Mikaere v Kiribati Ports Authority [2010] KIHC 68; Civil Case 42 of 2010 (24 June 2010)

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

High Court Civil Case 42 of 2010

BETWEEN:

TEKAAI MIKAERE T/A SHIPPING AGENCIES OF KIRIBATI
Plaintiff

AND:

KIRIBATI PORTS AUTHORITY
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Kiata Kabure

Date of Hearing: 21 June 2010

JUDGMENT

Action in detinue. The plaintiff sues the defendant for $189,200 arising out of the detention of a number of cargo containers. The plaintiff alleges the containers should have been returned on a subsequent voyage to the owners but they were not. The defence is that some of the containers were sealed and others still had cargo in them which the consignees had not collected: the KPA could do nothing: they had no authority from Customs or the plaintiff to open the containers.

S.24 of the Kiribati Ports Authority Act:-

Powers to sell or dispose of goods

24(1) Subject to the provisions of this section, if any goods which have been placed in or on premises of the Authority are not removed therefrom within a period of twenty-one days from the time when they were so placed, the Authority may, at the expiration of that period, sell by public auction or dispose of all or any of such goods as it may think fit:

Provided that .....

(b) if the goods are of a perishable nature the Authority may direct their removal within such shorter period, not being less than twenty-one hours after the discharge thereof as it may think fit, and if not so removed, the Authority may sell all or any of such goods by public auction or dispose of them as it may think fit .....

(3) Before effecting a sale under this section, the Authority shall give at least three days’ notice thereof by advertisement at public places or on the radio .....

(4) The proceeds of any sale under this section shall be applied by the Authority in the following order:

(a) First, in payment of any duty owing to the Government;

(b) Secondly, in payment of the expenses of the sale;

(c) Thirdly, in payment of all charges and expenses due to the Authority under the provisions of this Act in respect of the goods; and

(d) Fourthly, in payment of freight or other claims or liens of which notice has been given under the provisions of any written law......

The plaintiff wrote to the defendant on 25 October 2009:-

Mauri Rubee

Re. Long over stay containers at KPA yard

Please find list of containers which had been in your yard for a long period of time. We would appreciate if the containers highlighted are all loaded per Tropical Islander V05 ETA Tarawa 27 Nov, 09.

These units arrived Tarawa when KPA was handling the agency work for GBH & SSL and these units should have been shipped back.

We understand that KPA under its regulations had the power to auction the unclaimed goods which will allow the early return of the containers. We do believed that our over stay containers contain goods which are long overdue for auction. Your failure to auction the goods on the due date had caused our containers to stay here for a long period of time.

Our Principals had advised us that there will be a fee to be imposed if these units are not returned per the above vessel.

The defendant did not reply to the letter and did nothing to auction the goods. The reasons advanced by Ms Kabure and Nei Teera Anterea, KPA Storage Warehouse Manager, were that they had no authority to break the seals on the sealed containers and no authority from the plaintiff as shipping agent.

To justify the first reason Ms Kabure tendered two letters (both marked Exhibit D1), the first dated 24 October 2009, from KSSL complaining that the seals on a container had been broken, apparently unlawfully, by a KPA tally clerk and the second, dated 3 November 2009, from the Comptroller of Customs drawing attention to the illegal act. The relevant sentence of the Comptroller’s letter:-

I am of the view that this is most improper as no person other than a customs officer can break a customs seal.

Before exercising its power under s.24 all the KPA had to do was to request Customs to come and break the seal. The request could easily have been made in the normal course of business. No request was made and the defendant chose to interpret the Comptroller’s letter as meaning it should do nothing.

As for the second reason, the plaintiff in the third paragraph of the letter of 25 October gave at least implied authority to go to auction. If the KPA had any doubt about the authority all it had to do is to approach the plaintiff to confirm it.

As a matter of common sense I reject the reasons advanced by the defendant to justify its lack of action. The defendant could have exercised its power under s.24 so as to allow the return of the containers as requested by the plaintiff in the letter of 25 October. No good reason why not. Had it exercised its powers the containers would have been in a condition to be "loaded per Tropical Islander V05 ETA Tarawa 27 Oct, 09". That it did not makes it liable to the defendant.

Counsel asked me first to decide liability and then, if necessary, to consider quantum.

There will be judgment for the plaintiff on liability.

Dated the 24th day of June 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice