SOFE Shipping Enterprises Ltd v Ports Authority of Fiji [1998] FJHC 189; Hbc0510j.92 (22 June 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0510 OF 1992

BETWEEN:

SOFE SHIPPING ENTERPRISES LIMITED
Plaintiff

AND

PORTS AUTHORITY OF FIJI
Defendant

H. Lateef for the Plaintiff
A.R. Matabalavu for the Defendant

Dates of Hearing: 14th, 15th, 16th February,
15th, 18th July, 15th, 16th, 18th October 1996,
2nd, 3rd, 4th, 5th June, 2nd July, 3rd September, 3rd and 27th October 1997

Date of Judgment: 22nd June 1998

JUDGMENT

The Plaintiff is the owner of the inter-island motor vessel Spirit of Free Enterprise (SOFE) which grounded five times between 8th of February and 24th of May 1991 while approaching its berth at Muaiwalu No. 1 Jetty at Walu Bay as a result of which the Plaintiff alleges it suffered damage amounting to $381,583.62. The Plaintiff alleges that the groundings were caused first because the Defendant failed to provide a safe and adequate berthing place for the vessel when it had a statutory duty to do so under Section 10 of the Ports Authority of Fiji Act Cap. 181 and secondly that the Defendant was negligent in failing to provide a safe berthing place for the ship.

The Plaintiff claims that as a result of the damage caused to SOFE the ship had to be dry docked in New Zealand for the purpose of effecting various repairs, including the application of anti-fouling paint which were made necessary because of the failure of the Defendant to provide a sufficient depth of water at Muaiwalu No. 1 to enable the vessel to berth safely.

Prior to 1991 SOFE, which is a cargo-passenger carrying roll on - roll off vessel berthed whenever possible at the south end of the main Princes Wharf in Suva but in 1991 following its acquisition of land and wharf facilities at Walu Bay the Defendant required all local shipping operations at Princes Wharf in Suva to be transferred to the new jetties at Walu Bay. An advertisement appearing in The Fiji Times on the 15th of May 1991 by the Defendant stated in part, "All Local Shipping operations at Princes Wharf in Suva are now closed as the area is now declared a Customs area and has been converted for overseas shipping operations".

In a letter to the Maritime Officers and Seamen's Union dated 31st May 1991 the Director of Operations of the Defendant Mr. J.T. Kaukimoce stated that the Comptroller of Customs had directed, "that henceforth no local vessels should utilize the Princes Wharf facilities as this is now part of the main wharf declared as a Customs area and only overseas vessels may be allowed to discharge or load either passengers or cargo".

This letter was written following concerns expressed by the Union at the grounding of SOFE on 24th May 1991 when according to a press report about 400 passengers were stranded on board the vessel which had returned from Savusavu/Taveuni/Koro Islands with 60 motor vehicles, containers of canned fish from Levuka and other cargo. According to the press report the passengers had to wait for three hours until high tide before they could leave and unload their cargo. This report was never denied by the Defendant.

With that background I turn now to a consideration of the evidence given at the trial. For ease of understanding I list this evidence under various headings beginning with:

A. COMPETENCY OF THE MASTER

From the way the trial was conducted it appeared that the Defendant alleged that the Master of SOFE Captain Anare Vuiberata was not sufficiently competent in his management of SOFE at the relevant times and that this was the cause of the five groundings. As to this the following facts emerged from the evidence:

(1) Captain Vuiberata had held a Masters Certificate since 1950 and had been the Master of SOFE since August 1986 and was still Master at the time the trial commenced on 14th February 1996.

(2) He had no problems in berthing in any other port of Fiji except Muaiwalu No. 1.

(3) He could not understand the vessel's stability book and some years previous had sat and failed an examination relating to stability books on ships but was nevertheless issued with a Grade 4 Master's Certificate.

(4) Captain Apenisa Vata, Assistant Director of Marine stated that although Captain Vuiberata could not read the stability book he would still trust him to look after a ship, its passengers and cargo.

(5) According to Harbour Pilot, James Vollmer, Captain Vuiberata was one of the Senior Local Masters sailing in Fiji.

(6) Captain Malcolm Peckham the then Director of Marine Services and Port Master in Suva stated that he knew Captain Vuiberata, considered he was a good Master and had a lot of respect for him.

Captain Peckham also stated that the stability book is to be carried on every ship because this is an International Maritime Organisation requirement but he was not surprised that Captain Vuiberata did not understand the book because the year he obtained a Master's Certificate he doubted that a Captain would have been taught anything about such books.

I am satisfied on the evidence that Captain Vuiberata was a competent Master and handled SOFE as well as the circumstances prevailing at the time of the groundings allowed him to do so.

B. DIRECTION FOR BERTH

It was suggested by Captain Peckham and to some extent by the Port Engineer, Waqa Serevi Bauleka, that the Master of SOFE should not have berthed in Muaiwalu No. 1 if he felt it was not safe to do so. Captain Peckham further suggested that the Master could have or should have disobeyed the directions given to him by the Port Authorities to berth at Muaiwalu No. 1 if he thought it was unsafe to do so. He gave instances of Masters of overseas vessels who had declined to berth at a particular place when they thought it was unsafe to do so. Captain Peckham said that in the end the final decision whether to accept a berth or not rests on the Master of a ship, notwithstanding Section 40 of the Ports Authority Act which provides so far as relevant that the Port Master may within a port or the approaches to a port -

(a) direct where any vessel shall be berthed, moored or anchored and the method of anchoring;

(b) direct the removal of any vessel from any berth, station or anchorage to another berth, station or anchorage and the time within which such removal is to be effected.

Sub-section 2 states that any person who, without lawful excuse, refuses or neglects to obey any such direction shall be guilty of an offence and on conviction liable to a fine not exceeding $2,000.00 or to imprisonment for a term not exceeding 6 months.

Captain Peckham said that in practice this section was never enforced because it was not human. Against that I note the following evidence to the contrary:

(1) Captain Vuiberata stated that as Captain he had no real say in where he could berth the vessel but had to accept directions from the Defendant through the Port Master. On arrival in Suva from the outer islands the Port Master directs by radio telephone to the arriving vessel where he should berth. He also stated that despite his misgivings about Muaiwalu No. 1 he was forced to go there.

Mr. Felix Maharaj, a Hydrographic Surveyor, stated that the Ports Authority directed ships Masters where they had to berth but added that a Master could defy a PAF direction if he thought it safer not to berth where directed.

Apenisa Vata, the Assistant Director of Marine, stated that the Master of a ship has to obey any direction from the Authority and will be fined if he does not.

Colin Dunlop, a Naval Architect for 30 years, stated that if a Captain does not comply with a PAF direction he probably commits an offence.

Finally on this topic Mr. Justin Brett Smith, the Managing Director of the Plaintiff said that the Master was told by the Defendant where he has to berth and what he should do while berthing.

In the light of this evidence I have little doubt that whereas the Defendant would not prosecute a Master of an overseas ship for refusing to berth where directed it would not necessarily adopt the same attitude towards the Master of a local vessel in similar circumstances. In this regard it is necessary to consider the reality of the situation from the point of view of the Master of a local vessel such as SOFE. On arrival he is told by a representative of the Port Master that he must berth, as in the case of SOFE, at Muaiwalu No. 1. If he refuses he will probably not be given any other berth leaving all his passengers stranded. Further SOFE is a vessel which has a regular schedule which she must follow and carries cargo and passengers to and from their homes in the islands served by the ship. Indeed the Authority recognised this when Captain Kaukimoce wrote to the Maritime Officers and Seamen's Union that priority of berthing was given to those vessels which had set schedules like that of SOFE.

Such considerations would not apply to the few overseas cargo-passenger ships which call at Suva or certainly to cruise liners because passengers on such ships do not suffer from the same constraints as to time which those on a vessel such as SOFE have because they are living on the ship and are holidaying.

In these circumstances I consider that on the five occasions on which Captain Vuiberata attempted unsuccessfully to berth he felt obliged to make the attempts for the reasons I have given. This is also related to the alleged failure by the Defendant to provide a berth of adequate depth for SOFE which I shall discuss later.

C. SHIP'S RECORD AND DRAUGHT RECORDS

Despite the inability of Captain Vuiberata to read and understand the stability book so as to work out the draught of the ship I am satisfied that he knew the draught of the ship before and after loading both before and aft of the ship. He said in evidence "the draught of the ship is entered in its Log Book by the Chief Mate before we load and after we load." He also said that he knew of the draught of the ship every time it grounded because this was written on a blackboard on the bridge. He said this was routine. He said he was also aware of the need to discharge some ballast water to lighten the ship if she had a heavy cargo.

Confirmation of this evidence was given by the first defence witness Captain Vollmer.

D. REPORTING OF INCIDENTS

Captain Waisale Salu the Director of Marine said in his evidence for the Defendant that the groundings were not reported contrary to Section 86 of the Marine Act but I am satisfied on the evidence that all the incidents alleged by the Plaintiff were reported to the Authority but were lost by the Marine Department with the exception of the grounding of the 15th of May 1991. The evidence of this is found in the evidence of Apenisa Vata who said that he investigated the claims; Justin Brett and a memorandum dated 23rd May 1991 from Captain Vata to the Secretary of the Fiji Marine Board to which I shall return shortly. In addition under cross-examination Captain Waisale Salu stated that he had not seen various letters written by the Plaintiff to the Director of Marine reporting the groundings.

The Defendant has maintained throughout that before requiring SOFE to berth at Muaiwalu No. 1 it had satisfied itself by calculations of depth of water there that it was safe for it to do so and had so informed the Plaintiff. The evidence was that the Defendant assured the Plaintiff that the depth at Muaiwalu No. 1 was 6 metres.

Captain Vuiberata said that he took no soundings when approaching the berth because the Defendant had given him a chart. He therefore believed that if he remained on that channel it would be safe to berth there.

One of the witnesses called for the Plaintiff, Douglas Edgar Worthington, a Marine Surveyor, said that if the depth were advised the Master would know and that, "If I was Master of the ship and was told the depth in port is over 6 metres I would feel safe in berthing".

Felix Maharaj said that if he were constantly told the depth of an area was 6 metres he would accept that and go in. Further light on this was shed by Colin Dunlop who in cross-examination by the Defendant said, "If I were assured that the depth is alright, you are putting a Captain in an impossible position because in a country like Fiji with its bureaucracy it would be very hard to countermand such a direction. You would need to be a very strong Captain to do so when you had a ship with cargo and passengers."

Finally on this subject there was unchallenged evidence that the Port Master (Captain Peckham) stated to both Mr. George Walker a Marine Surveyor called by the Plaintiff and to Mr. Justin Smith that if he had been in Fiji at that time he would never have allowed SOFE to berth at Muaiwalu No. 1.

In my judgment this evidence alone is sufficient to absolve Captain Vuiberata from any responsibility for the grounding of SOFE.

E. THE VESSEL'S DRAUGHT

During the trial a lot of discussion centred around the draught of SOFE. The Defendant maintained that the draught of the vessel was 4.763m (15.6 ft). This was in December 1992 when the berth at Muaiwalu No. 2 was being dredged for the ship to berth there.

The Plaintiff maintained that her draught at the time was 5.45m and hence a depth of 6.5m was required at Muaiwalu No. 2 for SOFE to do a test berthing there.

The question was finally settled when the Defendant commissioned Captain Worthington to calculate the draught of the vessel which he did in a report of the 5th of March 1993.

In his evidence Captain Worthington stated that a ship has three types of draught namely:

(i) registered;

(ii) critical; and

(iii) maximum.

SOFE's registered draught according to Lloyd's Register of Shipping is 4.763m. The critical draught is the draught which would endanger a ship possibly by introducing sea water to her externals. In the case of SOFE he said it is 5.75. The maximum draught for SOFE to berth at any port is 5.004m so that for her to berth safely there had to be a maximum depth of 5.004m plus 10% which equals 5.504m minimum depth.

In my judgment this evidence leads inescapably to the conclusion that the calculations by the Defendant as to the required depth necessary for SOFE at Muaiwalu No. 1 were wrong and that berth was never deepened sufficiently to enable the ship to berth safely there.

F. CALCULATION OF DEPTH OF WATER

The Plaintiff bases its case on the ground that there was insufficient water in the jetty at Muaiwalu No. 1 and the fact that the turning circle in the channel was insufficient for a large ship such as SOFE remembering that she was berthing stern first.

In the annexure to Plaintiff's document No. 14 which is a diving report carried out by naval divers on behalf of the Defendant at Muaiwalu Jetty on the 15th of May 1991 the minimum depth from the waterline to the seabed is shown as 7.0m and the diagram shows the rudder of SOFE grounded.

The soundings taken by the navy divers using droplines are much higher than those taken by the Hydrographic Department on the 20th and 21st of May 1991. The latter are at least 2 metres less than those provided by the navy divers so that it follows that if the figures given by the navy divers for the Defendant are correct there would not have been any groundings and yet the evidence is that there were five groundings.

The Plaintiff invites the Court to prefer the depths found by the Hydrographic Department to those by the navy divers for the following reasons:

(1) According to Felix Maharaj of the Hydrographic Department that Department has been delegated the responsibility of doing local soundings and it does so for the Defendant fairly regularly.

(2) Mr. Maharaj stated in his evidence that the day before he gave evidence he went back to Muaiwalu Jetty on the 14th of February 1996 and took some rough measurements which confirmed his earlier figures.

(3) Mr. Maharaj stated in cross-examination that the Hydrographic Department guaranteed its figures by doing proper calibrations and that all its work is public property because it goes on to a navigation chart which both commercial and private shipping interests use.

(4) Colin Dunlop said the hydrographic chart is to be preferred because it is compiled by professional people who are doing this type of work all the time.

(5) Waqa Bauleka said that the Ports Authority of Fiji from time to time commissions the Hydrographic Department to prepare charts for it and was doing this before 1990.

(6) Captain Peckham said that he would prefer using the manual method of dropping a lead line to measure the depth of water because some times there are discrepancies in hydrographic soundings whereas by the manual method the operator sees for himself the depth of water he is measuring.

In examination-in-chief Waqa Bauleka said that if one accepted the hydrographic soundings SOFE would touch bottom every time she went into berth but in cross-examination he clarified this a little by saying that as an engineer looking at the figures provided by the Hydrographic Department he could not understand how the ship could berth at all. He also agreed that if the ship's draught was that which Mr. Worthington worked out as being 5.004m and the tide was higher than .804m it seemed she could easily berth on the figures given by the Hydrographic Surveyors.

Similarly if the ship's draught was taken as being 4.862m then she could berth at Muaiwalu No. 1 if the tide were .662m or higher on the figures provided by the Hydrographic Department.

Based on this evidence I prefer the readings given by the Hydrographic Department which I consider to be more scientifically accurate and more likely to be accurate than those given by the navy divers and that if the Defendant had engaged the Hydrographic Department to do the survey in this case it is fairly obvious that there would have been no problem in the ship berthing.

7. THE DUTY OF THE DEFENDANT TO PROVIDE A SAFE AND ADEQUATE BERTH
   

After many complaints of groundings received from the Plaintiff and inadequate space for SOFE to turn around, Captain Vata the Principal Surveyor recommended:

(i) that the berth at Muaiwalu No. 1 be dredged down to 6 metres;

(ii) that the wrecks in the vicinity be removed and cleared; and

(iii) that the Spirit of Free Enterprise for her own safety not be berthed at the Muaiwalu Jetty.

In his evidence Waqa Bauleka said that the Defendant had verbally declared the draught for Muaiwalu No. 1 as 5 metres despite the recommendation of Captain Vata. Mr. Bauleka also stated that the wreck in question was not removed until the end of June 1991 despite numerous requests from the Plaintiff.

Felix Maharaj said that any dangerous areas in a harbour are marked with beacons but there was none on the approaches to Muaiwalu No. 1 at the time. Captain Vata agreed with this. He also said concerning the allegation by the Defendant that the Captain of SOFE should have de-ballasted if he were concerned about the safety of his ship that it would be pointless to de-ballast if the jetty was deepened and that PAF has a duty to ensure adequate jetties for berthing. He also said that the wreck was not visible at night.

Justin Smith said that a berth must be safe in all conditions and Waqa Bauleka admitted that there are no electric light facilities for night work at Muaiwalu No. 1. Lastly on this subject in cross-examination Captain Peckham agreed that it was the duty of the Defendant to see that the channels leading to berths are constantly dredged so that ships may use them.

On this evidence I consider that the Defendant failed in its duty to the Plaintiff by not providing a berth of adequate depth for SOFE to use at Muaiwalu No. 1.

H. DAMAGE SUFFERED BY SPIRIT OF FREE ENTERPRISE

The Plaintiff became concerned at the groundings and commissioned Billett, Wright and Associates Ltd to prepare a report on the damage possibly suffered by SOFE in her five groundings. They reported that in similar situations a vessel may suffer one or all of three categories of damage:

(A) Structural damage to the rudder, propellers, and hull.

(B) The fouling of strainers, heat exchangers and pumps.

(C) Damage to wharf or vessel due to lack of manoeuvrability.

In June 1991 the Plaintiff hired Scuba Hire Limited, professional divers and experts using an underwater camera to report on the damage to SOFE. They reported that there had been damage to the propellers in that two of the three blades of each propeller had been damaged due to impact with underwater objects, damage on three of the four damaged blades was seen to be slight but one blade of the portside propeller had been damaged more extensively although not such as to be of operational significance but which could prove to be much more serious incidence.

The ship had suffered damage to its hull and its anti-fouling paint system.

There was damage to the lower area of the rudder and to the aft end of the skeg on the centreline aft where the skeg had been in contact with the seabed for periods of time.

The report concluded that the dive showed loose cement, loose coral rock similar to that which was produced for my inspection when Mr. David Evans, the Underwater Surveyor who compiled the report, gave his evidence. Mr. Evans also said in cross-examination that because of his very wide experience of investigating similar damage to the hulls of vessels the damage to SOFE's bottom was almost certainly caused by the seabed like that at the Muaiwalu berth and that the tides were such that at low tide the stern area would certainly have been in contact with the seabed. He said the damage to the ship's rudder was probably caused by the deep mud bottom. Mr. Evans also observed ship's rails and other steel debris around Muaiwalu No. 1 berth and that contact by the vessel's hull with this material could cause considerable damage.

Armed with these two reports by two different professional bodies in Fiji the Plaintiff considered it had no alternative but to dry dock the ship to ascertain the true damage to it. Because there are no dry docking facilities available in Fiji the Plaintiff had to take SOFE to Auckland, New Zealand as a result of which it suffered considerable losses. These are detailed in Plaintiff's document No. 47 and evidence was given for the Plaintiff to explain the reason why some of these repairs were necessary. Thus George Walker a Marine Surveyor of Suva said that the vessel had to be repaired because once paint is removed deterioration starts and the sooner the job is done the better. He also said that it was necessary to paint the whole bottom of the ship because it was out of water for so long. When the ship was dry docked four holes in the hull and side plating were noticed which Mr. Walker considered had been caused by corrosion but the fourth had been caused by corrosion and groundings.

David Evans said that one particular feature of SOFE was the bare steel hull which was consistent with contact with mud of a type seen at Muaiwalu.

I. THE CLAIM

Details are given by the Plaintiff of the various expenses comprising its claim for $381,583.00. These comprise fuel oil costs in taking the ship to and from New Zealand, crew wages, crew victualling cost, airfares for the owner and surveyor from Suva to Auckland and return, survey report fees, loss of income for 22 days, dry dock wages, charges for blasting the underwater hull and preparing it for painting, charges for the provision of underwater anti-foul paint system, Union maritime services, charges by the Material Testing Laboratory, Marine Steel Ltd, charges for bottom survey and repairs to the damaged afterpeak, Fiji customs charges and interest charges.

The Defendant submits that the damage caused by the groundings was minimal and that the evidence seems to point clearly towards negligence by the Plaintiff or its agent in permitting the alleged groundings. I find this submission strange because it seems to go back to my comment at the beginning of this judgment that the Defendant appeared to be blaming the Master, Captain Vuiberata for his incompetence in attempting to berth SOFE when he knew or must reasonably be presumed to have known it was not safe to do so.

For reasons I have attempted to give in this judgment I reject this submission. I find that the Defendant was negligent in not providing a safe berthing facility for Spirit of Free Enterprise and that had it done so this claim would never have been made.

J. THE RELEVANT LAW

It is not disputed by the Plaintiff that the duty of the Defendant in this case towards the Plaintiff was not absolute and that it was only required by law to take reasonable care and reasonable precautions to ensure that SOFE was not damaged. This duty is demonstrated by such cases as Brown v. National Coal Board (1962) AC 574, Hammond v. The Vestry of St. Pancras [1874] UKLawRpCP 23; (1874) L.R. 9 C.P. 316 and Read v. Croydon Corporation (1938) 4 ALL E.R. 631, 651. Further support is found in Halsbury's Laws of England, 4th Edition, Volume 1 pp.188 to 192 and in Maxwell on Interpretation of Statutes, 12th Edition p.222.

However that does not end the matter because under Section 47 of the Ports Authority of Fiji Act the liability of the Authority for damages where any loss or damage is caused to any vessel or to any goods thereon, shall not exceed an aggregate amount of $50,000.00. This limitation of liability relates to the aggregate of any losses or damages sustained upon any one distinct occasion.

The Plaintiff concedes that it is impossible to say how much damage SOFE suffered on each of the five groundings but invites the Court to award damages of $50,000.00 in respect of each grounding.

Were it not for Section 47 I would have no hesitation in awarding the Plaintiff the full amount of its claim because I consider that the damage it suffered in the five groundings was the natural consequence of the failure by the Defendant:-

(a) to give the Plaintiff accurate and reliable information about the depth of water available for SOFE at Muaiwalu No. 1; and

(b) its failure to sufficiently dredge the area in which the ship had to berth to enable it to do so safely.

For these reasons I accept the Plaintiff's submission on damages and award it the sum of $250,000.00 in damages. To this must be added interest and because of the drastic change in interest rates from towards the end of 1994 I assess this as follows:

Interest on $250,000.00 at 8% for two years from the date of the Writ issued on 22nd November 1992: $40,000.00; interest from the 23rd of November 1994 to 19th June 1998 3 years and 8 months at 4%, $36,666.00 giving a total judgment for the Plaintiff of $326,670.00. The Defendant must also pay the Plaintiff's costs.

JOHN E. BYRNE
J U D G E

Legislation and cases referred to in judgment:

Ports Authority of Fiji Act Cap.181.
Brown v. National Coal Board (1962) AC 574.
Halsbury's Laws of England, 4th Edition, Volume 1.
Hammond v. The Vestry of St. Pancras [1874] UKLawRpCP 23; (1874) L.R. 9 C.P. 316.
Read v. Croydon Corporation (1938) 4 ALL E.R. 631, 651.

No other authorities were referred to in argument.

HBC0510J.92S