Case Report - Collisions in compulsory pilotage harbours

Dec 23, 2002
Author: Adams & Adams attorneys

A CASE REPORT

This case study was first published in From the Bridge, November 2002, produced by Adams & Adams and is reproduced with permission

Adams & Adams attorneys

Maritime and International Trade Department

Tel (031) 566 1259 email dbn@adamsadams.co.za

Collisions in compulsory pilotage harbours

The harbours of South Africa are operated by Transnet Limited trading as Portnet ('Portnet'), a company established in terms of the Legal Succession to the South African Transport Services Act, 1989 ('the Transport Services Act').


Paragraph 10(1) of Schedule 1 to the Transport Services Act provides that:


   'The harbours of the Company are compulsory harbours with the result that every ship entering, leaving or moving in such a harbour shall be navigated by a pilot who is an employee of the Company, with the exception of ships that are exempt by statute or regulation.'


Paragraph 10(4) provides that:


   'A master shall at all times remain in command of his ship and neither he nor any person under his command may, while the ship is under pilotage, in any way interfere with the navigation or movement of the ship or prevent the pilot from carrying out his duties except in the case of an emergency, where the master may intervene to preserve the safety of his ship, cargo or crew and take whatever action he deems necessary to avert the danger.'


Paragraph 10(7) provides that:


   'The Company 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.'


Two recent and as yet unreported decisions have shed some light on the interpretation of the above provisions.


      (1)Yung Chun Fishery Company Limited v Transnet Limited t/a Portnet


(Judgement delivered by the High Court of South Africa, Cape of Good Hope Provincial Division on 1 September 2001, and not yet reported.)


In this case the pilot, entering Cape Town harbour, in heavy fog, caused the ship to collide with the spur of a berth in the harbour. Evidence was led regarding the operation of the radar on board the ship and regarding the conduct of the pilot.


The court held that the exemption from liability provided by paragraph 10(7) above must be restrictively interpreted. The court considered an earlier decision in Shell Tankers Limited v SA railways and Harbours 1967(2)SA666(E), in which a similar provision was interpreted to apply only where the pilot's conduct was the sole and proximate cause of the damage. Thus the pilot's employer could not escape liability if the pilot's conduct merely played a part in causing the damage.


Having considered that case, the court held that wilful, reckless or grossly negligent acts or omissions on the part of the pilot must similarly fall outside the exemption. The court found that the pilot had, on his own evidence, relied on a hooded radar when he had serious misgivings about the accuracy thereof. The hooded radar had no heading marker, and the screen was heavily scarred. When the pilot performed certain checks it appeared to have been inaccurate. Yet he relied on the radar and took no steps to locate an additional radar on board. The court accepted the evidence of the master and crew that there was a working Furuno radar on board which was visible to the pilot at all times. The court thus held that the pilot had been grossly negligent.


Portnet was accordingly liable for the damage on the basis of the principle of vicarious liability of an employer for acts carried out by his employee during the course and scope of his employment.


      (2)Owners of the mv Stella Tingas v the mv Atlantica and Transnet Limited t/a Portnet and Others


(Judgement delivered by the High Court of South Africa, Durban and Coast Local Division in May 2001, and not yet reported.)


A collision occurred in Durban harbour between the mv Atlantica, which was being brought in at night for bunkers, and the mv Stella Tingas, which was berthed at Island View. The court confirmed the approach in the mv Yung Chun Fishery Company Limited v Transnet Limited t/a Portnet (supra), namely that gross negligence is not covered by the exemption clause.


On the facts, the court held that the pilot had been grossly negligent in that, given the size of the mv Atlantica (approximately 65,000 tons), the pilot had been going too fast and was not correctly aligned to enter the Island View channel. Expert evidence was led on the suction and banking effect which would be felt by a ship of this size entering confined waters at excessive speed. The court found that the pilot ought to have turned the ship around, stopped if necessary and entered the channel once he had realigned the ship. The court accordingly found that Portnet was liable for the damage.


The owners of the mv Stella Tingas also sued the owners of the mv Atlantica. They relied on section 35 of the Pilotage Act, 1983 (England) which provides that the owner of a ship is liable for loss or damage caused by the ship even where she is under compulsory pilotage. The court held that:

In terms of section 6 of the Admiralty Jurisdiction Regulation Act, 1983, English law as at 1 November 1983 was applicable.

Whilst the Pilotage Act, 1983 (England) was in force, this did not mean that this Act was intended to apply outside the geographical territory of the United Kingdom. Therefore, the owners of the mv Atlantica were not liable on the basis of the Pilotage Act, 1983 (England).

The common law position in the United Kingdom is that there is no liability for the negligence of a compulsory pilot. The court held further that the master was authorised to act only if there was an emergency endangering his ship. The evidence did not establish that the master was aware or should have been aware of an emergency or that intervention by him would have had any effect. A master would in any case be entitled to intervene only if there was an emergency which he believed the pilot could not cope with and he, the master, would be able to manage.
Accordingly, it was held that the owners of the mv Atlantica were not liable to the owners of the mv Stella Tingas.


Comment


Both cases discuss the somewhat elusive concept of 'gross negligence.'


An interesting aspect of procedure was that in the Stella Tingas the master testified in Greece via video satellite linkup. The court in South Africa was able to see the master and hear his words and he was examined and cross-examined by counsel who were visible and audible to him. The procedure was adopted by agreement between the parties, and the judge commented that it was 'a most sensible way of dealing with the evidence of witnesses who were not available to testify in court' and recommended that it be incorporated in the rules of the court. At present, however, such a procedure can only be adopted by consent between the parties.