Peckham v Burns Philp Shipping Agencies (Fiji) Ltd [1998] FJHC 211; Hbc0487.97s (26 November 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 487 OF 1997S

Between:

CAPTAIN MALCOLM PECKHAM
Plaintiff

and

BURNS PHILP SHIPPING AGENCIES (FIJI) LIMITED
1st Defendant

and

PORTS AUTHORITY OF FIJI
2nd Defendant

P. Howard for the Plaintiff
No appearance by the 1st Defendant
R. Naidu for the 2nd Defendant

JUDGMENT

These proceedings, commenced by originating summons filed on 6 November 1997, initially sought a number of reliefs but on 8 May Mr. Howard indicated that he was now only seeking a declaration of entitlement to retention of pilotage fees.

The following affidavits were filed:

(i) Plaintiff, in support 6 November 1996

(ii) Emosi Varea, in answer 24 February 1998

(iii) Plaintiff, in reply 25 March 1998

(iv) Emosi Varea, in answer 29 April 1998

(v) Plaintiff, in supplement 4 June 1998

(vi) Captain George Macomber 18 June 1998.

On 29 July both Counsel also agreed to file written submissions. Mr. Howard filed his submission on 29 July 1998 and this was followed by a second submission filed on 28 August exhibiting a copy of a Judgment of the High Court (Fatiaki J) dated 27 August 1998 in a related matter Peckham & Anr v Ports Authority of Fiji (HBC 0343/98S). Mr. Naidu filed a comparatively unhelpful written submission on 16 October.

The brief facts are not in dispute. At all material times the Plaintiff was employed by the 2nd Defendant (PAF) first as Assistant Port Master and latterly as Director of Marine Services and Port Master. While still employed he was also at all times the holder of a marine pilotage licence.

In about June 1997 the acquisition of the pilot boat "Tanya Lee" led to unhappy differences between the Plaintiff and PAF. The Plaintiff was suspended as Port Master and he then commenced these proceedings. The Plaintiff's claim is a simple one; on 231 occasions during the years 1991 to 1997 the Plaintiff piloted vessels including the Queen Elizabeth 2, the Achille Lauro and the Fairstar into Suva Harbour. On the basis of the scheduled fees the Plaintiff has calculated that a total of $66,027.00 was payable. He says that the 1st Defendant as agent for the vessels wrongly paid this amount to the PAF. He says that he, as the Pilot was entitled to these pilotage fees, and not the PAF.

The PAF argues that the fees are due to the PAF, and if paid to a pilot who is employed by the PAF are paid to the pilot to the account of the PAF. Mr. Naidu also suggested that even if in fact PAF had been wrongly paid then the Plaintiff's only cause of action was against the 1st Defendant.

Although the issue between the parties is straightforward tracking down the relevant legislation is not simple and is not made any easier by the continuing failure to issue a revised edition of the laws of Fiji (see Revised Edition of the Laws of Fiji Act - Cap 6 as amended). The need for a new edition, (the last was in 1985) is now becoming urgent and it is much to be hoped that a new edition will soon be forthcoming.

The principal provisions which bear on this matter are, as I find, as follows:

1) Ports Authority of Fiji Act (1975) (Cap 181) (the PAF Act)

2) Harbour Regulations (Cap 181 Subs S-34)

3) Ports Authority of Fiji (Tariffs) Regulations 1988 (LN 74/1988) (the 1988 Regulations)

4) Ports Authority of Fiji (Tariffs) Regulations 1995 (LN 15/1995) (the 1995 Regulations)

5) Marine Act (35/1986)

6) Marine (Pilotage Fees) Regulations 1990 (LN 75/1991) (the 1990 Regulations).

The Marine Act is Fiji's primary marine legislation. Part X-Pilotage is but one small part of its many provisions. It provides for the making of pilotage regulations (section 201) and also for the declaration of "pilotage areas". Regulation 2 of the 1990 Regulations is as follows:

"Purpose

2. The purpose of these regulations is-

(a) to prescribe the fees payable in respect of the pilotage of vessels and other fees payable in respect of pilotage; and

(b) to specify when and how pilotage fees are to be paid."

Regulation 5 of the 1990 Regulations is as follows:

"Payment of Pilotage Fees

5. Fees payable in respect of the pilotage of a vessel-

(a) are due on completion of the pilotage; and

(b) are payable to the pilot or as the pilot may direct."

On the same day that the 1990 Regulations were made the Minister declared the Port of Suva to be a "pilotage area" (see LN 75/1991). The Plaintiff says that he has been piloting vessels within a pilotage area, has not directed the pilotage fees to be paid to PAF and therefore should have received them himself.

In my opinion the Plaintiff is mistaken. Unfortunately however (and with all due respect to Mr. Naidu) there is no quick route to this conclusion and there is no alternative but to consider the remaining legislation.

Although the Marine Act is the primary marine legislation it did not replace the Acts repealed by section 227(1) until 15 August 1988 (see G.N. 1288/88) and did not, in particular, repeal the PAF Act which, as has already been seen, has been law since 1975. Furthermore, and in my view most significantly, Section 3(2) of the Marine Act provides 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."

By Legal Notice 5 of 1977 Suva was declared to be a port. It is therefore important to analyse the PAF's powers and duties in respect of it.

Section 10 of the PAF Act defines the functions of the PAF. Section 10(a) authorises the PAF:

"to regulate and control navigation within ports and the approaches to ports;"

Section 10(d) authorises the PAF:

"to coordinate all activities within ports;"

Section 11(c) empowers the PAF:

"to authorise any person to carry out any work or perform any act in furtherance of its functions and powers;"

Section 11(f) empowers the PAF:

"To provide services within a port or the approaches to a port- (vi) in piloting any vessel;"

So far as rates are concerned Section 31(b) authorises the PAF to levy rates for:

"the provision of pilotage services to any vessel within the territorial waters of Fiji."

The PAF appoints a Port Master under Section 39 of the PAF Act and Section 40(1)(c) authorises the Port Master "within a port or the approaches to a port" to:

"Regulate the movement of vessels generally".

Finally, Section 63(1)(t) empowers the PAF to make regulations:

"providing, regulating and controlling the operation of pilotage services" within any port and the approaches thereto.

An interesting section of the PAF Act is section 64. This section has the effect of preserving such Harbour Regulations (made under the Harbour Act - Cap 160 - 1967 Edn.) as were not inconsistent with the new PAF Act and pending the making of new Regulations. The relevance of these Harbour Regulations is that they not only include provision for pilotage dues (Regulation 3) but also provide that these dues are payable whether or not a pilot is actually used (Regn 4) and that all dues payable under the Act or Regulations are to be paid to the Director of Marine (Regulation 158).

Whether the Harbour Regulations have ever been directly repealed is not clear. Although the Marine Act repealed the Harbour Act it did not, as has been seen repeal the PAF Act. Whether directly repealed or not it is however apparent that they were superseded as was the Pilotage (Amendment) Order 1982 (LN 121/82) referred to by the Plaintiff.

The first pilotage Regulations made by PAF under the PAF act appear to be the 1988 Regulations which replaced the former 1984 Regulations but which additionally and importantly for the first time included provision for pilotage dues and fees (Regulations 19 - 19(10)). These Regulations were themselves replaced by the 1995 Regulations on 1 February 1995. The principal purpose of this latter regulation was to increase the prescribed fees.

The wording of these 1988 and 1995 Regulations is important. As I read them there is a clear difference between Regulations 19, 19(2), 19(3), 19(4) and 19(5) on the one hand and 19(6), 19(7), 19(8), 19(9) and 19(10) on the other. The first group of Regulations simply provide for payment of pilotage dues at the prescribed rates. The second set however provide for compensation to be paid to the pilot for what might broadly be termed instances of inconvenience or additional out of pocket expenses brought about by exceptional circumstances.

Having examined the legislation it is now possible to put this dispute in to its proper context. In my view this is a perfect example of the maxim generalibus specialia derogant - special things derogate from general things.

As I see the position, the Marine Act covers the whole of Fiji. Under it 7 pilotage areas were declared by the Minister in July 1990. One of the areas is the port of Suva but the other 6 are not. To such of these other areas as are not declared ports the 1990 Regulations apply but in my view they do not apply to declared ports including the port of Suva. This is because the Marine Act does not apply in the port of Suva where its provisions are inconsistent with the provisions of the PAF Act. The whole purpose of the PAF Act is to give the PAF authority over the operation of its ports: the specific authorities and powers given to the PAF have already been pointed out. As I read the PAF Act the PAF has the full authority to control pilotage within its ports including the authority to levy pilotage fees. Those fees are levied by PAF, not by the Minister acting under the Marine Act. The Minister's powers to regulate pilotage dues extend to the whole of Fiji except where specific alternative provisions have been made. Where such provision exists the 1990 Regulations simply have no application.

Although it appears that pilotage fees levied under the 1990 Regulations are paid to and may be retained by the pilot I am satisfied that from a careful reading of the PAF Act, the Regulations thereto, from the previous Harbour Regulations and from past practice as appears from the affidavit evidence there can be no question of pilots who are employed by the PAF being entitled to retain the pilotage fees set out in regulations 19 to 19(5) of the 1988 or 1995 Regulations for piloting vessels within a PAF port. I reach this conclusion although aware that my approach is somewhat different from that adopted by Fatiaki J in the related matter already referred to.

The action fails and is dismissed.

MD Scott
Judge

26 November 1998

HBC0487.97S