An investigation of the liability of transnet national ports authority and ship-owners for the conduct of pilots in the compulsory pilotage ports of South Africa.

Abstract

South African ports are regulated by a compulsory pilotage system. This means that when a vessel enters or leaves any of the South African Ports regulated by Transnet National Ports Authority, this vessel is obliged by law to utilize a pilot to navigate the vessel safely into and out of the port. The reason for doing so is to reduce the risk of incidents that occur within the ports due to the fact that the pilots have specialized knowledge of the port’s specific conditions. However, collisions may still occur in these ports. One such incident is the collision of the MV Stella Tingas. The case of the MV Stella Tingas brought to light the unacceptable situation created by the lacunae in the Legal Succession To The South African Transport Act of 1989, where the innocent vessel that was involved in a collision with a vessel under compulsory pilotage could not get satisfaction for damages from either the ship-owner of the guilty vessel or from the Port Authority. In order to resolve this position, the Legislature enacted the National Ports Act 12 of 2005, specifically section 76, to resolve this problem. Section 76(2) states that the ship-owners of vessels under compulsory pilotage will be liable for all actions of a pilot, whilst section 76(1) provide that the Port Authority will not be liable for actions of the pilot done in good faith. The National Ports Act has however not defined good faith and the courts have not interpreted this concept since the commencement of the Act. This dissertation will investigate what good faith is, by examining exclusionary clauses and by exploring the concepts of gross negligence and intention in order to ascertain whether good faith excludes these concepts. Thereafter the dissertation will seek to discover a test that can be used in order to assess whether the actions of the pilot were done in good faith or not. The dissertation will trace the history of compulsory pilotage from its origins in English Law to South African law. It will also examine the relationship between the master and the pilot as well as the circumstances where the master can intervene in the affairs of the pilot, by ascertaining what an emergency is, as contemplated by the National Ports Act.