Responding to access orders under the South African Admiralty Act 1983
10 September 2008
Under the South African Admiralty Act 1983, charterers and cargo interests can, in certain circumstances, obtain an ex parte Court order which may appear to oblige a Master to give the applicants surveyor access to the ship and ships documents.
South African lawyers, Shepstone & Wylie, report that such access orders are being sought with increased frequency. A charterer seeking not just to inspect but to test a main engine on a ship involved in an underperformance dispute is a recent example.
Shepstone & Wylie advise that Masters served with an order marked final often grant immediate and unrestricted access to the surveyor in the mistaken belief that they are legally obliged to do so.
However, under the Act, it is possible to seek reconsideration of these final orders and the Courts will allow the owners to make an application to the Judge for a variation. The variation could involve:
Restricting the surveyors inspection to certain parts of the ship.
Limiting the production of the documents to only those relevant to the dispute.
Framing the order in the form of a rule nisi, where the surveyor is appointed by the Court, and the Sherriff of the Court holds both the survey report and the documents
A feature of the rule nisi approach is that the report and documents are returned to owners without having been sighted by the applicant in the event that the owners have the rule nisi dismissed.
Shepstone & Wylies advice to Masters is to call the P&I Correspondent immediately should an access order be served upon the vessel, to obtain legal advice on its scope and their rights.