Ports Authority faces R1.9bn claim
• Owner of sunken ship wins application for access to data in case against Transnet subsidiary
The Transnet National Ports Authority is facing a $110m (about R1.9bn) damages claim from the owner of a ship that broke in two and sank in high seas as it left the Richards Bay harbour.
The MV Smart, a bulk carrier fully laden with coal, sank in August 2013 in high swells just outside the harbour. In a summons issued by the high court in Durban, the owner, Alpha Marine, and the underwriters say the authority was negligent in allowing the ship to sail on that day, and its pilots had negligently left the ship while it was still in the long harbour channel.
Most of the claim against the Transnet subsidiary is for cleaning-up costs, which involved towing parts of the wreck further out to sea and cleaning up the seafloor.
The port authority has denied any negligence and is opposing the claim.
The owner recently scored a court victory in a pretrial application that will allow it access to a computerised system designed to indicate if it is safe for a ship to sail. The DMAX system takes inputs on wind, wave and rain measurements and uses an algorithm that incorporates the limits of the port’s capability, weather and the ship’s characteristics.
The owner alleges in court papers that while the system, designed by the Council for Scientific and Industrial Research (CSIR), was operational on that day, incorrect data had been fed into it.
In a judgment in the application, judge Graham Lopes said that while the CSIR had agreed to give the owner access to a “version of the system” at its facility in Stellenbosch and to conduct a simulation exercise, the port authority was bent on opposing this and had even applied for an interdict in the Western Cape High Court.
Advocate Stephen Mullins, for the owner, argued that the system is “the most important part of the evidence to determine if the port should have been closed”. Lopes said the owner has a right to ascertain what the system would have done if the ship’s details and other data had been correctly entered into it.
“The suggestion has been raised that the owners bear the onus to prove the negligence and it should not be compelled to assist the owners in establishing their case. But the authority admits that the system was operable on the day in question and designed to prevent seafarers from harm. If it was not functioning correctly, or did not receive the correct inputs to enable it to do so, that is precisely what the [trial] court is to decide,” he said.
The judge also ordered the authority to hand over any documents regarding procedures for the closure of harbours in SA for any reason, and rules saying when pilots may disembark.
The authority argued that there were no such records at Richards Bay and that every harbour is different and the documents would be “irrelevant”.
Lopes ruled that they were relevant. “It is clear the owners contend that the authority acted negligently … This includes the role of the pilots and there are suggestions that they disembarked when they should not have done so,” the ruling reads.
“There is no reason why the authority cannot make the relevant inquiries at the various ports. If there were procedures at other ports, it may well raise an issue if they were not in place at Richards Bay or were not adhered to there,” Lopes ruled.
A trial date has not yet been set down.