South Sea Cruises Ltd v Mody [2010] FJHC 135; HBC224.2008L (20 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 224 of 2008L

BETWEEN:

SOUTH SEA CRUISES LIMITED
Plaintiff

AND:

SAMSUL MODY
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr F Hanif for the Plaintiff
Mr E Maopa for the Defendant

Solicitors: Munro Leys for the Plaintiff
Babu Singh & Associates for the Defendant

Date of Hearing: 27 March 2009
Date of Judgment: 20 April 2010

INTRODUCTION

[1] On 20 October 2008 the Plaintiff ("South Seas Cruises") filed a specially indorsed Writ of Summons against the Defendant ("Mody") seeking the following Declaration:

[i] That by reason of the provisions of the Marine Act, 1986 adopting the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and the Protocol Amending the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and pursuant to Section 178(1) of the Marine Act, 1986, it is not answerable in damages beyond Special Drawing Rights of 62,001 converted into Fiji Dollar currency at the time of making such Declaration in respect of the injury suffered by the Defendant on 19 February 2006 on board the ship SV Seaspray.

[2] The action arose out of an incident that happened on 19 February 2006 in which Mody allegedly drank caustic liquid out of a bottle labeled as "Water" when he and his family were on the South Seas Cruises vessel "SV Seaspray" whilst holidaying in Fiji. He suffered chemical burns to his mouth, throat, esophagus and stomach and has now sued South Seas Cruises in the New South Wales Supreme Court in Australia where he was from.

THE LIMITATION OF LIABILITY APPLICATION

[3] On 22 December 2008, South Seas Cruises filed a Summons for Decree of Limitation of Liability (the "Limitation Summons") to limit its liability be seeking the following orders:

[i] That by reason of the provisions of the Marine Act, 1986 adopting the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and the Protocol Amending the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and pursuant to Section 178(1) of the Marine Act, 1986, it is not answerable in damages beyond Special Drawing Rights of 62,001 converted into Fiji Dollar currency at the time of making such Declaration in respect of the injury suffered by the Defendant on 19 February 2006 on board the ship SV Seaspray.

[ii] An Order that the time for filing further pleadings be extended until the hearing and determination of the Plaintiff’s application for decree of limitation of liability.

[iii] Costs

[4] The application was made pursuant to s 178(1) of the Marine Act, 1986 and the inherent jurisdiction.

THE BACKGROUND

[5] The application was supported by the affidavit of the Chief Executive Officer of South Seas Cruises. I reproduce paragraphs 6 to 11 of his affidavit in which he deposed as to the facts and the reasons why this application was brought:

6. On 19 February 2006, the Defendant, Samsul Mody ("Mr Mody"), together with his wife Mamtaj Mody, and their child, were paying passengers on a SV Seaspray day cruise offered by SSCL ("the Cruise"). Further, Mr Mody and his family were holidaying in Fiji and purchased their tickets for the Cruise in Fiji.

7. During the Cruise, it is alleged that Mr Mody consumed caustic liquid stored in a bottle that was labeled as water while on board the SV Seaspray thereby suffering personal injury.

8. I have read the incident report in this matter and as a result of my own investigation, I verily believe that Mr Mody came to drink the caustic liquid in the following circumstances.

9. Prior to the incident, the Chef on board the SV Seaspray, Setareki Ratatagia, cleaned the griller with the caustic liquid. He had decanted the caustic liquid into an empty water bottle. After cleaning the barbeque griller, Mr Ratatagia placed the bottle containing the caustic liquid near the main mast. During the Cruise, Mr Mody was having his lunch on board the SV Seaspray near the main mast. He had been previously sitting near the main mast drinking water from a bottle that had a label indicating it was water. Mr Mody picked up the bottle containing the caustic liquid, thinking that it was the bottle of water that he had been drinking from, consumed some of the contents of the bottle containing the caustic liquid thereby causing him personal injury.

10. Mr Ratatagia was engaged by SSCL as a Chef because he had cooking experience. Any ordinary and reasonable person involved in the cooking profession, should, as a matter of common sense, know better than to decant caustic liquid into a water bottle and to leave the caustic liquid in a water bottle in a popular eating area of the SV Seaspray. It is self-evident that Mr Ratatagia should, in the exercise of the reasonable skill which SSCL was entitled to expect from a person engaged as a Chef, have placed the bottle containing the caustic liquid in safe storage.

11. In the premises, SSCL therefore contends that the actions of the Chef in leaving the bottle containing the caustic liquid near the main mast where it could be mistaken by guests on board the SV Seaspray for water and the subsequent injury suffered by Mr Mody was without the actual fault or privity of SSCL and therefore it is entitled to limit its liability under the provisions of Marine Act, 1986.

[6] Mody in response largely accepts these facts but says that as far as he observed, Mr Ratatagia was a member of the vessel’s crew. Mr Ratatagia was negligent and so South Seas Cruises is vicariously liable for the injuries caused by his negligence.

[7] Following the incident of 19 February 2006, Mody made a claim for compensation against South Seas Cruises and on 22 December 2006, they paid Mody AUD$75,000 and a further sum of AUD$60,000 on 12 September 2007 on a without admission of liability basis, a total of AUD$135,000.

[8] On 11 August 2008, Mody issued legal proceedings in the Supreme Court of New South Wales claiming damages for personal injuries for breach of contract and negligence. South Seas Cruises then applied in that Court for a stay of proceedings on the ground that the Fiji rather than the NSW Court was the appropriate court to decide the claim. The application was dismissed on 26 November 2008 and they have been ordered to defend Mody’s claim in NSW.

[9] South Seas Cruises now claims that they have paid more than they were required to pay because of the limitation set by the Marine Act under the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships and the Protocol Amending the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships. The amount that South Seas Cruises says they were limited to pay was AUD$115,000 (rounded up), that is, an over-payment of AUD$20,000 according to their calculations.

[10] On 30 January 2009, the first call of the Limitation Summons, this Court gave time for the parties to file their affidavit material and set the application down for hearing on 13 March 2009.

[11] On 19 February 2009, Mody filed in NSW an application to restrain South Seas Cruises from continuing or further pursuing these proceedings (the "Anti-suit application"). That application was later dismissed on 20 March 2009.

[12] Because of the Anti-suit application, this Court adjourned the Limitation application to be heard on 27 March 2009 by consent. The application was heard on that day before another judge but judgment remained outstanding. On 18 September 2009, after taking over the carriage of this action, the parties agreed that I deliver the judgment based on the trial judge’s notes and submissions filed by counsel. Unfortunately, the Court clerk that was responsible for this file at the time left soon afterwards and the outstanding judgment was not brought to my attention until South Seas Cruises solicitors wrote to the Registry on 10 March 2010. Normally, this judgment would have been delivered much earlier but for this slip and I apologise for the delay.

CONSIDERATION OF THE LIMITATION APPLICATION

[13] South Seas Cruises own evidence is that Mr Ratatagia was negligent. That much is clear from the affidavit of its CEO in the passages that I have quoted above. What is not admitted by them is that Mr Ratatagia was not an employee or servant and therefore South Seas Cruises is not vicariously liable. They argue that there was no "privity" between them and Mody. It is admitted that the vessel is owned by South Seas Cruises and Mody was injured whilst on it.

[14] Part IX of The Marine Act provides for "Marine Rights and Liabilities". Division 1 of that Part sets out the provisions for the liability of shipowners "in collisions" for personal injuries and Division 2 sets out the provisions for the limitation of that liability under the "Limitation of Liability Convention". South Seas Cruises relies on s 178 which is in Division 2 of the Act.

[15] Mody’s personal injuries were not as a result of a collision between the Seaspray and another vessel. Clearly, the Act and the Conventions have no application to this case. I must say that I had to check myself to make sure that I was right. Such a slip by any counsel, let alone by both counsel from either side must be very rare.

[16] The application must be dismissed.

THE WRIT

[17] The Writ claims the same principal relief as the Limitation Application so it too should be dismissed and I do so as an exercise of this Court’s inherent jurisdiction to ensure that its process is not abused.

COSTS

[18] Although neither counsel realised the futility of the application I think it was the mistake attributable to South Seas Cruises and its solicitors that required Mody to defend it and the action so they should pay Mody’s costs.

[19] This is one of those cases where indemnity costs are justified. Substantial material have been filed, the matter had been called on several occasions and there was a day’s hearing. I think costs of $10,000 is a fair amount so I order accordingly.

ORDERS

[20] The Orders are therefore as follows:

1. The Plaintiff’s Writ filed on 20 October 2008 and the Summons filed on 22 December 2008 are dismissed and struck out.
   
2. The Plaintiff shall pay the Defendant’s costs of $10,000 within 21 days.
   

Sosefo Inoke
Judge