A CASE ANALYSIS OF THE MV "KIANI SATU" (unreported case no AC50/2013 of 3 September 2013)

The MV "Kiani Satu" grounded and subsequently sank off South Africa's coastline in August 2013. The litigation ensuing from this incident highlights the helpful provisions of section 5(5) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the "Act") that allow interested parties to apply for inspection of documents relevant to a maritime claim. This is permitted "in exceptional circumstances" where the maritime claim will not be brought in South Africa.

Before the vessel sunk, cargo interests obtained an interim order interdicting the Master and Crew from leaving the Western Cape plus restraining the removal of documents from the Western Cape. As it happened, after the vessel had sunk, cargo interests sought a final order in terms of s5(5) for the production and inspection of a wide range of documents relating to the vessel including, inter alia, log books, engine overhaul records, and cargo plans. Cargo interests ("the applicants") also sought an order authorising them to take the evidence of the master and crew on commission.

As the claim in this matter was to be brought before an arbitrator in London (outside South Africa), the court needed to be satisfied that exceptional circumstances existed. Our courts have held that: the objective of section 5(5) is to preserve known evidence for the purpose of assisting litigants with the challenges faced in advancing maritime claims and defences; and that the purpose is not to approve a search for evidence which may or may not exist.

The applicants submitted that a number of exceptional circumstances were present, which included:

  1. the need to determine the series of events, that is, the vessel's engine break down, its grounding and subsequent sinking;
  2. the substantial value of the cargo;
  3. that the eyewitness accounts of the master and crew (who all reside in various foreign jurisdictions) were the best available evidence as the vessel was resting on the ocean floor;
  4. the London arbitrator's lack of power to procure the attendance of foreign witnesses;
  5. that the granting of the order is consistent with the practice in England; and
  6. the owner's commencement of German insolvency proceedings.

The Court drew from case authority holding that the need to preserve evidence that may be lost or destroyed can, in a given case, constitute the exceptional circumstances required by s5(5)(a)(iv). It was held that it is not required that the circumstances are each, on their own, exceptional in the sense of being markedly unusual and specially different, but the circumstances must be considered as a whole. The Court considered the cumulative effect of the circumstances discussed above to constitute the exceptional circumstances contemplated in s5(5)(a)(iv) of the Act, entitling the applicants to examine the documents in question and entitling the applicants to take the evidence of the master and crew of the vessel on commission.

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