Your freedom following a maritime accident may depend on whether your flag state undertakes an investigation, at least in South Africa. A Western Cape High Court, Cape Town, has decided that seafarers can be detained in the country at the request of third parties, such as cargo owners, for the collection of evidence in claims to be arbitrated in another country to determine civil liability even if the incident did not take place in its jurisdiction.
Ince & Co’s latest Shipping E-brief warns: “It is clear that this decision, being the first of its kind in South Africa ordering the detention of crew at the behest of a third party to take evidence, sends a strong warning to shipowners and their insurers that crew may, depending on the circumstances of the case, be compelled by the Court to give evidence should they find themselves in South Africa following a serious casualty at sea. This may be so even where, as in this case, the substantive issues will be dealt with in another jurisdiction and the casualty occurred outside of South African territorial waters.”
On 23 July 2009, MV Ioannis NK sank some 98 nautical miles off Cape Columbine, near the west coast of South Africa. At the time of the sinking, the ship was carrying 22,500 metric tonnes of raw cane sugar to a port in India pursuant to a voyage charterparty concluded between the shipowners and cargo interests who had agreed that any disputes arising under the charterparty would be determined by arbitration in London.
Shortly before boarding the aeroplane to return home, the Master, Chief Mate, Chief Engineer and Second Engineer were served with a court order that prohibited them from leaving the country until they had given evidence to cargo interests regarding the incident to be used in arbitration in London.
One point in the court’s decision is that there is no certainty that the ship’s flag state will carry out an investigation into the loss of the ship and, if such investigation is carried out, that the report will be made available to third parties such as the cargo interests.
The flag state was Panama but the concerns could equally apply to the majority of open registers which suppress accident reports, if they carry out substantive investigations at all. Clearly the court was unconvinced that Panama would either carry out an investigation or reveal the contents of the investigation if it did.
However, it may also send a shiver through investigation agencies who prohibit their reports from being used in courts of law or for purposes to determine liability. It follows from the court’s reasoning that the fact that an MAIB report, or TSB, NTSB or ATSB report may not be used to determine liability would be cause for a seafarer to be detained.
This is a worrying development.