Attorney General v Waysung Kum Kee [2010] KICA 12; Civil Appeal 15 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal No 15 of 2010

BETWEEN:

ATTORNEY-GENERAL FOR THE REPUBLIC OF KIRIBATI
Appellant

AND:

WAYSUNG KUM KEE T/A WKK SHIPPING LINE
Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel: Ereta Bruce for appellant
Prem Narayan for respondent

Date of Hearing: 13 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

[1] The respondent was the charterer of the vessel South Sea Manna. In April 2007 the South Sea Manna was lost at sea. The respondent brought proceedings claiming damages resulting from the loss against the Kiribati Inter-Island Shipping Services ("KISS") as first defendant and the Attorney General iro Ministry of Communications, Transport and Tourist Development, the appellant, as second defendant.

[2] In his judgment on liability delivered on 10 December 2009, the Chief Justice found that KISS was not liable to the respondent. He found the appellant was liable. In his judgment on damages delivered on 2 August 2010 he assessed the damages at $515,000. The appellant has appealed against that award on two grounds:

• [a] That the Chief Justice erred in law in finding the respondent the owner of the vessel MV South Sea Mana.
  
• [b] In assessing damages, the Chief Justice erred in law and in fact in awarding more damages than what was suffered by the respondent.
  

The judgment in the High Court

[3] The Chief Justice delivered his judgment on damages on 29 July 2010. He referred to the schedule of loss of damages submitted by the respondent and to the relevant legal principles. He then dealt separately with each head of damage. We shall adopt the same approach.

The loss of the vessel

[4] The Chief Justice assessed the loss of the vessel by adopting the cost to the respondent of buying a replacement vessel in Australia namely $250,000. The evidence of the respondent was, having chartered the vessel earlier, he had purchased it in October 2005 for $120,000. It is reasonable to assume that by the time it was lost 18 months later, its value would have been somewhat less. In the face of that evidence, we cannot accept that allowing an amount so far above the purchase price of the vessel was a proper assessment of the respondent's loss. The respondent will be properly compensated for the loss of the vessel if he were to receive an estimate of its value at the time of loss.

[5] The respondent assessed the value of the vessel at $150,000. The appellant's surveyor had estimated the value at some amount unspecified but less than $120,000. We conclude that $120,000 is an appropriate estimate of the value of the vessel at the time of its loss.

The cost of locating and importing a replacement vessel

[6] The Chief Justice accepted that as a replacement vessel was not available to replace the MV South Sea Mana in Kiribati, it was reasonable to allow $100,000 as the cost of the respondent and his crew travelling to Australia to bring back a replacement vessel. Clearly no replacement vessel would have been available in Kiribati. Thus replacement costs are likely to be part of the loss suffered from the loss of the vessel. There is no reason to disturb this assessment.

Customs duty

[7] The Chief Justice allowed the customs duty paid on the importation of the vessel into Kiribati of $25,000. This was not challenged by the appellant, although it was more than what would have been the duty on a vessel of the value of the MV South Sea Mana. In the absence of a challenge, we will not disturb the award.

Loss of chattels

[8] The respondent claimed for 19 chattels on the vessel at the time it was lost. The items in the left column the Chief Justice found were shown as the cost of purchase. They total a little under $50,000. The Chief Justice allowed $40,000, providing for some reduction below cost. It was submitted by counsel for the appellant that these spare parts would have been with the vessel at the time of purchase and therefore included in the purchase price of $120,000. However this claim was fully explored in evidence before the Chief Justice. The respondent said that all these items he had bought new. We find no grounds for interfering with this factual finding by the Chief Justice.

Loss of earnings

[9] The respondent in his schedule claimed $159,585.71. The Chief Justice considered this claim should be significantly discounted for contingencies so allowed $100,000. In doing so he said that Ms Bruce did not challenge the respondent's calculation. That is so in that she did not go through the detail of the calculation. Rather she relied on an affidavit filed by Ms Teibaba on behalf of KISS in which the deponent claimed that the vessel was making a loss of $8,725.98 per voyage.

[10] These calculations were before the Chief Justice who no doubt had them in mind. He clearly preferred the calculation made by the respondent from which he made a substantial discount. We find no reason to interfere with this assessment.

Other claims

[11] The respondent included in his schedule other claims for additional loss of past earnings, loss of future earnings and interest. All of these claims were disallowed.

The ownership of the vessel

[12] The first ground in the amended notice of appeal was that the Chief Justice erred in finding that the respondent was the owner of the South Sea Mana. In his judgment on damages he made no such express finding. Indeed he commenced his judgment on liability by saying that the respondent was the charterer of the vessel. However it is clear from the evidence given at the hearing on damages that the respondent had bought the vessel and thus was the owner at the time of the loss. This ground of appeal cannot succeed.

Result

[13] The appeal is allowed to the extent that the claim for the loss of the vessel is reduced from $250,000 to $120,000. In all other respects the judgment is affirmed. The result is that the total award of $515,000 is reduced by $130,000 to $385,000.

[14] As the appeal has succeeded in part and failed in part, we make no order for costs.

Tompkins JA
Fisher JA
Williams JA