PORTS AND HARBOURS
Sea Carriage- Negligent supervision of wharf employee loading ship
The plaintiff consigned a vehicle on one of the defendant’s ships. He delivered the vehicle to the wharf and defendant took possession of the vehicle. Before the vehicle was loaded onto the ship one of the defendant’s employees drove the vehicle off the wharf into the sea. The plaintiff claimed that the vehicle had passed into control of the defendant company and fell into the harbour as a result of the conduct of the defendant’s employee. The plaintiff pled res ipsa loquitur, or negligence on the part of the employee, or alternatively that the employer was negligent in not properly supervising an employee known to have a propensity for interfering with vehicles.
DECISION: Judgement for the plaintiff
HELD: The defendant was negligent to leave the unsupervised vehicle within the immediate vicinity of the employee with a well known propensity for interfering with vehicles. There was a failure to reasonably supervise known irresponsible persons under one’s control.
Port Charges- port charges concern a maritime activity- within Admiralty jurisdiction
The plaintiff is the agent for approximately 80 commercial fishing vessels that enter Pohnpei’s port. Pursuant to a FSM Access Arrangement PMS provided all necessary services to fishing vessels that called on Pohnpei’s port, including processing of payment for port fees and charges incurred by the owners of the vessels. The Defendant Port Authority promulgated a regulation which gave the Port Authority the authority to assess penalties and deny port entry to vessels having accounts more than 30 days past due. The Plaintiff argued that the Defendant had exceeded the scope of their statutorily prescribed rule making authority. The Plaintiff moved to remand the matter to the State Court. At issue was whether this complaint fell within the Court’s exclusive admiralty jurisdiction.
HELD: Plaintiff’s motion denied
DECISION: A maritime cause of action is one arising on the sea, ocean, great lakes or navigable rivers or from some act or contract concerning the commerce and navigation thereof. The Plaintiff’s complaint concerns the alleged injury resulting from the Defendant’s maritime-related activities.
Ports Charges- water in the front of the wharf do not constitute “premises” for the purposes of Regulation 13(1) of the Ports Authority of Fiji (Tariffs) Regulations.
The Appellant is a pilotage services company. It imported a hulmatic designed pilot vessel into Fiji. The vessel was shipped on another vessel. On arrival at the Suva harbour, the pilot vessel was unloaded directly into the water. The Respondent took no part in unloading the vessel, and the vessel was not physically on the wharf at any time. The Respondent was awarded $8,684.50 at trial for storage and demurrage charges. In giving judgment, the trial court characterized the vessel as ‘cargo’ because it did not come into the wharf under its own steam but was brought into port on a ship. The Appellants contended that the Respondent did not store the vessel and therefore the demurrage and storage charges were not payable.
HELD: Appeal allowed
DECISION: The vessel was not stored on the premises of the Respondent at any time but was discharged into the water and then along side the wharf. The Appellant was properly charged dockage and wharfage charges by the Maritime Ports Authority of Fiji (MPAF) which it paid. The lower court should have considered the interpretation of Regulation 13(1) of the Ports Authority of Fiji (Tariffs) Regulations which provides: Subject to this regulation, where goods are stored on the Authority’s premises the owner of those goods shall pay storage charges to the Authority….. The water in front of the wharf where the pilot vessel was landed could not constitute part of the “premises” of the Authority. The respondent had nothing to do with the vessel, and the situation was within the MPAF’s area of responsibility.
Pilotage- power of Ports Authority to regulate pilotage services
The plaintiff is a licensed pilot and provided pilotage services to vessels throughout Fiji, including the 3 major ports controlled by the defendant Authority. The plaintiffs argue that they are entitled to pilot vessels anywhere in Fiji if their license permits it and their services are requested by a vessel’s captain. The defendant Authority argued that it had a duty and power to regulate and control, even prohibit, a vessel from entering any port within its control, and may dictate to those vessels which pilot it could use. In furtherance of such claims the defendant has purported to make Regulations pursuant to the Ports Authority of Fiji Act. The plaintiffs sought an injunction to restrain the defendant Authority from restricting, prohibiting or interfering with the plaintiffs’ pilotage of vessels.
HELD: Injunction granted
DECISION: The Regulations were ultra vires the PAF Act. The Ports Authority had no power, either express or implied in the PAF Act that would allow it to vet, license, approve or discipline any pilot who had been duly licensed by the Marine Board under the Marine Act 1986.
The Plaintiff sought to recover berthing charges which the Defendant refused to pay alleging that it was exempt from doing so.
Port Charges- Cook Islands exemption for port charges- Prime Minister’s letter
HELD: for the Plaintiff
DECISION: The Prime Minister had written a letter which purported to exempt inter Cook Island licensed trading vessels from port charges and berthage levies. The Defendant’s vessel came within the exempted class.
Ports Authority of Fiji v Sofe Shipping Enterprises Ltd  FJCA 23; ABU0046U.98S (12 May 2000) overruling in part SOFE Shipping Enterprises Ltd v Ports Authority of Fiji  FJHC 189; Hbc0510j.92 (22 June 1998)
Maritime Torts- Negligence- Duty of care of dock owner to vessels
The respondent was the owner of the vessel and the appellant was the Port Authority of Fiji. The vessel was a cargo-passenger vessel. The allotted berth for the vessel was changed by the Port Authority when all local shipping operations were moved to a new jetty. The new berth assigned to the vessel was too shallow at low tide and the respondent suffered damages on 5 separate occasions when it berthed. The vessel was brought to New Zealand for repairs and the owner sought to recover the cost of moving the vessel and repairs. The High Court found that the Port Authority was negligent and awarded the vessel owner $50,000 for each incident based on Section 47 of the Port Authority Act of Fiji which provides for a maximum of $50,000 for each incident. The Port Authority appealed the amount of the damage award, and also the finding of negligence.
DECISION: Appeal dismissed as to liability; appeal allowed as to quantum
HELD: The Appeal Court agreed with the High Court that the appellant, as wharfinger or dock owner owed a duty of care to the respondent to see that the berth was safe for the vessel to lie at, or failing that, to give warning that it was not. This included a duty of reasonable care to provide that the approach to the berth was sufficient to enable the vessel to pass over, or a duty to give warning that the advertised depth had not been maintained. The appellant submitted that the after the Master of the vessel knew of the potential problem after the first incident. The following incidents became the Master’s responsibility. The Court of Appeal disagreed. The Port Authority had a continuing obligation to provide the vessel with a safe berth or to inform the respondent that there was no satisfactory berth at least at low tide. Instead the Port continued to direct the respondent’s vessel into the berth that they knew was unsuitable. The Court found that it was unrealistic to suggest that the Master of the vessel should wait until high tide to berth when he had a load of passengers and schedule to keep. The duty was on the Port Authority to provide a safe berth and the Port Authority continued to hold out the berth as satisfactory when it was not.
The appellants relied on s. 43 of the Port Authority Act of Fiji which provides that the Authority is not liable for the actions of the Port Master. The Court of Appeal would not apply this provision, stating that the actions of the Port Master were pursuant to the policy formulated by the Authority. As to damages, the Court of Appeal was not satisfied that the respondent could show that damages incurred as a result of each incident amounted to or exceeded $50,000 as provided by s.47 of the Port Authority Act. The High Court had awarded that amount based on the global amount of the total repairs obtained in New Zealand. The award was reduced to $100,000 plus interest.
Bill of Lading- exemption clause- stevedores performing services of contract protected
The plaintiff’s goods were shipped in a container. The container was taken to the wharf shed and unpacked by the stevedores. While the plaintiff’s goods were in the shed, some went missing. At trial the court found the stevedores and Harbours Board liable for the loss. The defendants appealed. The stevedores argued that even if negligence or breach of bailment had been proved against them they were exempted from liability under clause 5 of the bill of lading which purported to exempt sub-contractors, servants and agents from liability.
DECISION: Appeal allowed
HELD: It is settled law that the exclusion clause in the bill of lading can apply to the stevedores even though they were not parties to the contract of carriage. The bill of lading brings into existence a bargain which is capable of becoming mutual between the consignor and the stevedore made through the carrier as the agent. Therefore the exemption clause protects stevedores performing services under that contract.
Maritime Torts- Negligence of Port Authority
The appellant’s vessel which had been anchored in the harbour sunk during a cyclone. The vessel had been moved and moored in the harbour by the Port Authority after the appellant refused the Port Authority’s request to move the vessel from the wharf. A Court of Marine Inquiry was set up under the Shipping Act (Cap 136). Section 196 provides that a Magistrate’s Court sitting with assessors constitutes a Court of Marine Inquiry. By s. 198 the owner, master, mate or engineer against whom the charge is made has the opportunity of making a defence. In this case the claim of negligence was made against the Port Authority and it appears that the statute gave him no opportunity for a defense or cross- examination. The Court of Marine Inquiry found that the incident occurred as a result of the shortfalls of the Port Authority in their methods of preparing the moorings. Basing the evidence of their claim on this report the vessel owners sought compensation for the loss of the vessel as a result of the negligence of the Port Authority.
DECISION: Claim dismissed; Appeal dismissed. The High Court admitted the report of the Court of Marine Inquiry as evidence but refused to give it much weight as the evidence had not been subjected to cross examination; nor had the Port Authority been given an opportunity to make a defense. The Port Authority was able to raise possible answers to the report’s finding of fault and these possibilities were supported as probable by expert witnesses. The Court of Appeal agreed with the High Court, noting that s.196 may not be applicable to the Port Authority. The Court of Appeal found the report to be inadequate to make a case of probable cause for the damages once the report had been subjected to cross examination, and the Port Authority was able to present their own evidence.