MV Alina II Transnet Ltd v MV Alina II

• Jurisdiction: South Africa
• Citation: 2013 (6) SA 556 (WCC)

MV Alina II
Transnet Ltd v MV Alina II
2013 (6) SA 556 (WCC)

2013 (6) SA p556

Citation	2013 (6) SA 556 (WCC)
Case No	AC 104/2009 and AC 3/2010
Court	Western Cape High Court, Cape Town
Judge	Goliath J
Heard	May 21, 2013
Judgment	September 5, 2013
Counsel	RWF MAcWilliam SC (with D Cooke) for the applicant.; M Fitzgerald SC (with D Melunsky) for the respondent.

Flynote : Sleutelwoorde B

Arbitration — Confidentiality — Whether arbitral materials subject to disclosure — Arbitration proceedings private but not necessarily confidential — Application for disclosure of materials in foreign arbitration arising from C same incident — Respondent electing to make partial disclosure — Failing to show that full disclosure would result in prejudice — Interests of justice overriding private claim to confidentiality — Full disclosure ordered.

Headnote : Kopnota

The applicant (Transnet) sought an interlocutory order directing the respondent D (the vessel) to discover documents in its possession generated in related arbitration proceedings in London. The vessel contended that the requested documents were irrelevant to the present proceedings, which arose from the same incident as the London arbitration. It appeared that the vessel had in fact made partial disclosure of the requested documents in order to bolster a limitation claim [*] and to protect its rights towards third E parties. In the course of its judgment the court cited opinions emanating from various international jurisdictions either affirming or rejecting the notion of a general implied duty of confidentiality in arbitration proceedings, and —

Held: There was no universal consensus on the confidentiality of arbitration proceedings. What was clear, however, was that the principle was not F sacrosanct but had to be approached according to the cirucmstances of the case at hand. The following considerations led to the conclusion that there was no confidentiality in the London arbitration

•

There was no legislative basis for the confidentiality of arbitration proceedings in South Africa.

•

There was no confidentiality agreement in respect of the London G arbitration.

•

The vessel had elected to make partial disclosure of materials in the London arbitration.

•

The vessel had failed to show that full disclosure would lead to any form of prejudice.

•

The present claims and those in the arbitration arose from the same H incident.

•

Transnet required access to the requested documents to prepare its case.

•

The material sought was thus relevant to the issues in dispute and necessary for a fair disposal of the case.

In the circumstances the interests of justice demanded full disclosure, and I the vessel could not rely on the cloak of confidentiality to withhold the relevant documents (the same outcome would obtain were English law to be applied). The vessel would accordingly be directed to disclose all the required documents. (Paragraphs [43] – [45] at 569D – 570I.)

2013 (6) SA p557

Cases Considered

Annotations A

Case law

Southern Africa

Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd 1971 (4) SA 589 (W): applied B

Copalcor Manufacturing (Pty) Ltd and Another v GDC Hauliers (Pty) Ltd (formerly GDC Hauliers CC) 2000 (3) SA 181 (W): dictum at 194A applied

Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and Others 1980 (3) SA 1093 (W): dictum at 1095H – 1096C applied

Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR): dictum at 1083 C applied

Federal Wine and Brandy Co Ltd v Kantor 1958 (4) SA 735 (E): dictum at 753D – G applied

Nagos Shipping Ltd v Owners, Cargo Lately Laden on Board the MV Nagos, and Another 1996 (2) SA 261 (D): referred to

Replication Technology Group and Others v Gallo Africa Ltd 2009 (5) SA 531 (GSJ): D dictum in para [5] applied

Santam Ltd and Others v Segal 2010 (2) SA 160 (N): dictum at 162E – F applied

STT Sales (Pty) Ltd v Fourie and Others 2010 (6) SA 272 (GSJ): dictum at 276C – D applied

Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others E 1999 (2) SA 279 (T): dictum at 316F – H applied

Tractor & Excavator Spares (Pty) Ltd v Groenedijk 1976 (4) SA 359 (W): applied.

Australia F

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [1995] 36 NSWLR 662: referred to

Esso Australia Resources Ltd v Plowman [1995] HCA 19 ((1995) 128 ALR 391; (1995) 69 ALJR 404; (1995) 183 CLR 10): considered.

Canada G

Adesa Corporation v Bob Dickenson Auction Services Ltd (2002) 73 OR (3d) 787: referred to

Hi-Seas Marine Ltd v Boelman 2006 BCSC 488 ((2006) 17 BLR (4d) 240): considered

Rhéaume v Société d'Investissements l'Excellence Inc 2010 QCCA 2269: referred to H

Tanner v Clark (2003) 63 OR (3d) 508 (CA): referred to

Telesat Canada v Boeing Satellite Systems International Inc 2010 ONSC 22: referred to.

England I

Air Canada v Secretary of State for Trade [1983] 2 AC 394: dictum at 445 – 446 applied

Ali Shipping Corporation v Shipyard Trogir [1998] 2 All ER 136 (CA): considered

Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company of Zurich [2003] 1 All ER (Comm) 253 (PC) ([2003] UKPC 11): considered J

2013 (6) SA p558

Caspian Basin Specialised Emergency Salvage Administration and Another v Bouygues Offshore SA and Others (No 4) [1997] 2 Lloyd's Rep 507 (Adm Ct): referred to A

Church of Scientology of California v Department of Health and Social Security [1979] 1 WLR 723 (CA): dictum at 733C – E applied

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 (CA): applied B

Dolling-Baker v Merrett and Others [1991] 2 All ER 890 (CA): considered

Hassneh Insurance Co of Israel and Others v Mew [1993] 2 Lloyd's Rep 243 (Comm): considered

John Forster Emmott v Michael Wilson and Partners Ltd [2008] 2 All ER (Comm) 193 (CA) ([2008] EWCA Civ 184): considered

Riddick v Thames Board Mills Ltd [1977] 3 All ER 677 (CA): applied C

Sunderland Steamship P and I Association v Gatoil International (The Lorenzo Halcoussi) [1988] 1 LIoyd's Rep 180 (QB): dictum at 184 applied

The Happy Fellow [1997] 1 Lloyd's Rep 130 (QB): referred to

The Volvox Hollandia [1988] 2 Lloyd's Rep 361 (CA): referred to

Westwood Shipping Lines Inc and Another v Universal Schiffahrtsgesellschaft MBH and Another [2012] EWHC 3837 (Comm): considered.

France D

Aïta v Ojjeh 1986 Revue de L'Arbitrage 583 (Cour d' Appel de Paris, 18 February 1986): considered

National Company for Fishing and Marketing (Nafimco) v Société Foster Wheeler Trading Company AG 2004 Revue de L'Arbitrage 647 (Cour d' Appel E de Paris, 22 January 2004): considered.

Hong Kong

Oriental Press Group Ltd v Next Magazine Publishing Ltd [1998] 40 HKCU 1: considered.

Singapore F

Myanma Yaung Chi Oo Co Ltd v Win Win Nu and Another [2003] 2 SLR 547: considered.

Sweden

Bulgarian Foreign Trade Bank Ltd (Bulbank) v AI Trade Finance Inc (2001) 26 YB Comm Arb 291 (Swedish Supreme Court 27 October 2000): G considered.

United States

United States v Panhandle Eastern Corp et al 118 FRD 346 (D Del 1988): H considered.

Case Information

RWF MacWilliam SC (with D Cooke) for the applicant.

M Fitzgerald SC (with D Melunsky) for the respondent.

An interlocutory application for the discovery of certain documents. The I order is in para [45].

Judgment

Goliath J:

[1] This is an interlocutory application for the discovery of certain documents in terms of rule 35(7) of the Uniform Rules of Court. The applicant seeks an order compelling the respondent to comply with a J notice in terms of rule 35(3). The respondent opposes the application.

2013 (6) SA p559

Goliath J

[2] The applicant is the port authority at Saldanha Bay that instituted A two actions in this court against the respondent. The applicant since identified itself as Transnet Ltd and its two actions have been consolidated. The respondent is the MV Alina II (the vessel). On 29 October 2009 the vessel berthed at the Langebaan Iron Terminal at the port. On completion of the loading on 31 October 2009 the vessel took on a port B list and it was discovered that the vessel's hull had pre-existing damage and that there had been ingress of water into the double-bottom port ballast tank caused by the fracture of the vessel's hull. As a result the damaged vessel remained at the terminal until 26 March 2010. The vessel's extended occupation of the terminal resulted in there only being C a single berth available to load other vessels during this period. Consequently the applicant is claiming significant damages from respondent arising out of this incident. In addition to this, substantial damages were sustained, not only by the applicant, but also by the owner of the cargo which had been loaded on board the vessel at Saldanha, Anyang Steel International Trading Co Ltd (Anyang), and various companies in the Kumba Iron Ore Group of companies which had chartered the vessel D from her owner.

[3] In the event that the respondent is found liable to the applicant, the respondent has indicated that it intends to seek a stay in the proceedings on the basis that:

[3.1]

A number of legal proceedings have been brought or threatened E to be brought in arbitration proceedings in London against it in relation to the same incident, in the capital sum of US$15 932 272,45.

[3.2]

It and the vessel's owners are entitled to bring proceedings for an order limiting their total liability for that incident in terms of F s 261(1)(b) of the Merchant Shipping Act 57 of 1951 (MSA).

[4] Anyang has instituted arbitration proceedings against the vessel's owners in London, and Kumba Shipping Hong Kong Ltd (Kumba HK) has commenced arbitration proceedings against the owner in...