In 2008, a shark-cage diving vessel, MV Shark Team, was struck by a wave whilst anchored at the Geldsteen reef near Gansbaai. The vessel capsized and three people on board drowned. The wife of one of the deceased brought a claim for damages against the vessel (in rem), the skipper and the owner. She claimed that the defendants were negligent because the skipper should have realised that the vessel was anchored in an area prone to large swell and the vessel should have left the area before the capsizing swell arrived. The defendants’ claimed, however, that the wave was a ‘freak’ wave of at least 11m high that could not reasonably have been foreseen.
In December 2014, the Western Cape High Court held that the test is not whether a wave of the size of the freak wave that struck the vessel could have been foreseen but whether the skipper could have reasonably foreseen a wave breaking over the vessel. The court held that the rough swell in the area meant that a wave breaking over the vessel was reasonably foreseeable and therefore the death of a passenger was reasonably foreseeable. The skipper had therefore acted negligently and the Court found the defendants liable for damages as the claimant might prove in consequence of the death of her husband.
Access the judgment here.