IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN) 
(Exercising its Admiralty Jurisdiction)

In the matter between: 

And

			delivered on 12 OCTOBER 2010

BINNS-WARD J:

[1] On the morning of 5 September 2005, during the course of a voyage from Ho Chi Minh City to Gambia, the MV Banglar Mookh, a vessel belonging 

[4] Although a claim based on the alleged negligence of the port authority was pleaded in the particulars of claim, the evidence led by the plaintiff was relevant only in respect of the alleged gross negligence of the pilot. Unsurprisingly therefore, counsel for the plaintiff did not advance any argument in support of the claim premised on alleged negligence by the port authority.

[5]     Item 10 of the Schedule provides:

(2) It shall be the pilot's function to navigate a ship in the harbour, to direct its movements and to determine and control the movements of the tugs assisting the ship under pilotage.
(3) The pilot shall determine the number of tugs required for pilotage in consultation with the Port Captain, whose decision shall be final.

(5) Where a master intervenes, he shall immediately inform the pilot thereof and, after having restored the situation, he shall permit the pilot to proceed with the execution of his duties.
(6) The master shall ensure that the officers and crew are at their posts, that a proper look-out is kept and that the pilot is given every assistance in the execution of his duties.
(7) The Company and the pilot shall be exempt from liability for loss or damage caused by a negligent act or omission on the part of the pilot.
(8) For the purpose of this item, 'pilot' shall mean any person duly licensed by the Company to act as a pilot at a particular harbour.

[9] The pleaded particulars of the pilot's negligence were widely cast. I agree with the submission by the defendant's counsel that, as developed during the trial, the relevant allegations came down to these (the summary is taken broadly, with some re-arrangement, from the defendant's heads of argument):
1. The pilot obtained and maintained a relatively high speed in the approach channel as the vessel came closer to port which was inappropriate in the circumstances.
2. Had the vessel been piloted correctly, it should have been placed in the channel considerably to starboard; so as to pass close to the end of the breakwater in order to counter the eastward drift occasioned by the 'easterly set' experienced by the vessel as a consequence of wind and sea effect as it came up the channel.
3. The pilot failed to line the vessel up properly in the approach channel taking into account the prevailing conditions.
4. As the vessel approached the entrance to the port of Cape Town (being a line drawn between the edge of the breakwater and buoy no. 4) the uncorrected effect of the easterly set resulted in it coming much too close to the North Wall so that the pilot was forced to give reactive orders both so as to avoid a collision with the North Wall and to attempt to regain the leading line of approach into the Duncan Dock.
5. After failing to line up the vessel properly, the pilot was unable to regain control of the vessel and should have aborted the entry before the vessel passed the breakwater.
6. The continuation of a high speed of advance and a growing loss of control of navigation was in direct contradiction of a need to slacken the speed of advance in the channel and thus gain sufficient control to take the forward way off the vessel after passing the breakwater and allowing the tugs the chance to make fast in an orderly fashion so as to render timely assistance.

8. Having failed to line up the vessel correctly, and thereafter increased speed recklessly, the pilot compounded the problem by attempting to enter the port without the tugs being made fast, which he should not have done.
9. The speed of the vessel played a role in the inability of the tugs to make their lines fast before the vessel reached the entrance to the Duncan Dock.
10. At the time that the vessel experienced a sheer to starboard within the harbour basin within the breakwater and outside the entrance to the Duncan Dock, whatever the cause, any effort to regain control by use of tug/and/or wheel and/or engine was doomed to failure by reason of the excessive speed of the vessel.

The evidence

[11] The defendant called five witnesses. These were the pilot; the master of one of the two tugs deployed to assist in bringing the vessel alongside, Captain Le Blond; the engineer on the other tug, Mr. Anthony Stein; Captain Woodend, a master mariner and erstwhile port captain of Cape Town harbour, who gave evidence as an expert; and Mr. Hendrik Hickman.
[12] In essence there are two conflicting versions of how the collision occurred.
[13] On the plaintiffs version, which is founded on the evidence of the master of the vessel, the pilot found himself obliged, during the crossing of the basin that lies inside the breakwater but outside the entrances to the Ben
Schoeman and Duncan Docks, to order the execution of a turn hard to starboard because the vessel was approaching too close to one of the outer structures of the harbour, identified on the charts as the 'North Wall'. According to the master, the effect of the turn hard to starboard was to then place the vessel on a course, within the relatively narrow confines of the basin, which required a subsequent corrective hard to port manoeuvre if the vessel was to avoid another hard structure, known as the 'North Spur', on the opposite side of the basin. Captain Islam's evidence had it that while the turn hard to port resulted in a successful clearance by the vessel of the North Spur the vessel was, however, thereby put on the course that resulted in the glancing blow of the starboard bow against the A berth knuckle when the ship passed into the Duncan Dock. The opinion evidence of Captain McAllister, a master mariner with vast experience, was adduced to confirm or establish the feasibility of Captain Islam's account. Captain McAllister's evidence was also led by the plaintiff with the object of establishing that the pilot's causal negligence in the collision was of a gross degree.
[14] The defendant's version, established principally through the evidence of Pilot Grelecki, also had the vessel turning sharply to starboard when it entered the basin after passing the breakwater. On the defendant's version, this occurred involuntarily, due to the effect of prevailing conditions, and was corrected by putting the vessel hard to port and back on the leading line through the entrance to Duncan Dock. Grelecki's evidence is that because the vessel was to be berthed alongside the Eastern Mole (also known as 'landing wall 1'), which would be to the portside as the vessel entered the

[15] The defendant called Captain Woodend, a master mariner with extensive experience as a pilot in various southern African harbours, including Cape Town, as an expert witness with the purpose of providing objective confirmation of the reasonableness of Pilot Grelecki's conduct in regard to bringing the vessel into harbour.
[16] It was common ground that two tugs had been sent out to assist with the docking of the vessel and that it had been the intention that the tugs make fast as the ship traversed the basin before reaching the entrance to Duncan Dock. It was also common ground that the tugs in fact were able to make fast only after the collision and at a time when the vessel had already passed inside the Duncan Dock.
[17] To understand the evidence, it is necessary to have an idea of the physical interrelationship of some of the salient features around the harbour basin outside the entrance to Duncan Dock. What the parties referred to as

a)	from the end of the A Berth knuckle to the end of the breakwater 1071,5m
b)	from the end of the breakwater to the end of the North Wall       722m
c)	from the end of the breakwater to the end of the North Spur       851m
d)	from the end of the North Wall to the end of the North Spur        509m
from the end of the North Spur to the end of the A Berth knuckle 230m
e)	from the end of the North Wall to the end of the A Berth knuckle 676,3m
f)	
(These distances were calculated in straight-line measurements between the given points; in other words, as the proverbial crow would fly.)

Captain Islam

[21] The general import of Captain Islam's evidence has already been summarised. He testified, with reference to extracts from the ship's logs and charts, that the pilot had come on board at 10h54, when the vessel was outside the southern approaches to the Cape Town harbour somewhere off a marker described on the charts as 'the fairway buoy'. Islam's evidence was that the instructions received from port control advised him to prepare for the pilot to board on the port side. He stated that a radio message from the pilot boat subsequently countermanded this advice and indicated that the pilot would board instead from the starboard side. His evidence was that due to the rough sea conditions the pilot was unable to board on his first attempt and succeeded in doing so only during a second pass by the pilot boat. I should mention that Pilot Grelecki (supported by Mr Hickman) disputed this evidence and maintained that he had boarded on the first (and only) pass of the pilot boat. The conflict is curious, but nothing turns on it.
[22] Captain Islam testified that he met the pilot on the bridge and, in accordance with usual practice, handed the pilot an information sheet ('pilot card') which set out the salient characteristics of the vessel, including its mass and dimensions and the manoeuvring speeds at the various settings of the engine. A copy of the pilot card allegedly handed to Grelecki was produced in evidence. (The handover of the pilot card was not minuted in the ship's bridge log, as required by the owner's standing instructions.) The pilot card reflected the full sea speeds of the vessel in loaded condition as follows in knots:

(The speeds were also given in respect of movements astern, but these were indistinguishable from the speeds in respect of movements ahead.) Captain Islam testified that he had also explained to the pilot that the engine operated in such a manner that if the vessel was travelling at a speed higher than 3 to 4 knots it was impossible to alter the engine movements from ahead to astern without first stopping the engine.
[23] Pilot Grelecki denied having been handed a pilot card and stated that Islam had answered his enquiry as to the vessel's speed at dead slow ahead by giving the vessel's speed at that engine setting as 7.5 knots. Grelecki's evidence at one stage was that he had discounted this advice as obviously incorrect. There might easily have been a misunderstanding in communication between the two witnesses on the point. English is the first language of neither; and it was indeed sometimes difficult during the evidence of both witnesses to decipher some of what they were saying. On any basis, I am surprised, in the context of his rejection of the reliability of what his understanding of Islam's intimation was, that Grelecki did not ask for a pilot card, or some similar objective indication of the vessel's handling characteristics. Under cross-examination, Grelecki sought to assert that he had in fact asked for a pilot card. His evidence in this respect was unconvincing. It is improbable that he would not have testified to this effect during his evidence in chief had his instructions to the defendant's legal representatives indeed been as he claimed under cross-examination. I also have little doubt that the proposition that Grelecki had asked the master for a pilot card would have been put to Captain Islam had the defendant's counsel been so instructed.
[24] Grelecki's version was in any event undermined by his later statement under cross-examination that he did in fact accept the correctness of the information passed to him by the master. This altered position was later changed yet again when Grelecki, in further evidence under cross-examination, subsequently sought to revert to his initial version that he had not believed the master's advice. His inconsistency under cross-examination makes it difficult to accept his assertion that he took the vessel up the channel at 6-7 knots at half ahead, which is a speed less than the 7,5 knots it should have reached with the engine at half ahead if performance was in accord with that indicated in the pilot card. I was left with the impression that Pilot Grelecki was in fact in no position to reliably state the speed at which he took the vessel up the approach channel.

[30] When asked as whether Grelecki had at any time complained about the helmsman in connection with the collision, Islam confirmed that there had been such a complaint. He said that the complaints had been uttered shortly before and then again after the collision. The record of the radio voice transmissions confirms that Grelecki complained about the helmsman after the collision. The nature of any complaints he made before the collision was not explored. I shall treat presently with Grelecki's evidence in this regard.
[31] Captain Islam testified under cross-examination that Pilot Grelecki had returned to the vessel on the evening of the day of the collision and had wandered about the vessel taking photographs. He noticed that Grelecki was behaving strangely and was giving off what Islam regarded as an unpleasant odour, Islam expressed the opinion that Grelecki may have been intoxicated. It is common cause that Grelecki returned to the vessel and took some photographs. Some of them were produced in evidence and I shall refer to them in the discussion of Grelecki's testimony.
[32] The master of the vessel confirmed that as a result of inspections by the maritime safety authority in the port, the ship was issued with a detention notice until certain defects in the vessel and its equipment had been rectified. Captain Islam was reluctant to admit that these faults were serious enough to warrant the action taken, but pointed out that nothing is ever served by arguing against a port authority's requirements, the priority, instead, being to do whatever might be necessary enable the ship to resume its voyage as soon as possible.
[33] It was evident that the defendant's counsel sought to emphasise the defects found in the vessel, not to suggest that they were directly relevant to the collision, but to support the evidence by the defendant's witnesses that suggested general incompetence and neglect of duty by the ship's crew. The incidence of such incompetence, if established, would, as I understood the defendant's case, tend to support the delay in making the tugs fast and the probability of the truth of Grelecki's claim that the helmsman acted in absolute contradiction of his course directions.

Pilot Grelecki

[35] Mr. Grelecki is Polish by birth. He received a formal training in seamanship at an academy in Poland, graduating with the equivalent of a degree or a diploma. He saw service on ships in Poland until the consequences of his political affiliation with the anti-government Solidarity Movement during the 1980's led him to defect to what was then West Germany. After a short time in Germany, he secured a position working with the harbour tugs at the port of Cape Town and immigrated to South Africa.

He has worked as an employee of the port authority at Cape Town since January 1990. He became a tug master in Cape Town in 1995. He obtained his first pilot's licence for vessels with a gross tonnage of up to 10 000 tons in 1997 and started to act as a pilot in 2000. At the time of the incident which gave rise to the current litigation, Mr. Grelecki was licensed to pilot vessels of up to 30 000 tons. He had been carrying out the duties of a pilot in the port fulltime since May 2005; and was formally appointed as a fulltime pilot in November 2005. At the time of the trial, in May 2010, Mr. Grelecki continued to hold the position of pilot; and had by then obtained a licence to pilot vessels with a gross tonnage of up to 80 000 tons.

port, which he found it expedient to assist with increased engine speed, hence the order at that stage to set the engine at full ahead.
[38] According to Grelecki, the vessel was met by the two attending tugs as it reached the breakwater. Grelecki explained that the tugs remained within the harbour basin and had not ventured out into the approach channel because it would have been unsafe for the tugs' deck crews to work in the prevailing rough sea conditions outside the basin. Neither of the tugs had been able to make fast as the vessel passed into the harbour basin. Mr. Grelecki ascribed this to the incompetence of the vessel's crew; the relevant deck stations, fore and aft, having reportedly concentrated their attention on the bridge instead of on the tugs close alongside waiting for the heaving lines to be thrown down to them from the vessel.

[41] I have to say that I perceived that Grelecki was noticeably discomforted in the witness box during his evidence in chief when describing the vessel's approach across the basin to the point of collision. He became more so under cross-examination. I also found that his description of the events markedly vague. It is clear that the collision was a traumatic event in Mr. Grelecki's life. He showed every sign of still finding difficulty working through the experience nearly five years after the event.
[42] His professed inability, during his evidence in chief, to recall whether the wheel had been turned hard to starboard was perplexing and appeared to be inconsistent with the answers counsel expected to elicit. As a matter of inherent probability the detail of the cause of the incident would be one deeply engrained in the witness's mind. On Grelecki's version it was the alleged putting of the wheel to starboard, instead of steering to port, that was the fundamental cause of the collision. If Grelecki had indeed seen the wheel swung hard to starboard, I consider it most improbable that he would have forgotten the fact. Grelecki's written report to the port authority made on the day of the collision, or the day thereafter, describes the wheel having been swung hard to starboard.

[44] All in all Mr. Grelecki's evidence in respect of the alleged error by the helmsman was vague and inconsistent. As a result it falls to be regarded as unsatisfactory and unconvincing.
[45] As already mentioned, equally unsatisfactory was Mr. Grelecki's evidence in respect of the speed at which he piloted the vessel into the basin.
He gave inconsistent answers on the issue of whether or not he had accepted what he testified was the information given to him by the master as to the speed of the vessel fully loaded at dead slow ahead. He stated that he had used his wrist watch and the estimated distance of the vessel from various fixed points to work out the speed of the vessel. He also said that he had a 'feel' for what would be a comfortable speed and that he had the ability, by adjusting the engine speed, to either slow down or accelerate the approach should he at any time consider it necessary. He estimated that he achieved a speed of between 6 and 7 knots in the approach channel. He did not at any stage have regard to the GPS instrumentation on board, which would have given him an accurate reading of the speed at which the vessel was covering the ground.

[47] It follows from the fact that during most of the period when it was traversing the basin the vessel was piloted with the engine at full ahead that the speed reached during that part of the passage was probably in excess of the approximately 7,5 knots attained by the vessel when it passed the breakwater. Indeed, the evidence by Captain Islam that he noted that the speed of the vessel was 9 knots shortly before the collision is not implausible in the circumstances.
[48] Mr. Grelecki confirmed Captain Islam's evidence that he (Grelecki) had returned to the vessel, then tied up alongside, on the evening of the date of the collision. He denied that he had been drinking. He brought with him his camera and took some photographs. The evidence focussed on his photographs of the rudder angle indicator inside the bridge room. The point of the evidence appeared to be to support the notion that the rudder angle indicator was positioned in a manner that it could not have been seen from the position Grelecki had taken up on the portside of the bridge room during the vessel's approach across the harbour basin. This notion, which, as I have mentioned, was ridiculed by Captain Islam, was contradicted by the following exchange between the defendant's counsel and Grelecki:

Q. You described, Mr. Grelecki, how as you were approaching the entrance to Duncan Dock you took up a position on the port side of the bridge?—That's correct, Sir.
Q. Why did [you] not take up a position nearer the helmsman or where you could see the rudder indicator?—Because I could see the rudder indicator whilst staying right on the portside of the bridge, the last window or the second window, because the superstructures of the cranes, they were obstructing my view and I couldn't see the bow if I would be standing by the helmsman, so I wouldn't be able to see where I am going to
[49] Grelecki affirmed the correctness of the proposition put to him by the plaintiffs counsel, premised on Captain McAllister's opinion, that a pilot should position himself on the bridge in a position from which he could see and read not only the rudder angle indicator, but also the gyro compass repeater and the rpm counter. This is the so-called 'conning position'. Grelecki conceded that he had not taken up such a position during the time that the vessel proceeded past the breakwater and across the basin to the entrance to Duncan Dock. He denied that he had been negligent in this respect. His explanation was that he had been entitled to assistance from the bridge team, who should have alerted him to any matter for concern. This was hardly a satisfactory explanation in circumstances in which the pilot's evidence suggested he had no reason to repose any confidence in the expectation of assistance from the master or other officers on the bridge.
[50] I found Mr. Grelecki's evidence of the course of the vessel across the basin most unconvincing. He was unwilling to make concessions which objective factors impelled should have been made. He was extremely reluctant, for example, to concede that after the first veer to starboard described in his evidence the vessel must have been taken to the westward side of the approach line. He was at something of a loss, when taxed on the point by the plaintiff's counsel, to explain how his described manoeuvres allowed him to regain the approach line without a corrective turn to starboard after he had made what he described as his first turn hard to port. His description of where the vessel was in the basin at the time of the emergency allegedly caused by the helmsman's aberration was irreconcilable with the distance the vessel must have covered during the final two to two and half minutes even if it were travelling at a speed of only about 5 knots at that stage, as maintained by Grelecki, and not at the much higher speed described by Captain Islam. His refusal to concede that the vessel was to the side of the approach channel furthest from the end of the breakwater as it came into the basin was inconsistent with his description to Captain Woodend that he had had the vessel steered on a course to put the no. 4 buoy 'fine on the port bow'.

Mr. Le Blond

Mr. Hendrik Hickman

Captain Stuart McAllister

[55] Captain McAllister has been a master mariner since 1979. He was an employee of the erstwhile South African Marine Corporation (Safmarine) for many years - and between 1995 and 2000 was marine manger responsible for maritime safety on all the Safmarine vessels. Since 2000 he has worked continuously as a ship's master engaged in international trade in the employ of the international container shipping company, Maersk. He has extensive experience, as a ship's master, in bringing vessels in and out of the port of Cape Town.
[56] The essence of Captain McAllister's evidence was that it is important that a pilot should not bring a vessel into port at excessive speed. Captain McAllister pointed out that while proceeding at a relatively high speed might give rise to good steerage, it reduces the pilot's ability to control the vessel within the dangers presented by the confines of a harbour. The pre-eminent duty of a pilot, so testified Captain McAllister, to is to keep the vessel under full control and to manage its progress in a pro-active, rather than a re-active,

[58] On the basis of the prevailing weather conditions, the description provided by Captain Islam and the cross-checking control afforded by the voice recordings, Captain McAllister opined that the vessel had been brought up the easterly (seaward) side of the approach channel with the use of a combination of speed and steering to starboard to counter the easterly drift. In the witness's opinion the high speed of approach, coupled with the positioning of the vessel to the eastern side of the approach channel as it arrived at the position at which a turn to starboard was required to line up with the leading lights of the approach into the Duncan Dock, resulted in a loss of control manifested in the vessel's drift towards the North Wall on the eastern side of the basin, which necessitated reactive steps by the pilot in the form of an increase of speed to improve steerage and a hard turn to starboard. The limitations imposed by the physical confines of the basin required the last-mentioned manoeuvre to be followed by a turn hard to port to avoid the vessel coming into collision with the North Spur on the south western side of the basin.
[59] Captain McAllister submitted a number of calculations made with reference to the determined distances between various points on the chart (Exh. J). These suggested that the average speed of the vessel during the passage from the pilot pick up point to the point of collision was more than 7 knots. The witness did not suggest that these calculations were definitive. He could not do so because it was not possible to precisely determine various factors such as the exact place at which the pilot had boarded, the speed of the vessel when the pilot boarded and the precise course of the vessel. Captain McAllister also accepted that the times he had to work on, whether from the ship's records or those determined from the port's voice recordings, were also approximate, even if closely approximate.    Despite these acknowledged shortcomings, Captain McAllister suggested that the calculations provided a useful guide, which corroborated his assessment that the vessel had been brought in by the pilot at a speed which was excessive in the circumstances.

[62] Captain McAllister impressed as an articulate and self-confidant witness, who succeeded in providing a rational and easily comprehensible foundation for the opinions which he ventured. He candidly conceded that his approach was reconstructive in nature - that he had worked backwards from the given fact of the collision to determine why it had happened. In assessing the witness's opinion I have been astute to caution myself against the danger of being led by it into judging the conduct of the pilot too stringently with the benefit of wisdom after the event.

Captain John Woodend

[63] Captain Woodend has been active in shipping for more than 50 years. He qualified as a master mariner (foreign going) in 1964. He immigrated to South Africa from England in 1966 and was an employee of the defendant and its various predecessors as the port authority in this country from then until 2000. During that time he served variously as a tug master and pilot in a number of ports in the Cape, including Walvis Bay. He has served as Port Captain/Manager in the ports of Saldanha and Cape Town. Since 2000 he has been in private practise as a marine consultant.
[64] Captain Woodend agreed with the proposition put by the plaintiff's counsel in cross-examination that the summary of events set out in paragraph 6 of the summary of evidence filed in terms of rule 36(9)(b) was premised on the version he had been given by Pilot Grelecki. Captain Woodend conceded that having listened to Grelecki's evidence in court there were certain differences between the version originally given to him by Grelecki, as he had understood it, and the latter's testimony in the witness box.

[66] Captain Woodend confirmed that a course to set the vessel, during its approach up the channel, fine off the number 4 buoy (meaning less than half a point - i.e. less than five to six degrees off the buoy) would result in the vessel passing the breakwater on the eastern side of the approach channel. He also conceded that for the vessel to be in the position marked by Grelecki with the letter 'B' on the chart at Exh. A194, the vessel must have approached it from the eastern side of the channel.

The VTS records

[72] The radio transmission records do tend to confirm the accuracy, certainly to the nearest minute, of the material entries in the ship's records that would have been made as the vessel made its approach to the Duncan Dock.

[75] The recording demonstrates that at 11h19,18 Grelecki was shouting (apparently to the forward tug, which it will be recalled had not made fast before the collision) 'Bow full to port' and that at 11 h20,19 he instructed 'Pull the bow to starboard now. (Eh!) (an exclamation)'. This falls to be understood in the context of Grelecki's evidence, supported in this instance by Captain Islam, that the vessel was being put hard to port immediately before the collision and Grelecki's further evidence that immediately after the collision he put the bow of the vessel hard to starboard to avoid the stern also coming into collision with the hard structure of the harbour. The latter manoeuvre being one which everyone seems to have accepted as an appropriate and quickwitted decision by Grelecki in the circumstances immediately after the collision. These recordings therefore support the collision having occurred after 11 hi9,20 and before 11h20,19.
[76] Having regard to the measured distance in a straight line between the end of the breakwater and the knuckle with which the vessel came into collision (1070m), and bearing in mind that on either version the vessel must have traversed a greater distance than that in its passage between the breakwater and the knuckle, it is evident that the average speed of the vessel during its transit of the basin was certainly in excess of 7 knots (assuming the transit took 5 minutes rather than four), and quite possibly as high as 9 knots (assuming the transit took precisely four minutes). Having regard to the slowing effect of two extreme rudder movements executed during the transit, the average speed is likely to have been higher than lower within that range.

Conclusions on the facts

[78] I also reject Mr. Grelecki's evidence as to the position of the vessel in the approach channel as it went by the breakwater. The evidence of Captain Islam that the vessel passed the breakwater close to the seaward boundary of the channel furthest away from the end of the breakwater, rather than in the middle of the channel as testified by Grelecki, is supported by the instructions given by Grelecki to Captain Woodend that he had steered a course up the approach channel so as to place the portside bow fine on the no. 4 buoy; and also by the position in which the vessel found itself, to the west of the leading line and bearing down on the North Wall, when the turn from the channel into the basin was commenced.
[79] Accepting that the vessel entered the basin from the approach channel in that position tends to exclude the sea effect at the end of the breakwater, which Mr. Grelecki sought to ascribe as the most likely cause of what he alleged was the spontaneous veer to starboard just after the vessel had entered the basin. Instead, the description of events given by Captain Islam to the effect that the veer to starboard during the first part of the vessel's transit of the basin followed a helm order by Grelecki of hard to starboard coupled with an order to increase the engine speed impresses as being in accordance with the probabilities. This is because in the prevailing conditions it is apparent that by proceeding up the approach channel at half ahead for about 17 minutes it is probable that the vessel must have entered the basin at a speed of at least 7 knots. That the vessel must have been covering the ground at a speed exceeding 7 knots when it passed the breakwater is also supported by its achievement of the range of speed referred to earlier at which it can be calculated it crossed the basin between the breakwater and the point of collision. The combination of relatively high speed and the effect of the near gale force wind on the ship's accommodation as the vessel commenced a turn from a position on the seaward aspect of the approach channel to line up with the leading lights would quite feasibly result in a drift to the eastern side of the leading line with the vessel thereby being placed in the position of concern with regard to the North Wall, as described by Captain Islam.

[81] Having regard to the dimensions of the basin and the fact that the turn hard to port was ordered more than two minutes before the collision, and therefore at a time when, even accepting an average speed of 7 knots, the bow of the vessel was more than 430 metres steaming distance from the A berth knuckle, I am left in little doubt that Mr. Grelecki's immediate concern, at the time he gave the orders of hard to port, was to avoid a collision with the North Spur.
[82] If am incorrect in this regard, and the position was instead, as maintained by Grelecki, a concern about a collision with the A Berth knuckle, the misdirection would be of little moment. It is evident from Grelecki's enquiries, commencing at 11h17:32, as to whether the forward tug had made fast that he already at that stage considered that tug assistance to move the bow to port to clear the entrance into Duncan Dock would be necessary.
Grelecki's evidence was that in ordinary circumstances he would not concern himself with whether the tugs had made fast during the transit of the basin and would wait for the tug masters to inform him of the fact rather than initiate an enquiry. This conduct is an impelling indication that Grelecki appreciated at least three minutes before the collision that the entry into Duncan Dock was not going to be uncomplicated. Indeed, listening to the voice recording (Exh. D), a tone of increasing anxiety is evident in Mr Grelecki's speech from the transmission at 11 hi8:12 (a stage when he had been informed he forward tug was not yet fast) until after the collision had occurred.

[84] The glancing nature of the collision suggests that with tug assistance the casualty would probably have been averted. It is common ground that in the ordinary course a tug should be able to make fast within two to three minutes. In the current case it is evident that it took much longer than usual for the tugs to make fast. I consider that it is probable that a number of factors contributed to this. The speed and course taken by the vessel over the basin is likely to have hindered rather than assisted the process. This is exemplified by the fact that the forward tug had to take avoiding measures to escape being caught between the vessel and the harbour structures shortly before the collision occurred. I am also of the view that the making fast of tugs was impeded by inefficiency on the part of the crew of the vessel stationed fore and aft. There were adverse comments on this by the crew of the tug boats within the course of the radio exchanges on the voice recordings. Their tenor is consistent with the evidence of Captain Le Blond and Mr. Stein about their observations. However, in view of the result of the case, it is unnecessary to determine whether it has been proven that this inefficiency constituted contributory negligence as alleged in paragraph 10.2 of the defendant's amended plea.

Gross negligence

[85] It will be recalled from the discussion in the introductory section of this judgment that, in order for it to avoid the exemption from liability in terms of item 10(7) of the Schedule, read as construed in preceding cases, the plaintiff was required to prove that the pilot had been grossly negligent in a relevant sense.

[87] In assessing the extent of Mr. Grelecki's departure from the conduct reasonably to have been expected from a pilot properly fulfilling his duty I do not consider that the case is one in which it can fairly be said that Grelecki involved himself in what could be described as conscious risk taking. The evidence did not establish that Grelecki brought the vessel into the port conscious of a danger that his manner of piloting risked bringing the vessel into collision with the harbour structures, but unreasonably judging that the risk entailed in his method was justified by the means. Thus, in my view, the relevant enquiry is whether it has been established that there was a total failure to take care by Grelecki, such as to justify the categorisation of his negligence as extreme. In undertaking the exercise, it is, of course, necessary to do so on an established basis of fact. I should make it clear that, where there is a conflict in the factual evidence, my assessment is based on an acceptance of the account of Captain Islam, save only that I have been unable to determine, one way or the other, whether the pilot was handed a pilot card.

[89] I consider that in the reasonable and professional discharge of his duty Grelecki should have had regard to the instrumentation to check his speed of approach. I have already held that Grelecki does not appear to have had a reliable estimation of the speed of approach. Captain Woodend opined that a pilot will have a 'feel' for the right speed and will not always have a need to consult the instruments. I have no reason to doubt that in the case of a highly experienced pilot like Woodend that might well hold true. It seems evident that Grelecki proceeded on the application of that school of thought, but without the depth of experience to sustain it. It was unreasonable of him not to have consulted the instrumentation to check the speed; more particularly, if, as he testified, he had not been handed a pilot card and his questions to the master on the performance of the vessel had been met with dubious responses. Had he done so there is every reason to believe he would have reduced the speed of advance. It is evident from Captain Woodend's witness summary that Grelecki must have indicated in the course of describing events to Woodend that the speed of the vessel up the channel was of the order of 6 knots. That, in my view, is an indication of what Grelecki no doubt would have considered an appropriate speed in the circumstances. Although one cannot precisely determine the speed, for the reasons discussed the probabilities are that he actually took the vessel up the channel appreciably faster than 6 knots. This happened because he took insufficient care, and by disregard of the tools available to him, exhibited foolhardy overconfidence.
Had he checked the speed at any time before committing the vessel towards a turn into the basin he could and should either have achieved a timeous reduction in speed, or if that were not possible, aborted attempting entry into the basin. In failing to do these things he was guilty of negligence in a substantial degree, but it does not automatically follow, accepting the facts to have been as described by Captain Islam, that the degree of negligence falls to be categorised as extreme.