MV Banglar Mookh Owners of MV Banglar Mookh v Transnet Ltd

• Jurisdiction: South Africa
• Judge: Farlam JA, Cachalia JA, Tshqi JA, Wallis JA and Plasket AJA
• Judgment Date: 30 March 2012
• Citation: 2012 (4) SA 300 (SCA)
• Docket Number: 842/2011 [2012] ZASCA 57
• Hearing Date: 12 February 2012
• Counsel: RWF MacWilliam SC for the appellant. M Wragge SC for the respondent.
• Court: Supreme Court of Appeal

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring):

Introduction F

[1] The appellant in this matter, the owners of the Banglar Mookh, the Bangladesh Shipping Corporation, instituted an action in the Western Cape High Court, Cape Town, exercising its admiralty jurisdiction, against the respondent, Transnet Ltd, and the National Ports Authority of South Africa. They claimed payment of the damages suffered on G 5 September 2005 when their vessel, the MV Banglar Mookh, which was at the time being piloted by Mr Tadeusz Jan Grelecki, an employee of the respondent, collided with the knuckle of the A Berth at the entrance to Duncan Dock in the Cape Town harbour. (It was subsequently agreed between the parties that the respondent was the party which would be H responsible if the appellant were to establish a basis for liability for the damages sustained as a result of the collision and the National Ports Authority of South Africa, which had been cited as second defendant, took no part in the proceedings and no relief was sought against it.)

[2] In its particulars of claim the appellant alleged that the cause of the I collision was the gross negligence of Mr Grelecki (whom we shall call in what follows 'the pilot'). When the appeal was called in this court the appellant was granted leave to amend its particulars of claim to allege recklessness.

[3] The appellant accordingly sought to prove that the collision between the appellant's vessel and the knuckle had been caused by the recklessness J or gross negligence of the pilot. It did this in an attempt to

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring)

circumvent the exemption from liability enjoyed by the respondent in A terms of item 10(7) of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989, which reads as follows:

'The Company [ie the 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.' B

[4] In two high court judgments, Yung Chun Fishery Co Ltd v Transnet Ltd t/a Portnet, an unreported judgment of the Western Cape High Court delivered on 1 September 2000 in case AC 30/97; and Owners of the MV Stella Tingas v MV Atlantica and Another (Transnet Ltd t/a Portnet and Another, Third Parties) 2002 (1) SA 647 (D) it was held that the C exemption does not apply if the pilot's acts or omissions were grossly negligent or reckless. When the Stella Tingas case came before this court [1] it assumed, without deciding, that 'the exemption would not apply if the pilot were found to have been grossly negligent' (see para 7 of the judgment at 480B – C).

[5] The appellant relied on the two high court decisions to which we D have referred and submitted that the pilot in this case was reckless or grossly negligent and accordingly that the exemption did not apply.

[6] The case came before Binns-Ward J in the court a quo. [2] Although the learned judge had, as he put it, 'some reservations' whether item E 10(7) had been properly construed in the two cases mentioned earlier, the issue did not arise because he held that the appellant had not succeeded in proving that the pilot had been guilty of gross negligence. Having found that gross negligence on the part of the pilot had not been proved, he held that the exemption contained in item 10(7) applied and consequently dismissed the appellant's action, but gave the appellant leave to appeal to this court against his judgment. F

[7] There were, as will appear more fully later, two conflicting versions of the events which led to the collision, one in the evidence of Captain Shahidul Islam, the master of the vessel, the other in the evidence of the pilot. The judge rejected the pilot's version and accepted that of G Captain Islam. He held that the pilot had been negligent, but not grossly negligent, hence the dismissal of the action.

[8] Mr MacWilliam SC, who appeared for the appellant, submitted, as was to be expected, that the judge had correctly accepted Captain Islam's version of the events leading up to the collision, but had erred in H not holding that the pilot had been reckless or grossly negligent. He contended that the onus to establish that the pilot had not been grossly negligent was on the respondent, with the result that the judge's finding 'that he was not persuaded that it had been established that the pilot was grossly negligent' amounted to a finding of absolution. This he submitted meant that the principle that where a defendant fails to establish its I

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring)

A defence, judgment must be given in favour of the defendant, should have been applied: cf Arter v Burt 1922 AD 303 at 306. He also argued that the judge had erred in failing to uphold a contention advanced at the end of the trial that, because the respondent had — despite giving an undertaking to do so — failed to preserve the vessel tracking service (VTS) B records (which would have provided an objective and reliable record of what had led up to the collision), the court should strike out the respondent's defence and give judgment in favour of the appellant, effectively as if by default.

[9] Mr Wragge SC, who appeared for the respondent, submitted that the C judge had correctly rejected the contention that the respondent's defence should be struck out because of its failure to preserve the VTS records. He also submitted that the onus of proving that the exemption contained in item 10(7) did not apply was on the appellant: consequently, the principle that absolution from the instance is not an appropriate order in D a case where the onus is on the defendant does not apply.

[10] Mr Wragge devoted the main part of his argument, however, to the submission that the judge had erred in preferring Captain Islam's version of the events to that of the pilot, and that on the pilot's version he had not been negligent at all, much less grossly negligent or reckless. He E contended further that the judge had misdirected himself on a number of material points and had adopted an incorrect approach to the resolution of the factual disputes before him. He argued further that in the circumstances this court is at large to decide the matter afresh on the record, and that it should dismiss the appeal on the basis that the pilot had not been negligent.

The evidence F

[11] In order to facilitate an understanding of the evidence the judge gave a helpful summary in his judgment of what he called 'the physical interrelationship of some of the salient features around the harbour basin G outside the entrance to Duncan Dock'. [3] This summary reads as follows:

'What the parties referred to as the basin is defined on its seaward aspect by the breakwater on the north-western side and by the North Wall, which is part of the seaward wall of the Ben Schoeman Dock, to the south-east. The breakwater runs out from the land at an angle in a H north-easterly direction, while the North Wall runs outward from the seaward boundary of the Ben Schoeman Dock in a north-westerly direction, pointing towards the end of the breakwater wall on the opposite side of the mouth of the basin. A vessel sailing in an easterly direction so as to pass the breakwater from the west, as did the Banglar Mookh, would ordinarily turn to starboard at an obtuse angle to cross I the basin following the leading line into Duncan Dock. The North Wall and the entrance to the Ben Schoeman Dock would be on the vessel's port side as it crossed the basin; and the North Spur on its starboard

Farlam JA and Wallis JA (Cachalia JA, Tshiqi JA and Plasket AJA concurring)

side. The part of the basin immediately outside the entrance to Duncan Dock A is characterised by the North Spur, which is a wall running out in a north-easterly direction from the seaward side of the A Berth wall of Duncan Dock and, on the southern aspect, by the South Spur, being a wall running out in a generally north-westerly direction from the end of the quay that comprises the boundary between the southern edge of the B Ben Schoeman Dock and what is known as the Eastern Mole of Duncan Dock. The walls of the North Spur and the South Spur define, in effect, an inner basin immediately outside the entrance to Duncan Dock. As mentioned, the entrance to Duncan Dock is between the knuckle of the A Berth wall and the knuckle of the Eastern Mole.'

[12] The judge also set out in his judgment measurements of the C distance between the salient points furnished by the appellant's expert witness, Captain McAllister, which were, with rare exceptions, the same as, or a little bit longer than those derived from the charts. The judge used these measurements because, he said, the longer distances favour the respondent. These measurements were as follows: D

'(a)

from the end of the A Berth knuckle to the end of the breakwater 1071,5 metres

(b)

from the end of the breakwater to the end of the North Wall 722 metres

(c)

from the end of the breakwater to the end of the North Spur 851 metres E

(d)

from the end of the North Wall to the end of the North Spur 509 metres

(e)

from the end of the North Spur to the end of the A Berth knuckle 230 metres

(f)

from the end of the North Wall to the end of the A Berth knuckle 676,3 metres

(g)

from the No 4 buoy to the end of the A Berth knuckle 1180 F metres.'

[13] As a further guide to the understanding of the evidence the judge also gave three examples, taken from a table produced in evidence, illustrating the distance a vessel will cover travelling at various speeds. G The examples were: 'at a constant speed of 5 knots a ship covers 154 metres a minute; at 7 knots, 216 metres a minute and at 9 knots, 278 metres a minute'.

[14] The judge gave...