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246. Banglar Mookh (The Owners of the MV) v. Transnet Ltd1
Liability of pilot provider for pilot’s negligence—gross negligence
The MV Banglar Mookh entered the port of Cape Town in September 2005, under pilotage, to take on water. A strong wind of 30–40 knots and a sea state consistent with Beaufort Wind Force Scale 7 existed when the pilot boarded the vessel and undertook its navigation to its intended berth. During the vessel’s passage through the entrance of the dock, it collided with the “knuckle” of the berth wall and sustained some structural damage. This caused some delay in Cape Town before it was able to continue its voyage to Gambia. On the day of the collision, the plaintiff requested access to the vessel tracking system in order to ascertain the exact movement of the vessel. The port authority declined this request but undertook to preserve the record for production should litigation arise. The owners of the vessel initiated an action in personam in accordance with the Admiralty Jurisdiction Regulation Act 1983,2 s 1 against the pilot’s employers, alleging gross negligence of the pilot. When the vessel tracking system records was requested, the defendant advised the plaintiff that, contrary to its undertaking to preserve the record, it had been lost.
Decision: Claim against the defendant dismissed.
Held: (1) Section 10(7) of Schedule 1 of the Legal Succession to the South African Transport Services Act 19893 provides that “[t]he Company [Transnet Ltd] and the pilot shall be exempt from liability for loss or damage caused by a negligent act or mission on the part of the pilot”. Wilful, reckless or grossly negligent acts or omission on the part of the pilot fall outside the exemption provided in s 10(7).4 (2) While culpable and inexcusable, the loss of the vessel tracking system did not occur in bad faith, and though this loss of information might render the result less safe than if it had been preserved, the availability of witnesses and records of radio communications would ensure a fair hearing. As such, the loss of the vessel tracking system recordings did not result in the defendant