Most Read Contributor in South Africa, September 2016
Following the grounding of the "Kiani Satu" off the
Knysna coast in August and its consequent refloating and sinking,
the owners of the cargo on board the vessel sought an order for the
preservation of documentation and access to its crew. The cargo
owners apparently intended bringing a claim in London arbitration
proceedings against the owners of the vessel and/or its demise
charterer, following the loss of the cargo, and sought the
preservation of evidence for the purposes of its claim.
In this respect, the Court is empowered to "make an
order for the examination, testing or inspection by any person of
any ship, cargo, documents or any other thing and for the taking of
the evidence of any person", where it is necessary or
desirable to do so. In addition, and in "exceptional
circumstances" a court is vested with the power to make
an order, contemplated above, in respect of a maritime claim that
has been or could be instituted outside of the Republic.
In the Kiani Satu matter, the court held that it is not
required that the circumstances concerning the evidence be
exceptional. Instead what is required is that "the cumulative
effect of the relevant circumstances" be exceptional, which
includes all of the circumstances that give rise to the claim.
Despite an undertaking from the Respondent shipowner that the
relevant documents would be preserved for the purposes of the
arbitration, the court held that under the circumstances, it was
appropriate to grant an order in favour of cargo. The court
considered the potential violation of the crew's constitutional
rights and the prejudice that would result if they were detained
for the purposes of providing evidence. However, the duration for
which the crew would have to remain in South Africa, which was
likely only to be a few weeks, did not militate against an order in
favour of the Applicant.
Given that the crew were all foreign, the court evaluated the
likelihood of their attendance to provide evidence at the
arbitration. Because of the uncertainty of their availability and
likelihood of securing their presence at the arbitration, the court
allowed the Applicant access to the crew for the purposes of taking
their evidence on commission. The court also held that access to
the relevant documentation was essential for the purposes of
interviewing the crew, as without it, the evidence led may be
"unfocused" and "of little value".
It would appear from the judgment that the granting of access to
the required documentation was intimately linked to the court's
decision to grant access to the crew. Once the court had decided
that the circumstances required that the Applicant be granted
access to the crew, it consequently became desirable to also allow
access to the documentation in order for the evidence obtained from
the crew to be meaningful.
mv "Kiani Satu" : The Owners and Insurers
of the cargo laden on board the mv "Kiani Satu" v The
Owner of the mv "Kiani Satu" and others (unreported
judgment, WCPD, CT, Case No AC50/2013, 3 September
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This paper considers the recent developments in Nigerian Ship
Arrest Law – the Admiralty Jurisdiction Procedure Rules
(AJPR) 2011 for the Federal High Court of Nigeria (FHC), and its
effect on ship arrest practice.
Erik Muthow and Prabhat Misra give a broad overview of how the vessel mortgage process, and relevant laws, work in the UAE and highlight areas where lenders and ship owners should be mindful of when electing to finance a UAE flagged vessel.
The decision whether to proceed by way of an arrest with an action in rem or by way of an attachment with an action in personam is often a difficult one.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).