Ports Authority v Bounty Bay [2006] CKHC 3; PLAINT 18 of 2005 (12 July 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(IN ADMIRALTY)

PLAINT NO. 18/2005

BETWEEN

PORTS AUTHORITY
a Government authority established pursuant
to the Ports Authority Act 1994-95
Applicant

AND

The vessel BOUNTY BAY presently moored at the
port of Avatiu, Rarotonga
Respondent

Counsel: Mr Little for Applicant
Mr Hood for Respondent

Date: 12 July 2006

DECISION OF NICHOLSON J

Introduction

[1] The Bounty Bay is a vessel which is a catamaran some 15.5 metres overall length, gross tonnage 35 tons, net tonnage 26 tons. It is registered in the Port of Auckland, New Zealand. Since September of 1994 it has operated it has operated out of the Port of Avatiu, Rarotonga, Cook Islands and has been engaged preliminary in Cook Islands waters traveling between Rarotonga and the Outer islands.

[2] When the operators of the Bounty Bay became aware that some vessels were exempted from payment of port charges and berthage levies, they enquired as to the criteria applied for such exemption and they believe that they come within that exemption.

[3] They later came to a head when the Bounty Bay’s operators declined to pay the port charges and berthage levies believing that the ship was exempt from doing so. This resulted in the Ports Authority commencing this proceeding and seeking and obtaining a writ of arrest of the Bounty Bay.

[4] The vessel was released upon the condition that the disputed amount of charges and levies was paid into Court pending resolution by the Court of the issue of whether the Bounty Bay came within the exemption. I will now decide that issue having conducted a hearing of some days on the matter.

Pleadings

[[5] The relevant parts of the Statement of Claim is paragraph 3 and 4 which plead that from 30 September to 7 July 2006 the defendant Bounty Bay berthed on numerous occasions at the Port of Avatiu in Rarotonga incurring berthing charges, the total amount owing by the defendant to the plaintiff for the berthing charges is the sum of $2,960.50.

[6] A pertinent part of the Statement of Defence is in paragraphs 3 and 4 which state:

"3. It accepts from 30 September 2004 to 30 June 2006 it berthed on numerous occasions at the Port of Avatiu in Rarotonga but denies all the other allegations contained in paragraph 3 of the Statement of Claim and in particular denies that it incurred berthing charges.

"4. It denies the allegations contained in paragraph 4 of the Statement of Claim and further says that the defendant vessel is exempt from berthing charges and port fees on a number of grounds including inter alia and there were then some fuller grounds pleaded."

However, at the start of the trial, it was stated by both counsel in their joint memorandum, that these had been reduced to two and reading from the joint memorandum they are:

(i) At all material terms the defendant vessel was engaged in trade within the Cook Islands .

(ii) By way of letter dated 15 March 2000, the then Prime Minister, the Right Honorable Dr Woonton wrote a letter purporting to exempt inter Cook Islands licensed trading vessels from port charges and berthage levies and that exemption was to apply retrospectively, and that exemption applies to the defendant vessel and accordingly, it is not liable to pay port charges or berthage levies.

Proof of Pertinent Facts

[7] Such proof was put before the Court in the form of first an agreed chronology which is attached to the joint memorandum of counsel. Second, agreed documents which are attached to the joint memorandum as Exhibits 1-13 inclusive and Exhibit 15. Three, an undated hand written note from Garth Broadbent to Mr Little for which was claimed did not apply and which was produced as Exhibit 14 and fourth, the evidence of three witnesses, Mr McBirney the General Manager of the Ports Authority, Mr Tairea the Secretary of Transport and Dr Wragg a director of Pacific Expeditions Limited, the operator of the Bounty Bay.

[8] In his evidence Mr McBirney referred to what I would call the Minister’s exemption direction of the 15th of March 2000 which is document Exhibit 1 on the joint memorandum. This states the address is not ..... directions of s. 65 of the Constitution of the Cook Islands. The relevant parts are subsection "Every enactment and every provision thereof shall be deemed remedial whether its immediate purpose is to direct the doing of anything that the enacting authority deems to be for the public good or to prevent or punish the doing of anything it deems contrary good and shall accordingly receive such a fair large and liberal construction and interpretation as will best ensure the obtainment of the object of the enactment of provision thereof according to its true intent to meaning and spirit.

[9] Now subsection 3 states in this article the term enactment includes any Act of Parliament of England or Parliament of Great Britain or the Parliament of the United Kingdom being an Act enforced in the Cook Islands and any regulation, rule, order or other instrument made thereunder, although it may be a fine point. I would consider that the direction led by the Minister on the 15th of March 2000 qualifies as an instrument made under a Cook Islands Statute, namely, the Ports Authority Act and the provisions of sub-section 2 would apply to its interpretation.

[10] What is the object of that direction. Mr McBirney had the definite view that it was just to exempt three vessels and domestic vessels as that.

[11] I do not accept that because it that had been so, it surely would have been worded to exempt the following vessels, Maunganui, Maungaroa and Miss Mataroa.

[12] Indeed it says "exempt every inter Cook Islands trading vessel" and it contains no qualification as to the exempted vessel being necessary to be a domestic vessel. However, Mr McBirney was really in effect the recipient of that direction. The author, if you can say the author was Mr Tairea and he stated in his evidence, as I think I’ve already mentioned, got instructions to draft letter to exempt the three vessels from berthage. They were sitting idle in the harbour without cargo to carry, if port charges and levies, they would first borne by the operators, then obviously passed on to the consignees, being the people in the Outer Islands. So he has suggested that was the object.

[13] In my view legislation of any sort and the Minister’s direction is legislation in its widest sense, is not to be interpreted upon the basis of a statement by the maker of the legislation of his intention but rather is to be interpreted on the basis of the words used in the legislation as they would be understood by an objective independent observer fully acquainted with the relevant background material.

[14] Applying that test and in light of the evidence which has been given in that matter, I consider that the object of the direction was to supply a flexible and economic cargo service to people in the Outer Islands and I interpret the relevant passage as in that light.

[15] Now, I go through it word by word.

[16] The first expanding word of the passage is "every". It does not restrict simply to specified vessels, it applies to every vessel which otherwise qualifies. Then the first qualification it must be an inter-Cook Islands vessel. There can be no real doubt that the Bounty Bay is not inter-Cook Islands vessel. It is licensed in the Cook Islands waters, it applies predominantly in the Cook Islands territory between Rarotonga and the Outer Islands.

[17] Next, licensed, yes it is licensed, the terms I have read already.

[18] The next, yes, it is certainly a vessel. It is not an aero plane or anything of that sort, it is a vessel but the question is, is it a licensed trading vessel. Of course, the Ordinance does not have a special category of licensed trading, it is just licensing with conditions.

[19] But having regard to those conditions which authorizes it to take cargo without restriction to two particular islands and in certain circumstances any other Outer Island, I consider that the Bounty Bay is indeed, now in accordance with the 2005 license a licensed trading vessel.

[20] I reject Mr Hood’s argument that even before then, it was a licensed trading vessel, because it was engaged in commercial activity. I consider the qualification is that to be a trading vessel, it must be engaged in a commercial activity involving carrying cargo.

[21] So therefore, I find that before the 22nd of May 2005, the Bounty Bay was not licensed to carry cargo and was therefore not an inter-Cook Islands licensed trading vessel coming within the Minister’s exemption. I find however that after the 22nd of May 2005 that the Bounty Bay and is licensed to carry cargo and is therefore an inter-Cook Islands licensed trading vessel for the purpose of the exemption and that the exemption applies to it.

[22] I accordingly make formal orders:

(i) that the Bounty Bay is liable for port charges and berthage levies before the 22nd of May 2004;

(ii) that the Bounty Bay is not liable for port charges and berthage levies after the 22nd of May 2005.

Those are the orders of the Court.

[23] I take it that counsel, in light of those orders can probably agree as to disbursement of the money paid into Court. It is just a matter of working out what was incurred before the 22nd of May 2005 and that should be paid out of Court and the Court will pay it out on receipt of request signed by both counsel. If counsel cannot agree, then of course the matter can be referred to me for a decision by memorandum and such memorandum should be filed by the Plaintiff within 14 days of today’s judgment and the Defendant’s response within 14 days of receiving that.

[24] So far as costs are concerned, and this is the final , both parties have succeeded in part and accordingly I consider that this is an appropriate case in which costs should lie where they fall and I make no order for costs or against either party.

JUDGE