Lloyd's Maritime and Commercial Law Quarterly
SOUTH AFRICAN MARITIME LAW
Craig Forrest*
261. Banglar Mookh (The Owners of the MV) v Transnet Ltd1
Liability of pilot provider for pilot’s negligence—gross negligence or recklessness
In September 2005, the MV Banglar Mookh, owned by the appellant (the Bangladesh Shipping Corporation) entered the port of Cape Town under pilotage. 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. On the day of the collision, the appellant 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. However, when the vessel tracking system record was later requested, the respondent advised the appellant that, contrary to its undertaking to preserve the record, it had been lost.
The appellant initiated an action in personam in accordance with s.1 of the Admiralty Jurisdiction Regulation Act2 against the employers of the pilot, alleging gross negligence of the pilot. The Western Cape High Court3 found that the appellant had failed to prove that the pilot had been grossly negligent, and as such the South African Transport Services Act 1989,4 Sched.1, s.10(7), which provides that “[t]he Company [respondent] and the pilot shall be exempt from liability for loss or damage caused by a negligent act or omission on the part of the pilot”, was applicable.5 The owners of the vessel appealed the dismissal of the action, and were granted leave to amend its particulars of claim to allege recklessness of the pilot.
Decision: Appeal dismissed.
Held: (1) The trial judge’s failure to take into account certain evidence and his giving insufficient weight to other evidence at trial amounted to a serious misdirection. Furthermore, the trail judge’s reliance on the demeanour of the pilot when giving evidence was misplaced. As such, the trial judge erred in preferring the master’s evidence to that
* Director of the Marine and Shipping Law Unit and Reader, TC Beirne School of Law, University of Queensland, Australia.
1. (Case No 842/2011) [2012] ZASCA 57; 2012 (4) SA 300 (SCA); [2012] 3 All SA 632 (SA SCA).
2. Act No 105 of 1983.
3. Case No AC100/2007, 12 October 2010, High Court of South Africa (Western Cape); digested [2011] IMCLY §246.
4. Act No 9 of 1989.
5. Citing Yung Chun Fishery Co Ltd vTransnet Ltd t/a Portnet (1 September 2000) Case no AC30/97, Unreported; Owners of the MV Stella Tingas v MV Atlantica and Another (Transnet Ltd t/a Portnet and Another, Third Parties) 2002 (1) SA 637 (D).
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