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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL APPEAL NO. 0038 OF 2005
Between:
DAVID ANTHONY EVANS
Appellant
- and -
THE HONOURABLE MINISTER FOR TRANSPORT AND CIVIL AVIATION
THE DIRECTOR, FIJI ISLANDS MARITIME SAFETY ADMINISTRATION
FIJI MARINE BOARD
Respondents
CIVIL APPEAL NO. 0039 OF 2005
Between:
TREVOR SEMITI PATTERSON
PATTERSON BROTHERS SHIPPING CO. LTD.
Appellants
- and -
THE HONOURABLE MINISTER FOR TRANSPORT AND CIVIL AVIATION
THE DIRECTOR, FIJI ISLANDS MARITIME SAFETY ADMINISTRATION
FIJI MARINE BOARD
Respondents
Counsel: Mr. G. Leung & Mr. S. Leweniqila for the Appellants
Mr. H. Nagin for the Respondents
Date of Hearing: 20th October 2005
Date of Judgment: 21st December 2005
JUDGMENT
A. Introduction
[1] On the 23rd of August 2003 the M.V. Ovalau II sank. She was a small roll-on roll-off vessel for vehicles, cargo and passengers. No one lost their life or was injured. The appellant company Patterson Brothers Shipping Company Limited (the Company) is the owner of the vessel. Trevor Semiti Patterson is the Operations Manager of the Company. The appellant David Anthony Evans conducted an underwater hull survey of the vessel shortly before she sank.
[2] The Minister for Transport and Civil Aviation ordered a Marine Enquiry under the Marine Act (No.35 of 1986). The appellants say that their conduct was called into question and they have been affected by the decision and findings of the Inquiry. They have appealed against the findings of the Inquiry under section 92(1)(d) of the Act.
[3] In broad terms their grounds of appeal are:
(a) that the Inquiry acted ultra vires in some of its orders,
(b) that there was no or insufficient evidence to support some of the findings and
(c) being persons whose conduct was likely to be called into question or who would be affected by the decision or might be affected adversely by a finding they were not given the opportunity under the Act or common law to make representations before the final report was formulated.
[4] The M.V. Ovalau II is some 942 gross tons and nearly 56 metres long. It was built in 1969 in Japan, its hull and superstructure being made from mild steel.
[5] Patterson Brothers Shipping Company Limited have been running ferry services in the waters of Fiji for over 70 years. They bought the vessel in 1983 and until the day of its sinking it had been plying the waters of Fiji as a ferry.
[6] At the outset I make it clear that I am hearing an appeal. I am not revisiting the evidence with a view to making findings as to what did and did not happen.
[7] The Marine Inquiry, as is required by the Act, was conducted by a person appointed by the Chief Justice, on the request of the Minister. In this case the person was a High Court Judge. He was assisted by two assessors who were knowledgeable in maritime matters.
[8] After sitting to hear evidence and argument for several days between January and March 2004 the final report was issued and dated 5th January 2005. There was counsel assisting the inquiry from the Attorney General’s Chambers, the owners appeared through Mr. Trevor Semiti Patterson and Mr. William Henry Patterson and they were also represented by counsel.
[9] Mr. David Evans gave evidence and was cross-examined but was not represented at the inquiry.
B. The Inquiry’s Findings
[10] At section F “Findings of the Inquiry” under the sub-title “Cause of the Casualty” the Inquiry stated “it became apparent that the M.V. Ovalau II capsized and sank by the accumulation of water on the vehicle deck.
“Contributing factors to the casualty include:
[11] “One of the main contributing factors is the failure of the authority – The Fiji Islands Maritime Safety Administration to properly adhere and enforce the Marine Act and Marine Regulations.
[12] “Unfortunately the proper surveying procedures of the Marine Act and Regulations, were not followed by the surveyors. They made a short cut of the system in favour of the ship owner.
[13] “The surveyors overlooked safety; it can be seen that practice is one thing and law is another.”
[14] The report continues,
“In fact the breach that caused the engine room flooding on the 23rd of August 2003 leading to the sinking of the M.V. Ovalau II was within the area not covered in the inspection (that of David Evans) stated above.
The first breach appeared and sealed in late March 2003 by the Chief Engineer, Mr. Timoci Naivalu.
[15] “The other three breaches occurred and sealed between April and July 2003 by the relieving Chief Engineer Mr. Bennie O’Brien. According to them, the sandwich plates were easily sealed as locations were accessible.
[16] “Then again on the fateful 23rd of August 2003 at approximately 0950 hours while the M.V. Ovalau II was on passage from Ellington to Nabouwalu, a breach opened up in the engine room approximately 125 mm by 20 mm on the starboard side and ½ metre from the centre line.
[17] “Under the No. 6 void tank another breach appeared measuring approximately 110 mm by 35 mm as was evidence on the video clip recorded by Mr. Charles St. Julian on the 27th of August 2003.
[18] “Mr. St. Julian confirmed that the four sandwich patches played no part in the sinking of the M.V. Ovalau II.
[19] “Mr. Waqa, the Principal Surveyor Supervisor answering Mr. Leung’s question as to cause of this particular breach said that it was not through grounding or grazing of seabed as abrasions and setups would be seen immediately around the breach. Indeed rust stains were found around the breach vertically downwards.
[20] “Further, Mr. Waqa said he would have second thought as to the integrity of the hull from the four breach.
“Mr. Nimilote, the deck surveyor stated that, he had been assured as to the integrity of the four sandwich plates by the Underwater surveyor.
[21] “In summary as to the hull condition, it is evident that;
[22] “My findings and those of the assessors therefore are that the M.V. Ovalau II had very severe structural weaknesses for so long and that three assigned surveyors failed miserably in the course of their duty to ensure a proper and efficient survey in accordance with the Marine Act of the M.V. Ovalau II for the ultimate safety.”
[23] There is then an analysis of the law and consideration of the representations by Mr. Leung on behalf of the Company and Managers, (e.g. p.41 “(d) the records show that the owners and management had exercised all due diligence.”)
[24] The Inquiry found that the sinking was not the result of “an act of god”. “Somewhere in the whole scheme of things the vessel’s illness was not clinically or otherwise diagnosed ... With expert surveyors the danger that was lurking in the hull of the vessel could have been easily detected and remedial actions taken rather then passing the buck and saying one is an underwater surveyor and it is not one’s responsibility to see to the condition of the vessel in the interior of the vessel.”
[25] At paragraph G “Recommendations and Observations”, a series of recommendations and orders were made. These included recommendations concerning extension surveys, the marine regulations, ultrasonic testing, under water surveying and under water survey applications.
[26] In relation to the assigned deck and machinery surveyors (none of these appellants) the Inquiry was critical of their actions and stated “I order the Marine Board to discipline the two surveyors ...”
[27] At paragraph 3 “The Underwater Surveyor” the position of Mr. David Evans is considered. The Inquiry stated:
“On his underwater inspection on 12th August 2003 at Natovi Mr. David Evans found four breaches secured with four sandwich plates and yet recommended extension of the ship’s survey certificate for another three months.
[28] “He knows the history of the M.V. Ovalau II well. He understands fully the delays in her slipping. The M.V. Ovalau II by now have been in the water and fully operational for 18 months. From experience he knows the breaches without any foreign contact indicated hull weaknesses. Above all he knows that there is no provision of sandwich plates whatsoever in the Marine Act.
[29] “All these factors should have given him enough proof and with no hesitation to recommend that the M.V. Ovalau II urgently needed an emergency slipping and he should have acted responsibly.
[30] “He has seen so many ships with sandwich plates. He has successfully patched so many breaches on ships over the years. But it does not mean that it is right and legal. It is no answer to say that M.V. Ovalau II and other vessels with patches had previously made successful voyages.
[31] “He has been performing an unethical practice for so long. It must be stopped and stopped now.
[32] “On these grounds I find David Evans guilty of substandard underwater survey practice and order the Marine Board that gazetting him an under water surveyor be withdrawn for at least 12 months.”
[33] The Inquiry considered the position of the master of the vessel and concluded by stating “I order the Marine Board to cancel Captain Jack Riley’s Class 4 Masters Certificate of Competency”. Similar criticisms were made of other members of the crew with similar orders being attached. At section 9 the Inquiry considered the owner of the M.V. Ovalau II.
[34] The Inquiry appeared to be acting on the factual basis that the M.V. Ovalau II’s hull was worn and liable to breach as exemplified by the need for four sandwich patches to be inserted over a space of a few months. The operations manager, Mr. Trevor Patterson, was told there was criticism over the delay in slipping the vessel in a dry dock for a proper survey of the hull to be made. Further, the inquiry criticised the authorities for giving extension certificates. Two surveyors were censured, as I have stated above, for their failures when surveying the vessel.
[35] The Inquiry acted on the evidential basis that on 23rd August 2003, there were two major breaches to the hull, one in the engine room compartment and one in the number 6 void tank. The Inquiry considered that the latter had occurred before the ship sailed on that day and should have been discovered in a routine check before sailing.
[36] The breach in the hull in the engine room compartment space probably occurred after the vessel had set sail. It was noticed at about 9.50 a.m. when the fly wheels of the two main engines were throwing up water. A number of attempts were made to plug the hole without success. It was not until later that the hole in the No.6 void tank was discovered. By that time it was impossible to get to the breach to fix up any kind of temporary patching.
[37] The Inquiry found that the vessel owners were informed what was happening but were slow to react. In particular, they were slow in redirecting the sister ship, M.V. Ashika, which was only approximately 24 nautical miles away, to the M.V. Ovalau to assist in towing it to port.
[38] A further and vitally important finding was made in that some of the water being pumped from the flooding spaces was going over the side, some was going onto the vehicle deck. The scuppers and outlets for water from that deck were blocked with the result that the whole vessel was becoming top heavy as the pumped water failed to drain away over the side.
[39] It would appear from the specifications for the vessel that the entire engine space and No. 6 void tank could be flooded and yet the vessel remain afloat.
[40] It was late in the afternoon of that day when Mr. William Patterson, a manager, came on board. He quickly realised from the way the vessel was behaving that almost nothing could be done to save her. It was in tow, passengers had been removed and it was heading slowly towards port. However, by then there was so much water on the vehicle deck that it was only a matter of minutes before the vessel capsized and sank.
[41] One of the vehicles on board contained a toxic chemical, sodium hydroxide, which is already leaking into the sea. The vessel lies within a short distance of the Island of Nananu-i-Ra. I was not informed of any efforts being made to rectify this state of affairs.
[42] The Inquiry stated further “in view of my findings here above the vessel was not at the time of the casualty in fact in a condition reasonably to perform the service of conveying goods and carrying passengers without danger ... In view of my findings on the liability of the owners of the vessel the Patterson Brothers Shipping they are fined $2,000.00 under the provisions of section 84 of the Marine Act”.
[43] The Inquiry stated:
“To conclude, the Inquiry revealed that some public servants and crew of the Ovalau II deviated from the proper performance of their duties and the discharge of their functions under the Marine Act and Regulations made thereunder.
[44] “Not only that, the ship owners also failed in their duty to see to the proper application and enforcement of the Act and Regulations with full knowledge that their vessel was far from sea worthy in the eyes of the law and allowed it to proceed to sea on this voyage with the passengers and cargo and which eventually proved fatal ...
[45] “The owners of vessels have a heavy responsibility to see that their vessels are sea worthy in every respect. It is incumbent on underwater surveyors and other surveyors to see to the thorough inspection of holes as owners rely heavily on their expertise so that this kind of incident is not repeated.”
[46] The report finally states:
“Let everyone concern learn from the experience of M.V. Ovalau II. The FIMSA should tighten up their operations and see that everyone is doing his job properly including more particularly the surveyors in accordance with the law.”
C. Marine Act Procedure
[47] On the 31st of January 2005 Trevor Patterson and Patterson Brothers Shipping Company Limited filed a Notice of Originating Motion asking for an order that the decision of the enquiry be set aside and the appeal be allowed. There then follow some 32 grounds of appeal which fall into one or more of the broad grounds I have set out at paragraph 3 at the beginning of this judgment.
[48] On the same day David Anthony Evans lodged an appeal asking for the same orders. Some 12 grounds of appeal were attached to his notice. Again, they fall into one or more of the broad grounds I outlined above.
[49] Before I consider those specific grounds it is important to look at the framework and procedures envisaged by the Marine Act. Unfortunately, it is not particularly well drafted. There are gaps in important matters.
[50] When there is a marine casualty, the sequence of events is as follows. There are provisions for reporting casualties and, if the vessel concerned is a Fiji registered vessel, as was the M.V. Ovalau, then the Marine Board may under section 87:
“(c) cause a preliminary investigation to be held in relation to the casualty in accordance with section 88; or
(d) request the Minister to cause a Marine Inquiry to be held in relation to the casualty in accordance with section 89”.
[51] Section 88 then makes provision for a preliminary investigation by an investigator. That is what happened in this case. The investigation officers were Captain S. Waqa, Captain J. Takape and Mr. I. Naqasima. Their report was dated 8th September 2003.
[52] By section 88(5) upon receipt of a report, the Marine Board may:
“(a) request the Minister to cause a Marine Inquiry to be held in relation to the casualty in accordance with section 89; ...”
[53] Section 89 then states as follows:
“(1) Where the Minister agrees to a request made to him under paragraph 88(5)(a) the Chief Justice shall, on the request of the Minister, appoint a person appearing to the Chief Justice to be suitably qualified –
(a) by the holding of or by having held judicial office; or
(b) by experience as a barrister and solicitor, to hold an inquiry into a casualty.”
[54] The person appointed to hold the enquiry shall conduct it with the assistance of at least two assessors.
[55] Subsection (3) then states:
“Subject to subsections (4) and (5), a Marine inquiry is to be conducted in the prescribed manner”.
[56] When it states “prescribed manner”, subsection (3) is presumably referring to the ensuing subsections of section 89 and sections 90-92. There then follow subsections (4) and (5) which are most important in this case.
[57] “(4) Where it is likely that during the course of a Marine Inquiry the conduct of a person will be called into question or it is likely that a person will be affected by a decision of the inquiry the person appointed under subsection (1) to hold the inquiry shall –
(a) give to that first mentioned person at least 72 hours notice of the place, day and hour of the holding of the inquiry; and
(b) furnish to that person –
- (i) where a preliminary investigation has been held in accordance with section 88 – a copy of the report and any other documents sent to the Marine Board in accordance with subsection 88(4); or
- (ii) in any other case – a statement of the case on which the inquiry was ordered.
“(5) A person -
(a) whose conduct is likely to be questioned during the course of a Marine Inquiry; or
(b) who is likely to be affected by a decision of the inquiry, is entitled –
(c) to attend the inquiry personally and also to be represented at the inquiry by a barrister and solicitor;
(d) to be sworn and give evidence before the inquiry;
(e) to subpoena and call witnesses;
(f) to examine, cross-examine, and re-examine in accordance with the customary rules in courts of law all witnesses giving evidence before the inquiry;
(g) to take all proper exception to the admissibility of evidence;
(h) at the conclusion of the inquiry or other proper time, to address the inquiry.”
[58] Subsections (6) and (7) deal with various matters for the conduct of the inquiry. Subsection 8 states as follows:
“The person conducting a Marine Inquiry, shall, after the conclusion of the inquiry –
(a) give his decision;
(b) make a full report to the Minister together with such report of or extracts from the evidence and such observations as he thinks fit,
and each assessor shall either sign the report referred to in paragraph (b) or state in writing to the Minister his dissent from the report and his reasons for his dissent”.
[59] Subsection 9 deals with the costs of the inquiry.
[60] Section 90 deals with the powers of a marine inquiry as to the Certificates of Competency of qualified seamen. If the inquiry is satisfied concerning certain matters in relation to a qualified seaman then it may order the Marine Board to cancel or suspend a Certificate of Competency or censure the seaman.
[61] Section 91 gives the Minister the power to order the whole or part of an inquiry to be reheard if:
“(a) in his opinion new and important evidence which could not be produced at the inquiry has been discovered; or
(b) there appears to the Minister to be other grounds for suspecting that a miscarriage of justice may have occurred”.
[62] Section 92 then deals with appeals and states:
“(1) Subject to subsections (2) and (3), where –
(a) ...
(b) ...
(c) (costs)
(d) the person conducting a marine inquiry finds that a casualty has been caused or contributed to by the wrongful act of any person,
the seaman, in the case of paragraph (a) or (b), or, in the case of paragraphs (c) or (d) any person who appeared at the hearing and is affected by the decision, may appeal to the Court and the Court may make such order as the justice of the case requires”.
[63] Subsections (2) and (3) then deal with ancillary matters.
D. The Appeals
[64] The procedure therefore appears to be as follows.
[65] When a casualty occurs in relation to a vessel then the Marine Board may cause a preliminary investigation to be held or a marine inquiry, (section 87). In this particular case an investigation took place under Captain Waqa and he made a report to the Marine Board, (section 88). By subsection 5, the Marine Board requested the Minister to cause a marine inquiry to be held.
[66] Under Section 89 the Minister requested the Chief Justice to appoint a person to hold the inquiry into the casualty. That person held the inquiry with the assistance of (at least) two assessors (subsection 2).
[67] It is at this point that contention enters into these matters. According to subsection (4) “where it is likely that during the course of a marine inquiry the conduct of a person will be called into question or it is likely that a person will be affected by a decision of the inquiry the person appointed under subsection (1) to hold the inquiry shall –
(a) give to that first mentioned person at least 72 hours notice of the place, day and hour for the holding of the inquiry; and
(b) furnish to that person –
- (i) where a preliminary investigation has been held in accordance with section 88 – a copy of the report and any other document sent to the Marine Board in accordance with subsection 88(4);
- (ii) ... “.
[68] The appellants in this case state that they fell within the category of persons described as “ likely ... the conduct of a person will be called into question or it is likely that a person will be affected by a decision of the inquiry ...”
[69] As a side issue it should be noted that although an inquiry is being conducted the Act refers to “a decision of the inquiry” suggesting it is adjudicating upon matters in contention. This wording would not appear to be consistent with the rest of the wording of this part of the Act nor consistent with the very purpose of an inquiry. It is consistent with the Inquiry making a decision where someone’s conduct is called into question and this is refuted.
[70] The appellants David Anthony Evans and Trevor Semiti Patterson say that they were neither given notice under this section of the place, day and hour of the inquiry nor, under this section, furnished with the preliminary investigation report.
[71] Patterson Brothers Shipping Company Limited were “present” at the inquiry and represented by two counsel. They had a copy of the report of the preliminary investigation, cross-examined witnesses and made a closing address. It makes no appeal concerning subsection (4).
[72] David Evans was called as a witness. He did not lead any evidence ask questions of other witnesses, nor address the Inquiry. He was not represented by counsel. He had a copy of the preliminary investigation but had obtained it himself.
[73] At the start of the Inquiry after the judge’s opening remarks and the introduction of counsel assisting Mr. G. Leung stated (p.106) “I appear with my junior Mr. Semi Leweniqila. We appear for the Company, Patterson Brothers Limited, Management and Crew and our appearance is entered pursuant to section 89(5) of the Act where persons whose conduct are likely to be questioned or persons who is likely to be affected by the decision of the Inquiry, have a right to legal representation. It is in that capacity we enter an appearance”.
[74] Immediately after, counsel for the Inquiry, Mr. K. Keteca stated (p.106) “... in compliance with section 89(4) of the Marine Act, I would like to inform the Inquiry that we have complied with that, by serving learned counsel with a copy of the preliminary report. We have also served them with a copy of all the witnesses that were called, and also a copy of the video footage that was taken of the sunken vessel.”
[75] Paragraph 5 of the Inquiry’s report reads “The owners of the M.V. Ovalau II (the vessel) Patterson Brothers Shipping appeared through their managing director Mr. Trevor Patterson and Mr. William Henry Patterson who both testified and were also represented by counsel Mr. Graham Leung and Mr. Leweniqila”. Although at page 7 it reads “... Mr. Graham Leung, counsel for the owners ...”
[76] From the report of the Preliminary Investigation and by the cross-examination directed towards David Evans and by the questions put by the members of the Inquiry itself, it could be argued it was obvious that his conduct was likely to be called into question, was being called into question and he could well be a person affected and adversely affected by the decision and findings of the Inquiry. Trevor Patterson and the Company were in the same position. They had been served with a copy of the Preliminary Investigation report and ancillary material.
[77] What is the purpose of subsection (4)?
[78] In my judgment, the purpose of subsection (4) is not just to ensure that a particular person has a notice of the date and place of the hearing and a copy of the report or statement of the case. It is necessarily a warning from the Inquiry to that person that his or her conduct is likely to be called into question or it is likely he or she will be affected by the decision.
[79] Subsection (4) states “where it is likely that ... the person appointed under subsection (1) to hold the inquiry shall ...”
[80] This subsection requires the members of the Inquiry to make a provisional assessment. That will be made on the face of the report of the Preliminary Investigation and any other documents sent to the Marine Board in accordance with subsection 88(4) or the statement of the case on which the inquiry was ordered. It if is likely during the course of the Inquiry that a person’s conduct will be called into question or that he or she will be affected by a decision of the Inquiry the person appointed shall give to that person the notice and the documents.
[81] It is not enough for the respondents to say that David Evans had a copy of the Preliminary Investigation report, he was present and could have asked questions.
[82] The fact is that David Evans was not alerted by the person appointed to hold the Inquiry to the fact it was likely his conduct would be called into question or a decision made which affected him.
[83] The positions of Trevor Patterson and the Company are not so clear cut.
[84] Whilst subsection (4) does not specifically require an assessment of the preliminary investigation report to be made and any notice to be given before the inquiry starts, the very wording of that subsection and subsection (5) presumes that that is so, “(a) give ... notice of the place, day and hour for the holding of the inquiry ...”
[85] The Act appears to be silent if it does not appear from the report of the preliminary investigation that a person’s conduct is likely to be called into question or he or she might be affected by the decision, yet as the inquiry progresses and evidence is heard those circumstances become so. Any person finding himself in this situation would have to look to the common law, the principles of natural justice and the courts for redress. I will address this topic later, see paragraph 128 section H, Natural Justice.
[86] Subsection (5) lends further weight to my interpretation of the Act and the procedure envisaged. It states that a person whose conduct is likely to be called into question or who is likely to be affected by a decision is entitled to attend the inquiry and be represented by a barrister and solicitor, to be sworn and give evidence, to subpoena and call witnesses, to examine, cross-examine and re-examine witnesses, to take all proper exception to the admissibility of evidence and at the conclusion or other proper time to address the inquiry.
[87] Thus the person concerned is given the right to participate fully in the inquiry. This is provided so he or she might have all reasonable opportunity to answer criticism and defend his or her legitimate interests.
[88] I therefore look at the Report of the Preliminary Investigation in this case to ascertain, on the face of it, whether it could be reasonably said that these appellants fell within the category of persons who should have been given notice and provided with a copy report.
[89] The Preliminary Investigation concentrated on a number of matters including the four sandwich plates. It was found that they played no part in the sinking of the vessel. There was a concentration upon the fact that two major and two minor breaches in the hull had opened and that 11 days before the sinking there had been an under water survey by Mr. David Evans. When considering “the two major breaches (holes) at the hull”, the Report stated:
[90] “While Mr. Dave Evans had admitted during the course of investigation that it was possible that he may have missed spotting this particular breach of the hull in the No. 6 void space during his under water survey on the 12th of August 2003, the engine room staff’s failure in checking this particular tank (No. 6 void space) in their pre-departure check list will always remain as one of, if not the main contributing factor to a disaster that could have been easily avoided”.
[91] In its conclusions at paragraph 5 the Report reads:
“Was the three months extension of survey carried out in August, this year by the surveyors involved justified with not one but four sealed breaches known to have existed in the ship’s hull.”
[92] In the recommendations section at paragraph 1(f) the report asked “whether the three months extension survey carried out in August, 2003 could have played any role in anyway that may have avoided the disaster of Ovalau II.”
[93] The tenor of the report of the Preliminary Investigation, in my judgment, was that the four sandwich plates played no part in the sinking of the Ovalau. However, the age of the vessel, the length of time since it was last slipped with a full survey of the hull, the need for four sandwich plates within a few months before the surveys and the further four breaches within days of the surveys, clearly raised questions as to whether the surveys of the hull both inside and outside had been properly carried out. Whilst the report dwelt predominantly on other matters this was an aspect which had been clearly flagged up and indeed was pursued at the Inquiry itself.
[94] In those circumstances, in my judgment, before the commencement of this Inquiry the person conducting it should have formally informed Mr. David Evans that it was likely his conduct would be called into question and it was clear at that stage, and indeed later, that it was likely he would be or could be affected by the decision of the Inquiry.
[95] Mr. Evans received no such notice. According to the face of his affidavit and the Inquiry record he attended the Inquiry as a witness. He was cross-examined but at no time exercised any of the powers under subsection (5). He was a person who should have been regarded as a person whose conduct was likely to be called into question and as a person likely to be affected by the decision of the Inquiry. His business is one of under water surveying. He stated in evidence, (p.294) “My livelihood depends upon my perceived integrity”. He has been in that business for many years and has a reputation over a wide area. In the final report the Inquiry stated “... I find David Evans guilty of substandard under water survey practice and order the Marine Board that gazetting him as an under water surveyor be withdrawn for at least 12 months”.
[96] He should have received notice and documents under subsection (4). He did not. He cross-examined no witnesses, lead no evidence, made no closing submission. He was officially unaware of the likelihood his conduct would be called into question or he could be affected by the decision.
[97] For these reasons alone, irrespective of other matters I consider later in this judgment, the appeal of Mr. David Evans must be allowed.
[98] A brief perusal of the conclusion of the Preliminary Investigation is sufficient to show that the conduct of the Company and Trevor Patterson would be called into question and it was likely the Company and Mr. Patterson would be affected by the decision of the inquiry. I set out below the conclusions I refer to. Throughout the report itself there is clear concern as to what happened before the Ovalau set sail, at the time it set sail, and right up to the moment it capsized. The conclusions read:
“1. No one ever locating the breach in the No. 6 tank void space to the dimensions of a 110 mm by 30 mm.
5. ...
[99] I find that those conclusions alone were sufficient to trigger the procedures envisaged by subsection (4) in respect of the Company, the directing and operation managers of the company, and other persons. I do not agree with paragraph 5-2 of the appellants written submissions that “The P.I. report did not in any way suggest that Mr. Trevor Patterson was responsible for the casualty.”
[100] I find that the furnishing of that Report should have been done in all cases whether or not those concerned already had a copy or were going to get their own. Subsection (4) is not just about giving the date of the Inquiry and the copy report but formally making a person aware that his or her conduct is likely to be called into question or it is likely that he or she will be affected by the decision.
[101] There is uncertainty at this point in two respects. First, whether Trevor Patterson was represented at the Inquiry and availed himself of the provisions of subsection (5) and second, whether Trevor Patterson and the Company had been formally informed under subsection (4).
[102] At page 106 Mr. G. Leung stated: “we appear for the Company, Patterson Brothers Limited, Management and Crew ... pursuant to section 89(5) ... where persons whose conduct are likely to be questioned or persons who is likely to be affected by the decision of the Inquiry have a right to legal presentation. It is in that capacity we enter an appearance.”
[103] Mr. Trevor Patterson introduced himself when giving evidence as the “Operations Manager” and that his duties included “the safe operations of the company’s ships” (see p.766). He had been operations manager for about 10 years. In answer to questions from Mr. Leung he produced his qualifications and told the Inquiry that in the preceding 5 years the Ovalau had completed 3,978 sailings, carried 212,197 passengers and sailed 138,507 nautical miles, (p.785). “There were no casualties to passengers or vehicles.” The adducing of this evidence and the questions asked by counsel of other witnesses (for example, the cross-examination of David Evans pp.293-304) show that the interests of Mr. Patterson as well as the Company and crew were being “looked after” by counsel.
[104] A careful reading of the reports of the Preliminary Investigation and the Inquiry show that the references to Mr. Patterson are in his capacity as a manager of the Company, and not in a personal capacity. The Company itself also had interests which were being safeguarded by Mr. Leung; a company necessarily operates through the guiding and directing minds of its directors and managers.
[105] Counsel assisting the Inquiry stated, (p.106) “... in compliance with section 89(4) of the Marine Act, I would like to inform the Inquiry that we have complied with that, by serving the learned counsel (Mr. Leung) with a copy of the report. We have also served them with a copy of all the witnesses that were called, ....”
[106] Thus it would appear that counsel assisting the Inquiry not the person conducting it had given notice under subsection (4) or at the least supplied a copy of the report. It is uncertain whether this had been done at the behest of the person conducting the Inquiry or on the initiative of counsel. It is not certain whether the Inquiry had made a provisional assessment. Mr. Patterson in his affidavit of 4 August 2005 states at paragraph 2 “I was not served with a report of the Preliminary Investigation ...” At paragraph 1 he states “I was served with a Summons to appear as a witness ...”
[107] At paragraph 4 he states “I attended the Inquiry on the premise that I was a witness to help the Inquiry establish facts in relation to the casualty. I had no idea nor was I ever warned or given any reason to think that my actions would be called into question.”
[108] At paragraph 5 he states “I was taken by surprise when the inquiry made adverse findings against me especially when I was not given any notice of the possibility of findings which have caused injury and damage to my reputation. Moreover, I was not afforded any proper opportunity to defend the allegations and findings against me”. He does not explain what he means by “any proper opportunity” as opposed to “any opportunity”.
[109] It is difficult to conceive that Mr. Patterson had not seen and read a copy of the Preliminary Investigation report before the Inquiry began, even if he had not been formally served with one. According to the face of the record counsel assisting the Inquiry had served a copy under subsection (4) on Mr. Leung and he was representing Company, “management and crew”, Mr. Patterson was a key member of management, “safety”.
[110] The questioning of witnesses by Mr. Leung was directed to looking after the interests of the Company, including management and crew. The closing address is entitled “Written Submissions of the Company”. It includes headings such as “Owners Exercised Diligence” and “Crew not negligent” and “Management Acted Responsibly”. Reliance was placed on the issue of seaworthiness certificates and responsibility directed at the FIMSA surveyors.
[111] It is again difficult to conceive that Mr. Patterson “had no idea ... my actions would be called into question“ or that he “was taken by surprise when the inquiry made adverse findings against me”. His interests as a member of the management of the Company were being looked after by counsel.
[112] For any future Marine Inquiry I would recommend that the person conducting it, together with the assessors, makes a provisional assessment on the face of the report of the Preliminary Inquiry. Those who fall within subsection (4) should then be given formal written notice and supplied with the relevant documents. It would be good practice for the record if, at the opening, the person conducting the Inquiry formally records the names of those given notice under subsection (4) or appends the notices. Counsel assisting might also be able to point out the names of any persons who weren’t but should have been notified.
[113] Given the circumstances in this case I cannot be satisfied Trevor Patterson was formally given notice under subsection (4). To the extent he was not so formally made aware, I find that the appeal of Trevor Semeti Patterson must be allowed. There is no appeal from the company on this ground.
[114] It does appear that both Trevor Patterson and the Company, on the face of the record, conducted themselves through counsel as though that notice had been given.
[115] All these three appellants were persons whom the Inquiry stated had caused or contributed to the casualty by their wrongful acts. Therefore they say they have the right to appeal to this Court under section 92(1)(d).
[116] It is important to note that that subsection reads “any person who appeared at the hearing and is affected by the decision, may appeal to the court and the court may make such order as the justice of the case requires”.
[117] A marine inquiry is a creature of statute. According to the statute only counsel assisting the inquiry and persons notified under subsection (4) can attend personally, be represented by counsel, ask questions etc. There is no specified discretion in the person conducting the inquiry to allow others to appear even if they can show an interest. It must be remembered that this proceeding is an ‘inquiry’ and not a civil or criminal trial, with their attendant procedures and rules of evidence.
[118] Trevor Patterson, as operations manager and responsible for safety, and the Company “appeared” at the hearing. (“... We appear for the Company, Patterson Brothers Limited, Management and Crew ... pursuant to section 89(5) ...”)
[119] Mr. David Evans gave evidence but asked no questions of witnesses, was not represented by counsel, nor made any closing address. In one sense it could be said he did not “appear” at the hearing. That would be a narrow construction of the word “appear”, in the legal sense of being present as a party rather than a witness, with or without counsel. The word appear or appeared is not found elsewhere in this part of the Act.
[120] This point was not raised by counsel. There is an argument to say Mr. Evans should have proceeded by way of judicial review and that he has no locus standi to appeal under the Marine Act.
[121] In my judgment “appeared” can be interpreted in its widest sense and can include someone who only gave evidence, as well as someone who asked questions or made a closing address or was represented. In inquiries of this kind it is perfectly possible that someone might be a witness and yet be affected by the decision.
[122] It is worth noting in passing that if someone is affected by the decision of an inquiry yet did not appear at it then there is no ability to appeal under section 92 or elsewhere in the Act.
[123] I have stated above that subsection (4) is addressed to the circumstance where an assessment is made upon the face of the Report of the Preliminary Investigation before the Inquiry commences and persons concerned informed of the date of the inquiry and furnished with a copy of the report.
[124] The case of Peter Thomas Mahon against Air New Zealand Limited and Others 1984 1 A.C. page 808 arose out of a Royal Commission of Inquiry into the crash of an Air New Zealand plane in Antarctica. At paragraph 2 of the head note it is stated.
“(2) That the rules of natural justice required the judge as a Royal Commissioner investigating the cause and circumstances of the accident to make findings based upon material that logically tended to show the existence of facts consistent with those findings and, if he disclosed his reasons to support those findings, to ensure that the reasoning was not self-contradictory; that natural justice also required the judge to ensure that any person represented at the inquiry who might be affected adversely by a finding should know of the risk of such a finding being made and be given an opportunity to adduce additional material that might have deterred the judge from making that finding; and that, ... since certain witnesses had not been given an opportunity to answer the criticisms made against them, the order that the airline pay part of the cost of the Royal Commission had been properly set aside.”
[125] It is noted here that the headnote refers to “any person represented at the inquiry” and later refers to “certain witnesses”.
[126] In this particular case, the company and Trevor Patterson were persons who were represented and appeared at the Inquiry. Mr. Evans was not represented, he was a witness. I have found for the purposes of the Marine Act that he did “appear” at the Inquiry.
[127] Further, in Judicial Review No. 26 of 1993, Sitiveni Rabuka v. The Commission of Inquiry, Tuivaga C.J. stated at page 33, “By the nature of the inquisitorial inquiry that was held there were no contestants as such over any of the disputed or critical issues of the investigation. All those who appeared were essentially witnesses who were there to assist the investigation in its task. No direct or express allegations were levelled against any of them. In these circumstances it seems to me that if the integrity or reputation of any witness was going to be impeached for whatever reason it was only right as a matter of justice that such a person should be told the allegations and be accorded an opportunity to contradict or palliate them as best as he or she could. The fact that such a person may not succeed in deterring the decision-maker from making adverse findings is not a ground to forgo fair procedure. This is the essence of fair treatment which every witness in an investigative inquiry is entitled to expect.”
[128] Whilst this is an Inquiry under a statute specifically addressed to marine matters, the principles enunciated in Mahon v. Air New Zealand and Rabuka v. The Commission of Inquiry are applicable. The statute, the Marine Act, is silent as to what notice should be given to persons who might be adversely affected, other than subsection (4). Natural justice requires that such persons be informed of the risk of adverse findings and be given an opportunity to respond.
[129] No notice having being given under subsection (4) to David Evans before the commencement of the Inquiry and the Act being silent as to notices after its commencement, then the principles in Mahon v. Air New Zealand and Rabuka v. The Commission were applicable.
[130] It therefore follows that, as David Evans was a person who might be affected adversely by the Inquiry’s findings, he should have known of the risk of such findings being made and given the opportunity to adduce material to deter the Inquiry from the making those findings, or at the least palliate them. No notice was given. No opportunity offered. Accordingly on this ground also I find that the appeal of David Evans must succeed.
[131] How is the position of Trevor Patterson to be considered? Subsection (4) gives to a person the natural justice that is envisaged in Mahon v. Air New Zealand and Rabuka v. The Commission. It may well be that the dicta of the Privy Council were in the minds of the framers of subsection (4). There is nothing more to be given under Mahon v. Air New Zealand or Rabuka v. The Commission than is given by subsections (4) and (5).
[132] In my judgment there could not be a complaint of failure to accord natural justice if notice under subsection (4) had been given and the opportunity to exercise the rights granted by subsection (5) accorded.
[133] In the case of Trevor Patterson no notice had been served under subsection (4). However, he was present through counsel. A copy of the Preliminary Investigation report had been served on his counsel before the commencement of the Inquiry. Questions of him in evidence from his own counsel were directed to this. It was clear on the face of that report that as operations and safety manager he might be adversely affected by findings of the Inquiry. There was ample opportunity to adduce material that might have deterred the Inquiry from making such findings. Cross-examination and submissions were directed to protecting his interests. This was not something that came out of the blue. It was clear on the face of the Preliminary Inquiry report and during the progress of the Inquiry. The findings of the Inquiry did not go beyond what was in the Preliminary Investigation report or on the evidence adduced before the Inquiry.
[134] It is reiterated that a company makes decisions and acts or fails to act through its directors and managers. In so far as criticism is made of Mr. Patterson in the Inquiry report it is in that capacity.
[135] Accordingly I can find no breach of natural justice as far as Mr. Trevor Patterson is concerned.
[136] Up to this point I have dealt with the grounds of appeal under broad headings. I will now examine in detail each of the grounds of appeal framed by the appellants. I will commence with David Evans.
[137] Ground 1 of his appeal reads as follows:
“1. The Marine Inquiry erred in law in exceeding its jurisdiction and or its powers under the Marine Act 1986 in ordering the Marine Board gazetting of Mr. David Evans as an under water surveyor be withdrawn for at least 12 months”.
[138] This ground was conceded by the respondent’s counsel. There was no power under the Marine Act to order the withdrawal or suspension of Mr. Evans’ gazetting as an under water surveyor. The only power to discipline which is given by the Act comes under section 90 and relates to qualified seamen.
[139] In this regard and throughout this judgment it is important to remember that the purpose of the whole exercise is “to hold an inquiry into a casualty”, (section 89 subsection 1). Although the word decision is used in a number of places, it is clear that it is an inquiry that is being held. Accordingly, apart from the limited circumstances provided for in section 90 any orders of penalisation are ultra vires.
[140] There is nothing to stop a marine inquiry, if it concluded that criminal, disciplinary or other action should be considered against a person or persons, to so recommend in its conclusions. It cannot however impose penalties itself.
[141] Mr. Evans grounds of appeal continue as follows:
“2. The Marine Inquiry erred in law in finding Mr. David Evans guilty of substandard under water survey practice without providing him an opportunity to respond to the allegation.
I have already dealt with, in broad terms, the substance of all these grounds of appeal. For the reasons already stated they must be upheld. It should be noted that in inquiries no ‘charges’ are brought, or defences made (see Grounds 3 and 4 above). Conduct is called into question and adverse findings might be made.
“9. The Marine Inquiry erred in fact and or law in finding that an under water surveyor, including Mr. David Evans, was duty bound to examine and inspect the condition of M.V. Ovalau II.”
[142] Throughout his evidence Mr. Evans repeatedly asserted that his job was to examine the outside of the hull. This was done whilst the boat was in the water with Mr. Evans utilising diving and other equipment. He stated it was the function of others to examine the inside of the hull.
[143] It appeared to be an accepted fact that when rusting of a hole occurs it does so from the inside and not the outside. On the outside there is moisture but no oxygen; therefore rusting will not take place. On the inside there is moisture plus oxygen and that is where the rusting commences. Mr. Evans asserted that an area of the hull might be sound whilst another area very close by could be unsound.
[144] Mr. Evans stated that he would use a hammer to tap the hull but necessarily he could not physically test every square centimetre thereof. He accepted that he might have missed the breach in the hull in the area of the No. 6 void tank. He asserted that this in itself did not mean there was any negligence or failure in his conduct of the under water survey.
[145] It is difficult to tell on the face of the evidence before the Inquiry whether or not the breach in the No. 6 void tank was present at the time of Mr. Evans under water survey. Second, if there was such a breach whether it should have been detected by him in his survey. For example Captain Seci Waqa (p.173) was asked “Could that breach (No. 6 tank) have been detected if it was in existence, by the underwater surveyor that carried out the survey on 12th August 2003?” He answered “I believe he should have known the existence of that breach during that particular survey.” When asked if there was a failure of the underwater surveyor, he replied “Possibly, yes.”
It might be said that given the age of the vessel, the existing number of sandwich patches and the general state of the hull it should have been plain to any under water surveyor that there was a real risk of further breaches existing or happening soon, and that an especially detailed under water survey should have been undertaken before a survey extension certificate given.
[146] There is necessarily an accumulation of evidence that gives rise to genuine questions in this area. Even someone not versed in matters of marine survey would say that, given the need to apply four sandwich patches over such a short period of time, given the hull thicknesses recorded at the last ultra sound testing, given the fact that the No. 6 void tank breached shortly before or after leaving port on the 23rd of August and that the engine room space also breached at about that latter time it must have been obvious that the hull of this vessel required careful scrutiny, inside and outside.
[147] This is precisely the kind of issue which required any prima facie findings to be put to Mr. Evans before any conclusions were reached. There was in fact cross-examination on these issues and other evidence. However, this conclusion reached by the Inquiry was not one it should have arrived at as matters stood at the close of the evidence. Accordingly this ground of appeal must succeed.
[148] The grounds of appeal continue as follows:
“10. The Marine Inquiry erred in fact and in law in finding that the breach in the number 6 void tank was overlooked by Mr. David Evans.”
[149] Mr. Evans accepted it was possible when he conducted his survey of 12th August he overlooked the breach in void space No. 6. There was the video footage of this breach and the evidence of rusting around it.
[150] In my judgment it was on the borderline as to whether there was sufficient evidence for the Inquiry to come prima facie to this conclusion. In the absence of the opportunity to respond, this ground of appeal must be allowed. Further it is not entirely clear what is meant by “duty bound”.
“11. The marine inquiry erred in fact and or law in holding that the use of sandwich patches is not right and legal and that Mr. David Evans had been performing an unethical practice contrary to law or industry practice and was unlawful, without stating the nature and details of such an ethical practice and or giving him an opportunity to respond to such a charge.”
[151] Counsel for the respondent could not point to any reference in law, evidence or practice, which showed that sandwich patches were unlawful or in anyway bad practice. In these circumstances this ground of appeal must succeed.
“12. The marine inquiry erred in fact in misconstruing the evidence of Mr. David Evans by referring to part of his survey report dated 3rd of February 2003 as being part of his survey report dated 23rd of August 2003.”
[152] This is a minor over sight and does not affect the main issues.
[153] I now turn to the grounds of Trevor Semiti Patterson and Patterson Brothers Shipping Company Limited.
[154] There can be no argument that on the face of the report of the preliminary investigation it was likely that during the course of the Marine Inquiry the conduct of each would be called into question. It was also likely that they were persons who would be affected by a decision of the Inquiry. The criticisms of their conduct both in the Preliminary Investigation report and in the Marine Inquiry report are direct and strong. I have found that no proper formal notice was given to them under subsection (4). However, conduct of counsel representing the Company and Mr. Trevor Patterson was, throughout the Inquiry, consistent with notice under subsection (4) having been given.
[155] It is pertinent to note that in the Notice of Originating Motion (Civil Appeal No. 39 of 2005) the heading states the appellants to be Mr. Patterson and the Company. It then reads “... Counsel for the Appellant (singular) ... and the Appellant’s (singular) appeal herein be allowed”. The grounds (save number 30), do not specifically mention the Company. I have presumed throughout that this is an appeal by both.
[156] The grounds of appeal of Trevor Patterson and the Company are as follows:
“1. The Marine Inquiry erred in fact and or law in finding that vessels (including the M.V. Ovalau II) with sandwich patches were/are by law unsafe vessels.
The appeal of Trevor Patterson and the Company must succeed on these grounds. No law to this effect has been cited.
[157] “3. The Marine Inquiry erred in fact and/or law in finding the ship
owner complacent and not admitting and acting upon signs of hull weaknesses.
[158] I reiterate that this is a judgment on appeal and I am not revisiting the evidence with a view to making findings. The Marine Inquiry heard the witnesses and was able to make its assessment of their evidence. Whilst I do not say I agree or disagree with the findings referred to at paragraphs 3, 4 and 5 above, I do find that on the face of the evidence these are conclusions which could be drawn. (For example, the whole history of the vessel for the preceding twenty years was known, the results of is hull surveys, the postponement of slipping, the progressive insertion of the four sandwich plates.) Accordingly I reject these grounds of appeal.
[159] “6. The Marine Inquiry erred in fact and in law in finding that Mr. Trevor Patterson should not have relied on the hull surveyor’s recommendation and their certificates of sea worthiness.
It is a matter for detailed debate as to what extent the operations manager of a company that owns a vessel can or cannot rely on a hull surveyor’s recommendations and certificates of sea worthiness. The responsibility for the safety of the hull is with that manager for that company. Competent surveying is required. The Inquiry found grave shortcomings in the surveying and procedures which led to the interim certificate issued on 13th August, effective from 4th August. Paragraph 19 of the Survey Requirements under the Maritime (Fiji Maritime Code) Regulations 1990 Section 14 – Part 2 states “A Surveyor, when making a survey or inspection of a vessel shall be accompanied by the owner or his appointed representative”. The surveyors and the Company and its management should have known this. There is force in the argument that one should be able to place reliance on established surveyors and regulatory authority surveyors.
The Inquiry was also entitled to look at the state of affairs before that interim certificate was sought. There was no reason why it could not consider what the Company and Mr. Patterson should have realised and done in relation to the vessel and its hull at that stage.
I make no specific findings on this ground of appeal.
[160] “7. The Marine Inquiry erred in fact and in law in finding that the
breach that caused the engine room flooding led to the sinking of the M.V. Ovalau II.”
This ground of appeal arises out of the statement of the inquiry at paragraph F “Findings of the Inquiry” (page 38) when it says “in fact the breach that caused the engine room flooding on 23rd of August 2003 leading to the sinking of the M.V. Ovalau II was within the area not covered in the inspection stated above”.
The appellant states that this ignores a series of intervening acts which followed the breach of hull in the engine room space and indeed the Inquiry’s own finding that the vessel “capsized due to free surface effect of water accumulated on the vehicle deck rather than sinking”.
I do not find this ground of appeal supports the appeal itself. Although on its own it might suggest the Inquiry found that the breach in the engine room space led to flooding and led to the sinking of the vessel, when placed within the context of the whole report and particularly the references to the ingress of water and the capsizing due to surface water on the vehicle deck, it is not an error. Accordingly I do not find the Inquiry erred in this finding.
[161] “8. The Marine Inquiry erred in fact and in law in finding that the M.V. Ovalau II suffered “illness”.
This is figurative language, though not unwarranted within the whole context of the evidence, particularly as regards the state of the hull, its inspection and maintenance. I do not find it can found a ground of appeal.
[162] “10. The Marine Inquiry erred in fact and in law in finding that the breach that the owner did not take an affirmative action in the proper maintenance of the M.V. Ovalau II when most needed”, (sic).
[163] It is not entirely clear what this ground of appeal means. It would appear to relate generally to the questions of survey, state of the hull and maintenance. My remarks above apply in this context.
“11. The Marine Inquiry erred in law in applying principles of law relating to warranties of sea worthiness implied by contracts of carriage.
[164] A considerable part of the report of the inquiry was devoted to the discussion of these areas of law. In my judgment, it does not fall within the purview of the Inquiry to discuss matters of this kind. The purpose of the Inquiry is as stated in section 89(1) to “hold an inquiry into a casualty”.
[165] Whilst the Act itself does not specifically say what the Inquiry is trying to ascertain, it must be implicit that it is inquiring into all the events which brought about and surrounded the happening of a marine casualty. Further, the Inquiry should, as far as it can, come to a conclusion as to how the casualty came about.
[166] The Inquiry should also make such recommendations as it considers fit to avoid the recurrence of any acts or omissions which led to the casualty or, as a result of the Inquiry, were revealed as being bad or substandard practice. The Inquiry also has limited disciplinary powers as far as certified seamen are concerned and, having followed the correct procedures, can make recommendations as to any action that should be taken against any persons whose conduct falls below that required of them.
Accordingly, I do not consider the Marine Inquiry should have considered the areas of law listed in these grounds of appeal.
[167] “18. The Marine Inquiry erred in fact and or law in finding that the owners of the vessel were negligence in the course of their duty to ensure that the M.V. Ovalau II maintained a sea worthiness condition.
[168] The remarks I made above in relation to grounds 3, 4 and 5 apply to these grounds. Further, ‘Seaworthy’ condition refers to all aspects of the vessel including the capabilities of the crew. The Company was the owner of the vessel and indeed was the person sending it to sea. (Section 84 prescribes penalties for those who send unsafe vessels to sea). The main members of the crew, according to the Inquiry’s report failed in their duties and actions. The Inquiry was entitled to see those failures as being also those of the owners not just vicariously but as failures to train, oversee, supervise and check. Therefore these were conclusions open to the Inquiry.
[169] “21. The Marine Inquiry erred in fact and or law in drawing a causal connection between the existence of sandwich patches and the capsizing of the M.V. Ovalau.”
The Inquiry report in itself is somewhat inconsistent in this regard. At one stage it states that the sandwich patches had nothing to do with the loss of the vessel whilst at others creates the inference that might have been so. It would appear that what the Inquiry was aiming at was that, although the sandwich patches did not cause the sinking of the vessel, they should have alerted various persons to the fact that the hull was in a parlous state and it was the two breaches in the hull that started the chain of events which led to the sinking. To some extent this ground of appeal has some value but is of little weight in the overall assessment of this case.
[170] “22. The Marine Inquiry erred in fact and or law in finding and attributing the responsibility of the casualty to the owners of the vessel.”
On the face of the evidence and the fact that the Inquiry heard and had the opportunity to assess the witnesses and received closing submissions this was a conclusion which the Inquiry could come to. The Inquiry found failures, inter alia, over maintenance, standards of crew behaviour, routine safety checking, reaction when danger arose. Accordingly, I reject this ground of appeal.
“23. The Marine Inquiry erred in fact and or law in finding that Mr. Trevor Patterson defied the requirements of section 84 of the Marine Act 1986.”
[171] Section 84 reads as follows:
“1. For the purpose of this section and section 85 a vessel is an unsafe vessel if because of –
(a) the defective condition of its hull, machinery or equipment;
(b) under manning;
(c) improper loading;
(d) any other reason,
it is unfit to go to sea without danger to human life having regard to the voyage which is proposed.
(a) he used all reasonable care to ensure that he sent and took the vessel to sea in a safe state;
(b) having regard to the circumstances, the sending or taking of the vessel to the sea was reasonable and justifiable.”
[172] On the last page of the Inquiry the report states “in view of my findings on the liability the owners of the vessel the Patterson Brothers Shipping they are fined $2,000.00 under the provisions of section 84 of the Marine Act”.
[173] The Marine Inquiry had no power to impose a fine under section 84 of the Act. Such a fine could not be imposed until a proper charge had been brought, a trial held and a finding of guilt entered according to the usual standard. Whilst it was open to the Inquiry, on the face of the evidence, to come to the conclusion that acts which could constitute an offence under section 84 had been committed, the Inquiry itself could not make that specific finding. Accordingly this ground of appeal must be allowed.
[174] “24. The Marine Inquiry erred in law in making adverse findings against Mr. Trevor Patterson without affording him the opportunity of natural justice.
I have already considered these grounds of appeal. Grounds 24, 25 and 26 are rejected. Ground 27 is upheld.
[175] “28. The Marine Inquiry erred in fact and or law in not considering or giving due or any weight to the evidence of Dave Martins.
giving due or any weight to the evidence of Charles St. Julian.”
The remarks I made in respect of grounds 3, 4 and 5 apply to these grounds.
[176] “30. The Marine Inquiry erred in law in imposing a pecuniary penalty on the owners of the M.V. Ovalau II when it had no statutory powers to do so.”
I have already dealt with this point under ground 23. The inquiry acted ultra vires in imposing the $2,000.00 fine.
[177] “31. The Marine Inquiry erred in law in exceeding its jurisdiction and or its powers under the Marine Act 1986.
These are general, non-specific grounds of appeal. I need not consider them.
I. Miscellaneous
[178] At paragraph 3.3. of the submissions on behalf of David Evans and 3.4 of the submissions on behalf of Mr. Patterson and the Company it is stated “The Preliminary Inquiry report recommended 6 issues it wanted established by evidence under oath. The Marine Inquiry ventured to inquire into other areas not conforming to the direction set by the Preliminary Inquiry exceeding its jurisdiction. The exercise would therefore inevitably have taken into account extraneous matters.”
[179] This is not tenable as a ground of appeal. The Preliminary Investigation is preliminary. The Inquiry is not limited in its functions by the Preliminary Investigation on its report.
[180] Paragraph 13.3. of the Company and Mr. Patterson’s submissions states “... the inquiry erroneously turned a blind eye to the acceptable shipping industry trade practices and inherent exigencies and economic risks associated with it in impliedly setting a higher standard for hull diminution and condition.”
It is not entirely clear what is meant by this submission. It is not specifically a ground of appeal. I have dealt with above at several points, the questions relating to the hull of the Ovalau II. Trade practices, inherent exigencies and economic risks must not compromise safety.
[181] The person appointed to hold this Inquiry is a High Court judge. Any appeal is heard by a High Court judge. It may be that, if possible, in future persons holding an inquiry should not be of the same standing as those hearing an appeal.
J. Conclusions
[182] In my judgment given all the material before the Inquiry the person conducting it had more than sufficient to say “this was not an act of God”. On the evidence, there was a series of failings which led to the Ovalau II capsizing and sinking.
All three appellants in their notices of originating motion ask that “the decision delivered ... into a casualty namely the sinking of M.V. Ovalau II ..., be set aside and the appellants appeal herein be allowed”. Section 92(1) after setting out those persons who might appeal states that they “may appeal to the Court and the Court may make such order as the justice of the case requires”.
[183] Given my findings, I must set aside all the adverse findings made in relation to David Anthony Evans. In particular, I set aside the finding that David Evans was “guilty of substandard underwater survey practice”. I also revoke the Order that the Marine Board withdraw his gazetting.
[184] I set aside those adverse findings against the Company and Trevor Semiti Patterson as are set out above against the numbered grounds of appeal. I find there was a failure formally to notify Mr. Patterson under subsection (4).
In particular, I do not find there was a failure of natural justice in respect of Trevor Patterson. The findings of the Inquiry were made in respect of his capacity as operations manager and responsible for safety.
[185] The question arises as to whether or not a fresh inquiry should be ordered. I take into account my findings in relation to these appellants, and in particular the concerns over the surveying of the Ovalau II. There are other persons who have not appealed whose conduct was called into question and who were affected by the Inquiry report. Time has passed. Memories have faded. There is also a cost element. There was no loss of life or injury.
[186] In all the circumstances I do not find that those parts of these appeals that are successful so undermine the conduct of the Inquiry and its findings and decisions as to produce a miscarriage of justice or to require a particular or complete rehearing of the Inquiry.
(R.J. Coventry)
JUDGE
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