Korea Shipping Corporation and another v South African Weather Service

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Khan AJ
• Judgment Date: 11 November 2022
• Citation: 2022 JDR 3372 (KZD)
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 21 October 2022
• Docket Number: AR 83/2020

Khan AJ:

Introduction:

[1]

In this case, the first plaintiff is Korea Shipping Corporation, a company duly incorporated in accordance with the company laws of South Korea, which conducts business at 25 Gukjegeumyung-ro-2-gil, Yeongdeungpogu, Seoul, South Korea, as the Bareboat Charterer of the mv "SM New York" ("the Vessel"). The second plaintiff is Korea Tonnage NO 27 Shipping Company, a company duly incorporated and registered with limited liability in accordance with the company laws of South Korea, and the owner of the Vessel, which conducts business from the same address as the first plaintiff.

[2]

The first and second plaintiffs sued the defendant, the South African Weather Service, which is a juristic person established under the South African Weather Service Act 8 of 2001 ("SAWS Act"), with its principal place of business at King Shaka International Weather Office, King Shaka International Airport, La Mercy, KwaZulu-Natal, for the payment of the sums of Korean Won 235 284 691 and US Dollars 129 815.8; mora interest and costs.

Plaintiffs' claim

[3]

In their particulars of claim, the plaintiffs allege that on 10th October 2017, and in consequence of the then prevailing severe weather conditions, the Vessel broke free of her mooring at her berth at the Container Terminal in the Port of Durban. At approximately the same time, the mv "MSC Ines" also broke free of her mooring and collided with the Vessel. The amount claimed is for damages which the plaintiffs allegedly suffered as a result of that collision.

[4]

The plaintiffs' claims are founded on the alleged breach of the defendant's statutory duties to provide "public good services" to all South Africans as defined in schedule 1 of the SAWS Act. They allege that this includes the obligation to:

(a)

warn ships of gales, storms and tropical storms, inter alia, by the issue of radio messages;

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Khan AJ

(b)

issue weather bulletins suitable for shipping, containing data of existing weather, waves, ice and forecast;

(c)

provide weather and climatic forecasting and warning services intended for the general benefit of the population and the safety of life and property;

(d)

provide meteorological support for aviation and maritime search and rescue activities in accordance with international obligations of the Government; and

(e)

issue "severe weather warnings" in respect of "severe weather" over South Africa. "Severe weather" is defined in the Act as 'an extreme meteorological event or phenomenon, which represents a real hazard to human life or property and has the potential to cause damage, serious social disruption, loss of human life, or economic loss', and "severe weather warning" is defined as 'an alert issued by the [defendant] with regard to severe weather which includes an advisory, watch or warning alert'.

[5]

The plaintiffs allege in their particulars of claim that in addition to such statutory duties, the defendant owed them a duty of care which arose both from such statutory duties and from the following:

(a)

the defendant was the only entity authorised to issue severe weather-related warnings over South Africa and the plaintiffs were obliged to rely on it for such warnings;

(b)

in order for such severe warnings to be effective, it is necessary that the defendant issues same as soon as reasonably possible, having regard to the reasonable likelihood of the occurrence of severe weather; and

(c)

the plaintiffs and other owners and operators of ships rely on such timeous notice to enable them to take steps to prevent or minimise the risk of damage to their property during a severe weather event, which includes but is not limited to:

(i)

ensuring that the mooring lines which keep ships moored in the Port are adequate in type and number to ensure that ships remain safely moored;

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Khan AJ

(ii)

ships having sufficient time to start their engines and ensure that they have the means of self-propulsion and adequate self-navigation to exit the Port in advance of a severe weather event at the Port; and

(iii)

ships having sufficient time to call upon the assistance of tugs, pilot boats, radio services, and other facilities and services at the Port.

[6]

The defendant, so the plaintiffs allege in their particulars of claim, and/or its employees and/or its officials acting within the course and scope of their employment, wrongfully and negligently breached its duties by failing to:

(a)

employ or retain the services of suitably qualified and/or trained weather specialists for the analysis and interpretation of weather data so as to forecast severe weather conditions and issue severe weather warnings;

(b)

keep and maintain equipment and infrastructure necessary to capture, analyse and interpret weather data so as to forecast severe weather conditions;

(c)

properly analyse and interpret the weather data available to it on 8th and 9th October 2017, which weather data indicated that severe weather conditions were likely to be experienced along the Kwazulu-Natal coastline (including the locality of the Port) during the course of the morning of 10th October 2017 as a consequence of a cut-off low pressure system;

(d)

forecast that there was a reasonable likelihood of severe weather conditions at the Port during the morning of 10th October 2017; and

(e)

timeously issue a severe weather warning in advance of the severe weather conditions experienced at the Port during the morning of 10th October 2017.

[7]

The plaintiffs allege further that but for the defendant's negligence:

(a)

the plaintiffs would have been notified in advance of the severe weather conditions on 10th October 2017;

(b)

the plaintiffs would have been able to take adequate steps in advance of the severe weather conditions reaching the Port;

(c)

the Vessel would not have broken free from her mooring; and

(d)

the plaintiffs would not have suffered damages.

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Khan AJ

[8]

The plaintiffs also allege that their claim is a maritime claim as defined in the Admiralty Jurisdiction Regulation Act 105 of 1983 and that this court has jurisdiction to hear such action in terms of s 2(1) of such Act.

The exceptions:

[9]

The defendant excepted to the plaintiffs' particulars of claim on the ground that it lacks averments which are necessary to sustain a cause of action in terms of Admiralty Rule 9(5).

[10]

In its notice of exception, the defendant claims that it:

(a)

is a s 3(a) public entity under the Ministry of Environmental Affairs and is governed by a Board;

(b)

became a public entity on 15th July 2001, in terms of the SAWS Act, as amended in 2013;

(c)

is an authoritative voice for weather and climate forecasting in South Africa and, as a...