Fathom Fisheries (Tonga) Ltd v Kiribati Shipping Corporation [1985] KIHC 1; [1987] LRC (Comm) 223 (25 April 1985)

[1987] LRC (Comm) 223

IN THE HIGH COURT OF KIRIBATI

FATHOM FISHERIES (TONGA) LTD

V

KIRIBATI SHIPPING CORPORATION AND ANOTHER

High Court:
Jones, C.J.
25th April 1985

Shipping law - "Trading" - Interpretation - Licences - Licences required for c foreign - going vessels - Whether engaged in "trade ... within the Republic" of Kiribati - Ships calling to offload and load cargo - Shipping Ordinance (Cap. 93), section 22.

The plaintiff company brought an action, inter alia, to recover trading licence fees it had paid under section 22 of the Shipping Ordinance (Cap. 93) (set out at p. 224 post) and seeking an order as to the correct interpretation of that section. The plaintiff argued that its ship, though foreign - going, called at a port in Kiribati only for the purpose of offloading and loading cargo. It contended that this did not constitute "trading" or trading "within" Kiribati.

HELD: Action dismissed:

The plaintiff’s claim failed because-

(a) the authorities established a strong judicial leaning towards classifying as; "trade" a wide spectrum of bilateral activities for profit (or even, in rare cases, not for profit). The carrying and delivery of cargo for profit by a ship was well within these authorities (see p. 226 post);

(b) ships engaged in trade and at the time in question within Kiribati waters were caught by section 22, which should be read as applying to ships engaging in trade at any port or ports within Kiribati. (See p. 227 post.)

Cases referred to in judgment:
Bank of India v Wilson [1877] UKLawRpExch 47; (1877) 3 Ex D 108
Cayo Bonito, The [1903] UKLawRpPro 25; [1903] P 203, CA
Manson v Hope [1862] EngR 660; (1862) 31 LJMC 191
Master Lightermen & Bargeowners Association v Southern Rly (No 2) (1933) 21 Ry & Co Tr Cas 126
National Association of Local Government Officers v Bolton Corporation [1943] AC 166, [1942]2 All ER 425, HL
Rutland, The [1897] UKLawRpAC 19; [1897] AC 333, HL Southern v AB Ltd [1933] 1 KB 713

Legislation referred to in judgment:
Kiribati:
Interpretation Ordinance, section 16
Shipping Ordinance (Cap. 93), sections 2, 22 and 23(1) Shipping Regulations, Schedule H
Shipping (Amendment) Regulations 1981

United Kingdom:
Hawkers Act 1810, section 6

Other sources referred to in judgment:
Jowitt's Dictionary of English Law, 2nd ed.
Shorter Oxford English Dictionary
Stroud's Judicial Dictionary, 4th ed., vol. 5, pp. 2807 - 2808

Action
The plaintiff brought an action, inter alia, to recover trading licence fees paid under section 22 of the Shipping Ordinance (Cap. 93) and to obtain an order as to the correct interpretation of that section. The facts are set out in, the judgment of Jones, C.J.

Teiwaki for the plaintiff.
Hazelton, State Attorney, for the defendants.

25th April 1985

JONES, C.J.: Fathom Fisheries Limited of Nukualofa, Tonga have' brought this action against (1) The Shipping Corporation of Kiribati and (2) Beiaiti Highland as the Marine Superintendent of Betio, Tarawa, Kiribati. They claim judgment for the sum of $320 being money paid for trading licences pursuant to section 22 of the Shipping Ordinance for the year ending September 1984. Secondly, they ask for an order determining the true and proper meaning and intent of sections 22 and 23(1) of the Shipping Ordinance. Thirdly, they seek an order declaring that these sections do not apply to the operations of plaintiff's ships and, fourthly, an order restraining the defendants from requiring licence fees for the plaintiff's ships when they bring cargo to Betio.

The defendants are both defended by the Attorney - General's office. They admit all relevant points except that they limit to six the number of times that the plaintiff's ships visited Betio in the twelve months of September 1984. This has clearly been accepted by the plaintiff because he has called no evidence and has addressed me only^, on two points of interpretation.

The statement of claim alleges, in paragraph 7 "that the Manager of the first defendant.... and/or the second defendant have required the plaintiff to obtain a trading licence pursuant to section 22, Cap 93 . . ." This is admitted in paragraph 1 of the defence without comment. It is not pleaded that the Shipping Corporation is not involved in the issue of trading licences. I shall, therefore, confine myself to the only issue: the interpretation of sections 22 and 23 of the Shipping Ordinance.

Section 22 of the Shipping Ordinance reads as follows:

"22. Every foreign - going vessel registered outside the Republic of Kiribati and engaged in trade or passenger traffic within the Republic shall take out a licence in the form which may be prescribed and pay the fee as may be prescribed."

Section 23(1) reads:

"Without prejudice to section 22, no vessel shall be used within the Republic of Kiribati for the purpose of trade or passenger traffic unless there is in force at that time a licence in the form which may be a prescribed granted in respect of that vessel by the Marine Superintendent under this section, and such fee as may be prescribed for such licence has been paid."

It is admitted in the pleadings that the plaintiff's ships are foreign - going vessels registered abroad and that the licence fees of $320 were paid pursuant to section 22. This dispute is, therefore, confined to section 22. I am unable to see why plaintiff has asked for an order declaring the correct interpretation of section 23(1) which is not relevant to the plaintiff's ships and, therefore, not relevant to this dispute. I decline to consider it except in so far as it has a bearing upon the interpretation of section 22.

For the plaintiff, Mr. Teiwaki has argued that plaintiff's ships have called at Betio only for the purpose of offloading and loading cargo. He contends that this is not "trading", and secondly, that it is not trading "within" the Republic. That, he submits, would necessarily involve trading between islands in the Republic. He submits that this is so even though Schedule "H" of the Regulations prescribing the fees payable has provision for a fee for one visit to one port in the islands (and then different fees for visits to any ports in the islands). Mr. Teiwaki contends that this provision for a visit to a single port is outside the scope of section 22. He also points out that section 23 is clearly intended for vessels trading between the islands internally in Kiribati but uses the same words: "within the Republic of Kiribati."

Mr. Hazelton, State Attorney, for the defendants has submitted that the term "trade" can include the offloading and onloading of cargo or either of them. He quotes from Jowitt's Dictionary of English Law, 2nd edition, which defines "trade" as -

"Traffic, intercourse, commerce, exchange of goods for other goods or for money."

Mr. Hazelton cites also The Cayo Bonito [1903] F. 218 to be found in Stroud's Judicial Dictionary, 4th edition, Vol.5, at p. 2807. This case is of help. It was a decision of Collins, M.R., that there is trading between ports A; and B where a vessel loads her cargo elsewhere and brings it to port A discharging it, or the greater part of it, and there and then, without taking on any fresh cargo at A, proceeds to port B.

The Shorter Oxford English Dictionary states that the literal meaning of the word "trade" is "to and fro" and this, Mr. Hazelton submits, would apply to discharge alone in one port, having come from another port outside Kiribati.

There are two possibilities: either the owner or charterer of these ships was also the traders in the goods they carried and offloaded, or loaded and then carried (or some of them), or they were merely carriers of the goods of others. I have not been told which alternative applies in the present case.

If the first alternative applies then it seems to me unarguable but that they were engaged in trade.

If the second alternative applies, I think there are two possible answers. - The act of delivering goods for sale or barter is part of the act of trading in these goods. A ship engaged in delivering such goods is, therefore, involved in the process of trading, is taking part in the trading process. From this it may be held to be a logical step to (holding that the ship is, therefore, engaged in trade. In The Rutland [1897] UKLawRpAC 19; [1897] AC 333 Lopez, L.J., said: "I take a 'ship trading' or a 'trading ship' to be a ship carrying cargo as contradistinguished from a ship not carrying cargo', e.g. a yacht or a man of war." However, a simpler, and to my mind a more satisfactory, answer is to say that Jowitt's definition (above) fails to take account of supplying services for profit. For example we speak of the hotel trade and, more, pertinently, the carrier's trade. In Master Lightermen & Barge Owners' Association v Southern Railway (No 2) 21 Ry & Ch Tr. Cas 126, 155 (cited in Stroud, Vol.5, p. 2807 top) it was held that in a proper case (I note the qualification) a carrier might be classed as a trader. In Bank of India v Wilson [1877] UKLawRpExch 47; 3 Ex D 108 the business of a telegraph company was held to be a "trade". So has a street - betting business: Southern v AB [1933] 1 KB 713. In National Association of Local Government Officers v Bolton Corporation [1943] AC 166 it was held that "trade" is not only etymologically but in legal usage a term of the widest scope.

These authorities are limited to the scope of their relevant statutes. Nevertheless, they show a strong judicial leaning towards classing as "trade" a wide spectrum of bi-lateral activities for profit (or, even in rare circumstances, not for profit). I take the view that the carrying and delivering of cargo for profit by a ship is well within these authorities. I hold that a ship delivering or taking on cargo for profit, whether that of its own master or of another, is engaged in trade. I have one reservation in respect of this interpretation. It is that section 22 speaks of

"engaged in trade or passenger traffic". This appears to distinguish the two activities. Yet both, on my reasoning, would be included in the term "carrier trade". I think the correct view of this phrase is that it is intended to avoid any doubt that it covers all profit - making activities of a commercial ship.

I feel satisfied that, for one or other (or both) of the reasons I have given, the plaintiff's ships were engaged in trade within the meaning of the term in section 22 at the relevant time.

I had thought that Mr. Teiwaki's second point would be the more difficult. It now seems to me that, having decided that the plaintiff's ships were engaged in trade, the question of whether they were so engaged within Kiribati is of simple solution.

The fact that Schedule "H" provides a fee for a 'single visit to a single port is not, as Mr. Teiwaki has pointed out, evidence of the correct interpretation of the main section. The regulation could be ultra vires. However, there are other possible approaches.

It is a basic principle of interpretation of statutes, that as far as may be they shall be interpreted to (a) make sense and (b) effect the intention of the legislature. Section 16 of the Interpretation Ordinance reads:

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

Applying this principle to section 22, I ask myself what else the section can and is intended to mean if it does not apply to foreign ships bringing cargo and/or passengers to and/or from Kiribati from/to abroad for profit. Mr. Hazelton has drawn my attention to the definition of a "foreign - going vessel" in section 2 of the Shipping Ordinance. This section reads:

"'foreign - going vessel' means any vessel going between some place or places in the Republic of Kiribati and some place or places beyond the limits of the Republic."

This excludes vessels plying between the islands. If, then, section 22 does not apply to vessels operating commercially between a foreign port/s and a Kiribati port/s it means nothing.

A case of persuasive authority is that of Manson v Hope [1862] EngR 660; 31 LJMC 191, cited in Stroud's Judicial Dictionary, Vo1.5, p. 2808, which followed earlier c decisions in holding that a person who took goods from his residence in one town and sold them in a room in another town was a ^- hawker as defined in section 6 of the Hawkers Act 1810, as a "trading person going from town to town" and, therefore, must hold a hawker's licence. This decision seems to me to have been based on a similar situation to the present one, because it was undoubtedly (I do not have the case report) the defence that the defendant was not engaged in trade in more than one town, and, therefore, was not trading from town to town.

I think it can readily be seen that, if the plaintiff's ships were engaged in trade and were at that time within the Republic of Kiribati, then they are caught by the section. A distinction must be made between actively trading within Kiribati waters and merely passing through. That presents no difficulty.

The section might have been more clearly expressed if it read "engaged in trade at any port or ports within Kiribati". I think this is what is meant. I think this is its only possible meaning. I, therefore, find that the regulation made under section 22 is not ultra vires the section, and that one visit to one port does constitute trading within the Republic of Kiribati.

I have been asked to say that the $320 which plaintiffs have been charged for six visits is refundable. I cannot say so. Nor can I say that a portion of it is refundable. Schedule H, as amended by the Shipping (Amendment) Regulations 1981, prescribes the fee for a single visit to a single port in Kiribati by a foreign - going ship registered abroad as $60 per visit, and for one year's licence to visit any ports in Kiribati as $500. The plaintiffs were not overcharged.

The claim fails in all respects. I award costs to the defendants, to be taxed.