(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no. AC 66/2009

v

RUBEN GIACOSA		
JORGE SEIXAS		
JOSE L SANGUINETTI		
JULIO ROMAY		
NICOLAS SALDIVIA		
LUIS CASTILLO		
EDGARD MARZOL		
LUIS CIFUENTES		
ELBIO MIR		
DONATO SUAREZ		
WALTER NOCETI		
SANTIAGO SANTIS		
JAVIER CASTRO		
RUBEN PETRONIO		
LUIS BERON		
MILTON DA ROCHA		
JORGE PRESTO		
CIRO MORALES		
EDUARDO ALCAIRE		
JORGE LARROSA		
		
RENNIES SHIP AGENCY (PTY) LTD		

JUDGMENT DELIVERED THIS WEDNESDAY, 26 AUGUST 2009

[3] The application stems from the sudden sinking of the vessel, some 98 nautical miles off Cape Columbine. The applicant is the owner of the cargo on the vessel, being 22 500 metric tonnes of raw cane sugar valued at US$8 572 500.00 which was being carried to a port in India pursuant to a charter party concluded between the applicant and the owner of the vessel. The vessel's flag state is Panama and the crew on board were employed by Seabound Maritime Inc, of Greece, who were the managers in terms of the charter party. The first 20 respondents are the crew of the vessel but the provisional order was served only on the master, the chief mate, chief engineer and second engineer, the remainder of the crew having been repatriated to their countries of origin before service could be effected on them.

[4] On 4 August 2009 confirmation of the rule was sought but opposed by the owner of the vessel and the four crew members on whom the provisional order had been served. After hearing argument, I confirmed the rule on 6 August and issued an order detailing the steps which were to be taken for the hearing of the evidence. The matter had come before me as the duty judge hearing urgent matters and because of the heavy roll I had to deal with, I was not able to furnish my reasons for confirming the rule by 6 August, but indicated that these would follow. This judgment contains my reasons and incorporates the order which was issued on 6 August.

[5]     The authority for the grant of the provisional order is to be found in section 5(5) of the Admiralty Act which provides

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

(b) The provisions of this Act shall not affect any privilege relating to any document in the possession of, or any communication to or the giving of any evidence by, any person."
[6]     The applicant has been advised that the vessel's side plating had parted and its deponent testifies that

"The most probable cause for this was wastage or corrosion of the side plating and underlying structure. This would constitute a breach on the part of the ownerof its obligation to provide a seaworthy ship. For this reason the applicant intends to commence arbitration proceedings in London against the owner for damages arising from the total loss of its cargo."

[7]     The applicant's case is that the only direct evidence available as to the circumstances surrounding the sinking of the vessel is that which will be given by the master and crew. In the founding affidavit the deponent records that
"The applicant has a real and genuine concern that, should the master and crew be permitted to depart from South Africa, return to their homes and take up other employment, they will not be available to give evidence at the arbitration which will probably take place some time in the future. lt is for this reason that l submit that it is in the interests of all of the parties that the evidence of the master and crew be taken before a commissioner and thereby preserved. "

[8] The attitude of the owner was that as the vessel flew a foreign flag and had sunk 98 nautical miles off the South African coast, the South African Maritime Safety Authority ("SAMSA") did not have jurisdiction to commence a preliminary enquiry into the sinking. An official of SAMSA did however interview the master, chief officer and chief engineer, but the owner's representative refused to allow the applicant's representative to be present at the interview and the owner has also refused to allow the crew members to be interviewed.

[9] It will be seen from the provisions of section 5(5) (a) (iv) that exceptional circumstances must be present before a court may in exercise of its discretion make an order for the taking of evidence of any person with regard to a maritime claim which may be brought before any court arbitrator, referee or tribunal elsewhere than in the Republic. The crisp issue in this matter is accordingly whether the applicant has established exceptional circumstances as envisaged in the section and if so, whether I should exercise my discretion in favour of the applicant.

  
"Suffice it to say that I consider that the whole factual complex in this matter, the whole series of events which has led to the present application, is sufficient to warrant a conclusion that exceptional circumstances are indeed present. Here we have a vessel carrying a cargo of some R50m which takes in water in its engine-rooms and also in the holds and a salvage operation is required. This is indeed an exceptional and unusual event which confronted the parties, certainly the owners and insurers of the cargo, and I am satisfied that the whole factual complex indeed does constitute exceptional circumstances.”

purpose of section 5(5) as being in follows:

[12] Unfortunately the reference by  

 

I am in agreement with the view of the author that an applicant will have to establish that there is a real possibility that specific evidence may be lost and that the legislature must have intended that circumstances over and above the need to preserve the evidence should exist.

[15] Counsel for the applicant submitted that viewed as a whole, the following matrix of facts constituted exceptional circumstances justifying the grant and confirmation of the order.
15.1. The vessel, being a fully laden bulk carrier, sank rapidly without any apparent explanation for the sinking.
15.2. The sinking was so rapid that salvors could not come on board in time.
15.3. There is a paucity of evidence as to the cause of the sinking other than evidence from the crew.
15.4. Other sources of evidence which the respondent suggested would be available are in fact likely not to be available. I deal with this in a later paragraph.
15.5. The owner of the vessel has not given any indication that it will assist the applicant in any way and does not indicate whether it will do anything to secure the attendance of the crew at the arbitration. In this connection, it was pointed out that the members of the crew who left the country before the provisional order could be served on them did so at a time when the owner had indicated that it was considering the applicant's request to interview the crew separately. Therefore it was submitted that the owner must have known that the crew were leaving and failed to convey this to the applicant.
15.6. The employer of the crew, Seabound Maritime Inc, a Greek company is silent as to whether it will procure the attendance of the crew at the arbitration.
15.7 There is little evidence other than the eyewitness accounts of the master and officers to assist the applicant and the arbitrator in due course in order to determine the cause of the sinking. More particularly
15.7.1. the vessel's classification society records are unlikely to be of any assistance in determining what the condition of the vessel was at the time that the charterparty between the applicant and the owner was concluded and during the voyage;
15.7.2. the vessel was lost with all of the material documents including the log book;
15.7.3. there is no certainty that the vessel's flag state, Panama, will carry out an investigation into the loss of the vessel and, if such an investigation is carried out, that the report will be made available to third parties such as the applicant;
15.7.4. the master and officers all reside in Uruguay and are currently employed by Seabound Maritime Inc, the vessel's technical and commercial manager. The manager will not be a party to the arbitration proceedings and there is no means of knowing whether, when the arbitration takes place, the owner will be able to procure the co-operation of Seabound Maritime and the master and officers for the purpose of giving evidence at the arbitration;
15.7.5. the steps taken by the owner to remove the master and officers from the jurisdiction of this honourable court and to place them beyond the reach of the applicant gives rise to a real apprehension on the part of the applicant that the owner will not procure the attendance of the master and officers at the arbitration.

[16]   The respondent avers that other sources of evidence of the sinking are available to the applicant, namely

The applicant's answer is that its representatives have been in touch with Cape Town Radio and have asked for a full record of the communications. They have been advised however that Telkom will not release the communications unless an application is brought to this court obliging them to do so and that Telkom is likely to oppose such an application. The applicant avers further that even if Telkom does not oppose the application, experience has shown that the record of communications is often incomplete. Further and in any event, it is unlikely that the communications between the ship and the shore will throw any light on the condition of the vessel prior to the sinking.

The applicant has been in communication with the Centre and has obtained their report which provides no assistance in determining what the cause of the sinking was.
16.3 The vessel's flag state via the Panama Maritime Authority has indicated that they will be conducting an investigation into the loss of the vessel and that it is often the case that such flag state reports are released and made available to third parties.
The applicant's answer is that there is no guarantee that the Panama Maritime Authority will conduct an investigation and that even if it does, it has no knowledge as to the nature and ambit of the investigation. It also has no knowledge as to whether the authority will agree to release a report of an investigation done by it to a third party cargo owner.

[18] On behalf of the respondents it was submitted that the facts before the court did not constitute exceptional circumstances which justified confirmation of the rule. Particular emphasis was placed on the negative effect of the order which had deprived the crew members of their freedom of movement, something which is guaranteed in terms of the Constitution. This is certainly an important aspect, but it must be borne in mind that while the freedom to leave the country had been briefly curtailed, the freedom of movement of the crew members in the city was not curtailed.

[19] The respondent's case is that the inability of the applicant to interview the crew members merely amounts to an inconvenience and the fact that it would be necessary for witness residing outside the English jurisdiction to be available at an arbitration must have been within the contemplation of the parties when contracting with one another. This may be so, but no indication is forthcoming from the owner, the employers of the crew or the crew members themselves that the witnesses will be available to give evidence in an arbitration. The four crew members who were detained are all Uruguayan citizens. They have not indicated any willingness to attend arbitration proceedings. Each has filed a brief affidavit in which the following is recorded:
	The name and address in Uruguay of the witness;
	That the witness is employed by Seabound Marine Inc whose principal place of business is in Greece;
	There is no reason to believe that the witness will not remain in the employ of Seabound Marine for the foreseeable future and the witness may be contacted via the office of Seabound Marine at +30 210 422 4765.
	The passport number, telephone number and electronic mail address of the witness.

[20] No reason has been furnished as to why the owner did not allow the crew members to be interviewed and why a representative of the applicant could not be present when the crew members were interviewed by the official by SAMSA. On the face of it, it would seem that taking the evidence from the witnesses concerned would have been in the interests of all parties.

"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 was and 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."
[22]   The situation in the present case is quite different.   The notice of motion makes provision for the following:

	The appointment of counsel as commissioner to take the evidence. The name of a counsel experienced in maritime matters is furnished and I was advised that he was in a position to accept the appointment immediately if required.
	
	The appointment of a reputable transcription service.
	For the record of the evidence to be transmitted by the commissioner to the applicant.

[23] In my view, the applicant has made out a case that exceptional circumstances exist which justify the rule being confirmed. The exceptional circumstances comprise the whole series of events that led to the application, the conduct of the owner of the vessel and the crew members after the loss of the vessel, and that a case had been made out that it was likely that the crew members would not give evidence at the arbitration and that in the circumstances it was necessary to preserve the evidence which may be lost or not be available by having it taken on commission. The result of the rule being confirmed is that the freedom of movement of the crew members will continue to be curtailed. Technically speaking, there has been and will be an invasion of their right to dignity and privacy, but this invasion has been ameliorated to some degree by them being put up at a local hotel pending the taking of the evidence and they will be able to move about freely in Cape Town. The fact is of course that had the owner agreed to the crew members being interviewed, there would have been no reason for them to be detained in Cape Town.

[24] As will be seen from the order which I made, I attempted to restrict the invasion of the crew members' rights to freedom of movement, dignity and privacy by ordering that the taking of their evidence be completed within the shortest possible time. The order also made provision for the costs of their subsistence and accommodation to be paid by the applicant.

[25]   The following order was issued on 6 August:

1.1	Ruben Giacosa
1.2.	Jorge Seixas
1.3.	Julio Romay
1.4.	Nicolas Saldivia
with regard to the circumstances surrounding the sinking of the vessel on 23 July 2009 and all matters related or incidental thereto.

3.	The applicant shall pay the fee of the commission, which shall be R15 000,00 per day or R1 500,00 per hour, which shall form part of the costs of the commission.
4.	The commission shall sit and the evidence will be heard in the Blue Room, Huguenot Chambers, 40 Queen Victoria Street, Cape Town.
5.	The commission shall sit on 11, 12 and 13 August 2009, during which period the taking of the evidence of the first, second, fourth and fifth respondents shall be completed.
6.	The commission shall sit from 09h00 to 11h00, 11h15 to 12h45 and 14h15 to 16h30 on each day save that, should it be necessary to do so, the commissioner shall have the power to extend or alter these times so as to ensure that the taking of the evidence is completed on 13 August 2009.
7.	The applicant shall appoint Veritas International Subscription Services to record and to prepare a transcript of the evidence which transcript shall be delivered to the commissioner.
8.	The applicant shall arrange for the attendance of a Spanish/English translator at the commission for the purpose of translating the evidence to be given at the commission.
9.	The provisions of Uniform Rules 38(4), (5), (6) and (7) shall apply to the taking of the evidence concerned.
10.	The record of the evidence shall be transmitted by the commissioner to the applicant's attorneys of record and to the attorneys of record for the first, second, fourth, fifth and twenty-first respondents with his certificate to the effect that it is the record of the evidence given before him.
11	Subject to paragraph 12 below, the applicant shall in the first place pay the costs of giving effect to paragraphs 3, 7, 8, 10 and 16 of this order.

15.	The twenty-first respondent, personally or through its agent, shall advise the applicant of the whereabouts of the first to twentieth respondents upon request by the applicant to do so.

161	R1 660,00 per day, being the cost of a standard single room for each of the respondents at the Commodore Hotel, V&A Waterfront, Cape Town;
162