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
The applicants submitted that a number of exceptional
circumstances were present, which included:
the need to determine the series of events, that is, the
vessel's engine break down, its grounding and subsequent
the substantial value of the cargo;
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;
the London arbitrator's lack of power to procure the
attendance of foreign witnesses;
that the granting of the order is consistent with the practice
in England; and
the owner's commencement of German insolvency
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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