INDEMNITY DOES NOT STAND

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

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

Pic­ture: THINKSTOCK

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