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  • The Maritime Law Association of South Africa was established in February 1974 as a result of concern among maritime lawyers and the shipping industry that legislation in South Africa regulating maritime affairs did not appear to be keeping pace with developments elsewhere in the world.

The MV “Ioannis NK” – Taking of Crew Evidence on Commission in South Africa

The MV “Ioannis NK” sank some 98 nautical miles off Cape Columbine on her way to a port in India. The MV “Ioannis NK” was Panamanian and her crew where employed by Greek ship managers. The applicant was the owner of the 22 500 tons of raw sugar cane on board the vessel valued at $ 8 572 500.00.

On 6th August 2009, the Cape Town High Court confirmed a rule nisi granted earlier which was the first to grant leave for evidence to be taken on commission in terms of section 5(5)(a)(i) and (iv) coupled with an order restraining the prospective witnesses from leaving the jurisdiction of the court until their evidence was taken.

Section 5( 5) of the AJRA reads:

“(a) A court may in the exercise of its admiralty jurisdiction at any time on the application of the interested person or on its own motion-

if it appears to the court to be  necessary or desirable fro the purpose of determining any maritime claim, or any defence to any such claim, which has been or may be before a court, arbitrator or referee in the Republic, make an order for the examination, testing or inspection by any person of any ship cargo, documents or any other thing and for taking if the evidence of any person;…

in exceptional circumstances, make such order as it is contemplated in subparagraph (i) with regard to a maritime claim which has been or brought before any court, arbitrator, referee ot tribunal elsewhere than in the Republic, in which case sub-paragraphs (ii) and (iii) shall then mutatis mutandi apply.

The applicant believed that the vessel’s side plating had parted and the most probable cause for this was the corrosion of the side plating and underlying structure. The applicant sought to commence arbitration proceedings in London against the owner for breach of his obligation to exercise due diligence to provide a seaworthy vessel.

The owners stance from the onset was that the South African Maritime Safety Authority (“SAMSA”) did not have the authority  to commence a preliminary enquiry by virtue of the fact that the vessel was foreign flagged and had sunk 98 nautical miles off the South African coast.

In order for the provisions of section 5(5)(a)(iv) to operate there must be “exceptional circumstances” and the Court must elect to exercise it’s discretion in favour of the applicant. This was identified by Cleaver J as the “crisp issue” of the matter.

Cleaver J  referred to the judgment of “The Urgup” in which Thring J described that the purpose of section 5(5) was to provide a litigant or prospective litigant with relief which is more akin to an Anton Piller order. He dismissed the suggestion that Thring J’s comments in “The Urgup” inferred that a claimant must first meet the requirements of the Anton Piller order or that an application under section 5(5)(a)(iv) should be equated with an Antol Piller application.

Cleaver J approved the dictum of “The Ais Mamas”2002 (6) SA 150(C) in which Thring J concluded that “to be exceptional within the meaning of the subparagraph the circumstances must be ‘markedly unusual or specially different’, and that applying the test must be carefully examined.”

In doing so Clever J rejected the judgment of “The C Tashin” which proposed that the need to preserve evidence may constitute the very exceptional circumstances required by the section. Cleaver J required that the applicant should show that there is a real possibility that the specific evidence may be lost.

Clever J confirmed the approach by Jones J in “The Askania Nova” that in deciding whether there are “exceptional circumstances” each case must be considered on its own merits and that in deciding the issue the Court must have regard to a whole series of events which lead to the application.

The circumstances that Cleaver J noted was that the vessel sank rapidly without any explanation, the scarcity of evidence as to the cause of the sinking other than evidence of the crew and the uncooperative conduct of the owner and crew.

Clever J approved of the approach adopted in “The C Tashin” in respect of the invasion of crew members’ rights to freedom of movement, dignity and privacy. In this regard the Judge in that case said:

There is no indication on the papers when their evidence will be heard, who will hear the evidence, in which manner it will be heard and how long the process will take. In the absence of these particulars and more detailed allegations to justify the invasion of the crew members’ rights for the convenience of litigation, I am of the view that the crew should not be restrained from going home to their families and friends as soon as possible to recover from what must have been a rather frightening experience at sea.

In the case at hand Cleaver J found that the appellant had taken heed of the Courts concern in the “The C Tashin”.

The respondents further argued that evidence of the sinking was available from third parties and that at the time of contracting the parties would have contemplated that it would be necessary for witnesses residing outside of the English jurisdiction to be available at an arbitration.

However, the Court took notice that the crew and owner had not indicated any willingness to attend the arbitration proceedings and that the owner did not allow the crew members to be interviewed in the presence of the applicant’s representatives prior to the application.

In conclusion Cleaver J found that there had been exceptional circumstances. He further concluded that the conduct of the owner and crew members after the sinking of the vessel made it likely that the crew members would not give evidence at the arbitration and that the applicant had satisfied the Court that the evidence would be lost if it was not taken on commission .