A SHIPLOAD OF DAMAGES
A bulk carrier’s crash in Durban’s harbour has given rise to a series of complex cases regarding liability and jurisdiction
The bulk carrier MV Julian caused something of a sensation when it entered Durban’s harbour last May: the unthinkable happened and the vast ship crashed. First the Julian overshot its berth. Then, when an attempt was made to rectify matters, it smashed into the quayside and collided with a bulk ship loader. That loader, weighing 600 t and standing about 30 m high, was originally said to be a write-off. Since then the damage to the loader has been quantified at around R264m. That’s not to mention the considerable damage to the ship itself and to the quayside. The off-course Julian, which weighed 40,160 t, was a hugely destructive vessel.
The crash, the surrounding facts and subsequent developments in the story are both novel and significant. But they also illustrate some long-standing legal provisions that might seem strange to nonlawyers.
At the time the ship entered the harbour there was on board a pilot provided by the Transnet National Ports Authority. The ship was also attached to two tugs, crewed by people employed by the same authority. The presence of the pilot was not because anyone thought the vessel’s own captain was deficient in some crucial navigational skills; rather, it is compulsory that an official harbour pilot should navigate the arrival and departure of every vessel at any SA port. But the law sees the pilot’s position rather differently from how a member of the public might view it. Under the law, that pilot, though provided by the harbour authorities, is deemed to be an employee of the owners of the ship. And that fact, which some outsiders might regard as a legal fiction but is real enough when it comes to litigation, will play a significant role in upcoming claims for damages.
As a result of the Julian’s spectacular crash, a number of complex legal cases are now pending.
● The owners and bareboat charterers have instituted an action suing Transnet (the port authority) for damages. They are claiming US$328,993.28 for damage to their ship, alleging negligence and an absence of good faith by Transnet. They claim, among other things, that the pilot and the crew of the tugs were not properly trained by Transnet.
● The owners are also suing Durban Coal Terminal Company t/a Bulk Connections (DCTC). They want the court to issue a declaratory order that they, the owners, are not liable to DCTC for any damage done to the loader because, they say, this crash was solely Transnet’s fault.
● Transnet wants to countersue the owners and charterers of the Julian for the damage caused to the quayside. This is on the basis that even though it was compulsory to
To readers who are not shipping law buffs, the application and the thinking behind it may seem a little strange