Osborne Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Wessels JA, Trengove JA and Diemont AJA
• Judgment Date: 02 September 1982
• Citation: 1982 (4) SA 890 (A)
• Hearing Date: 07 May 1982
• Court: Appellate Division

Wessels JA:

B Appellant was at all times material hereto the owner of the Olympic Action, a tanker described in the evidence as a VLCC (very large crude carrier) with a dead weight of 219 245 long tons, a length of 1 036 ft and draught of 63½ ft. On 8 February 1976 this tanker collided with and damaged a single point mooring buoy (the SBM) C in the sea off Durban. The respondents were at the material time the joint owners of the SBM, which provided berthing facilities for tankers to enable them to discharge their cargo of oil without entering the Durban harbour. It was agreed between the parties that, as a result of the collision, the respondents suffered damage in the sum of R246 D 063,09. The respondents (as plaintiffs) instituted an action in the Durban and Coast Local Division against the appellant (as defendant) in which they claimed payment of the above-mentioned damages on the basis that the collision between the tanker and the SBM was caused by the negligence of appellant's servants in navigating the Olympic Action E while the tanker was approaching the SBM with the intention of berthing it preparatory to discharging its cargo of oil. The trial Court held that the respondents had established that the collision was caused by the negligence of appellant's servants, and accordingly granted judgment in respondents' favour against appellant for payment of R246 063,09 together with interest thereon at the rate of 11 per cent per annum from the date of judgment to date of payment.

F In the same action, second respondent claimed a declaratory order that appellant was liable to it in an amount still to be determined in respect of demurrage arising from the fact that the damage to the SBM resulted in delay in the discharge of the cargo of oil conveyed by a G tanker, Mobil Petroleum, which was on charter to second respondent under a voyage charter party and contract of affreightment which rendered second respondent liable for demurrage arising from the aforesaid delay in discharging its cargo at the SBM. The trial Court held that second respondent had failed to establish a legal basis entitling it to the declaratory order sought against appellant, since it H did not appear from the evidence that appellant owed second respondent a duty of care as charterer of the Mobil Petroleum. It accordingly granted judgment in appellant's favour in respect of second respondent's claim for a declaratory order.

The appellant appeals against that part of the judgment of the Court a quo in terms of which it was ordered to compensate the three respondents in respect of the damage caused by the collision, ie to pay the sum of R246 063,09. In so far as the cross-appeal is concerned, second respondent appeals against that part of the judgment of the Court a quo which dismissed its claim for a declaratory order.

Wessels JA

In his judgment the learned Judge a quo, HOWARD J, has adequately summarised the issues both of fact and law which arose for determination by him. Since the judgment has been reported - see 1980 (3) SA 653 (D) A - it is unnecessary for me to do so in this judgment. For the sake of convenience I shall refer to the respondents as plaintiffs and to the appellant as the defendant.

The plaintiffs' claim for the payment by the defendant of damages was founded on allegations to the effect that the collision was caused by the negligence of the defendant's servants in navigating the Olympic B Action, in that they:

'(a)

caused or permitted the ship to approach the SBM at too high a speed;

(b)

failed sufficiently to appreciate the velocity of or make allowance for a northerly current in the vicinity of the SBM;

(c)

C caused or permitted an attempt to be made to bring the ship to a position for mooring by putting her helm hard to port, in circumstances in which it was not safe to do so;

(d)

failed so to manage the ship as to avoid the collision when by the exercise of reasonable care they could have done so.'

In its plea, defendant denied that any person for whose acts or D omissions it may be vicariously liable was negligent in any of the respects averred in plaintiffs' particulars of claim. It was, further, pleaded that the cause of the collision was an unforseeable and sudden cross-current in the vicinity of the SBM. It is unnecessary for the purpose of this...