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 2013)