MV Stella Tingas; Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another

• Jurisdiction: South Africa
• Judge: Hefer AP, Scott JA, Farlam JA, Conradie JA and Lewis AJA
• Judgment Date: 17 November 2002
• Citation: 2003 (2) SA 473 (SCA)
• Docket Number: 378/2001
• Hearing Date: 04 November 2002
• Counsel: C J Pammenter SC for the appellant. M J D Wallis SC for the first respondent. D J Shaw QC for the second respondent.
• Court: Supreme Court of Appeal

Scott JA:

[1] Shortly after midnight on 17 June 1997 the MV Atlantica, a bulk carrier 224 metres in length and B displacing some 65 000 metric tons, collided with the MV Stella Tingas in Durban harbour. At the time the latter vessel was alongside loading cargo at Island View berth 3. The Atlantica was in the process of entering the Island View Channel and was headed for berth 7 where she was to take on bunkers. Durban harbour is a compulsory pilotage port. The pilot navigating the Atlantica, Captain Peter Buffard, was an employee of the C harbour authority, Transnet Ltd, which is the present appellant. Both vessels were damaged in the collision. The owners of the Stella Tingas, the first respondent, (to whom I shall refer as the plaintiffs) instituted action in the Durban and Coast Local Division against the Atlantica, as first defendant (now the second respondent), and against Transnet, as second defendant, D the action against the former being in rem and against the latter in personam.

[2] The claim against the Atlantica was founded on two grounds. The first was that the collision was caused by the negligence of the master and crew. The second was that it was caused by the negligence of the pilot for whose negligence the owners of the E Atlantica were liable by reason of s 35 of the United Kingdom Pilotage Act of 1983 which, it was alleged, was applicable by virtue of the provisions of s 6(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act).

[3] With regard to the claim against Transnet, the principal ground and the only one relied upon in this Court, was that the F collision was caused by the gross negligence of the pilot. The reason for the allegation that the negligence was gross was an attempt to avoid the exemption of liability afforded to both Transnet and the pilot by para 10(7) of the First Schedule to the Legal Succession to the South African Transport Services Act 9 of 1989 (the Succession Act). The subparagraph reads: G

'The company and the pilot shall be exempt from liability for loss or damage caused by a negligent act or omission on the part of the pilot.'

The company referred to is Transnet, the company established in terms of s 2 of that Act. Another ground upon which the plaintiffs sought to hold Transnet liable was the negligence on the part of the H master and crew of each of the two tugs in attendance at the time of the collision. However, this ground was formally abandoned during the course of the trial.

[4] In addition to denying liability, the Atlantica caused a third party notice to be issued citing Transnet and the pilot I as third parties and claiming from them, inter alia, damages in respect of the damage caused to the Stella Tingas.

[5] The Court a quo (Booysen J) was asked to decide only the question of liability. The learned Judge found that the pilot had been grossly J

Scott JA

negligent and that Transnet was accordingly liable to the plaintiffs for their damages. As to the claim against the A Atlantica, he found that negligence on the part of the master had not been established and that the provisions of s 35 of the United Kingdom Pilotage Act of 1983 were not applicable in South Africa. The Atlantica was accordingly held not to be liable to the plaintiffs. No order was apparently sought in terms of the third party notice, nor was one granted. The judgment of the Court a quo has been reported: MV Stella Tingas: Owners B of the MV Stella Tingas v MV Atlantica and Another (Transnet Ltd t/a Portnet and Another, Third Parties) 2002 (1) SA 647 (D). Transnet now appeals against the order holding it liable to the plaintiffs. The plaintiffs, in turn, appeal against that part of the judgment in which the Atlantica was held not to be liable to the plaintiffs. This appeal is conditional on Transnet's C appeal succeeding. Both appeals are with the leave of the Court a quo.

[6] Section 6(1) and (2) of the Act provide as follows:

'6(1) Notwithstanding anything to the contrary in any law or the common law contained a court in the exercise of its admiralty jurisdiction shall - D

(a)

with regard to any matter in respect of which a court of admiralty of the Republic referred to in the Colonial Courts of Admiralty Act, 1890, of the United Kingdom, had jurisdiction immediately before the commencement of this Act, apply the law which the High Court of Justice of the United Kingdom in the exercise of its admiralty jurisdiction would have applied with regard to such a matter at such commencement, insofar as that law can be applied; E

(b)

with regard to any other matter, apply the Roman-Dutch law applicable in the Republic.

(2) The provisions of ss (1) shall not derogate from the provisions of any law of the Republic applicable to any of the matters contemplated in para (a) or (b) of that subsection.' F

The plaintiffs' claims relate to 'damage done by a ship'. Accordingly, and by virtue of s 7 of the English Admiralty Courts Act of 1861, a court of admiralty in South Africa would have had jurisdiction to entertain the claims immediately before the commencement of the Act on 1 November 1983. It follows that in terms of s 6(1)(a) the law to be applied is the law which G the 'High Court of Justice of the United Kingdom' would have applied. (The reference to that Court is presumably intended to be a reference to the Supreme Court of England and Wales as constituted by the Supreme Court Act 1981. See Brady-Hamilton Stevedore Co and Others v MV Kalantiao 1987 (4) SA 250 (D) at 253D.) It is clear that regard is to be had to the law as it existed on 1 November 1983. (See H Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A) at 334H.) Section 6(1) of the Act is, however, subject to s 6(2). Paragraph 10 of the First Schedule to the Succession Act contains detailed provisions relating to compulsory pilotage harbours and in particular any negligent act or omission on the part of a pilot. I These provisions are clearly provisions within the meaning of ss 6(2) of the Act and the former must accordingly prevail over what for convenience may simply be referred to as the English admiralty law. Paragraph 10 is, of course, part of a South African statute and must be construed as such, despite the provisions of s 6(1) of J

Scott JA

the Act. It follows that for the purpose of determining what is 'a negligent act A or omission on the part of the pilot' within the meaning of para 10(7) (quoted above) or whether an act or omission amounted to gross negligence so as not to enjoy the benefit of the exemption conferred by para 10(7), regard must be had to the South African law.

[7] I shall assume, without deciding, that the exemption would not apply if the pilot were found to have been grossly negligent. Gross B negligence is not an exact concept capable of precise definition. Despite dicta which sometimes seem to suggest the contrary, what is now clear, following the decision of this Court in S v Van Zyl 1969 (1) SA 553 (A), is that it is not consciousness of risk-taking that distinguishes gross negligence from C ordinary negligence. (See also Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and Others v Snyman and Others 1998 (2) SA 138 (SCA) at 143C - J.) This must be so. If consciously taking a risk is reasonable there will be no negligence at all. If a person foresees the risk of harm but acts, or fails to act, in the unreasonable belief that he or she will be able to avoid the danger or that for some other reason it will not eventuate, the conduct D in question may amount to ordinary negligence or it may amount to gross negligence (or recklessness in the wide sense) depending on the circumstances. (Van Zyl's case supra at 557A - E.) If, of course, the risk of harm is foreseen and the person in question acts recklessly or indifferently as to whether it ensues or not, the conduct will amount to recklessness in the narrow sense, in E other words, dolus eventualis; but it would then exceed the bounds of our modern-day understanding of gross negligence. On the other hand, even in the absence of conscious risk-taking, conduct may depart so radically from the standard of the reasonable person as to amount to gross negligence (Van Zyl's case supra at 559D - H). It follows that whether there is conscious risk-taking or F not, it is necessary in each case to determine whether the deviation from what is reasonable is so marked as to justify it being condemned as gross. The Roman notion of culpa lata included both extreme negligence and what today we would call recklessness in the narrow sense or dolus eventualis. (See Thomas Textbook of Roman Law at 250.) As to the former, with which we are G presently concerned, Ulpian's definition, D50.16.213.2, is helpful: 'culpa lata is extreme negligence, that is not to realise what everyone realises' (culpa lata est nimia neglegentia, id est non intellegere quod omnes intellegunt). Commenting on this definition, Lee in The Elements of Roman Law 4th ed at 288 describes gross H negligence as being 'a degree of negligence which indicates a complete obtuseness of mind and conduct'. Buckland in A Textbook of Roman Law 3rd ed at 556 suggests that what is contemplated is a 'failure to show any reasonable care'. Dicta in modern judgments, although sometimes more appropriate in respect of dolus eventualis, similarly reflect the extreme nature of the negligence required to constitute gross negligence. Some examples I are: 'no consideration whatever to the consequences of his acts' (Central South African Railways v Adlington & Co 1906 TS 964 at 973); 'a total disregard of duty' (Rosenthal v Marks 1944 TPD 172 at 180); 'nalatigheid van 'n baie ernstige aard' or ''n besondere hoë graad van nalatigheid' (S v Smith en J

Scott JA

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