Springbok Boating Co v South African Railways & Harbours

• Jurisdiction: South Africa

Springbok Boating Co Appellant v South African Railways & Harbours Respondent
1945 AD 114

1945 AD p114

Citation	1945 AD 114
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
Heard	September 27, 1944; September 28, 1944
Judgment	October 20, 1944

Flynote : Sleutelwoorde

Shipping — Collision between approaching steam vessels in narrow channel — Fairway marked by buoys — Duty of skip on correct side of channel — When duty to pass inside buoys — Failure to change course to starboard to avoid collision — Ship already on extreme starboard side of fairway — Meaning of one blast on whistle — Sea Regulations Nos. 18, 21, 27, 28.

Headnote : Kopnota

The Kathleen, a steam vessel proceeding in a southerly direction at night at about 5 knots along a narrow channel on its correct side and very close to the line of buoys marking the fairway, saw ahead on the same side of the channel the Fancy Me, another steam vessel. When the vessels were about 400 feet apart the Kathleen realised that the Fancy Me was proceeding on an opposite course and that a collision would occur if both vessels kept upon their respective courses. The Kathleen immediately reduced her speed and sounded one blast with her whistle and thereafter her engines were put into reverse, but the Fancy Me continued on her course at about 8 knots until just before the collision occurred, when she turned suddenly to starboard, and was struck by the Kathleen upon her port side, the collision taking place near a buoy and on the Kathleen's correct side of the fairway. In an action for damages the trial court found that though the Kathleen had been negligent in failing to keep a proper lookout in that she failed to recognise the Fancy Me earlier as a craft coming towards her, such negligence was immaterial as the true position had been realised by the Kathleen in time to avoid a collision, that she had thereafter taken all reasonable steps to avoid a collision and that the collision had been solely due to the negligence of the Fancy Me, in remaining on the wrong side of the channel and in taking no steps whatever to avoid a collision, save immediately before the collision when it was too late.

Held, dismissing an appeal, that in the absence of evidence that the water inside the line of buoys was ever used or that the Kathleen knew or should have known that it was safe for her to use it, there was no duty upon the Kathleen to alter course to starboard and proceed on the inside of the buoys to avoid a collision.

Held, further, that the fact that the Kathleen was so close to the buoys on her correct side of the fairway as to make it impossible for her to alter her course to starboard as required by Article 18 of the Sea Regulations was no proof of negligence vis-a-vis the Fancy Me.

Held, further, that Regulation 18 did not require a ship to alter her course to starboard, when by so doing she would be running the risk of grounding.

Held, further, that inasmuch as the Kathleen was already on her extreme starboard side of the fairway the one whistle could only mean that she was holding that course and not that she was changing her course to starboard and that in any event the Fancy Me had in no way been misled by such signal.

1945 AD p115

The decision of the Natal Provincial Division in Springbok Boating Co. v South African Railways, confirmed.

Case Information

Appeal from a decision of the Natal Provincial Division (BROOME, J.).

The facts appear from the judgment of DAVIS, A.J.A

C. Cornish, for the appellant: Notwithstanding the negligence of the appellant, the respondent could have avoided the collision by the exercise of reasonable, care, and appellant is therefore entitled to recover such damages as he has sustained as a result of the collision; in English law the principle is well settled that in such circumstances the plaintiff is entitled to recover. Davis v Mann (10 M. & W. 546); Radley v London and North-Western Railway Co. (36 L.T.R. 637 at p. 638); Butterfield v Forrester (11 East 60); "The Bernina" (1887, 12 P.D. 58 at p. 89); British Columbia Electric Railway Co. v Loach (1916, 1 A.C. 719); Admiralty Commissioners v S.S. Volute (1922, 1 A.C. 129), Swadling v Cooper (1931, A.C. 1); McLean v Bell (1932, 147 L.T.R. 262 at p. 264); The Eurymedon (1938, 1 A.E.R at p. 122). In Roman-Dutch law the same principle applies, see Johannesburg Municipality v Darbyshire (1909, T.S at p. 393); Jordaan v C.S.A.R. (1909, T.S at pp. 467, 471-2); Lennon v B.S.A. Co. (1914 AD I at p. 6); Jacobs v Union Government (1919 AD 325 at p. 330); Union Government v Lee (1927 AD 202 at p. 216); Sutherland v Banwell (1938 AD 476 at pp. 482, 485); Pretorius v African Gate & Fence Co. (1939 AD 571 at pp. 576, 579); Franco v Klug (1940 AD 126 at p. 136); Bezuidenhout v Dippenaar (1943 AD 190 at p. 195); Pierce v Hau Mon (1944 AD 175). A crucial factor in determining whether the defendant could have avoided the collision at the "final stage" by the exercise of due care is whether the defendant knew of the danger in time to avoid the consequences of the, plaintiff's negligence. Where the defendant is aware of the danger he is bound to take reasonable precautions to avoid the collision; McKerron, Law at Delicts (2nd ed., at pp. 70-1); Tuff v Warman (10 M.W. 546; 141 E.R. 231); Paul v Great, Eastern Electric Railway (36 T.L.R. 344 at p. 346); Swadling v Cooper (supra); British Columbia Electric Railway v Loach (supra); Baratz v Johannesburg Municipality (1913 T.P.D. 732 at p. 743); Solomon and Another v Mussett Bright (1926 AD 437 at pp. 435-6); Robinson v

1945 AD p116

Henderson (1928 AD at pp. 141-2); Thornton and Another v Fismer and Another (1928 AD 398 at p. 410); Sutherland v Banwell (supra at p. 485); Pierce v Hau Mon (supra at pp. 220, 223, 225).

C. P. Brink, K.C. (with him P. J van Blerk), for the respondent: The appellant's negligence has been established in the following respects: (a) his coxswain navigated the Fancy Me on her port side of Island View Channel in breach of Article 26 of the Regulations for preventing collisions at sea (Government Notice 1064 of 1932); and (b) he failed to keep a proper look-out and to take any steps to avoid the consequences of his negligence despite the warning sounded by Kathleen. The Court a quo ought to have held that the Fancy Me was not carrying regulation navigation lights at the time of the collision. As to appellant's case that if respondent had acted reasonably he could have avoided the collision and therefore that respondent's negligence was the proximate cause of the collision, the onus is on appellant to establish this. See Pierce v Hau Mon (supra at p. 220); Franco v Klug (supra at p 135); McKerron (supra at pp. 44-5). In the circumstances of the present case, one short blast by the Kathleen meant "I am keeping on my starboard side of the channel", and it was therefore the coxswain's duty to pass it port to port; even assuming that Kathleen's signal of one short blast had a tendency to mislead, the appellant must show that it did in fact mislead. The Gulf of Suez (1921, p. 318 at p. 328); Leopold v Hochelage (1932, 101 L.J. (P.C.) 65). The coxswain's negligence continued right up to the moment of collision. Bredell v Bosman (1932 CPD 131); Klompas N.O. v Potgieter (1912 TPD at p. 868); Smith v Harris (1939, 3 A.E.R at p. 964); Yorkshire Dale Steamship Co. v Minister of War Transport (1942, 2 A.E.R at pp. 15, 19); Pierce v Hau Mon (supra at p. 200); The Glengariff (1905, p. 106 at p. 110); Kaiser Wilhelm (1907, P at p. 265); The Zillah (1929, P. 266). Kathleen's failure to put her engines astern sooner may be attributed to an error of judgment on the part of her navigator, but it was not culpable; he was placed in a position of danger by the coxswain's negligence, Lennon Ltd. v British SA Co. (1914 AD at p. 14).; Solomon and Another v Mussett and Bright (supra); Minister of Defence v African Guarantee (1943 AD 141); Steenkamp v Steyn (1944 AD 536); Rennie & Sons v Minister of Railways (1913 NPD at pp. 413-4).

1945 AD p117

If there was negligence on the part of respondent, the either party could have avoided the accident, and the collision would then be due to the joint and simultaneous negligence of both parties and neither can recover from the other; it does not avail appellant to say that the coxswain was not aware of the danger of collision and he must be judged as if he was so aware. Sutherland v Banwell (supra at p. 476); The Eurymedon (supra); McKerron (supra at p. 69); Pierce v Hou Mon (supra at pp. 190-1, 229). According to Roman-Dutch Law if both parties are negligent in respect of a collision at sea, the one cannot recover from the other. Neostadius Decisiones (48, 49); Coren, Observations (40, 41); Grotius, Introduction to Dutch Jurisprudence (3.38.16, 17 and 18); van Leeuwen, Roman-Dutch Law (4.39.7); Bynkershoek, Qu. Jur. Priv. Lib. IV (cap. XVIII to XXII); van der Linden, Koopmans Handboek (4.5.7); Schorer, Aantekeningen (111, 37.7, p. 661); van der Keessel, Theses Selectae (816); van der Linden's Supplement to Voet (9.2.15, p. 157); Smith v Davis (1878, Buch. 72); Union Government v Lee (1927 AD at p. 202); Macintosh and Scoble, Negligence in Delict (at p. 59).

As to damages, appellant did not succeed in proving any loss of use; in any event it failed to produce the best evidence available to prove the loss of use of the Fancy Me, in spite of the right reserved to it to furnish further proof; in the circumstances the Court a quo ought not to have assessed the amount. Hersman. v Shapiro & Co. (1926 TPD at pp. 379-80); Scrooby v Engelbrecht (1940 TPD at 103).

Cornish, in reply.

Cur adv vult.

Postea (October 20th).

Judgment

Davis A.J.A:

The principal undisputed facts and the leadings in this case are summarised by the learned Judge in the court below as follows:

"Plaintiff...