Kiribati Shipping Services Ltd v Central Pacific Producers Ltd [2007] KIHC 147; Civil Case 30 of 2007 (28 November 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 30 of 2007

Between:

Kiribati Shipping Services Ltd
Plaintiff

And:

Central Pacific Producers Ltd
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Ms Botika Maitinnara

Date of Hearing: 26 November 2007

JUDGMENT

Dispute between two Government companies managed separately on commercial basis.

In 2003 BKL, a merchant, sent goods on MV Matangare from Tarawa to Kiritimati in a "reefer container" (which, I was told, means a refrigerated container). The plaintiff, KSSL, a shipping line and operator of MV Matangare, had to get the container back to Tarawa: an advantage if it could pick up cargo as back loading. The defendant, CPPL, had some tons of fish for shipment from Kiritimati to Tarawa: the fish needed to be refrigerated: a suitable cargo for the container. An arrangement between the two companies was made in Tarawa and $4,495 paid by CPPL to KSSL. It was conceded by Mr Burentoun Atanrika, CPPL Management Accountant and principal witness for the defendant, that the money was paid as a deposit. Mr Atanrika also conceded that the use of the word "deposit" implied that there was more to be paid later.

According to Mr Mote Tira, KSSL Operations Manager and principal witness for the plaintiff, capacity of the container is 33.3 cubic metres. The charge for a full container of dry cargo is $150 per cm: $4,995. The charge for a full container of refrigerated cargo is $300 per cm: $9,990.

Through Mr Tira the CPPL Order Form (No. 1344) dated 6/11/03 was tendered (Exhibit P1). Under the heading Description, "being charge of reefer container? Freight – Xmas-TRW on Matangare). From the custody of the defendant through Mr Atanrika a copy was tendered (Exhibit P3). The latter, P3, has this notification (not on Exhibit P1) "33.300 cbm x $300.00 = $9,990".

These documents lead to the inference that CPPL was ordering a refrigerated container irrespective of contents and that a deposit of half the full amount was paid in advance. That is the case for the plaintiff. The defendant to the contrary, through Mr Atanrika, contended that the arrangement, made orally, on the telephone, between senior officers of the two companies was that the full charge would be based on the tonnage of fish actually packed in the container, not on the capacity of the container. This can be no more than assumption: there is nothing in writing to shew such an arrangement. Unfortunately for CPPL Mr Atanrika could not identify for sure the officers who would have made the arrangement. One senior CPPL officer is now dead: one senior KSSL officer is no longer with the company. Perhaps they were the officers. Therein lies the weakness in the defendant’s case. [Ms Maitinnara complained that the plaintiff had delayed taking proceedings for four years and this made it difficult for her client. This may be so and nothing can be done about it even though it made her client at a disadvantage. Ms Maitinnara may make the complaint but the proceedings are well within time.]

The defence did do well on another matter. Mr Waititi Takei in 2003 was supercargo on MV Matangare. He gave evidence that Akori, CPPL employee and agent had travelled back to Tarawa on MV Matangare. Akori had locked the container and kept the key during the voyage. Ms Maitinnara called Mr Akori Tongarua who flatly denied being on MV Matangare: he had come back to Tarawa on MV Momi. I am inclined to accept Mr Tongarua’s denial. As I shall come to a conclusion on grounds to which this evidence is not relevant I need not make a decision whether Mr Akori was on MV Matangare or not.

It is common ground that on arrival in Tarawa the container was taken to the CPPL premises. Atanrika:-

Agreement was when ship came KSSL tally clerks would come to inspect and measure how much fish – but they never came: they were to come to our work place where container was.

The case for the defendant is that payment was to be based on the tonnage of fish shipped in the container: it was never calculated: CPPL had paid the deposit and is not liable to pay any more than the deposit as no one knows how much more should be paid.

An inference against the case for the defendant may be drawn from Mr Atanrika’s evidence: that KSSL tally clerks did not turn up at CPPL to compute the weight of the fish because there was no need to make the computation: CPPL was liable to pay for the container however much it had in it.

In the absence of any first hand evidence (Mr Atanrika’s evidence is vague and hearsay) of an oral arrangement to pay only for the tonnage of fish in the container – it is merely Mr Atanrika’s assumption – on the one hand and on the other the written evidence of Exhibits P1 and P3 ("being charge of reefer container") I conclude on the bare balance of probabilities that the plaintiff has proved its case. A further $4,995 is due to KSSL from CPPL.

The plaintiff also claimed "port charge $15.50 @ 33.300 $516.15". That has not been proved: no evidence. I shall not allow it.

Accordingly the plaintiff is entitled to the balance due of $4,995.

I shall hear counsel on the order I should make.

Dated the 28th day of November 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice