IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0245 OF 2001

BETWEEN:

CAMPBELL'S SHIPPING AGENCY LIMITED
SHIPPING SERVICES (FIJI) LIMITED
WILLIAMS & GOSLING LIMITED
PACIFIC AGENCIES (FIJI) LIMITED
Plaintiffs

-v-

PORTS TERMINAL LIMITED
Defendant

Mr. W. Clarke for the Plaintiffs
Mr. H. Lateef for the Defendant

JUDGMENT

By originating summons the plaintiffs seek the determination of the Court on the following questions (as in the summons):

1.	Under what circumstances is the Defendant empowered under Sections 30 and 31 of the Ports Authority of Fiji Act Cap. 181, the Ports Authority of Fiji (Amendment Act) 1999, Section 13(1) Ports Authority of Fiji (Tariffs) Regulations 1995, Sections 22(1)(c) and 59 of the Public Enterprise Act 1996, directions given to it by the Minister of Infrastructure, Public Works and Transport through the Ports Authority of Fiji (Tariffs) Regulation 1995 and the Minister for Public Enterprises and the Defendant’s own Reorganisation Charter to charge the Plaintiffs for the first three days of storage at Suva wharf?

2.	In light of the answer to question 1, has the Defendant acted unlawfully in charging the Plaintiffs for the first three days of storage at Suva wharf?

3.	If the answer to question 1 is yes, is the Defendant liable to refund all monies it has unlawfully charged and received from the Plaintiffs? If so, what amount is each Plaintiff entitled to?

Mr. Lateef for the defendant, says that there is only one issue for the Court to decide, namely: “Is the Defendant entitled to charge for storage for the first three (3) days of cargo discharged at Suva Wharf but destined to Lautoka wharf”.

Further, on the issue, the learned counsel for the defendant submits as follows:

(a)	the question of whether the defendant acted lawfully or unlawfully is adequately canvassed in the first issue stated hereabove;

(b)	the third question of the Court ordering refund does not come within the scope of the originating summons. He says that if the Court rules in favour of the plaintiffs, then accounts between the parties can be taken.

Mr. Lateef submits that ‘it would be unnecessary for the Court to consider the numerous invoices annexed to the various affidavits filed on behalf of the plaintiffs suffice to say that they all relate to cargo destined for Port of Lautoka but discharged at port of Suva.’

I agree with Mr. Lateef’s submission as above and I shall deal with the issue stated by him, and if the judgment is in favour of the plaintiffs then accounts can be taken between the parties to determine what if any amount is to be refunded to them.

Plaintiffs’ submissions

The plaintiffs are duly licensed shipping and cargo handling agents. This means that they handle the importation and export of cargo in containers or otherwise. On behalf of customers, they handle all importation documentation including but not limited to customs, quarantine and clearing functions. They are agents of their customers. They say that since 1996 they have been complaining that when any of the plaintiffs have taken delivery of containers from overseas for customers, the defendant has unlawfully charged them for storage of those containers at Suva wharf for the first three days of storage. This has been the case for containers in transit to Lautoka. This practice they say has resulted in massive overcharging of the plaintiffs and their customers by the defendant. The plaintiffs do not deny that the defendant is entitled to levy charges for cargo storage but the question is ‘how and in what manner the defendant has stepped outside the relevant statutory scope which governs its operations’.

Mr. Clarke submits that the relevant governing regulations in respect of the defendant are the Ports Authority of Fiji (Tariffs) Regulation 1995. He says that the PAFA has never been repealed. He further states that there is another set of Regulations and that is Maritime and Ports Authority of Fiji Islands (Tariff) Regulations 2001 applicable to MPAF which does not affect the defendant. Mr. Clarke submits that under the Regulations the plaintiffs are entitled to free storage for the first three days of storage but the defendant trans-shipped cargo (i.e. cargo destined for Lautoka and therefore held in Suva), and it has not been giving the plaintiffs the benefit of this right.

Mr. Clarke submits that the defendant’s argument that there is no free storage period for trans-shipment goods should be rejected. Counsel submits that the defendant cannot charge the plaintiffs in respect of trans-shipped goods in the manner it has done.

The defendant’s submission

The defendant submits that the only issue for the Court’s determination is: “Is the Defendant entitled to charge storage for the first three (3) days of cargo discharged at Suva Wharf but destined for Lautoka Wharf?”

It agrees that the issue consists mainly of interpretation of the Ports Authority of Fiji (Tariff) Regulation 1995.

Counsel for the defendant submits, inter alia, that Regulation 1995 is the legislation to be looked at as far as this case is concerned. He referred to the definition of the word ‘trans-shipment’ and said that the goods destined for Port of Lautoka but discharged at Port of Suva and later taken across to Lautoka wharf, mainly by road, are not trans-shipment goods and hence are not entitled to rates applicable to trans-shipment goods as per Regulation 13(8) of the Tariff Regulations.

Mr. Lateef further submits that Rates for Storage under the Regulations are set out in Regulation 13 and Table 12. But he says that Regulation 13 refers to the “owner” as the person responsible to pay the storage charges as opposed to the shipping or the handling agent. He submits that it can be seen from the said Table that the first 3 days of storage in the Authority’s premises are free and different rates apply thereafter.

Mr. Lateef goes on to submit, and this is thrust of his argument:

“the table or the regulation do not specify any particular port but merely mention “the Authorities premises”. The Defendant maintains that goods discharged and destined for port of Suva will be granted 3 days free storage in Suva. It further maintains that goods discharged at port of Suva but destined for port of Lautoka will be and is granted 3 days free storage in Lautoka. This means storage at Suva wharf must be paid.” (emphasis mine)

Consideration of the issue

As required by Court, both counsel made helpful written submissions and I have given these due consideration.

To get a clear picture of the status of the Ports Authority of Fiji Act (PAFA) and the Re-organisation of Ports Authority of Fiji (PAF) in so far as it relates to the issue before me, an account of the legislative changes and development in regard to the Ports Authority of Fiji has been well stated by Mr. Clarke in his written submission which is as follows:

Prior to 1997, Ports Authority of Fiji (PAF) was one single enterprise which handled all matters related to wharfs, stevedoring, storage and other related activities. The principal legislation which governed the operation of PAF was the Ports Authority of Fiji Act (PAFA) Cap. 181.

Under that legislation, the Plaintiffs were, for the purposes of the agents of customers and customs handlers, the “Owners” of those goods: section 2, PAFA.

Ports Authority of Fiji (Tariffs) Regulation 1988 which were made under the auspices of sections 28, 29, 30, 31 and 63 of PAFA conferred on “owners” of goods the right to store goods on the Authorities premises free of charge for the first three days of storage. Section 13 and Table 12 of these Regulations made this very clear.

In 1995, new regulations were issued. Under section 13 of the Ports Authority of Fiji (Tariffs) Regulation 1995, owners of goods were also allowed the first three days of cargo storage free. Table 12 of these Regulations makes this clear.

Re-organisation of PAF

In 1995, PAF was re-organised by splitting its functions between 2 bodies. The Defendant was given responsibility for the following:

1.	stevedoring and cargo handling in Suva and Lautoka wharfs;
2.	pilotage both in designated ports and on coastal routes;
3.	all aspects of warehousing in Suva and Lautoka ports;
4.	local wharves at Suva and Lautoka.

The Maritime and Ports Authority of Fiji (MPAF) which is the part of the split off functions of PAF is not relevant to these proceedings.

It was clearly demonstrated in the Re-organisation Charter, pursuant to section 22(1)(c) of the Public Enterprise Act 1996, at page 4 that the “re-vamped PAF Act” would apply. The PAF Act was never re-vamped in respect of the defendant. What amendments have been made in respect of PAFA are only in respect of MPAF.

I agree that the determination of the issues rests on the interpretation of the Ports Authority of Fiji (Tariffs) Regulation, 1995 (Legal Notice No. 15 of 1995) hereafter referred to as the 1995 Regulations.

It is the 1995 Regulations which come into play in this case. Here the goods destined for Lautoka arrive at the Port of Suva and are trans-shipped to Lautoka. In Regulation 2 “trans-shipment goods” is defined to mean:

“goods entered on a ship’s manifest as consigned to another port” on a through bill of lading and which are unloaded and re-shipped without leaving the control of Customs while in a port of Fiji.

In the light of this definition, both counsel agree that goods destined for Port of Lautoka but discharged at Port of Suva and later taken across to Lautoka wharf by road are not trans-shipment goods and hence are not entitled to rates applicable to trans-shipment goods as per Regulation 13(8) of the 1995 Regulations which provides:

Where trans-shipment goods are stored on the Authority’s premises for a period which exceeds 5 weeks and owner of those goods shall pay to the Authority storage charges in respect of that part of the storage period which exceeds 5 weeks at the rate of:

(a)	$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)	$1.25 a tonne or part of a tonne of the goods for each week or part of a week for open storage.

The ‘Storage charges – Cargo’ are as set out in Regulation 13(1) which provides:

Subject to this regulation, where goods are stored on the Authority’s premises the owner of those goods shall pay storage charges to the Authority calculated in accordance with Table 12.

Table 12 states that the first 3 days of storage on the Authority’s premises are free and different rates apply thereafter.

I would say that reference to ‘owner’ in Regulation 13 being liable to pay storage charges includes the plaintiffs who act as agents. There is no need to split hairs on what the word ‘owner’ means.

The plaintiffs are taking action against the defendant for allegedly unlawfully charging them for storage for the first three days of storage where that cargo is being trans-shipped to Lautoka. According to the plaintiffs, by law the plaintiffs as shipping and cargo handling agents are entitled to the first three days of storage free regardless of whether the cargo is to be cleared in Suva or transhipped to Lautoka.

Having considered the arguments put forward by both counsel, Regulation 13(1) and Table 12 quite clearly state that the first three days are free on the Authority’s premises whether the goods are discharged at the Port of Suva or at the Port of Lautoka. In this regard I agree with Mr. Lateef when he says that as long as the three days free storage is granted in any Port of Fiji, the Defendant is not in breach of the Regulation. Only one set of three days free storage should be given.

Having considered the submissions from both counsel and considering the relevant Acts and Regulations referred to hereabove, it is my interpretation that the plaintiffs are entitled to first three (3) days free storage under the said Regulation 13(1) and as set out in said Table 12. The plaintiffs are entitled to this concession at the Port of Suva despite the fact that the goods are discharged in Suva for trans-shipment to the Port of Lautoka. There will be no second concession of three (3) days pre-storage at the Port of Lautoka once the goods arrive at Lautoka and are finally discharged at Lautoka.

For these reasons the answer to the issue: ‘Is the Defendant entitled to charge for the first three (3) days of cargo discharged at Suva Wharf but destined for Lautoka Wharf?’ is in the negative and I find accordingly. It therefore means that the plaintiffs have been unlawfully charged for the first three days of storage in the Port of Suva they will therefore be entitled to a refund of all moneys paid by them after accounts have been taken between them for the period they have been unlawfully charged. By the same token if they have been granted three days free storage in Lautoka then when accounts are taken this aspect will have to be adjusted and set off.

The plaintiffs therefore succeed in their application to the extent that they have been unlawfully charged storage at the Port of Suva for the first three days and therefore an account between the parties should be taken and adjustment made if free storage was granted at Port of Lautoka. It is ordered accordingly with costs to plaintiffs to be taxed if not agreed. Liberty to parties to apply generally.

[ D. Pathik ]
JUDGE

At Suva
31 March 2003