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Shark diving operators: test for negligence and limitation of liability

17 April 2015
– 2 Minute Read

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On April 13 2008 a shark-cage diving vessel, MV Shark Team, capsized after being struck by a large wave while on an excursion with a party of 10 tourists. The vessel was anchored at the time at the Geldsteen, an extensive reef system off the southwest coast of South Africa near Cape Town. Three of those on board drowned, including the claimant`s husband, a US citizen. Sarah Tallman brought a claim for damages against the vessel in rem and for personal liability on the part of the skipper and the owner, respectively, for damages arising from the drowning.

The issues for determination at trial were whether:

  • the drowning was caused by negligence on the part of the defendants; and
  • the owner was entitled to limit its liability on the basis of the tonnage of the vessel in accordance with the Merchant Shipping Act 1951.

In a trial which ran for a staggering 52 days, the court was presented with an array of evidence from witnesses who were on board the vessel at the time and those aboard other shark diving vessels in the vicinity of the incident, as well as expert evidence from technical analysts and former master mariners.
The plaintiff’s case was that the defendants were negligent in numerous respects. In particular, it alleged that the sea conditions became noticeably threatening at the diving site and that the vessel should have left the area before the capsizing swell arrived. Further, the skipper should have realised that the vessel was lying in the vicinity of a shallow part of the reef in an area known to be dangerous and to experience large swells. Moreover, the plaintiff alleged that a breaking wave large enough to capsize the vessel was reasonably foreseeable in light of the proceeding swell pattern and the nature and foul ground in which the vessel was anchored.

The defendants’ main contention was that the vessel was struck by a “freak” wave of at least 10 to 11 metres (m) high which could not reasonably have been foreseen.