer on
board, Ms Deborah Allbrook (“Allbrook”).  There is
some controversy
as to exactly what prompted this conversation.
According to a witness for the plaintiff, Ms M Meyer, Allbrook’s
question
was prompted by them all seeing a big swell that had broken
some distance away.  When Allbrook asked Tuckett what it would

take to capsize Shark Team, he replied laughingly that that wave
could capsize the vessel.  This alarmed Ms Meyer.
50.
On Tuckett’s version, Allbrook’s
question was not prompted by them seeing a big wave.  His
version was that, when
Allbrook asked him what size wave would be
large enough to capsize the vessel:
“…
I
pointed to a reef system about 500m away, where you get larger swells
breaking and I said it would something around that sort
of size
”
.
He
testified that he estimated that the wave he pointed out was “
maybe
about a 4m wave
”.   This
confirms that it was Tuckett’s own view that there was an
appreciable risk that a breaking wave
of about 4m could capsize Shark
Team.
51.
Later in his evidence Tuckett started to
downplay the risk posed by a 4m swell but the Court is satisfied that
Tuckett’s own
evidence supports the view that a prudent
skipper, at anchor with tourists at the Geldsteen, would regard
passing waves of 4m or
more as a clear warning that conditions were,
or were becoming, unsafe and therefore a warning that he should
depart.
52.
This view is fortified by the evidence of
certain other skippers of shark-viewing vessels who testified.
Mr P Colyn, the skipper
of White Pointer, who was called as a witness
by the plaintiff, testified that, unlike prior to the capsize, “
if
the swell is predicted for 4m, then we don’t go out anymore
”.
Mr A. Scholtz, the skipper of Shark Fever, who testified for the
defendants, said that, even before the capsize,
they had used 4m as a
guideline as to the maximum acceptable swell size.
53.
The Court is persuaded on all the evidence
that, if sets of swells are coming through at 4m or more, a prudent
skipper at anchor
at the Geldsteen would be concerned and should
depart.   In part, this is because the Court accepts the
plaintiff’s
contention that a prudent skipper should leave a
margin of safety and not flirt with risk. This principle was accepted
by Mr Fintan
Hartnett (“Hartnett”), an expert who
testified on behalf of the defendants:
“
Would
you agree that there should be a margin of safety of error?  You
see the conditions.  You don’t say well,
I’m
unsure.  I’ll just hang around for a while.  You
should be getting out long before things start getting
risky or
dangerous.  - - -  I think that’s quite
self-evident.  A prudent skipper when he feels that things
are
getting dangerous moves his position, M’Lord.
”
54.
A similar sentiment was expressed by Mr
Johnson, who has been involved in maritime matters for 30 years and
who testified for the
plaintiff. He said that if they were at anchor:
“…
for
10 minutes or half an hour, or whatever, and saw things are starting
to get a bit bad, they should leave immediately.
”
55.
In some circumstances a capsize of a vessel
is not necessarily catastrophic.  However, it is clear that a
capsize of a vessel
like Shark Team, when at anchor for shark viewing
purposes, is extremely dangerous. First, great white sharks had been
deliberately
enticed to the immediate vicinity of the vessel.
Secondly, it is clear on the evidence that there is an obviously
foreseeable risk
if this type of vessel capsizes that anyone in the
cabin is likely to be trapped under the hull.  The defendants
repeatedly
and insistently emphasised that it would be too dangerous
to expect anyone to attempt to rescue persons who might be trapped
under
the hull. The risks include not only danger from sharks, but
also becoming entangled in ropes and the like. It follows that, on

the defendants’ own evidence, death by drowning is a clearly
foreseeable risk if such a vessel capsizes.
56.
Appreciating this, Tuckett testified that
“
every skipper’s nightmare
is to get capsized
” and that
“
obviously you avoid it at all
opportunities
”.  He accepted
that, if he had given a capsize any thought, he would have realised
that, in the event of somebody getting
trapped under the hull, they
were inevitably going to die.
57.
The Court is not suggesting that it is
always dangerous for a shark-cage vessel to go out to sea when there
are occasional swells
of 4m or more. This case is only concerned with
whether the swell conditions at Geldsteen were sufficiently
indicative of danger
that a prudent skipper of a vessel on anchor
would have departed. The Geldsteen is an area characterised by broken
reef of varying
depth.  It is an area in which it is well known
that waves break in heavy weather.  This was not only the
evidence of
numerous witnesses who testified for the plaintiff; it
was the evidence of Tuckett himself, who told Coates, when he
enquired,
that “
it breaks over the
entire Geldsteen
”. Scholtz, the
skipper of Shark Fever called to testify for the defendants, agreed
that, because of the reefs, it can get
dangerous at the Geldsteen
when there are large swells because swells sometimes break there.
58.
The Geldsteen is marked on the map as an
area of “foul ground”.  Mr Steve Smuts (“Smuts”),
the skipper
of Swallow, who testified for the plaintiff, said that
this indicated that the bottom was not all one depth; it had a jagged
depth
with pinnacles and was generally shallow.  He testified
that: “
Foul ground to me is an
area where you can expect breaks
…”.
Mr Coenie Coetzee (“Coetzee”), the dive master on White
Shark who also testified for the plaintiff,
testified that Geldsteen
is “
hazardous
”
and a “
place where you can’t
put your back at the sea because there’s a lot of swells
picking up quickly
”.  He
also told Coates “
that Geldsteen
was a reef that everyone was aware of and would break with a large
swell
”.  Colyn, the skipper
of White Pointer who also testified for the plaintiff, said in
respect of the Geldsteen that “(
w)hen
there’s a big swell running it is always possible for a wave to
break…
”  He described
the swell at the Geldsteen when he got there that day as in the
region of 4m or in excess of that, which
he regarded as “
very
big”.
59.
The relatively shallow and uneven depths at
the Geldsteen, coupled with the fact that swells are known to break
there, make it necessary
to adopt a relatively conservative stance as
to what height of swells should be regarded as sufficiently dangerous
that a prudent
skipper would depart.
60.
It must always be borne in mind that the
business of the third defendant, the owner of the vessel, was to take
tourists to sea to
view sharks as a form of recreation.  If the
visible swell conditions are such that a prudent and experienced
skipper should
be aware that the risk of a wave breaking over his
vessel is not insignificant, no purpose is served by continuing to
expose tourists
to this type of risk.
61.
As referred to in the passage from the
Joffe
decision cited in paragraph 36 above, the question is what level of
swell condition discloses “
a
possibility of harm to another against the happening of which a
reasonable man would take precautions
”.
The passage from
Herschel v Mrupe
quoted in paragraph 37 above reveals that:
“
If
the harm would probably be serious if it happened, the reasonable man
would guard against it unless the chances of it happening
were very
slight
”
.
62.
Tuckett’s own evidence shows that the
foreseeable consequence of a wave breaking over a shark-cage vessel
at anchor would
probably be serious.  His evidence also shows
that he – like others – regarded a 4m wave coming near
his vessel
as indicative of danger.
63.
The pleasures of shark cage diving (for
those who like that sort of thing) and the disappointment that may
follow from calling off
a shark-cage diving trip do not, in the
Court’s view, justify failing to cancel or abandon a trip if
there is any reasonably
foreseeable possibility, not probability, of
a breaking wave. Swells in excess of 4m in the nearby vicinity of a
vessel at anchor
at the Geldsteen would, in the Court’s view,
constitute a warning to the reasonably prudent skipper that he should
pack up
and leave.
64.
Reference has been made above to the fact
that the capsizing wave was a very large wave. The defendants
asserted as the trial developed
that it must have been at least 10m
to 11m high. They referred to it as a “
freak
”
wave and they argued that such a large wave could not reasonably have
been foreseen.
65.
The Court is not convinced that the wave
was necessarily quite as large as the defendants asserted, but it
does accept that it was
both a very large wave, and that it was
considerably larger than the largest swell observed in the preceding
or succeeding few
hours.  In the Court’s view, however,
little purpose would be served in exhaustively analysing the evidence
as to the
size of the breaking swell because, in its view, nothing
turns on this.  The question is not whether the defendants could
reasonably have foreseen a wave as large as the wave which actually
capsized Shark Team.  The question is whether the conditions

were such that the skipper could reasonably have been expected to
foresee the risk of a wave breaking over Shark Team.  If
he
could, the death of a passenger on board was reasonably foreseeable.
SWELL
CONDITIONS BEFORE THE CAPSIZE
66.
The primary focus of the trial concerned
the prevailing swell conditions at Geldsteen in the period preceding
the capsize. The plaintiff
asserts that the swells were sufficiently
large to make a swell breaking over the vessel reasonably
foreseeable.  The defendants
dispute this.  They contend
that the swell conditions were moderate and that the skipper had no
reason to foresee a breaking
swell or a capsize.
67.
The trial in respect of this matter ran for
some 52 days.  I do not propose to refer to all of the
voluminous evidence regarding
the swell conditions.  I shall
instead refer to the evidence which in my view is most pertinent.
(i)
The evidence for the plaintiff
68.
The first witness for the plaintiff was Ms
M Meyer.  She and her husband Hendrik (the second witness for
the plaintiff) were
passengers on Shark Team on the day of the
capsize.  By their own admission they both have minimal
experience of going to
sea.
69.
Ms Meyer testified that, to her, the swells
at Geldsteen “
looked big
”.
The conditions were “
not that bad
”
when they got to Geldsteen but “
it
got worse
”.  She was
steadfast in contending that “
for
me it deteriorated.  I felt uncomfortable.
”
She became particularly concerned after overhearing the conservation
on the viewing deck between Tuckett and Allbrook,
which has been
referred to above.
70.
Ms Meyer also testified that a man with a
ponytail on the rescue vessel (White Shark) said to her, at the time
of the rescue, that
“
he can’t
believe it, we were not supposed to dive that day, it was not very
good conditions, yes.  He was upset.
”
Coetzee, the dive master on White Shark, later made clear that he was
the man with the ponytail.
71.
Mr Meyer described the sea conditions at
Geldsteen that day as “
quite
rough
”.  He testified that
you could see the nearby vessels “
going
away, coming out, going away, coming out
”.
According to him the conditions in the beginning were not that bad
but worsened while they were there.  Pressed
in
cross-examination as to whether it was possible that he was mistaken
that there was deterioration in the weather conditions,
he said “
Not
according to me, no… it got worse and bigger.  Bigger and
more often.  The waves came more often, yes.
”
Asked if it was possible that he just noticed one of the bigger sets
coming through and that that gave him the impression
that the
conditions were deteriorating he said “
not
possible.  Not according to my opinion.
”
72.
Mr Meyer also referred to comments made at
the time of the rescue by a man on the rescuing vessel with grey
hair, whom he believed
to be the skipper of White Shark.  From
other evidence, it is clear that this must have been the skipper of
White Shark, Mr
Ronnie Lennox.  According to Mr Meyer, the man
with grey hair was angry because, according to him, the conditions
that day
were not good and they should not have been diving that
day.  According to Mr Meyer the man said “
he
can’t believe anybody who was out on this, doing cage diving,
because he’s afraid.  And he knew this was going
to happen
because the sea is too rough.  And I remember he was very, very
angry
.”
73.
The next witness for the plaintiff was Mr
Steve Smuts, the skipper of Swallow, one of the shark-cage diving
vessels at Geldsteen
that morning.  Whereas Shark Team had
departed from Kleinbaai at approximately 07h30, Swallow had departed
at approximately
08h20.  It appears that the journey from
Kleinbaai to Geldsteen ordinarily takes approximately 20 minutes or
so.  Swallow
would therefore have been on the scene from
approximately 08h40, that is, from a little over an hour before the
time of the capsize.
74.
There is a set of rocks near the departure
point at Kleinbaai, known locally as “Black Sophie”.
According to Smuts,
“
if Black
Sophie breaks, it is a sign that there is a fair swell running
”
and it was breaking at Black Sophie that morning.  According to
Smuts, there had been “
a bit of
concern
” at the harbour prior to
launching, but following the consensus of the skippers, he had put to
sea.
75.
He testified that, on arrival at Geldsteen,
he found the swell to be “
far
bigger
” than he had expected.
Nonetheless, he put down his shark cage and his passengers
participated in the usual shark viewing
activities.  However,
because of the swell size that was coming through, he remained behind
the wheel that day.   Under
normal conditions he would come
out of the cabin, assist people and chat to the tourists.  That
day, because of the swell
size, he did not move out of the cabin. He
stood at the wheel of his vessel to be able to start its motors and
get some forward
momentum if a swell started to cap. He testified
that he had started Swallow’s engines on two or three occasions
that morning.
76.
He testified that, although “
it
wasn’t dangerous when I got there, it was threatening
”.
He believed that, with the tide dropping, the chances of swells
breaking in that area were large. He stated:
“
As
the tide started dropping, if my memory serves me correctly, the tide
had just turned and it was then becoming really threatening.
”
The
swells were now peaking (i.e. forming sharper points).
77.
He estimated that Swallow was at rest
approximately 150m away from Shark Team.  She was 30m to 50m
from Barracuda.  Barracuda,
including the top of her aerials,
was from time to time disappearing behind swells.  Based on his
estimate of the height of
Barracuda’s aerials, he estimated the
swell size to be in excess of 7m, taking the trough into
consideration.  He later
made clear that this was only “
a
very, very rough estimation
”.
78.
According to Smuts the conditions in the 5
or 10 minutes preceding the capsize of Shark Team deteriorated
alarmingly.  He testified
that, shortly before the capsize,
Ronnie Lennox, the skipper of White Shark, had telephoned him and
told him that he was not dropping
his shark cage into the water but
aborting his trip because of the conditions.  Smuts told Lennox
that all his people were
out of the cage, that he was busy packing up
and that he was getting “
the hell
out of here
”.  It was “
a
matter of seconds
” later that
Shark Team capsized.
79.
Smuts said that he regarded Geldsteen as a
dangerous area when the swells were big because it breaks all over
there.
80.
It emerged during cross-examination that
Smuts had had a sense of foreboding about this whole trip because of
a dream that he’d
had on the previous night.  He also
testified that after the capsize incident he could not go back to sea
and had in fact
become “
a hopeless
drunk
”.  He has since
recovered.
81.
It was suggested to Smuts in
cross-examination that he was really only concerned about a possible
deterioration in conditions once
the tide was falling and that this
had not yet occurred.  Smuts insisted that it had already “
been
threatening
” and that in the
period of about 5 to 10 minutes before the capsize of Shark Team, the
conditions had become alarming.
82.
The next witness for the plaintiff was Mr
Coenie Coetzee, the dive master on White Shark.  According to
the slipway register,
White Shark departed from Kleinbaai at
approximately 09h05.  Coetzee testified that they anchored at
round about 09h30, though
he conceded it might have been a little
after that.  It therefore appears that White Shark was an anchor
at the Geldsteen
by somewhere between 20 and 30 minutes before Shark
Team capsized. Coetzee’s estimate was that White Shark was at
rest approximately
300m from Shark Team.
83.
Like Smuts, Coetzee asserted that he had
seen the water coming over “
Black
Sophie
”.
84.
Coetzee testified that he had seen the
weather forecast for that morning predicting 4.1m swells, which he
regarded as big swells.
85.
Coetzee testified that, on the trip out to
Geldsteen, they had been expecting swells coming through and it was
roughly as predicted.
However after they had anchored, some big
swells came through. The other shark-cage diving vessels were
disappearing behind the
swells.  Coetzee and Lennox decided not
to put down the diving cage and to cancel the second trip planned for
later that day.
Had they seen the swells they saw after
anchoring, they would not have anchored.  The swells were the
reason for not putting
their cage down and for deciding to abort
their trip.
86.
Some time after anchoring, a set of four
“
big massive swells
”
came through.  It was this set of swells that led them to decide
to abort the trip.  Coetzee was in the process
of explaining to
their clients that they were abandoning their trip when he saw the
wave capsizing Shark Team.
87.
It is convenient at this stage to refer to
certain hearsay evidence from the skipper of White Shark, Mr Ronnie
Lennox (“Lennox”).
Lennox was undergoing
rehabilitation for alcoholism at the time of the trial and it was
therefore not possible for him to testify.
However the Court
was furnished with a note of an interview with Lennox on 17 April
2008, made by Captain Coates in the course
of his investigation for
SAMSA.  (Section 6(3) of the ARJA permits this Court to receive
as evidence statements which would
otherwise be inadmissible as being
in the nature of hearsay evidence.  In
Cargo
Laden and Lately Laden on board  MV Thalassini Avgi v MV
Dimitris
1989 (3) SA 820
(A) at 842 G
to H the Supreme Court of Appeal held that the Court should, speaking
generally, incline to letting hearsay statements
go in and to assess
the weight to be attached to them when considering the case in its
totality. The Court accordingly ruled as
admissible a considerable
volume of hearsay evidence.)
88.
The note of Coates’ interview with
Lennox records that Lennox estimated the swell when he left the
slipway at 2m.  It
records that, when he arrived at Geldsteen,
the swell was not as he expected and he knew that, with the tide
dropping, it was not
going to be good to lie around any of the
reefs.  On low tide the swell would pick up.  Due to the
swell, he decided
not to put the cage down and that they could not
stay long.  e Heh ddddddHe told his dive master to tell the
passengers that
it was going to get dangerous and that they could not
stay for long.  Four large swells appeared and he started the
motors,
warned his dive master and had to drive up one of the
swells.  This was two to three minutes before the big wave
(which capsized
Shark Team).
89.
Several witnesses credibly denied that they
had made comments attributed to them by Coates and, leaving aside its
hearsay nature,
the Court is in considerable doubt as to whether the
note accurately recorded what Lennox said to Coates. Little weight is
therefore
attached to it.
90.
The Court was also furnished with an
affidavit given by Lennox to the South African Police, apparently
dated 8 April 1998.
In this affidavit he says that, once at
anchor, he had discussed the conditions with Coetzee and that:
“
Ons
het saam besluit dat ons nie baie lank gaan lê nie, want die
water was baie sterk en die toestande nie veilig om lank
op die
spesifieke plek te lê en haaie kyk nie.
”
91.
He also refers in this affidavit to a set
of four waves that came through about 15 minutes after they had
thrown anchor:
“
Die
branders was kort op mekaar en die water was baie sterk gewees.
Ek het toe dadelik die dive master gesê dat hy moet
klaar maak,
want ek gaan anker optrek.  Volgens my was dit nie meer veilig
om daar te lê en haaie kyk nie.  Ek
het toe die kantoor
gekontak en meegedeel dat hulle die tweede ‘trip’ moet
kanseleer, want die water is te rof.
Ek het toe ook die skipper
van Swallow, Steve, ook geskakel en gesê dat ons nou huistoe
gaan.
”
92.
The next witness for the plaintiff was Mr P
Colyn, the skipper of White Pointer.  He arrived at Geldsteen
shortly before Shark
Team capsized.  He testified that when he
arrived at Geldsteen “
there was a
very big swell
” which he assessed
to be approximately 4m.
93.
Colyn stated during cross-examination that
he had seen waves breaking at the Geldsteen two to three times per
season on days when
the swell was 4m and higher.  In the
resultant cross-examination, counsel for the defendant appeared to
accept that swells
of that size could be described as “
very
big
” or at least “
large
”.
94.
It was put to Colyn in cross-examination on
behalf of the defendants that, according to Tuckett, he
seldom,
if ever, took Shark Team out in swell conditions where they were in
the region of 4m or in excess of that region
”.
Colyn’s answer was that:
“
Prior
to the accident we all went out in those conditions.
”
Counsel
for the defendants responded that Tuckett’s evidence would be
to the contrary.
95.
Colyn also testified that “
if
the swell is predicted for 4m, then we don’t go out anymore
”.
96.
The plaintiff also led expert evidence by
Mr J-P Arabonis (“Arabonis”) , whose primary expertise
appears to lie in the
field of weather forecasting.  In his
initial written report regarding swell conditions, Arabonis made
certain basic errors,
which he freely conceded when called to
testify.  I do not propose to dwell on his evidence in any
detail.  I think it
appropriate, however, to refer in passing to
opinions that he expressed regarding swell conditions revealed by a
video made on
Shark Team on the morning of the incident.  He
identified one swell (at 2:49) that, according to him, had “
quite
a sharp, quite a peak to it
”.
He referred to another two swells (at 2:54 – 2:55) as swells
that “
are starting to get quite
close to an unstable wave that would be close to breaking
”.
He referred to a further swell (at 3:23) that was “
moving
towards an unstable wave
”; to
another swell (at 4:06 – 4:07) “
seeming
to be quite a steepening and moving towards an unstable wave
”;
to another swell (at 4:28 – 4:29) as being “
getting
quite sharp
”, and so forth.
Mention should also be made of the fact that Arabonis expressed
the opinion that certain photographs
taken on the day showed swells
of 3.5m to 4m not infrequently.
97.
In addition to the witnesses referred to
above, the plaintiff also led evidence from several other experts on
their opinions regarding
swell conditions as revealed by material
made available to them.  For example, Coates expressed the
opinion that the photographs
before the Court “
show
large swells, very very clearly
”.
Mr Johnson expressed the opinion that the photos and the Shark Team
video showed that “
there was a
significant swell running there
”
and that “
there was a big swell on
that day
”.
(ii)
The evidence for the defendants
98.
The evidence led by the defendants
regarding the swell conditions presented a generally – but not
entirely – more benign
picture.
99.
Asked about the weather conditions, Tuckett
said he “
regarded it as an average
trip on the Geldsteen… we were quite happy…
”
The thrust of his evidence was that there was an average day swell of
about 2.5m, which was of no concern to
him.
100.
This is not entirely clear, but it seems
reasonable to assume that Tuckett was the primary source of the
version presented by the
defendants in a press statement issued on
the day in question.  There it was asserted that there was an
approximately 2m swell
which made it “
a
perfect sea going day
”.
101.
Tuckett testified that he saw nothing break
over Black Sophie.  He accepted, however, that Black Sophie was
“
quite a reliable guide”.
102.
He was referred to swells seen on the Shark
Team video and he assessed the swell size as a 2m or 2.5m swell.
Shown a photograph
taken that morning (photograph D9) he said that
“
just guessing, it looks about a
2.5m, 3m swell at maximum”.
103.
He was then referred to a video taken from
the vessel Barracuda which was only made available to the parties on
the morning of 11
March 2014 (by which stage Tuckett had already
commenced his evidence).  He was referred to a portion of the
video (at 9:30)
which shows a swell passing on the starboard side of
Swallow.  In his evidence in chief, Tuckett described this as a
moderate
swell of about 2m or a maximum of 2.5m, which did not look
like it was going to break.  In cross-examination he initially
described this swell as a comfortable swell and reiterated that he
would have been quite happy to be at anchor with the swell like

that.  Later in cross-examination, however, he changed his
stance, describing the swell as “
peaking
”
and saying that, if he had seen such a swell, he would have moved to
somewhere calmer.
104.
I pause to observe that Dr John Zietsman
(“Zietsman”), an expert who testified on behalf of the
defendants, later testified
in respect of the same swell at (9:30 on
the Barracuda video):
“…
it
could be 4m or so, I guess.  It’s feathering at the top.”
In
Laird’s testimony on behalf of the defendants, her comment in
respect of the same swell was that she didn’t think
it would be
very comfortable in the cage after going over a swell like that.
Scholtz, the skipper of Shark Fever, testified
that the swell “
looks
a bit on the shaky side
”, but
said that he had worked in conditions like that.  Asked whether
it was correct that he doesn’t do that anymore,
he said that
this was correct.
105.
In his evidence in chief, Tuckett was also
referred to a swell seen from 9:45 to 9:55 on the Barracuda video.
He described
this as “
pretty much
the same
” as the previous swell.
He said that the videographer had zoomed in on Megalodon and filmed
about a 2.5m to 3m swell
with white water and wind spray on the top,
passing to the port side of Megalodon.  Tuckett did not give the
impression that
he would have been particularly concerned by this
swell.
106.
Zietsman testified in respect of this swell
that it was “
feathering a bit more
than the previous one
”.  He
was of the view that “…
we’re
probably looking at about 6m on the front
”.
The Court’s assessment is that Zietsman’s estimate of
about 6m is more accurate than Tuckett’s
estimate of 2.5m to
3m.
107.
Laird expressed the opinion in respect of
the same swell that it looked quite close to breaking.  She
agreed that it was “
quite a
sizeable swell
” and said that “
I
wouldn’t be happy with that, and I’d pull up anchor and
I’d move.  I wouldn’t want to be anchored
in that
area.
”
108.
When Scholtz testified in respect of the
same swell he accepted that it was feathering, not only at the top,
but also along its
back.  He agreed that it was becoming quite a
sharp swell and was peaking noticeably.  He said that, from the
angle of
the video shot, it looked as though it wouldn’t take
very much more and it could break.  In his view the conditions
revealed by this swell were not appropriate for shark cage diving.
In those conditions, Megalodon should not have been where
it was.
He also testified that White Shark (seen at 9:53 on the video) ought
not to have been out there in those conditions.
109.
Ms C Beukes (“Beukes”), one of
the members of the CC, was also asked in cross-examination about the
conditions shown
on the Barracuda video.  She stated, quite
candidly, that “
if my boat was
anchored where that boat was anchored I would have been worried…
”.
110.
I revert to the evidence given by Tuckett.
The conditions shown on the Barracuda video were taken up with him in
cross-examination.
He testified that he had been seeing the
kind of swells depicted in the video throughout the morning:
“
So
what we saw there in that video you were seeing consistently while
you were out there at the Geldsteen on 13 April? - - - Where
those
boats were lying. That’s correct.
They
were consistently bobbing up and down as we saw. - - - That is
correct, M’Lord.
”
111.
Asked in cross-examination about vessels
disappearing behind swells, Tuckett said that this happened often and
was not concerning.
He said he was only concerned if he saw
swells nearby that started to break or were peaking – those
were the warning signs.
He also testified that the swell
conditions shown on the Barracuda video were like the conditions that
he had been consistently
seeing that morning.
112.
In the course of his evidence in chief,
Tuckett stated that he had picked Shark Team’s resting spot in
preference to the spot
where Barracuda later came to rest because the
spot at which Barracuda came to rest was “
a
bit more up and down
” and the
spot he selected “
just did look a
bit flatter
”.  He repeated
in his evidence in chief that the Barracuda position “
was
a little bit more up and down there
”.
In cross-examination he again repeated that his selected position
“
just looked a little bit calmer
”
and that the swell where Barracuda came to rest was “
a
little bit more up and down than where I was
”.
However, later in his cross-examination – when the implications
of the larger swells seen on the Barracuda
video were more obvious to
him – he changed his stance and asserted that the swell where
Shark Team was was “
much less
where we were lying compared to the other vessels
”
(emphasis added).  This change in stance is an aspect to which
the Court will revert below.
113.
An aspect that bears mention is that
Tuckett was not familiar with concepts such as “
significant
wave height
” and the associated
probable maximum wave height, as referred to in the expert literature
and testimony. Tuckett accepted
that if he experienced a 1m wave he
could anticipate the possibility of a 2m wave. However, he did not
seem to accept that if he
was in a 2m wave area, he could anticipate
the possibility of a 4m wave coming through.  Pressed on this
issue, he declined
to answer, stating that he was “
not
an expert on waves
”.
114.
Rutzen was the next witness called to
testify by the defendants.  His evidence was that, when he went
out on his rescue mission
after the capsize, they were running a 2.5m
to 3m swell.  Referred to the larger swells shown on the
Barracuda video, he said
that these were not the kind of swells that
he encountered when coming out from Kleinbaai later.    The
upturned
hull had been towed into deeper water before Rutzen arrived
on the scene.  It is not clear how far it had been towed.

This makes it difficult to assess whether the bathymetry at the place
where he found the hull was significantly different from
where the
capsize took place, and therefore whether the swell conditions may
have been different.
115.
Rutzen made the point that Gansbaai “
is
in the middle of the highest wave energy area in Africa
”
and that the area was characterised by a lot of waves.  He said
that a 3m or 4m swell was quite normal.
116.
Asked whether vessels disappearing in the
swells showed that the swells were really large, he said “
I
suppose so
”.  He accepted
that vessels disappearing like this would be a cause for concern,
especially if the swell is fast.
117.
The next witness for the defendants was
Laird, who was on board Shark Team on the morning in question as a
volunteer. At the time
she had a fair amount of sea going
experience.  She testified that she estimated the swell height
on arrival at Geldsteen
to be approximately 2m.  She regarded
the conditions as quite comfortable.  She testified that she did
not notice the
swell condition to deteriorate at all.  She did
not recall any large swells coming past Shark Team.  She did not
see
other vessels in the vicinity disappearing.  (Her assessment
of the larger swells on the Barracuda video has been briefly
summarised above.)
118.
Hewitt, a crew member on Shark Team on the
day in question, testified next for the defendants.  He said
that the conditions
were no worse than usual, estimating the size of
the swell whilst out at Geldsteen at between 2m and 3m.  He did
not recall
any change to the sea conditions whilst they were at
Geldsteen.
119.
Mr Albert Scholtz was, as referred to
above, the skipper of Shark Fever.  The evidence shows that
Shark Fever was the closest
vessel to Shark Team at rest probably no
more than 40m to 50m from Shark Team.  Scholtz testified in
chief for the defendants
that the average swell size at Geldsteen
that day was about 2.5m or so.  He said that he had not
experienced any feathering
waves there that morning.  He did not
see any swells standing up near Shark Fever and there was nothing
about the conditions
that day that gave him any concern.
120.
Under cross-examination he testified that
the prediction in the weather forecast that he used that day was for
a 4m swell.
Even before the capsize they had used 4m as a
guideline as to the maximum acceptable swell size.  He said that
his evidence
in chief about the swell that morning being 2.5m or 3m
was a reference to the “
background
”
or “
usual
”
swell. He admitted that large swells had come through from time to
time, which could have been 4m or 5m.
121.
He also testified that at times some of the
vessels at Geldsteen that morning disappeared behind the swells.
He estimated
that the height from the viewing deck of these vessels
to the waterline was between 3.5m and 4m.  He accepted that, if
boats
of that size were disappearing from view, this would indicate
more than 2m or 3m swells.  Though he could not remember, he

said that it “
could be
”
that Shark Team had disappeared from view.  He accepted that
swells of 4m or 5m in height would be significant in relation
to
where his vessel had come to rest.  Asked whether the position
might have become unsafe in 4m or 5m swells, he said “
it
could be
”, depending on the
wind.  But he added that he felt safe and comfortable.
Reference has been made above to Scholtz’s
comments on the
larger swells shown in the Barracuda video.  Finally, Scholtz
accepted that on the day in question “
large
swells were coming through periodically
”,
which he would understand to be sufficient to frighten people “
to
an extent
”. Nonetheless he did
not feel in danger.
122.
This is a convenient stage to refer to
certain hearsay evidence from a passenger on Shark Fever.
During the course of the
trial the plaintiff’s attorney sent an
email to tourists who had been on the vessels in the vicinity of the
capsize asking
for photographs which they may have taken.  One
Ms Rachel Mallon replied, furnishing photographs.  In her
covering email she stated the following:
“
As
a closing thought, what I will say is that my husband and I were
becoming increasingly nervous before the fateful wave occurred.

The swells were becoming increasingly large, and my husband observed
that they were starting to break uncomfortably close to us.
The
reasons for our nervousness were that these waves seemed very large,
and large enough to dwarf the boats.  However, the
crew seemed
relatively calm, so perhaps they had experienced swells like this
before with no incident.
”
123.
The next witness for the defendants was Ms
Alison Towner (“Towner”).  On the day in question
she was a crew member
on Shark Fever.  She has been involved in
a committed personal relationship with Tuckett for some years.
124.
Towner described the sea conditions on the
day in question as “
normal
”.
The swell after anchoring was about 2.5m to 3m.  She did not see
any swells in the vicinity of Shark Fever that
were either peaking or
feathering.  The swell conditions did not change.
125.
She testified that they “…
do
often see boats disappearing behind swells.  It doesn’t
mean anything
.”
126.
Asked in cross-examination about the larger
swells seen on the Barracuda video, she described those conditions as
moderate and no
different from the conditions in which they normally
go out in winter. Asked if she would be quite happy to carry on with
shark
diving activities on a boat encountering the sorts of condition
shown on the Barracuda video, she stated that this was correct.
127.
She testified that she recalled that on the
day in question boats were disappearing from view (in the swell).
Asked whether
that included Shark Team, Barracuda and the others, she
said “
yes
”.
She later qualified this saying that she did not remember whether
Shark Team had been one of the boats disappearing
from Shark Fever.
When it was put to her that if boats close by were disappearing, that
would suggest that one was dealing
with a larger swell, she
disagreed.
128.
Asked about the 4m to 5m swells that
Scholtz had testified about, she said that she was “
not
disputing
” what Scholtz had said
but that she “
didn’t notice
”
such swells.  Later she said that, if she had seen a 5m swell
coming, this would have been “
an
indicator
” to the skipper and a
“
noticeable swell
”,
but she repeated that she did not see such swells.  Asked if a
5m swell was something to be concerned about she answered:
“
I’m
not saying it’s something to be concerned about, it’s
just some – it’s a good practice to be vigilant
out
there.
”
Pressed
further, she conceded that, when you get a 5m swell, you have to
consider getting out of the area.
129.
Later in her cross-examination she
testified that they do go out in “
fairly
large swells
” of 4m or 5m from
time to time.
130.
The next witness for the defendants was
Sara Dix, a videographer who was working as a crew member on White
Pointer on the day in
question.  She described the swell that
was running that day as moderate, and not too bad.  Asked about
this in cross-examination,
she answered:
“…
well
it’s the Cape of Storms, it’s not the Mediterranean, you
know, we’re used – we’re used to rough
seas when we
go to sea.
”
131.
Dix emphasised in cross-examination that
she is not technically able to make a proper assessment of swell
conditions.  When
she said that the sea was moderate, she could
not say whether it was 2m, 3m, 4m or 5m; she did not know.
132.
She also testified that if vessels are
disappearing, she regarded this as indicative of a moderate swell.
This was something which
they sometimes experienced.
133.
Asked about the larger swells shown on the
Barracuda video, she said that she would not find conditions as shown
on that video to
be unusual.  She added:
“…
that
video is nothing…this stuff that we see at sea I always used
to say it’s the Cape of Storms, it’s not the

Mediterranean.
”
134.
The next witness for the defendants was
Hendrik Henn, the NSRI Station Commander at Hermanus.  He was
called out to Geldsteen
in response to the capsize of Shark Team.
He got to the overturned vessel at about 11h50, i.e. approximately 2
hours after
the capsize.  It appears that the site where he
found the vessel could have been a considerable distance away from
where the
capsize occurred, though this is a matter in dispute.
135.
He testified that when he got to the scene,
“
it wasn’t exactly a very
calm day
”.  “
There
was a reasonable size swell, I would imagine 1m to 2m coming through
there…”
136.
In cross-examination he was asked about the
larger swell sets he had encountered on the way out to Geldsteen and
he says that these
were “
not more
than 4, 4.5m at max I would imagine
”.
137.
The next witness for the defendants was
Brigitte Wilcox, who had been a passenger on Shark Fever on the day
in question.  She
had been contacted just a week prior to
testifying, some eight years after the incident.  She testified
that she was only
able to describe the swell conditions as “
moderate
swells
”.
138.
In cross-examination it was put to her that
she had been quoted in “You” magazine shortly after the
incident as saying:
“
Just
after we’d dropped anchor, there was a biggish swell but after
that things went well for more than an hour.
”
She
denied any recollection of having used the word “
biggish
”
when speaking to the author of the article.
139.
She said there had been no change in the
swell at all the entire morning.  She testified that she did not
remember “
growing swells
”,
as referred to in Rachel Mallon’s email.
140.
Wilcox said on several occasions that she
could only describe the swell as “
moderate
”
because she was unable to estimate the height of the swells in
metres.  In cross-examination she was requested to point
out
heights in the court room that would correspond with her views as to
a “
moderate
”,
“
biggish
”,
“
large
”
and “
huge or massive
”
waves.  It turned out that what she described as “
moderate
”
was measured as 1.46m; what she described as “
biggish
”
was measured at 2.19m; what she described as “
large
”
was measured at 2.91m and what she described as “
huge
or massive
” was measured at 3.6m.
141.
Like the plaintiff, the defendants
introduced quite a bit of hearsay evidence.  Of relevance for
present purposes is a set
of affidavits from persons who had been in
the vicinity on the morning in question admitted as evidence at a
very late stage in
the trial.  Mr Anthony Guest was a British
tourist on board Shark Team.  His evidence was to the effect
that there had
been a lazy swell running, which he estimated to have
been about 3m.  He thought that the conditions were quite rough
but
not unsafe.  During the time that “
Shark
Team
” was an anchor, he was not
aware of any change in the sea or weather conditions. He did not
observe any swells or waves of
the magnitude seen towards the end of
the Barracuda video.
142.
Ms Lacotta Cleaver, a volunteer on Shark
Team on the relevant day, said in an affidavit that nothing about the
sea or wind conditions
gave her any reason for concern.  She did
not see the conditions worsen while they were at anchor.  There
was a bit of
a swell.
143.
Ms Karin Wilson was employed as the
videographer aboard Shark Fever on the morning in question.  She
stated in her affidavit
that she remembers that there was a swell
running and that the water was slightly choppy in some places between
Kleinbaai and the
Geldsteen area but she did not have any discomfort
about proceeding to sea that day.  There was nothing about the
weather
or the sea conditions that struck her as unusual or which
gave rise to any apprehension on her part.
144.
Mr Johan Burger was the videographer who
had been on board Barracuda and had taken the Barracuda video.
He described the weather
conditions on the day in question as fine,
with a 2m to 2.5m swell running. There was nothing about the
conditions that alarmed
him.  He expressed the opinion that the
video made the swells at 9:30 and 9:45 appear more dramatic than was
realistic.
145.
Ms Deborah Allbrook, an American volunteer
on board Shark Team, said in her affidavit that she did not recall
anything about the
sea or weather that caused her concern on the
morning in question.  The swell was not overly large and she did
not notice
that the conditions changed or deteriorated.
146.
I turn now to refer to aspects of the
expert evidence given by Zietsman on behalf of the defendants
regarding swell conditions at
Geldsteen on the day in question.
Zietsman gave complex and lengthy evidence, some of which was
vigorously disputed by the plaintiff.
It is not necessary for
present purposes to resolve the disputed aspects.
147.
Zietsman gave detailed evidence regarding
the “
significant wave height
”
at what he took to be the location of Shark Team and an estimate of
the most probable maximum wave height at that location.

“
Significant wave height
”
is a term used to describe the average of the highest one third of
waves in a sea state during a given period.  As
Zietsman
explained in his initial report to the Court:
“
It
is an important parameter that is used to describe sea conditions.
The most probable maximum wave height in the period will be
very
approximately twice the significant wave height.
”
148.
Using what he regarded to be a reputable
computer programme and what he considered to be the best available
weather data, Zietsman
carried out various exercises.  In his
initial report (at figure 5.4.4) he assessed the significant wave
height in the vicinity
of Shark Team as 3.5m.  He subsequently
carried out various other exercises. The defendants submitted that
the relevant analysis
was his fifth analysis (exhibits V14 and V15).
That analysis concludes that, in the area where Shark Team and Shark
Fever
were lying at the time of the incident, the significant wave
height was between 3.3m and 3.45m and that the most probable maximum

wave height was between 6.5m and 7m.  It will also be recalled
that Zietsman estimated one of the swells seen on the Barracuda
video
as about 6m.
149.
Based on evidence given during the trial
and certain photographs, Zietsman also attempted to determine where
the various vessels
referred to above had been at rest in the period
leading up to the capsize.  He then calculated the significant
wave height
and most probable maximum wave height at those
locations.  His final conclusions are tabulated in exhibit
“QQ41”.
He concluded, for example, that the
significant wave height in the vicinity of Megalodon was exactly the
same (3.15m – 3.3m)
as in the vicinity of Shark Team and that
the maximum wave height in the vicinity of Megalodon was slightly
lower than near Shark
Team (6m to 6.5m, rather than 6.5m).  He
concluded that the significant wave height in the vicinity of Swallow
was marginally
higher than in the vicinity of Shark Team (3.3m –
3.45m, rather than 3.15m – 3.3m) and that the probable maximum
wave
height in the vicinity of Swallow was also marginally higher
(6.5m – 7m, rather than 6.5m).  He concluded that the
significant
wave height in the vicinity of White Shark (3.45m) was a
bit higher than in the vicinity of Shark Team, but also concluded
that
the probable maximum wave height was noticeably lower there than
in the vicinity of Shark Team (5.5m – 6m, rather than 6.5m).
150.
Another aspect of Zietsman’s evidence
that bears mention is an exercise which he did which, in the Court’s
view, showed
that the swell conditions on the day in question were at
or about the upper limit of the conditions in which Shark Team
ordinarily
went to sea. Zietsman had regard to certain available
“
hindcast
”
weather data in respect of the nearest available offshore position
over a long period.  The significant wave height
at that
offshore position between 06h00 and 09h00 GMT on the day in question
was agreed by the parties as being between 3.5m and
3.7m.
Zietsman’s exercise examined the occasions over the period on
which Shark Team did and did not go to sea, and
compared this with
the “
hindcast
”
data.  He concluded that Shark Team only very occasionally put
to sea where the relevant offshore significant wave
height exceeded
3.75m.
(iii)
Evaluation
151.
Having regard to its assessment of the
evidence as a whole, the Court has concluded that, on the
probabilities, the swell conditions
prior to the capsize had become
noticeably dangerous and that the evidence of Tuckett, and those who
supported him to the effect
that the conditions were benign, cannot
be accepted.
152.
The combined effect of Coetzee’s
direct evidence, Lennox’s hearsay evidence, Smut’s
evidence as to his conversation
with Lennox, and the evidence of Mr
and Mrs Meyer as to what Coetzee and Lennox said on the scene at the
time of the rescue, leaves
the Court in little doubt that both
Coetzee and Lennox regarded the conditions where they were in the
period preceding the capsize
of Shark Team as dangerous.
153.
Coetzee impressed the Court as a credible
and sincere witness and as a witness with the requisite experience to
enable him to form
a reliable opinion regarding the dangerousness or
otherwise of the prevailing sea conditions.  Due to its hearsay
nature,
Lennox’s evidence must be given less weight, but it
tends to confirm Coetzee’s evidence in this regard.
154.
Coetzee’s evidence as to the
prevailing conditions in the period preceding the capsize is also
broadly supported by the evidence
of Smuts.  Smut’s
admitted drinking problem and his admission that he had been nervous
because of a dream the previous
night must clearly be taken into
account when assessing the reliability of his evidence.
Nonetheless the Court formed the
impression that he was a truthful
witness who tried, to the best of his ability, to describe the
conditions as he perceived them.
It was argued for the
defendants that his evidence was not credible, because on his own
version he had allowed tourists to get
into the cage. The Court does
not accept this argument.  The impression formed by the Court
was that Smuts had been concerned
all day about the conditions but,
needing the work, he was reluctant to call the expedition off, when
other skippers around him
were prepared to go to, and remain at, sea.
155.
It is clear that, prior to the capsize of
Shark Team, Lennox and Coetzee had already decided to abort their
trip and to cancel their
trip scheduled for later that day.  The
Court accepts Smut’s evidence that he told Lennox, before the
capsize, that
he was getting “
the
hell out of here
”.
156.
Smut’s evidence about the conditions
where he was is, in the view of the Court, supported by the larger
swells seen on the
Barracuda video.  It will be recalled that in
respect of one of those swells, Zietsman testified that it was
probably “
about 6m on the front,
and feathering
”.
157.
It is not insignificant that Beukes, one of
the members of the CC, candidly conceded that if her boat had been
anchored where the
boats seen on the Barracuda were anchored, she
“
would have been worried
”.
Scholtz a skipper called to testify for the defendants, similarly
expressed the view that the conditions revealed
by this swell were
not appropriate for shark-cage diving.
158.
These concessions stand in stark contrast
to the evidence of Tuckett who testified that the conditions seen on
the Barracuda video
were compatible with what he had consistently
been seeing in the vicinity shown on the video and who essentially
sought to create
the impression that such conditions were of little
concern.  The Court prefers the view expressed by Beukes and is
not persuaded
by Tuckett’s attempts to downplay the conditions
shown on the Barracuda video.
159.
The Court notes, but is unpersuaded by, the
defendants’ submissions that the Barracuda video so distorts
the swell sizes that
it does not serve as meaningful evidence showing
dangerous conditions.  Making due allowance for the angle of the
video shots
and the extent of zooming in and out, the Court is of the
view that the bigger swells seen on the Barracuda video support the
general
conclusion formed by the Court of threatening sea conditions.
160.
There are indications in the evidence of
Smuts and Coetzee that conditions where they were deteriorated
alarmingly in the few minutes
immediately preceding the capsize. It
was suggested by the defendants that, if that should be the finding
of the Court, and if
the Court should also find that similar
conditions must have been experienced by Shark Team, Tuckett would
not have had enough
time to take evasive measures before the
capsizing wave arrived.  For present purposes it suffices to say
that I am not persuaded
that the swell conditions in the vicinity of
White Shark, Megalodon and Swallow deteriorated only immediately
before the capsize.
The swells were large enough when White Shark
anchored that it did not put down its shark cage.  The Barracuda
video shows
that large swells had been coming through for quite some
time before Shark Team capsized.  Counsel for the defendants
estimated
that the larger swells seen on the Barracuda video may have
been half an hour or so before Shark Team capsized. I agree.
161.
The Court is satisfied that the conditions
where Swallow, White Shark and Megalodon were at rest were risky.
Appreciating that the
Court might well reach this conclusion, the
defendants argued that the swell conditions where those vessels were
may well have
been quite different from those in the vicinity of
Shark Team and Shark Fever.
162.
The Court accepts that the swell conditions
there may have been a little different but regards it as improbable
that they were very
different.  First, the defendants’
contention is not supported by the evidence of Zietsman.
Zietsman went to considerable
effort to try to determine the exact
locations of Shark Team, Shark Fever, Barracuda, Swallow, Megalodon
and White Shark.
Assuming, as the defendants claim, that he
positioned the vessels correctly, his calculations as to the
significant wave heights
and maximum probable wave heights at the
various relevant locations do not reveal substantial differences.
Where Zietsman’s
calculations indicate more adverse
conditions in the vicinity of other vessels, this is only by a small
margin.  It is also
noteworthy that the probable maximum wave
height calculated by Zietsman for White Shark was lower than for
Shark Team.
163.
Secondly, it is striking that, having
recently arrived with a party of expectant tourists, the skipper and
dive master of White
Shark cancelled their trip (and the afternoon’s
trip); they did not motor over to somewhere near Shark Team and Shark
Fever.
If the conditions were strikingly different, that would
be the logical thing for them to do.  On the probabilities, they
did
not do this because the conditions were not strikingly different.
164.
Thirdly, the Court attaches no weight to
Tuckett’s eventual version that the swell where Shark Team was
was “
much less where we were lying
compared to the other vessels
”.
As referred to above, his earlier, repeated version was merely that
his selected position was “
a
little bit calmer
” and that
Barracuda’s position as “
a
little bit more up and down
”. The
Court can accept that that might well have been his perception but
does not accept his later version to the effect
that the swell was
“
much less
”
where Shark Team was at rest.
165.
The Court did not find Tuckett to be a
reliable witness.  In the Court’s view, he tended to
downplay the swell conditions
in the location of Shark Team, for
obvious reasons.    He was also shown to be a witness
who was not unwilling to
mislead.  A few examples will suffice.
166.
First, by his own admission, he signed a
series of documents purporting to certify that training had been
given to crew members
on particular occasions, when this was not the
truth.  He must have realised that the purpose of the documents
was to represent
to persons in authority the correctness of the
information which he purported to certify.
167.
Secondly, he was caught out giving
misleading evidence to the Court regarding the regularity with which
he had previously brought
Shark Team to rest at the same sight that
he utilised on the day in question.  He testified in chief that
“
that spot
”
and one a little to the north east “
would
have been my first two places that I would have gone to every single
time
”.  He said that he had
done “
a good couple of hundred
trips” to this particular
location.  He gave evidence to similar effect during
cross-examination. He was asked by the
Court how close he would have
been in the past to the same spot and he said within 1m or 2m.
He was asked by the Court whether
it was possible in the preceding
five weeks or so that he had not been there and he answered “
No,
I would have been there at some stage, M’Lord, definitely
”.
He was thereafter confronted by counsel for the plaintiff with the
co-ordinates extracted from a series of Shark
Team field data sheets
over a considerable period before the date of the capsize, and he
conceded that there did not seem to be
any particular place to which
he went back to with any degree of regularity over the period
concerned.  He later said that
he could not remember whether the
place where he anchored on the day in question was in an area where
he had anchored that year;
and he accepted that it was quite possible
that he had not anchored in that area in that year.  These
concessions, which contradicted
evidence repeatedly given earlier,
did not do much to give the Court confidence in the reliability of
his evidence or indeed in
his credibility.
168.
Thirdly, Tuckett had little compunction in
skippering Shark Team for a substantial period without the required
certificate of competence.
For some three and a half years
(from the end of 2003 to May 2007) he had only a “
sport
and recreation
” certificate of
competency for a ski boat of less than 9m, whereas Shark Team was
10.7m and was being used for commercial
purposes.  As Captain
Dernier made clear, the certificate was therefore deficient on two
counts.   Tuckett did take
steps to qualify and to obtain
the required certificate prior to the accident, but he kept this from
Ms Beukes, the only member
of the CC who testified, and who learnt of
Tuckett’s non-certification only during the trial.
The Court finds
it’s disturbing that Tuckett continued to
operate as skipper, knowing that he lacked the required certificate
of competence.
The Court also finds, on the probabilities, that
Tuckett concealed his lack of the required certificate from Beukes.
This
too is disturbing.
169.
The Court takes note of the evidence of the
various witnesses who supported Tuckett’s contention that the
swell conditions
were essentially benign but has ultimately not been
persuaded that this evidence outweighs the evidence relied upon by
the Plaintiff.
170.
Zietsman’s evidence shows that
Tuckett and some of the other witnesses for the defendants
understated the prevailing swell
conditions.  His conclusion of
a significant wave height of between 3.3m and 3.45m in the area where
Shark Team and Shark
Fever were lying at the time of the incident
shows that Tuckett’s estimate (and the estimate of witnesses
who supported him)
that the swell was about 2.5m or lower cannot be
accepted.  (It bears mentioning that, on the plaintiff’s
case, Zietsman’s
figures underestimated the swell conditions,
because they were based on understated weather data.  It is not
necessary to
decide whether this is correct.  The Court assumes,
without deciding, that Zietsman’s figures are approximately
correct.)
171.
Zietsman’s initial report stated that
the “
most probable maximum wave
height
” in a period will be very
approximately twice the significant wave height. He implied that the
most probable maximum wave
height in the vicinity of Shark Team was
7m.
172.
He later qualified this.  Table 2.2.1
of his November 2013 report asserted that 1:100 waves would be 1.52
times the significant
wave height; 1:1000 waves would be 1.86 times
the significant wave height; and
1:10,000 waves would be 2.15
times the significant wave height.  The “
most
probable maximum wave height
” is
usually a reference to 1:1000 waves.  The table therefore
implies that the most probable maximum wave height is
1.86 times the
significant wave height.  If the significant wave height in the
area where Shark Team and Shark Fever were
lying is assumed to have
been between 3.3m and 3.45m, the implication is that the most
probable maximum wave height was between
6.1m and 6.4m.
173.
The plaintiff submitted that, for a typical
wave period of about ten seconds, the 1:100 wave will occur about
every fifteen minutes,
while the 1:1000 wave will occur about every 3
hours.  It should be noted, however, that Zietsman and Arabonis
agreed that
the spectral peak period at the relevant time was
thirteen to fourteen seconds. This would imply that the 1:100 wave
and the
1:1000 wave would occur over slightly longer periods than
those asserted by the plaintiff.  Zietsman testified that “
in
theory
” one would have to wait
between 2 and 3 hours for a wave 1.86 times the significant wave
height and for about 11 or 12 hours
for a wave twice the size of the
significant wave height. Of course, to treat the ratios in this way
is potentially very misleading.
Zietsman correctly accepted
that the “
one in eleven hours or
twelve hours
” wave might well be
experienced at the commencement of that period or at any time during
that period.
174.
If the significant wave height at the
location of Shark Team was 3.3m, swells 1.52 times this size, i.e.
swells slightly over 5m,
should be expected within every 100
th
swell.  A swell of 6.5m was also eminently possible, on
Zietsman’s calculations, within a 3 hour period.
175.
It will be recalled that Scholtz conceded
that swells of 4m or 5m could have been coming through from time to
time.  This seems
very likely, having regard to Zietsman’s
evidence.   It is all the more likely that Shark Team
experienced quite
a few swells of well over 4m if one has regard to
both the Barracuda video and to the evidence of Coetzee, Smuts and
Lennox, taken
together.
176.
In addition, some of the witnesses who
testified for the defendant were not found to be entirely
satisfactory and reliable. In the
Court’s view, there was force
on the criticism by the plaintiff of some of the evidence of Laird
and Hewitt.  The Court
does not accept Laird’s evidence
that the swell was consistently approximately 2m, with no large
swells coming past and with
no other vessels in the vicinity
disappearing.  It is clear from the conspectus of the evidence,
including some of the witnesses
who testified for the defendants,
that on the day in question vessels quite frequently disappeared
behind the swells.  The
Court was also not impressed by Laird’s
claim that it had always been her view that the capsizing wave was at
least 10m high.
She was confronted with a magazine article
quoting her as saying shortly after the incident that the wave
“
looked as high as 8m
”.
She stated that she might have given an estimate to the journalist
that the wave was between 8m and 10m.  In
every other respect
Laird accepted that the magazine article had correctly quoted her.
It is improbable, in the view of the
Court, that it would have
misquoted her on this particular aspect.  If she had said to the
journalist that the wave looked
as high as 10m or was between 8m and
10m, it is improbable – given the magazine’s tendency to
highlight the dramatic
– that she would have been quoted as
saying that the wave “
looked as
high as 8m
”.
177.
Hewitt’s evidence became more
unimpressive the longer he was cross-examined.  He started out
as clear and definite but
became more and more vague, particularly
when confronted with evidence that – together with Tuckett –
he had signed
documents confirming training that had in fact not been
given.  Hewitt’s assessment of the swell as between 2m and
3m
also seems improbable having regard to the various factors
discussed above.
178.
The Court is not suggesting that Laird and
Hewitt deliberately sought to mislead it regarding the swell
conditions. The point is
simply that they were not found to be
reliable witnesses whose evidence tipped the balance and cast real
doubt on the evidence
by the plaintiff’s witnesses.
179.
Scholtz was a more satisfactory witness.
He made several concessions adverse to the defendants’ case and
potentially
indicative that he may himself have been somewhat
negligent (though he did not concede such negligence).  Scholtz
was, however,
not an entirely satisfactory witness.  He admitted
furnishing a written statement to his employer on the day in question
in
which he described conditions as a “
nice,
calm, almost flat day
”.
That cannot be reconciled with his testimony of “
usual
swell
” that day of 2.5m or 3m,
with bigger swells coming through that “
could
be
” 4m or 5m.
180.
Rutzen’s evidence was of limited
assistance.  It is noteworthy that, whereas Tuckett testified
that the conditions seen
in the Barracuda video were compatible with
what he had been seeing all morning, Rutzen said that he had not
encountered swells
like the larger swells on the Barracuda video when
he came out after Shark Team had capsized.  It is not clear
whether this
may have been because Shark Team had been towed to
deeper water before Rutzen arrived on the scene.
181.
Towner’s evidence must naturally be
assessed in the light of her close personal relationship with
Tuckett.  The Court
formed the impression that, like several
others who testified, Towner had become used to going out with
tourists in conditions
that, in the Court’s view, were far from
ideal.  She – like some of the other witnesses for the
defendants –
did not think it was a matter of any concern that
boats were disappearing from view in the swell.  The Court has
difficulty
in accepting this view.  If vessels of about 3.5m
above the water line disappear behind swells, the swells are clearly
quite
substantial.
182.
As referred to above, asked about the 4m to
5m swells to which Scholtz had referred, Towner’s evidence was
that she was “
not disputing
”
what Scholtz had said but that she “
didn’t
notice
” such swells.   It
is quite possible that she did not.  That does not mean that
such swells were not in fact
being experienced.  The probable
explanation, in the Court’s view, is that Towner was not paying
careful attention to
the swell conditions.
183.
The evidence of Dix did little to assist
the defendants, given her attitude to it being “
the
Cape of Storms”
and “
not
the Mediterranean
”. The fact that
the prevailing conditions off the Southern Cape coast are generally
stronger than some other places is a
cause for concern, not a basis
for complacency. It will also be recalled that she was, on her own
version, not able to say whether
the swell was 2m, 3m, 4m or 5m.
Her evidence was therefore not very helpful.
184.
The Court accepts that Wilcox was an
independent witness and accepts that she sought to describe the
conditions to the Court to
the best of her ability.  The Court
accepts therefore that she did not perceive the conditions to be
dangerous. That falls
to be contrasted with the contrary perceptions
of Mr and Mrs Meyer (who testified) and Ms Mallon (who did not),
other passengers
with a similar lack of experience at sea.  On
the probabilities, and having regard to what has been stated above,
the Court
is inclined to prefer the assessment made by Mr and Mrs
Meyer to the assessment by Wilcox.
185.
The Court’s initial impression on
reading Ms Mallon’s email was that it was persuasive and in
itself indicative of reasonably
dangerous conditions. That view had
to be reassessed in the light of the affidavits produced by the
defendant at a late stage from
Cleaver, Wilson, Burger and Allbrook,
all of whom tended to support Tuckett’s description of the
swell conditions. The Court
ultimately concluded that little weight
should be given either to Ms Mallon’s email or to the
defendants’ affidavits,
precisely because of their hearsay
nature.  The cross-examination of Scholtz (whose initial
statement referred to it being
“
a
nice, calm, almost flat day
” but
whose evidence when cross-examined painted a different picture)
illustrated the danger of attaching too much weight
to hearsay
evidence.
186.
The Court found, earlier in this judgment,
that, if swells were coming through at 4m or more, a prudent skipper
at anchor at the
Geldsteen would be concerned and should depart.
The Court finds, on the probabilities, that swells in excess of 4m
must have
passed Shark Team in the period preceding the capsize
reasonably frequently.  The Court finds that these swells were
sufficiently
threatening that a prudent skipper would, prior to the
time of the capsize, have taken steps to depart from the scene.
NOT
KEEPING A PROPER LOOKOUT
187.
A significant part of the plaintiff’s
case was the contention that the skipper and crew of Shark Team were
not keeping a proper
lookout in respect of the swell conditions. The
Court finds that there is force in this contention.  In the
Court’s
view the skipper and crew had become used to operating
in quite large swells, and they therefore paid little attention to
the swells
on the day in question. They (and other skippers and crew
of similar vessels who regularly visited the Geldsteen) had in the
Court’s
view become complacent. It was just bad luck on the
part of Shark Team and good luck on the part of the other vessels
that the
only vessel struck by the wave which broke was Shark Team.
188.
The defendants pointed out that shark-cage
diving vessels had been going to Geldsteen for years without
experiencing a capsize.
That is no doubt correct.  It is,
however, not in itself an answer to the charge of negligence in the
present case. It is
clear that waves do break all over the Geldsteen
in large swell conditions.  The swell conditions on the day in
issue may
not have been as large as they sometimes get, but they were
large enough to serve as a warning of danger to a prudent skipper.

The point has been made above that a prudent skipper leaves a margin
of safety and does not flirt with risk.  The swell conditions

were sufficiently large and threatening that Tuckett should have
foreseen that a wave breaking over Shark Team was a reasonable

possibility.
FAILURE
TO DEPART
189.
If Tuckett had been keeping a proper
lookout, he would have been aware of the risk posed by the swell
conditions.  He would
have foreseen the reasonable possibility
that, if Shark Team stayed where it was, a wave might break over his
vessel.  He
should have taken reasonable steps to guard against
this risk.  The reasonable steps which should have been taken
were to
weigh anchor and to depart from Geldsteen as soon as
possible.
190.
It is common cause that Tuckett took no
steps to depart. Though his passengers had completed their dives, he
was content to allow
the videographer to continue filming in the
cage.
191.
A reasonable skipper would, by the time of
the arrival of the capsizing wave, have departed.  At the very
least, a reasonable
skipper would already have weighed anchor and
been at the wheel, and therefore, on the probabilities, in a position
to avoid or
to “
punch through
”
an approaching wave.
192.
Tuckett was, therefore, negligent.
His negligence was causally connected to the capsize which resulted
in the plaintiff’s
husband’s death.
FAILURE
TO CHECK THE DEPTH IN FRONT OF THE VESSEL
193.
The Geldsteen is an extensive reef system,
and an area described on the applicable chart as “foul
ground”.  This
does not mean, in and of itself, that it is
unsafe, in suitable weather conditions, to anchor in the vicinity and
to engage in
shark cage diving. It does mean, however, that care must
be taken to establish the depth of the position where the vessel
comes
to rest and the depth in the direction from which the swell is
proceeding.  The shallower the depth, the greater the risk that

a swell will break.
194.
A prudent skipper concerned about risk of a
wave breaking over his vessel would therefore have taken care to
establish the depth
in the direction from which the swell is
proceeding.  In this case the swell was coming from the South
West.
195.
By his own admission, Tuckett did not look
at the depth southwards and westwards of his location.  He
therefore could not have
known whether there were any shallow reefs
nearby with the potential to cause a swell to break.  In the
view of the Court,
this too was negligent.
196.
What is considerably less clear is whether
this negligence contributed causally to the capsize. With the benefit
of hindsight, it
is now known that there were two shallow pinnacles
in the vicinity. It seems clear that these shallow pinnacles
contributed to
the fact that the wave which capsized Shark Team broke
where it broke. It is less clear how far Shark Team was at rest from
these
two pinnacles.  On the defendants’ version, it was
some distance away.  On the plaintiff’s version, it was

much closer to the pinnacles.  The closer it was, the more
plausible the plaintiff’s argument becomes that a prudent

skipper should have known where the pinnacles were and that Tuckett’s
negligence was causally connected to the capsize.
The further
it was, the more plausible the defendants’ argument that the
pinnacles are irrelevant because, having regard
to the depth where
Shark Team was at rest, a wave would not have continued to break all
the way to where Shark Team was.
197.
Another factor which would fall to be
considered is whether, if Tuckett had sought to determine the depth
southwards and westwards
of his location, he would have been able to
determine, with the equipment available to him, the location and
depth of the pinnacles.
That too is a matter in dispute.
198.
Inasmuch as the Court has already found
that Tuckett acted negligently and that this negligence was causally
connected to the capsize,
it is unnecessary to consider these
difficult questions any further.  It suffices to say that the
Court’s
prima facie
impression is that Shark Team may well have been located closer to
the pinnacles than Zietsman (and the defendants generally) conceded;

and that Zietsman’s own evidence suggests that a diligent
skipper ought to have been able to detect the presence of the
pinnacles. It is however unnecessary for the Court to reach any
conclusion on these issues and it expressly refrains from doing
so.
FAILURE
TO COUNT THE RESCUED PASSENGERS
199.
The crew and passengers of the capsized
vessel did their best to climb onto the upturned hull and to await
rescue. Within a couple
of minutes the rescue vessel, White Shark,
was on the scene. Within 8 minutes or so everybody had been
transferred onto the rescue
vessel and it departed.
200.
Neither Tuckett, nor any member of the
Shark Team crew, nor anyone from the rescuing vessel took proper
steps to determine whether
all the passengers and crew who had been
on board Shark Team had been rescued. It was only shortly after
departing that it was
realised that one passenger was missing. It was
much later that it was realised that a further two passengers,
including Tallman,
were missing.
201.
Tuckett sought to cast the blame for this
on Coetzee or Lennox.  The Court is not persuaded.  In the
Court’s view
Tuckett acted negligently in not taking reasonable
steps to determine whether all the passengers had been rescued.
It is
not necessary to determine whether anyone else acted
negligently.
202.
However, the plaintiff has not shown that
this negligence contributed causally to Tallman’s death.
I did not understand
this to be disputed by the plaintiff, by the end
of the trial.
LIABILITY
OF THE THIRD DEFENDANT
203.
The third defendant (“the CC”)
is the employer of Tuckett.  On the ordinarily applicable
principles of the South
African law of delict, it would be
vicariously liable for his negligence.
204.
The CC is, however, also the owner of the
vessel.  It contends that, even if Tallman’s death was
caused by negligence
on the part of Tuckett, his death was caused
without “
actual fault or privity
”
on its part.  It relies on section 261(1)(a) of the Merchant
Shipping Act, No 57 of 1951 (“the MSA”) in
this regard,
which provides as follows:
“
(1)
The owner of a ship, whether registered in the Republic or not, shall
not, if any loss of life or personal injury to any person,
or any
loss of or damage to any property or rights of any kind, whether
movable or immovable, is caused
without
his actual fault or privity
–
(a)
if no claim for damages in respect
of loss or damage to property or rights arises, be liable for damages
in respect of loss of life
or personal injury to an aggregate amount
exceeding 206,67 special drawing rights for each ton of the ship’s
tonnage
.” (emphasis added)
205.
Since the vessel’s gross registered
tonnage is 4, the CC’s liability, if this defence is sound, is
limited to 826,68
special drawing rights.  One special drawing
right is currently valued at US $1.  Accordingly, the value of
826,68 special
drawing rights is US $826.68.  If the CC is
right, this is the limit of the plaintiff’s claim against it.
206.
Section 261 is similar to section 503 of
the English Merchant Shipping Act of 1894 and may be construed in
accordance with the English
authorities on the subject.
Atlantic Harvesters of Namibia (Pty) Ltd
v Unterweser Reederei GMBH of Bremen
1986 (4) SA 865
(C) at 875 H-J.
207.
In
Asiatic
Petroleum Company, Ltd v Lennard’s Carrying Co Ltd
[1914] 1 KB 419
Lord Justice Buckley held as follows (at 432):
“
The
words ‘actual fault or privity’ in my judgment infer
something personal to the owner, something blameworthy in him,
as
distinguished from constructive fault or privity such as the fault or
privity of his servants or agents.  But the words
‘actual
fault’ are not confined to affirmative or positive acts by way
of fault.  If the owner be guilty of an
act or omission to do
something which he ought to have done, he is no less guilty of an
‘actual fault’ than if the
act had been one of
commission.  To avail himself of the statutory defence, he must
show that he himself is not blameworthy
for having either done or
omitted to do something or been privy to something.  It is not
necessary to show knowledge.
If he has means of knowledge which
he ought to have used and does not avail himself of them, his
omission to do so may be a fault,
and if so, it is an actual fault
and he cannot claim the protection of the section.
”
208.
Much of the evidence and argument was
addressed to the question of “
actual
fault
”.  In the Court’s
view “
privity
”
is equally important in this case.  The meaning of “
privity
”
in this context was considered by the Court of Appeal in
Compania
Maritima San Basilio SA v The Onceanus Mutual Underwriting
Association (Bermuda) Ltd (The “Eurysthenes”
)
[1976] 2 Lloyd’s Rep 171 (CA).  In that case Denning MR
held that, for a ship owner to have the required privity, it
is
sufficient if it “
knew, or ought
to have known
” of the facts in
question.  He continued (at 179):
“…
To
my mind…when the old common lawyers spoke of a man being
‘privy’ to something being done, or of an act being
done
‘with his privity’, they meant that he knew of it
beforehand and concurred in it being done…And when I
speak of
knowledge, I mean not only positive knowledge but also the sort of
knowledge expressed in the phrase ‘turning a
blind eye’.
If a man, suspicious of the truth, turns a blind eye to it, and
refrains from enquiry – so that he
should know it for certain –
then he is to be regarded as knowing the truth.
”
In
the same case, Lord Roskill said that privity is directed “
to
acts or matters which were done with his knowledge or concurrence
”
and Lord Lane said:
“’
Privity’
means ‘with knowledge and consent’.  It has, so far
as I can discover, no connotation of fault.”
209.
The only member of the CC who testified was
Beukes. She admitted that she knew that Shark Team went out in swells
“
of more than 4m
”.
210.
Asked later in cross-examination what would
show her that it was not a “
sea
day
” she answered:
“
Oh,
because I would know if it’s, like a north west wind or if it’s
a wave height of more than 4, [or] 5m and depending
on the area where
we work in.
”
211.
Asked where they did not go if there were
swells of 4m or 5m, she said that she was not quite sure but she
thought that they wouldn’t
go to Joubert’s Dam (a
different site from the Geldsteen).
212.
This issue was taken up later with
Tuckett.  The following cross-examination is revealing:
“
Ms
Beukes testified that she knew that you were going out in swells of 4
and 5m or 4 to 5m.  You nod your head. - - - That
is correct,
M’Lord.
And
they would know that all three of those could combine at the
Geldsteen; that you sometimes were in the Geldsteen in the foul

ground in swells of 4 to 5m. - - - That is correct.  It depends
on the wind speeds and wind directions and stuff like that
as well.
”
213.
On Tuckett’s own evidence it would be
unsafe to remain at anchor at the Geldsteen “
if
there was a chance of a 4m wave coming anywhere near me
”.
Beukes knew that the skippers sometimes took tourists to the
Geldsteen in swells of 4m or 5m.  This is a sufficient
basis on
which to conclude that the CC failed to prove (the onus being on it)
that it lacked the required “
privity
”.
214.
The whole thrust of Beukes’ evidence,
and the case presented on behalf of the CC, was that it was perfectly
in order for the
CC and its management to leave all navigational
issues to the skippers, including the question of the sea conditions
in which they
should take tourists out.  If there was anything
that Beukes didn’t know about the conditions in which Tuckett
would
go to sea and remain at anchor at the Geldsteen, it was only
what she (and the owner generally) chose not to ask.  This too

precludes reliance by the CC on a lack of “
privity
”.
215.
It is therefore unnecessary to consider
whether the CC proved the absence of any fault, in the form of
negligence, on its part which
was causally related to the capsize. A
few
obiter
comments suffice.  The Court does not accept the CC’s
argument that it was entitled to abdicate all responsibility in

respect of “
navigation
”
issues and to rely solely on the skippers’ expertise and
judgment in relation to such issues. This is all the more
so where it
appears that the CC was not even aware that, for several years,
Tuckett did not have the legally required certificate
of competence.
In any event, the Court accepts the plaintiff’s argument
that ship owners are not entitled to adopt
a supine attitude and  to
leave all “
navigational
”
issues to the sole discretion of skippers. That this is so is
apparent from the various judgments in
The
“
Lady Gwendolen
”
[1965] 1 Lloyds’ Rep 335 (CA).  Willmer LJ found that the
absence of any effective managerial control over the way in
which the
plaintiff’s ships were navigated by their masters to be a
serious failure in management which contributed to the
collision.
Similarly Winn LJ was highly critical of the fact that the board did
not “
concern itself at all with
any problem or question relating to safe navigation
”
and that “
it took no action
whatever with the object of improving safety in navigation
”.
He therefore found that the owners had failed to satisfy him that
they were free from actual fault which contributed or
may have
contributed to the cause of the collision.
216.
The plaintiff argued that the CC should
have put protocols in place which governed the maximum swell
conditions in which skippers
could operate.  Robertson, an
expert who testified for the defendants, conceded that such protocols
“
would be reasonable
”.
The Court agrees. 0
217.
Tuckett was asked the following:
“
You’re
told on the morning don’t go out there in large swells. You are
sitting out there on your boat in the Geldsteen
in foul ground and a
swell comes through and it’s 4m big.  You’re going
to – as an obedient employee –
you’re going to up
the anchor and you’re going to get out of there if that was the
protocol. - - - If it had been made
clear to me that the 4m is my
cut-off and I read it as a 4m swell, then I’m going to have to
do as I’m told.”
218.
A reasonable owner, cognisant that any
capsize could result in fatalities and cognisant that swells do break
from time to time in
the vicinity of the Geldsteen, would in the
Court’s view lay down a protocol specifying swell conditions in
which the vessels
should either not go to sea or should not remain at
anchor.  The defendants have not shown that, if they had laid
down a protocol
of this type, the capsize would nonetheless have
occurred.  They have, therefore, not discharged the onus on them
to prove
an absence of negligence causally related to the fatality.
219.
In the light of the conclusions reached
above, no purpose would be served by considering further grounds of
negligence on the part
of the owners advanced by the plaintiff.
THE
DEFENCE BASED ON WAIVER
220.
It is common cause that Tallman signed an
indemnity form and thereby concluded a contract between the CC and
himself.  In the
indemnity form he stated that he was “
releasing
any claims
” he had against the CC
or its employees arising
inter alia
from “
wrongful death
”.
221.
The defendants pleaded reliance on this
indemnity.  However they conceded in argument that, as a matter
of South African law
(which they conceded to be the applicable law) a
dependant’s action is not compromised by an indemnity or waiver
given by
the deceased, citing
Jameson’s
Minors v CSAR
1908 TS 575
and
JCC
v Stott
2004 (5) SA 511
(SCA) at para
[6].  In the light of this concession, nothing more need be said
about this defence.
222.
The defendants faintly suggested that a
defence of
volenti non fit injuria
could be raised against the plaintiff, but they conceded that the
weight of authority was against such a defence succeeding, citing
inter alia
Santam Insurance Co Ltd v Vorster
1973 (4) SA 764
(A) at 777 E-H.  Again nothing more need be said
about this defence.
CONCLUSION
AND COSTS
223.
The Court has found for the plaintiff on
all issues.  Costs must follow the cause.
224.
I am satisfied that there was good cause
for the plaintiff to lead the evidence of all her expert witnesses. I
am also satisfied
that the plaintiff herself was a necessary witness,
inasmuch as the validity of her marriage remained in dispute until
she testified.
225.
The plaintiff submitted that the defendants
should be punished by an adverse costs order on the attorney and
client scale. The Court
is not persuaded that any grounds exist for
such an order.
The
Court therefore makes the following order:
1.
It is declared that the first, second and
third defendants are jointly and severally liable for such damages as
the plaintiff might
prove in consequence of the death of Tallman on
13 April 2008, the one paying the others to be absolved.
2.
The first, second and third defendants are
to pay the plaintiff’s costs of suit occasioned by this
hearing, jointly and severally,
the one paying the other to be
absolved, including the qualifying expenses of:
·
Mr Jan-Pierre Arabonis;
·
Captain William Dernier;
·
Captain Kevin Coates;
·
Mr David Johnson.
3.
The plaintiff is declared to have been a
necessary witness.
_______________________
AJ
FREUND
ACTING
JUDGE OF
THE
HIGH COURT
For
the Plaintiff : Adv D Melunsky
For
the Defendants : Adv M Wragge SC and Adv DJ Cooke