Transnet Limited t/a Portnet v The Owners of the mv 'Stella Tingas' and The mv 'Atlantica'

On 17 June 1997, shortly after midnight, the mv Atlantica (a 224-metre bulk carrier displacing 65,000 metric tons) collided with the mv Stella Tingas while the latter was moored at Island View berth 3 in Durban harbour loading cargo. The Atlantica was entering Island View Channel heading for berth 7 to take on bunkers. Durban harbour is a compulsory pilotage port. The pilot navigating the Atlantica was Captain Peter Buffard, an employee of Transnet Limited (the harbour authority). Both vessels were damaged. The Atlantica deviated from the usual route on entering Basin B, proceeding further to starboard than normal. When the pilot attempted to correct course and turn to starboard to enter Island View Channel, the vessel failed to respond to the helm and sheered to port due to phenomena known as 'squat' and 'bank effect' (both related to excessive speed in confined/shallow waters), resulting in the collision. The owners of the Stella Tingas sued both the Atlantica (in rem) and Transnet (in personam). By the time of trial, the pilot had died.

• Whether the pilot's negligence amounted to gross negligence so as to deprive Transnet of the exemption from liability provided by paragraph 10(7) of the First Schedule to the Legal Succession to the South African Transport Services Act 9 of 1989
• What constitutes gross negligence in South African law as distinct from ordinary negligence
• Whether section 35 of the United Kingdom Pilotage Act of 1983 applies in South Africa to impose liability on shipowners for damage caused by compulsory pilots
• Whether the interaction between section 6(1) and section 6(2) of the Admiralty Jurisdiction Regulation Act 105 of 1983 permits the application of English admiralty law regarding compulsory pilotage
• Whether the master of the Atlantica was negligent in failing to intervene to prevent the collision

The appellant's (Transnet's) appeal against the judgment in favour of the first respondent (Stella Tingas owners) was upheld with costs. The first respondent's conditional appeal against the dismissal of their claim against the second respondent (Atlantica) was dismissed with costs. The trial court's order was altered to: (i) dismiss the plaintiffs' claim against the first defendant with costs (excluding costs from the Third Party Notice); and (ii) dismiss the plaintiffs' claim against the second defendant with costs.

The binding legal principles established are: (1) Gross negligence is not distinguished from ordinary negligence by consciousness of risk-taking alone. Whether there is conscious risk-taking or not, gross negligence requires conduct that departs so radically from the standard of the reasonable person as to be categorized as extreme - demonstrating either complete obtuseness of mind (where there is conscious risk-taking) or a total failure to take care (where there is no conscious risk-taking), but falling short of dolus eventualis. (2) Section 6(2) of the Admiralty Jurisdiction Regulation Act 105 of 1983 provides that South African statutory provisions applicable to admiralty matters prevail over the English admiralty law that would otherwise apply under section 6(1). (3) Paragraph 10 of the First Schedule to the Legal Succession to the South African Transport Services Act 9 of 1989 constitutes such prevailing provisions and displaces English admiralty law regarding compulsory pilotage, including section 35 of the UK Pilotage Act 1983. (4) Under South African law governing compulsory pilotage in Transnet harbours, the pilot is an employee of Transnet (not the shipowner's servant), has sole control of navigation, and the master is prohibited from interfering except in emergencies. This statutory scheme is inconsistent with vicarious liability of the shipowner for the pilot's negligence. (5) South African law must be applied to determine what constitutes negligence or gross negligence under South African admiralty legislation, notwithstanding the general application of English admiralty law principles under the Admiralty Jurisdiction Regulation Act.

The Court made several non-binding observations: (1) The experts' suggestion that the pilot should have stopped the ship and maneuvered with tugs to enter the channel in the usual way was a view expressed with hindsight and perhaps required a standard of excellence not reasonably required. (2) Documents including the pilot's statement, his evidence at a subsequent inquiry, the ship's logs, and transcript of conversations were admissible under section 6(3) of the Admiralty Jurisdiction Regulation Act. (3) The reference to the 'High Court of Justice of the United Kingdom' in section 6(1) of the Act is presumably intended to refer to the Supreme Court of England and Wales as constituted by the Supreme Court Act 1981. (4) The Court endorsed the statement from The Tactician [1907] regarding the cardinal principle that the pilot is in sole charge, the danger of divided command, and the danger of interference with the pilot's conduct. (5) Criticisms of the pilot for not adopting other measures to combat the sheer (such as putting the engine astern or dropping anchor) once it began were not established by evidence to have been measures that would have prevented the collision, and in any event would not have amounted to gross negligence. (6) There was no justification for the suggestion that bringing the Atlantica in at night demonstrated lack of caution, as there were two tugs in attendance and nothing suggested darkness played a role or that the collision would not have occurred in daylight.

This case is significant in South African admiralty law for: (1) clarifying the distinction between ordinary and gross negligence, establishing that gross negligence requires an extreme departure from the reasonable person standard - either complete obtuseness of mind (with conscious risk-taking) or total failure to take care (without conscious risk-taking), falling short of dolus eventualis; (2) determining that South African legislation on compulsory pilotage (paragraph 10 of the First Schedule to the Legal Succession to the South African Transport Services Act 9 of 1989) displaces English admiralty law principles that would otherwise apply under section 6(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983; (3) establishing that section 35 of the UK Pilotage Act 1983 (imposing vicarious liability on shipowners for compulsory pilots' negligence) does not apply in South Africa because the South African statutory scheme treats pilots as employees of the harbour authority, not servants of the shipowner; and (4) clarifying the master's limited duty to intervene when a compulsory pilot is in control of navigation, recognizing the dangers of divided command.