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

• Jurisdiction: South Africa
• Citation: 2003 (2) SA 473 (SCA)

MV Stella Tingas;
Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another
2003 (2) SA 473 (SCA)

2003 (2) SA p473

Citation	2003 (2) SA 473 (SCA)
Case No	378/2001
Court	Supreme Court of Appeal
Judge	Hefer AP, Scott JA, Farlam JA, Conradie JA and Lewis AJA
Heard	November 4, 2002
Judgment	November 17, 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.

Flynote : Sleutelwoorde H

Negligence — Liability for — Whether gross or merely ordinary — Gross negligence differing from ordinary negligence by its extreme nature — Matter of I degree, not of consciousness of risk-taking — Conduct must demonstrate, where conscious risk-taking present, complete obtuseness of mind, or where no conscious risk-taking present, total failure to take care.

Shipping — Compulsory pilotage — Liability for loss or damage caused by ship under pilotage of pilot employed by harbour administration in compulsory pilotage — Liability of harbour administration — Paragraph 10(7) of J

2003 (2) SA p474

Schedule 1 to Legal Succession to the South African Transport Services Act 9 of A 1989 exempting harbour administration and pilot for loss or damage caused by negligence of pilot — Court assuming without deciding that exemption not applicable in case of gross negligence — Court finding on facts that pilot, though guilty of negligence, not guilty of gross negligence — Harbour administration not liable. B

Shipping — Compulsory pilotage — Liability for loss or damage caused by ship under pilotage of pilot employed by harbour administration in compulsory pilotage — Liability of shipowner — Paragraph 10 of Schedule 1 to Legal Succession to the South African Transport Services Act 9 of 1989 prohibiting master from interfering in any way with pilot while ship under pilotage except in case of emergency — Since pilot not, as in England, servant of shipowner, contrary to para 10 to hold C shipowner liable for negligence of compulsory pilot — Accordingly, s 6(2) of Admiralty Jurisdiction Regulation Act 105 of 1983 read with para 10 of Schedule 1 to Succession Act precluding application of English Admiralty law (which held owner liable for damage caused while vessel under compulsory D pilotage) in South Africa — Shipowner not liable for damage caused in South African compulsory pilotage harbour.

Shipping — Admiralty action — Law to be applied — Admiralty Jurisdiction Regulation Act 105 of 1983, s 6 — Damage done by ship under compulsory pilotage in South African harbour — Issue before Court whether pilot negligent — Although South African Court of Admiralty would in terms of English law have had, at time of E commencement of Act, jurisdiction to entertain claim, and English admiralty law thus applicable thereto in terms of s 6(1)(a) of Admiralty Jurisdiction Regulation Act, Legal Succession to the South African Transport Services Act 9 of 1989 containing detailed provisions relating to compulsory pilotage in harbours and in particular F negligence on part of pilot — Such provisions clearly provisions 'of any law of the Republic' as intended in s 6(2) of Admiralty Jurisdiction Regulation Act — Section 6(1) subject to s 6(2) — Accordingly South African law to prevail over English admiralty law.

Headnote : Kopnota

In June 1977 the second respondent vessel, the A, collided with the vessel owned by the first respondents, the G ST, in Durban harbour while the former was under compulsory pilotage. The pilot, captain B, was an employee of the harbour authority, the appellant. Both vessels were damaged in the collision. The owners of the first respondent (henceforth the plaintiffs) instituted action in a Provincial Division against the A as first defendant and against the appellant (henceforth Transnet) as second defendant, the action against the former being in H rem and against the latter in personam. The plaintiffs' claim against the A was founded on two grounds, the first being that the collision was caused by the negligence of its master and crew, the second that it was caused by the negligence of the pilot for whose negligence the owners of the A 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 I the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act). (Section 35 of the UK Pilotage Act rendered the owner of a vessel liable for the negligence of a compulsory pilot.) The principal ground for the claim against Transnet (and the only one relied upon on appeal) was that the collision was caused by the 'gross negligence' of the pilot. The reason for this reliance on 'gross' negligence was that para 10(7) J

2003 (2) SA p475

of the First Schedule to the Legal Succession to the South African Transport Services Act 9 of 1989 (the Succession Act) exempted A both Transnet and the pilot from 'loss or damage caused by a negligent act or omission on the part of the pilot'. In addition to denying liability the A caused a third party notice to be issued citing Transnet and the pilot as third parties and claiming from them damages in respect of the damage caused to the ST. B

The Court a quo found that the pilot had been grossly negligent and that Transnet was accordingly liable to the plaintiffs for their damages. As to the claim against the A, it 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 A was accordingly held not to be liable to the plaintiffs. No order was apparently sought C in terms of the third party notice, nor was one granted. Transnet appealed to the Supreme Court of Appeal against the order holding it liable to the plaintiffs, while the plaintiffs in turn appealed against that part of the judgment in which the A was held not to be liable to the plaintiffs.

Section 6 of the Admiralty Jurisdiction Regulation Act provides as follows: '(1) Notwithstanding anything to the contrary in any law or the common law contained a court in the exercise of its admiralty D jurisdiction shall: (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 E to such a matter at such commencement, insofar as that law can be applied; (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.'

Held, that, although a South African Court of Admiralty would, by virtue of English admiralty law, have had jurisdiction to F entertain the plaintiff's claims at the time of commencement of the Jurisdiction Act (1 November 1983), with the result that under s 6(1)(a) English admiralty law of that time would have been applicable to the claims, it was clear that s 6(1) was subject to s 6(2). Paragraph 10 of the First Schedule to the Succession Act contained detailed provisions relating to compulsory pilotage harbours and in particular any negligence by the pilot, which were clearly G provisions within the meaning of s 6(2) of the Act. Accordingly they had to prevail over English admiralty law. (Paragraph [6] at 479F/G - J.)

Held, further, that it followed that for the purpose of determining what 'a negligent act or omission on the part of a pilot' as intended in para 10(7) of the First Schedule was, or whether an act or omission amounted to gross negligence so as not to enjoy the H benefit of the exemption conferred by para 10(7), regard had to be had to South African law. (Paragraph [6] at 480A - B.)

Held, further, and assuming that the exemption would not apply if the pilot had been grossly negligent, that the concept of gross negligence was not capable of a precise definition. If consciously taking a risk was reasonable there would be no negligence at all, it was clear that it was not consciousness of risk-taking that I distinguished gross negligence from its ordinary counterpart. Whether there was conscious risk-taking or not, it was necessary in every case to determine whether the deviation from what was reasonable was so marked as to justify it being condemned as gross. (Paragraph [7] at 480B - B/C and C/D - F/G.)

Held, further, that to qualify as gross negligence the conduct in question, J

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although falling short of dolus eventualis, had to involve a departure from the standard of the A reasonable person to such an extent that it may properly be categorised as extreme; it had to demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. (Paragraph [7] at 481B - C.)

Held, further, as to the facts, that, although the evidence clearly established negligence on the part of the pilot, the plaintiffs had not discharged the burden of showing that the negligence was such B as to amount to gross negligence. It followed that Transnet's appeal had to be upheld. (Paragraphs [25] and [27] at 486D - E and G.)

Held, further, as to the plaintiffs' appeal against the finding that the A was not liable to them for their damages, that it was clear from para 10 of the First Schedule to the Succession Act (which was a provision within the meaning of s 6(2) of the C Admiralty Jurisdiction Regulation Act and thus had to prevail over English law) that...