INDEMNITY DOES NOT STAND
swells of four metres or more, the totality of the evidence led the court to conclude that swells in excess of four metres in the nearby vicinity of the vessel at anchor at the Geldsteen, constituted a warning to the reasonably prudent skipper that he should “pack up and leave”.
The court concluded that nothing turned on exhaustively analysing evidence as to the size of the breaking swell. The question was not whether the defendants could reasonably have foreseen a wave as large as the wave which actually capsized the vessel, but rather whether the conditions were such that a skipper could reasonably have been expected to foresee the risk of a wave breaking over the vessel. If he could, then the death of a passenger was reasonably foreseeable.
The court was satisfied that the skipper had indeed been negligent and found the defendants liable for such damages as the claimant might prove in consequence of the death of Tallman.
Turning to the issue of limitation of liability, the owner contended that even if the death was caused by the privity, the court found it unnecessary to decide whether the owner lacked the necessary fault. It took the opportunity to add, nevertheless, that it did not accept the owner’s argument that it was entitled to abdicate all responsibility in respect of navigation issues and to rely solely on the skipper’s expertise and judgement.
In this regard the court cited the English judgment in The Lady Gwendolen and supported the finding that the absence of any effective managerial control over the way in which the defendant’s ships were navigated by their masters was a serious failure in management.
Finally, the court found that no reliance could be placed on the indemnity form signed by the deceased before the excursion, which purported to release the owner from claims against it or its employees arising from, among other things, “wrongful death”. This is because, as a matter of South African law, a dependant’s action is not compromised by an indemnity or waiver given by the deceased.
The decision is under appeal.
The defendants’ main contention was that the vessel was struck by a ‘freak’ wave of at least 10m