State v Ports Authority of Fiji, Ex parte Sofrana Unilines [1998] FJHC 26; Hbj0034j.1996s (3 March 1998)

Fiji Islands - The State v Ports Authority of Fiji, Ex parte Sofrana Unilines - Pacific Law Materials

IN THE HIGH COURT JI

At Suva

Civil Jurisdiction

JUDICIAL REVIEW NO. 0034 OF

The State

v.

Ports Authority of Fiji /p>

exe Sofrana Unilines

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr. H. Lateef he Applicant

Mr. A.R. Matebalavu for the Respondent

JUDGMENT

b>Ports Authority of Fiji ('PAF') is a statutory corporation established in 1975 under Section 4 of the Ports Authority of Fiji Act (Cap.181) ('the Act'). Amongst its many statutory 'functions', PAF is charged with responsibility:

"to provide and maintain adequate and efficient port services and facilities in ports or appro to ports."> [See: Section 10(a)]

In the drge of its 'functions', PAF has, amongst many others, 'power':

"(f)  p; to provede sere sere services within a port or the approaches to a port, (including)

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(ii) &bsp; in loadi g orharging goodsgoods ... in or from any vessel;

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(iii)&nbs) &nbbsp; in prov providing stevedones and other labour and equipment at wharves ...;

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and

(sp; nbsp; inisort..g .oring ... or o or otherwise

handling any goods."

and 'goods' are broadly defined in 'the Act' as "(including) animals, carcasses, baggage and other moveable personal property of any kind whatsoever".

'The Act' also expressly provideovides in Sections 28 to 30 & 33 for the levying and receipting by PAF of 'dockage', 'port' and 'wharfage' dues at "such rates as it shall ... prescribe for the use of any land, works or appliances belonging to it and for services, goods or facilities provided by it in pursuance of its powers ..." (Section 31) and in particular for:

"(a) &nbsp the landsng, inippwharfagerfage, cranage, storage of goods and the deposit with it or the placing of goods in its custody or control."

In terms of Section 37, PAF is authorised to gexemptions and reductions, refunds, or waivers of any dues dues levied or rates prescribed by it, and by Section 63(1)(s) PAF is empowered amongst other things to make regulations: "... settling the mode of payment of dues and rates leviable under this Act, facilitating their collection and preventing their evasion".

On the 23rd of November 1984 in xercise of its regulatory powers PAF published in thin the Fiji Royal Gazette the Ports Authority of Fiji (Tariffs) Regulations 1984 (the '1984' Regulations), fixing the amounts and rates payable for various dues and charges levied by it including port dues; port and wharfage charges (Regulation 4); dockage dues; tug service charges; labour hire charges; and storage charges for conventional goods and containers (Regulations 13 & 14).

The '1984 Regula' were subsequently replaced by the Ports Authority of Fiji (Tariff) R Regulations 1988 (the '1988' Regulations).

It may be noted here the following significant changes that were made by PAF in 'the 1988 Regulations' - firstly, Regulation 13(4) of 'the 1984 Regulations' which dealt only with storage space 'provided for the purpose of sorting goods' was substantially extended by a new Regulation 13(4) to include numerous new "purposes" including 'overstowing' and 'storing cargo gear (excluding containers)', and secondly, Regulation 14(2) in 'the 1984 Regulations' which expressly provided for a 'free period of storage' on the applicant's premises for containers, was wholly deleted.

The '1988 Regulation> were subsequently repealed and replaced by the existing regulations, namely, the PortsPorts Authority of Fiji (Tariffs) Regulations 1995 (the '1995' Tariff Regulations) which received ministerial approval on 11th January 1995 and came into effect on 1st February 1995.

Regulation 4 of the '1995 Tar5 Tariff Regulations' entitled: Port and Wharfage Charges reads (omitting Tables 2 & 3):

ass=MsoNormal stal style="text-indent: -70.35pt; margin-left: 106.35pt; margin-top: 1; margin-bottom: 1"> 4.- ;&nspp;&nssp;  p; &nbp; &nbp; ; (1p &nbss;&nbbs; &nbp; Subject to thiulation, whe, where gare drged or lointo sel w a port -

"> p class=MsoNormaNormal style="text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom: 1"> (a) ther wner onethat vessevessel shall pay to the Authority a charge in respect of that vessel, known as a port charge on vessel, calculated by reference to those goods, inrdanch Tabor 3, as the case may be.span><

(b) & the shipper or coor gnesignee of those goods shall pay to the Authority a charge in respect of those goods, known as age c on g/u>, latedccordance with Table 2 or 3, as the case case may bmay be.

(a) &&nsp;; espty cpntainers orrs or empty pallet boards;

(b) goods discharged from andareloaded into a vessel solely for the purpose of facilitating storage in that vessel; or

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(c) &nnbsp;;&nbssp; bsp; bun; bun; bunker fuels and ships stores loaded onto a vessel for its own use.

&nbs> Regulation 13 entitled: StStorage charges - Cargo (excluding Table 12) provides:

13. ;&nbssp; &nsp; &nsp;  p; &nnsp;&&nsp; &nbp; (1p&nbssp&nbbsp; &nbs; Subject to thgs reiolatwhe, where goods are storethe Aity'sises the own thosds shay storage charges t/u> to theo the Authority calculated in accordance wnce with Tith Table able 12.

(sp; Where gaods toe stor s on d on the Authority's premises for a period exceeding 14 days the charges for the fifteenth and subsequent days shall be calculated on a weekly basis and any part or remaining part of a week shall be treated as a week.

(3) &nbssp;&nnbsp;&nsp; Wsp; Where a person anted nted warehouse storage space by the Authority he shall pay to the Authority charges calculated at the rate of:

(a)  p;&nssp; $1.82 a 82 a 82 a week or part of a week for each cubic metre of covered storage space so granted; and

(b) ;&nbssp; &nsp; $sp; $1.25 a week or of a of a week for each cubic metre of open storage space so granted.

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(4) &nnbsp;  p; spp; Where aopers g is granteranted space on the Authority's premises for the purpose of:

(ap; sorting goodsn/span>spa>

(b)  p; &nssp; ceam cleaning

(c) &nbsp  &&nsp;&nbsp &nbsp fumon

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(d) ;&nbssp;&nnbsp; bsp; bsp; contacontainer cleaning

(e)&nbs) &nnbsp;; &nsp; overstowingspan>

man">(f)&n(f) &nbbsp;&nbp; ssp; storing pallet and cand cargo gear

(g)">(g)&nbsp &nbs; &nbbsp;&&nbp; asp; any other simiuar fonction

he shall pay to the Authoriarges calculated at the rate of $2.25 a week or part of a wf a week for each square metre of space so granted.

(5) &nnsp;& Fsp;ther urpopes ofes of the Table 12 the 'relevant day' (other than for LCL goods) means -

man">&nbsp (a) &nbbsp;& bsp;hen tse ca i of i of inward goods - the day the vessel on which the goods arrived finishes discharging; and

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(b) &nbssp;&nnbsp;&nsp; isp; in the case of rd good good goods - the day when the consignment, or the first part of the consignment of the goods is received onto the Authority's premises.

(a) &nnsp;& isp;he tse case ofse of inward goods - the period ending 3 days after the LCL container has been completely unstuffed; or

ass=MsoNormaNormal style="text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom: 1"> (b) &nisp; e the oasoutw rd gord goods - the period starting when the LCL container is stuffed.

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(7) & &nsp; Storage for the purpof subf sub-regulation (1), shall be deemed to have finished when -

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(a) ;&nbssp; &nsp;&nsp; in the case of d goods - ts - the goods are delivered and

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bsp; i the oaseutf outwaod good goods - the vessel onto which the goods are to be loaded, berths in the port.

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(8) ;&nspp; Wsere trae transhipnshipment goods are stored on the Authority's premises for a period which exceeds 5 weeks the owner of those goods shall pay to the Authority storage charges in respf that of torage period whid which exch exceedsceeds 5 weeks at the rate of:

(a) &nbssp;&nnbsp;; bsp; $1.85$1.85$1.85 a tonne or part of a tonne of the goods for each week or part of a week for covered storage or

(b)  p;&nssp; $1.25 a 25 a 25 a tonne or part of a tonne of the goods for each week or part of a week for open storage.

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(9) &nbbsp; thsp;the purposes ofucalcngatingating the storage period in respect of transhipment goods storage shall be deemed -

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(a) ; to ; te havrtedarted on thon the day following the completion of the discharge of the vessel on which the goods arrived: and

(b) &nbbsp; to have ended on the day oday on which the vessel onto which the goods are to be loaded, berths in the port.

For the sake of completeness are defined in 'the 1995 Tariff Regulations' as:

"goods which are shipped or intended to be shipped, within a cont together with other goods in different consignment, on varn various bills of lading."

and 'transhipment goods' me/span>

"goods entered on a ship's manifest as consigned to another port on a through bill of lading and which are unloaded and reshipped without leaving the control of Customs while in a port in Fiji."

As for who is the 'owner' of the stored goods, Sn 2 of 'the Act' provides that:

"owner' when used in relation to goods, includes any person being or holding himset to be the owner, importerorter, exporter, consignor, consignee, shipper, agent or person possessed of or beneficially or potentially interested in or having any control of or power of disposition over the goods."

Furthermore and although no mentio been made of it I include Regulation 14 which is entitled: Storage Chae Charges - Empty Containers and which reads (excluding Table 13):

14.- ; &&bsp;&nsp;;&nbpp; & (1p; (1)&nbsp &nbbsp;&&nsp;; Wsp; Where aere an emptyainertoredhe Auty's ses tner o cont shal to tte Authorithority stoy storage rage chargcharges caes calculalculated ited in accn accordanordance with Table 13.

(2) &nnbsp; StoraStorage in the case oase of a container stored on the Authority's premises awaiting loading on to a vessel, shall be deemed to have ended when that vessel berths in the port in which the container is stored.

ass=MsoNormaNormal style="text-indent: -36.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom: 1"> (3) Where a refrigeraigeratedeor reefer container is supplied with electricity by the Authority the owner of the goods in the container shall pay to the Authority for such services charges cated a rate55.00 for each day or part part of a of a day sday such services are provided.

In so far as this Regulation is concerned an 'empty containe> is defined as:

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"a container shipped or intended to be shipped empty."

So much then for the relevant statutory framework undeg this case.

The facts are not in dispute. The applicant Sofrana Unilines is the owner of several vessels that regularly berths at and uses the services and facilities owned and provided by PAF at the Lautoka and Suva Wharves.

The appl's specific complaint is based upon three (3) PAF Invoices issued to the appl applicant's local agent Carpenters Shipping in August and September 1996, and relating to storage charges for cargo, containers and machinery temporarily off-loaded from the applicant's ships. These charges are more precisely described in the Invoices as: 'Being space for overstow cargoes' in 2 instances and: 'Being for space for stuffing containers' in the third.

Pursuant to leave granted on the 14th of January 1997 the applicant company issued an application for judicial review challenging PAF's Invoices or, more accurately, the charges levied thereunder on the following grounds:

(a) That Ports Auts Authorfty of Fiji is acting unfairly in levying these charges on the Applicant when such charges are not justified and/or are contrary to the Ports Authority of (TariReguls of 1995.

(b) That the Ports Auth rityijf Fiji abused its discretion under the Ports Authority of Fiji (Tariffs) Regulation 1995 in that:

span lang=EN-G=EN-GB styB style="fle="font-font-familyamily: Tim: Times New Roman">

(sp; Ik tooo into cntsidenationation irrelevant matters; and

(ii)&nbssp; It did not tate inns consiconsideration relevant matters; and

(iii) It acted wrongly and/obad faith

and/or unreasonably; and

(iv) ;&nbssp; It actt acted unreasonably in levying ying the Applicant these charges when some of these charges are already ind in the berthing fees paid by the ships owners.

(c) ; That the Ports Auth Auty oity of Fiji exceeded its jurisdiction under the Ports Authority of Fiji (Tariffs) Regulation 199.

In this regard the of the applicant company complains in paragraph 5 of his primary afry affidavit "... that since the beginning of 1996 (PAF) has started levying charges in respect of

ass=MsoNormaNormal style="text-indent: -72.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom: 1"> overntowite a nolmiy usgy used by the Respondent bt defin eithe Act oru> or the the Tariff Regulation or in any recognised dictionary.

This is the removal of cargo from the vessel and plon the wharf to enable the the Respondent to gain access to cargo destined for that particular port.

p class=MsoN=MsoNormal style="text-indent: -72.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom: 1"> (b)  p;&nssp;&nbs; &nbp;  p; -snbsp; &nbbsp; &nbp; &nbp; &nbsorage charors for ship'ship's equipment plan thef whie Respondent in its responsibility evedoas tove to gain access to the cargo.

(c)&nbbsp; &nbsp ; &nnsp;&&nsp; &nbbsp; &nbp; &nbp; -&nnbsp; p;nbsp; nbsp; &; Spp chathat he st charr harr containeaced on the wharf to enable alle all the the looseloose carg cargo delo delivereivered to d to be packed into the containers for export shipment on the l.&quspan>/b>

For its part the Manager Corporate and Legal Services of PAF without in any way denying the Invoices or the factual basis or meanings attributed to the terms 'overstowing' or 'stuffing' used in the Invoices deposes:

"7.; &nsp; By virtue of Regulat3(4) o(4) of the Regulations PAF is entitled to charge for cargo overstowed at the rate of $2.25 per week for each square metre of space utilised.

8.&nbssp;&nnbsp; &nbsp nbsp; Theorati for charging by P by PAF in respect of overstowed cargo is that such cargo including containerised impose weight and wear and tear to the wharf structure.

11.; Charges for overstowing werg were levied in these instances because cargo belonging to the applicant and bound for the next port of call of the subject vessels had to be unloaded from the said vessels onto the wharf in Suva, to enable cargo bound for Suva to be unloaded."

as for the 'stuffing charges' the deponent says:

"15. &nbs; Thr cha..es as wposed by d by PAF under Regulation 13(4) of the Regulations and for space on PAF/Wharf premises, for stuffing of containers belonging to the applicant."

Counsel for the applicant in histen submissions whilst accepting that the term 'overstowing' appears in ReRegulation 13(4)(e) nevertheless:

"contends that the respondent has exceeded its jurisdiction by levying this charge as this is already levied on the shipper or consignee pursuant to Regulation 4 under 'wharfage charge'. Further Regulation 4(2)(b) clearly states that no wharfage charges are payable on:

"goods discharged from and reloaded into a vessel solely for the purpose of facilitating storage in that vessel."

Counsel further argues that:

"the Respondent has misdirected itselattempting to use Regulation 13 to levy these charges. Regulation 13 refers to storage of c of cargo as opposed to removal of cargo from a vessel to facilitate access to cargo bound for that port."

As for the 'stuffing charges' counseepts that loose cargo left on PAF premises for more more than three (3) days is liable to be charged fees [See: Regulation 13(1)] but in counsel's submission:

"It is the charging of the space occupied by empty containers whbeing packed on the wharf which ... is outside the scope ofpe of the (Regulations). None of the sub-regulations of Regulation 13 accommodates this type of levy. Regulations 13(6)(b) determines the relevant day for loose cargo under Table 12 which in fact stipulates charges by the day until the expiry of 14 (fourteen) days of loose cargo left at the wharf.

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Here the respondent is charging for space occupied by empty containers and charby the week as well."

Counsel for PAF in seeking to uphold the levied charges relies on Section 30 of b>Act which ""makes it mandatory for PAF to levy and collect wharfage dues for goods landed or discharged within a port" and further submits:

"Regulation 13(4) of the Tariffs Regulations empowers PAF to charge for space granted on thef also, for the purposes spes specified. In this case storage of the applicant's (Kato) Excavator is clearly service for which PAF is entitled to charge under sub-paragraphs (a) and (g)."

In respect of the 'stuffing charges' counsel writes:

"Likewise the charge by PAF in respect of stuffing of the cont belonging to the applicant was valid as authorised also byso by Regulation 13(4)(a) and (g)."

Finally in seeking to distsh Regulation 4(2)(b) Counsel submits:

"... the subject cargo was being discharged by PAF agents to enable cargo bound for Su be unloaded, (and) not 'solely for the purpose of facilitating storage in that vessel."

In conclusion Counsel for PAF writes:

"The action of PAF in charging for the services wasonable and lawful. In carrying out the services PAF was acts actually expending labour and time, and for which it is envisaged under the Act and Tariff Regulations, PAF shall charge. The words of Section 30 and Regulation 13 of the Tariff Regulations, as well as Regulation 4(2)(b) are clear and unambiguous and should be enforced."

Having earlier set out the relevant 'func'; 'powers'; 'dues'; and regulatory authoauthority of PAF there can be no doubting that the intention of the Act was to set up and give to PAF very extensive and comprehensive powers of control over all land vested in it including wharves and approaches to ports.

Furthermore that in the exercise of its functions and powers within its area of jurisdi and sphere of operations PAF was clearly meant to be an independent, commercially-oriented body acting in the interest of safe navigation and the efficient and orderly utilisation of its port services and facilities.

Given the all-encompassing naturPAF's 'powers', 'functions', and 'rate-fixing' authority, there is nois not the slightest doubt in my mind that 'the 1995 Tariff Regulations' are 'intra vires' both in nature and contents and I so find.

Furthermore it ificiently clear that Regulation 4 imposes two (2) distinct charges - 'a'a port charge in respect of a vessel' within a port and 'a wharfage charge in respect of goods' discharged from or loaded into such vessel. It is also plain from Tables 2 & 3 that the charges differ according to the origin or destination of the goods and whether the goods are containerised or not, but, what they both have in common, is that the charges are calculated according to "the total amount of goods discharged from or loaded onto a vessel in a port".

In other Regulation 4 charges relate solely to the total tonnage or size of the cont container of 'goods discharged from or loaded into a vessel' and nothing more. It makes no reference to any time frames, or the area of PAF's premises occupied by the discharged goods or container or to any services, equipment or facilities provided by PAF in respect of the 'goods' or containers after they have been discharged from or before they are loaded into a vessel. These are all dealt with elsewhere in the Regulations.

It is in thve context that the 'exemption' heavily relied upon by the applicant and provided foed for in Regulation 4(2)(b) must be considered. In my view Regulation 4(2)(b) was intended to apply to the situation where goods are temporarily discharged from a vessel onto PAF premises in order to allow the loading or storage of other goods in the vessel and not otherwise.

True h the 'goods' in Invoice 69637 and the 'excavator' in Invoice 18778 were temporarily discharged and reloaded onto the applicant's vessels but that was not 'solely for the purpose of facilitating storage in the vessel' rather, and this is common ground, it was, to adopt the applicant's submission, 'to facilitate access to other goods bound for that port' i.e. to enable goods to be discharged NOT loaded.

The applicant's suggestion that the levying of 'storage charges' under Regulation 13(4) 'is already levied on the shipper or consignee pursuant to Regulation 4 under wharfage charges' is patently misconceived and ignores the clear difference in both the nature and content of the charges levied under the respective Regulations.

The Act'wharfage' and 'storage' of g of goods in the context of levying 'rates' [See: Section 31(a) op.cit at p.2] and accordingly there is no necessary or inevitable conflict or duplication in the charges envisaged and levied under Regulations 4 and 13.

Needless to say I cannot accept 'berthing fees' or more accurately, 'dockage dues', which are leviabeviable under Section 28 of the Act and imposed under

Regulation 5 on 'the of a vessel which berths aths at a wharf owned by (PAF)" can, by any stretch of the imagination, be said to include 'wharfage charges' which are leviable under Section 30 and imposed in Regulation 4(1)(b) on 'the shipper or consignee of goods'.

Counsel's further submission that Regulation 13 refers to 'stoof cargo' and NONOT to 'removal of cargo' is only superficially attractive when one considers the actual wording of Regulation 13(4) which refers specifically to the 'space' granted by PAF on its premises for any of the purposes outlined in the sub-regulation including, '(e) overstowing'; '(f) storing ... cargo gear' and '(g) any other similar function' which latter 'purpose' would include, in my opinion, 'stuffing' of a container.

Furthermore when one considers the description ('for stuffing') ae charge rate ($2.25) in Invoice 69688 it becomes apparent that the legal basis for the charge is Regulation 13(4) and not Regulation 14 which clearly refers to the storage of containers on PAF's premises and is charged-out on the basis of a 'daily rate' depending on the size of the container and irrespective of the area occupied.

I accept that it is not entirely clear from the evidence whether the Invoice 69688 relates to the 'space' occupied by loose goods before they are stuffed into the applicant's containers, or, to the space occupied by the applicant's empty containers, of which there were 4 in number, before and whilst being stuffed. The applicant claims it is the latter and PAF says the former. In that inconclusive state I find against the applicant which bears the evidential burden.

Doubtless Regulation 4(2)(a) exempts 'empty containers' from 'port and whe charges' but <Invoice 69688 does not relate to 'empty containers' as defined, and therefore the charges cannot be exempt on that score.

Indeed on the applicant's own evidence the containers listed in Invoice 6/b> were: '... placedlaced on the wharf to enable all the loose cargo delivered to be packed into the containers for export shipment on the (applicant's) vessel'. In other words, the applicant's containers were neither, to use the words of the definition, '... shipped or intended to be shipped empty'.

In summary, 'port dues' applies to vessels entering a port controlled by PAF; 'dockage dues' refers to vessels berthed at a wharf owned by PAF; 'port and wharfage charges' relates to the tonnage of goods loaded or discharged from a vessel within a port owned and operated by PAF; and 'storage charges' are levied primarily on the 'duration' that goods are stored on PAF's premises or the 'area or volume' of the space occupied by goods stored or placed on PAF's premises.

In light of the foregoing analysis there is not the slightest merit in any of the and submissions ions made by the applicant and the application is accordingly dismissed with costs to PAF to be taxed if not agreed.

D.V. Fatiaki

JUDGE

At Suva,

3rd March, 1998.

Hbj0034j.96s