Peckham v Ports Authority of Fiji [1998] FJHC 127; Hbc0343j.98s (27 August 1998)

Fiji Islands - Peckham v Ports Authority of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 0343 OF 1998

BETWEEN:

:

1. CAPTAIN MALCOLM PECKHAM
2. NAUTICAL PILOTS (FIJI) LIMITED
Plaintiffs

IGN=CENTER>AND:

PORTS AUTHORITY OF FIJI
Defendant

&nbs> Mr. R. Naidu for the Defendant

JUDGMENT

The Ports Authority of Fiji ('P/b> is a statutory corporation established in 1975 u/b> under Section 4 of the Ports Authority of Fiji Act (Cap. 181) ('the PAF Act'). Amongst its statutory 'functions' PAF is required under Section 10 of 'the Act':

"(a) to provide and maintain adequate and efficient port services and facilities in ports or approaches to ports;

(b) to regulate and control navigation within ports and the approaches to ports; and

(d) to co-ordinate all activities of or within ports."

The particular 'ports' and 'approaches to ports' over which PAF was given statutory control were declared under Section 3 of 'the PAF Act' and comprises the three (3) ports of Suva, Lautoka and Levuka and delineated approaches to them. Nothing turns however on the physical extent or limits of those 'ports' or 'approaches to ports'.

In order to discharge its many statutory functions, PAF is granted 'power' under Section 11(1) of the PAF Act to do many things including under paragraph (f):

'to provide services within a port or the approaches to a port -

(vi) in piloting any vessel'

In addition Section 63(1) of 'the PAF Act' which sets out in some detail the regulation-making powers of PAF expressly provides that PAF may with the approval of the Minister:

'... make regulations in respect of the following matters -

(t) providing, regulating and controlling the operation of pilotage services.'

This case concerns problems that have arisen between the plaintiffs and the defendant Authority over the provision of pilotage services at various declared ports in Fiji, in particular, the ports of Suva and Lautoka.

On the one hand the plaintiffs who comprise a duly licensed pilot and an incorporated company with a primary object of providing pilotage services to vessels throughout Fiji, claim to be entitled to pilot vessels anywhere in Fiji including the three major ports controlled by the defendant Authority if their licence permits it and their services are required and requested by a vessel's captain, owner or local agent and whether or not such service has been approved or sanctioned by the defendant Authority.

The defendant Authority on the other hand is adamant that it has the necessary duty and power to regulate and control, even prohibit, any vessel from entering any port within its control and, thereby, indirectly, may dictate to such vessels the pilot it shall use whenever it is desirous of entering any such port.

At the outset and because counsel for the defendant Authority states that the Maritime and Ports Authority of Fiji (Pilotage) Regulations 1998 (hereafter referred to as the 'PAF Pilotage Regulations') 'obviously have an impact on these proceedings, not least because they answer Captain Peckham's complaint that MPAF can only exclude NPFL by Regulation', I turn my attention immediately to them.

The 'PAF Pilotage Regulations' were made by PAF with the approval of the Minister, ostensibly in the exercise of powers conferred upon it by Section 63(1)(t) of the 'PAF Act' and were published in an extraordinary supplement of the Fiji Republic Gazette on the 4th of August 1998, five (5) weeks after the present proceedings were filed in this Court and four (4) days after final affidavits were filed.

Of particular concern to the plaintiffs is Regulation 2 entitled: 'Restriction on pilotage' and which reads:

"(1) The master of any vessel must not give the vessel in pilotage charge for any compulsory pilotage area to any pilot under Section 185 of the Maritime Act 1986 (sic) other then -

(a) a pilot employed or nominated by a Government Commercial Company which has the function of providing pilotage in that area; or

(b) if there is no person to whom paragraph (a) applies, a pilot who is employed or nominated by the Authority for the purpose of providing pilotage in that area.

(2) Sub-regulation (1) does not apply in respect of any compulsory pilotage area whenever there is in force for that area a contract entered into following the tender process specified in these regulation."

Counsel accepts that 'the timing of the Regulation is unfortunate from the view point of this litigation'. Why that should be so is unclear, but, in any event, I am firmly of the view that the Regulations in question have no impact whatsoever on the present proceedings.

In the first place, the 'PAF Pilotage Regulations' nowhere expressly provides that they shall have retrospective effect as they could have done in terms of Section 22 of the Interpretation Act (Cap. 7) and more so as Section 21 expressly states that 'subsidiary legislation ... shall come into operation on the day of ... publication (in the Gazette)'.

Furthermore, in Kuini T. Naqasima v. Public Service Appeals Board (1985) 31 F.L.R. 96 the Fiji Court of Appeal in upholding the appellant's right of appeal in that case where a not dissimilar situation had arisen:

"Held: that there is a presumption that existing rights are not to be affected by legislation brought into force after the rights have accrued.

Clear language was necessary to make a retrospective effect applicable to proceedings already commenced the more so by reasons of the provisions of the Interpretation Act S.22."

In the second place, the 'PAF Pilotage Regulations' purports by Regulation (2) to restrict the category of pilot to whom the master of a vessel may give his vessel in pilotage charge pursuant to Section 185 of the Marine Act 1986 (incorrectly referred to in the Regulation as the Maritime Act 1986 and later corrected in a Corrigendum published in the Fiji Republic Gazette dated 14th August 1998).

I say 'purports' advisedly, because, the 'PAF Pilotage Regulations' refers throughout to 'any compulsory pilotage area' which although a 'regime' within the contemplation of the Marine Act 1986 (See: Section 184) has, as yet, not been declared by the Minister for any of the already declared seven (7) 'pilotage areas' in Fiji which includes the three (3) ports under PAF control.

What's more the power of PAF to make regulations under Section 63 of the 'PAF Act' is generally confined and limited to 'any port and the approaches thereto' as defined in the PAF Act, and cannot and does not extend to cover undeclared 'compulsory pilotage areas' under the Marine Act 1986 albeit that such areas, when and if declared, are likely to include the three (3) ports of Suva, Lautoka and Levuka.

Furthermore in seeking to limit the category of pilot to whom the captain of a vessel in a 'compulsory pilotage area' is obliged to give his vessel in pilotage charge, PAF has, by regulation, in effect, amended Section 185 of the Marine Act 1986 by the addition of a further 'qualification' over and above that required by the section, namely, that such person not only be a 'licensed pilot' but that he should also be 'employed or nominated' by PAF for that area. That cannot be right.

Not only is this a usurpation of the powers expressly granted to the Marine Board under Section 188(3) of the Marine Act 1986, but in addition, Section 25(b) of the Interpretation Act (Cap. 7) makes it clear that:

"No subsidiary legislation shall be inconsistent with the provisions of any Act"

a fortiori where the subsidiary legislation effects a substantial amendment to the provisions of an Act.

In Powell v. May (1946) 1 K.B. 330 the Court of Appeal (U.K.) in setting aside the conviction in that case for an offence under a by-law said at p.338:

"In our opinion it is beyond the powers of a county council to enact a by-law which prohibits (book-makers) from doing that which the general statutes enable them to do."

Even if the 'PAF Pilotage Regulations' could be 'read down' as counsel contends, so as to confine or limit their application to 'ports and the approaches thereto' within the control of PAF (a course which I am not inclined to adopt), I have grave doubts about the vires of Regulation 2 which has the effect of prohibiting altogether, an activity or operation where the regulatory power from which it is derived speaks of:

'providing, regulating and controlling the operation of pilotage services'.

In Municipal Corporation of City of Toronto v. Virgo [1895] UKLawRpAC 46; (1896) A.C. 88 the Privy Council held that a statutory power conferred upon a municipal council to make by-laws 'for regulating and governing' a trade does not, in the absence of express power of prohibition, authorise the making of it unlawful to carry on a lawful trade in a lawful manner.

Lord Davey in delivering the judgment of the Privy Council said at p.93:

"No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and a certain extent as to place where such restriction are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordship's view, for it shews that when the Legislature intended to give power to prevent or prohibit it did so by express words."

In this latter regard Section 11(1)(c) of the PAF Act expressly empowers PAF 'to authorise any person to carry out any work ...' and Section 63(1) empowers PAF if it thinks fit amongst other things, to make regulations for 'the licensing' of all activities carried on within a port [para.(l)]; or 'preventing ... obstructions or impediments to navigation' [para.(a)]; and finally, 'prohibiting any operation which in the opinion of the Authority is undesirable' [para.(v)]. But nowhere in the entire PAF Act, let alone Section 63(1), can there be found a power vested in PAF by regulation 'to nominate' pilots in a declared 'port or approaches thereto'.

I accept that Regulation 2 of the 'PAF Pilotage Regulations' does not expressly prohibit pilotage services as such, but merely seeks to regulate and control it by requiring PAF's nomination of the provider of such service. The regulation is silent however as to how a pilot might go about obtaining PAF nomination and appears to give to PAF full power to refuse nomination in respect of any particular pilot or of all pilots in respect of any 'compulsory pilotage area' in the absence of a contract entered into following the tender process set out in the Regulations, for the provision of pilotage services in such areas.

A similar position was considered in Parkes v. Mayor Aldermen and Burgesses of Bournemouth (1902) 86 L.T. 449 where the statutory power was to make by-laws for regulating the selling of any articles on a beach and the Corporation enacted a by-law that:

'a person shall not on the said beach sell any article except in pursuance of an agreement with the corporation'

Lord Alverstone C.J. in rejecting the by-law said at p.450:

"I think that the by-law ... is bad for the reason that it withdraws altogether from those who may have to interpret it and consider its validity any question as to whether the agreement referred to in it is a reasonable agreement or not. It puts it in the power of the corporation to make any agreement they like; and the question which we have to consider is whether a by-law which reserves to the corporation the right to refuse any particular person is on the face of it a good by-law. I think it is not."

The above passage may be applied equally to the present case by substituting 'nomination' for 'agreement' (See also: Chandler and Company Limited v. Hawkes Bay County (1961) N.Z.L.R. 946).

For the foregoing reasons, I am of the view that Regulation 2 in so far as it purports to impose a total restriction or prohibition is ultra vires the powers of PAF under Section 63(1)(t) of the 'PAF Act' and it is accordingly quashed.

So much then for the 'PAF Pilotage Regulations'.

It is common ground that as at the date when the present proceedings were instituted i.e. 3th [sic] July 1998 PAF had not in its 23 years of existence, exercised its regulation-making powers in relation to pilotage services. That is not to say however that it never had the power to provide such services or had never exercised it in the past. Plainly it had and did.

However with the reorganisation and renaming of PAF as a designated 'reorganisation enterprise' under the Public Enterprises Act 1996 and the departure of a large number of pilots previously employed by PAF and the incorporation of the plaintiff company, there had clearly arisen a need for PAF in the words of its Chief Executive, 'to address issues in relation to pilotage' within the ports under its control.

This 'need' is exacerbated by two (2) further events, firstly, by the coming into force of the Marine Act No. 35 of 1986 which repealed the Pilotage Act (Cap. 162) and pursuant to which various declarations and regulations relating to pilotage were made; and secondly, and more urgently, because of problems that had arisen between PAF and local shipping agents of overseas vessels and the plaintiffs as to which pilots were to be used to pilot vessels into the port of Lautoka in particular, viz. the QE II, with the shipping agents and shipowners claiming to be entitled to hire the services of named pilots employed by the plaintiff company and PAF insisting that its employee pilots must be used to pilot vessels into the ports under its control.

To this end the following Notification PM 3/98 dated 23rd June 1998 was issued under the signature of the PORT MASTER. It reads:

"PILOTAGE OF VESSELS WITHIN
DECLARED PORT BOUNDARIES

Shipping Companies are advised that with immediate effect all pilotage within the declared port boundary under the Ports Authority of Fiji Act shall be undertaken by Maritime & Ports Authority of Fiji/Ports Terminal Limited pilots irrespective of whether any other pilotage arrangements have been made by vessel agents."

The legal basis or authority for the issuance of the Notification is nowhere identified in the Notification but its meaning and effect cannot be doubted as events subsequent to the Notification has shown in particular with regard to the piloting of the 'Fair Princess' into Lautoka port.

Be that as it may, Counsel for the plaintiffs whilst accepting PAF's power to make regulations providing, regulating and controlling the operation of pilotage services within declared ports in Fiji, points out that no such regulations have been promulgated or are currently in force with respect to pilotage in declared ports.

Furthermore counsel submits that the declaration of pilotage areas, licensing of pilots and the regulation of their conduct is governed by the Marine Board pursuant to the Marine Act 1986 and therefore PAF only has power to make regulations that are not inconsistent with the Marine Act which is undoubtedly an Act of general application. Accordingly in issuing the above Notification 'PAF was acting ultra vires'.

Counsel for PAF on the other hand sought to support the Notification as being issued pursuant to PAF's statutory 'function' under Section 10(b) of 'the PAF Act' 'to regulate and control navigation within ports and the approaches to ports'. Counsel was somewhat reluctant however to identify the particular 'power' being exercised by PAF in issuing the Notification. Needless to say counsel submits the form and manner in which PAF chooses to exercise its 'powers' and 'functions' is entirely a matter within it's discretion to determine. It may be done either by way of Regulations, or by Directions or even by written Notifications.

I cannot agree that in the absence of any clear legislative authority or power, PAF is, nevertheless, empowered merely in pursuance of its statutory 'functions', to issue general notices or give directions relating to pilotage services within ports under its control.

If counsel's submission were to be accepted then what is there to stop PAF giving such general directions and notices verbally? and how would an affected party find out or learn of such general directions in the event that they are not reduced into writing and/or officially published?

What's more, if the mere imposition of statutory 'functions' provides a sufficient mandate for PAF to do howsoever and whatever it considers necessary to fulfil its functions, why then would Parliament consider it necessary to set-out its general and regulatory 'powers' and, in this latter regard, with such detail as to the various subject-matter for which regulations may be made?

In New Zealand Stock Exchange v. Listed Companies Association (1984) 1 N.Z.L.R. 699 Woodhouse P. in rejecting a similar argument as that advanced by counsel for PAF said at p.703:

"Certainly it would be wrong to expand the ordinary and natural meaning of the rule-making authority ... by importing the wider expression of the functions of the Exchange (under Section 4)."

As for the requirement to publish all subsidiary legislation Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 K.B. 349 at p.361:

"The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in ... democracy. That maxim applies to legal theory just as much and written as to unwritten law i.e. to statute law as much as to common law or equity. But the very justification for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public, in the sense, of course, that, at any rate, its legal advisors have access to it, at any moment, as of right."

In this country it is a requirement of Section 21 of the Interpretation Act (Cap. 7) that:

"All subsidiary legislation shall be published in the Gazette ..."

and Section 2 defines 'subsidiary legislation' as:

"... any legislative provision ... made in exercise of any power in that behalf conferred by any written law by way of by-law, notice, order, proclamation, regulation, rule, rule of court or other instrument."

(my underlining)

Plainly 'Notification PM 3/98' if binding at all, tantamounts, in my view to 'subsidiary legislation' and as such must be published in the Gazette before it can 'come into operation'.

Furthermore and for the various reasons already advanced against the 'PAF Pilotage Regulations' I am satisfied that Notification PM 3/98 is also 'ultra vires', the powers of PAF and, even if within its 'powers' or 'functions', represents, in my view, an unreasonable restraint of trade in so far as a pilotage licence issued by the Marine Board under the Marine (Pilotage) Regulations 1990:

'... ceases to be valid in respect of a pilotage area for which it was valid if the holder of the licence does not carry out the duties of a pilot on a vessel in that area for a period of more than 24 months' (See: Regulation 14)

Lord Russel of Killowen C.J. in the leading case of Kruse v. Johnson [1898] UKLawRpKQB 101; (1898) 2 Q.B. 91 in recognising the duty of the Court to condemn an unreasonable by-law said:

"In this case (of by-laws made by dock companies) it is right that the Courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage ... If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'."

In this case given the clear, unconditional and mandatory terms of Notification PW 3/98 I am constrained to say that it represents such an 'oppressive and gratuitous interference' with rights of the masters of vessels in choosing pilots and of licensed pilots to practice their calling and profession as to be both 'unreasonable and ultra vires'.

Counsel was also adamant that the Marine Act 1986 had 'nothing to do with (the case) which was purely about PAF's powers under the PAF Act'.

I turn then to consider the Marine Act 1986 which expressly provides in Section 3(2) that:

"Unless a contrary intention appears -

(a) this Act does not apply in a declared port or an approach to a declared port insofar as it is inconsistent with the Ports Authority of Fiji Act; and

(b) nothing in this Act derogates from a duty imposed or a power granted by or under the Ports Authority of Fiji Act."

On the face of it this provision appears to grant precedence to the PAF Act over the Marine Act where an inconsistency arises 'unless a contrary intention appears'.

Is there than a 'contrary intention' between Part X of the Marine Act dealing with Pilotage and the powers and duties of PAF in the provision of pilotage services within the ports under its control. Again on the face of it and having considered the various provisions of the two Acts and mindful of counsel's respective submissions I hold that there is nothing necessarily inconsistent between the two Acts. In short, each Act deals with different things.

Needless to say I would generally endorse the view expressed in the Solicitor-General's Memorandum to the Director of Marine that:

"A perusal of all pertinent legislation reveals that in as far as pilots are concerned, the Ports Authority of Fiji are only obliged to ensure that pilotage services are available within a port or approaches to a port (See: subsection 11(1)(f)(vi) of the Ports Authority of Fiji Act (Cap. 181). All other aspects of piloting from the declaration of a pilotage area to the licensing of pilots and the regulation of their conduct is in fact governed by (the Minister and) the Marine Board pursuant to the Marine act 1986."

Indeed I would go further and hold that there is no 'power', either express or implied in the 'PAF Act' empowering PAF either to vet, license, approve or even discipline any pilot who has been duly licensed by the Marine Board under the Marine Act 1986 to undertake pilotage duties for any designated pilotage area. Much less in my view can PAF claim a 'power' under Section 11(1)(f)(vi) of 'the PAF Act' to exclude or prohibit (by Notification) a pilot from piloting a ship into and out of a designated pilotage area for which he is duly licensed.

Having thus determined that Notification PM 3/98 and Regulation 2 of the 'PAF Pilotage Regulations' to be 'ultra vires', I am satisfied that justice demands that masters of vessels requiring or desiring the services of a licensed pilot in a declared 'port' and 'the approaches' thereto should be afforded the opportunity to freely choose the pilot who shall pilot the vessel, and furthermore, that pilots duly licensed by the Marine Board to pilot vessels in such 'ports' and 'approaches' should not be denied the opportunity to freely exercise their calling or profession without unreasonable restraint and within the lawful constraints of their respective licences.

Accordingly and until further order I grant the plaintiffs an injunction restraining PAF its servants and agents from restricting, prohibiting or otherwise interfering whether directly or indirectly with the first-named plaintiff and other duly licensed pilots employed by the plaintiff company from piloting vessels entering and/or leaving a 'port' and the 'approaches' thereto as declared under the PAF Act.

Liberty is reserved to both parties to apply generally to the Court for further directions as may be necessary.

The plaintiffs are also awarded the costs of this action which I fix at $1,000 payable within 7 days of the date hereof.

D.V. Fatiaki
JUDGE

At Suva
27th August, 1998.

Hbc0343j.98s