Kiribati Shipping Services Ltd v Posada [2012] KIHC 21; Civil Case 183 of 2009 (23 July 2012)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 183 OF 2009

BETWEEN

KIRIBATI SHIPPING SERVICES LTD
PLAINTIFF

AND

LOMI POSADA T/A LAWIN INTER
ISLAND SHIPPING LINE
DEFENDANT

AND

ATTORNEY GENERAL ON BEHALF
OF THE MINISTRY OF COMMUNICATION
TRANSPORT AND TOURISM
DEVELOPMENT
THIRD PARTY

Before: Hon Chief Justice Sir John Muria

18 July 2012

Ms Taoing Taoaba for Plaintiff
Mr Banuera Berina for Defendant
Ms Ereta Bruce for Third Party

JUDGMENT

Muria CJ: The plaintiff in this case has brought its claim against the defendant in the sum of $3,920.00 for outstanding charge for towing the vessel, MV Adana, when it drifted away with passengers on board some time in November 2008.

The brief background to the case is that some time in or about November 2008, the defendant's vessel, MV Adana, was on its way from Tarawa to Tabiteuea North and Tabiteuea South, with more than 200 passengers on board. At about 11.00 pm, while the vessel was about 10 miles northwest of Noumatong, Nonouti, its engine failed completely. The Captain, Tabwebweiti Tekabu, sent out a distress call at about 8.00 am, the following morning, to the Marine Guard.

Having received the distress call, the Marine Guard conveyed the distress call to nearby vessels. At about 10.00 pm the next day, the plaintiff's vessel, MV Nei Momi, arrived at the scene. The Captain of MV Adana then requested the captain of MV Nei Momi to tow the vessel to Tarawa. However, under instructions, the captain of Nei Momi, towed MV Adana to Kuria, the nearest safe anchorage.

After the vessel was towed to Kuria, an Agreement was signed between the Captain of MV Nei Momi and the Captain of MV Adana. The Agreement was for the payment of the charges for towing the stricken vessel, MV Adana, to Kuria. The towing took 14 hours, commencing at 2200 hours on 29 November 2008 and ending at 1200 hours on 30 November 2008. The Invoice attached to the Agreed Note showed the tow charge of $3,920.00 was based on the towage rate of $280.00 per hour.

The defendant now denies owing the plaintiff the sum of $3,920.00 or at all. The defendant also took out a Third Party Notice against the Ministry of Communication, Transport and Tourism Development for indemnity against any award made against it on the following grounds:

1. His call for help was directed to your Marine Division and he never got in touch with the Plaintiff for assistance. The help from the Plaintiff therefore must have arisen as a result of your Division's arrangement with the Plaintiff and as such any claim by the Plaintiff ought to be directed against you.
   
2. The Defendant has relied on the fact that your Marine Division has been bearing the costs involved in emergency calls without charging costs to the party seeking help.
   

This judgment is only concerned with the Third Party Notice on the questions of whether the vessel was in distress and whether there is a case for indemnity of the defendant by the Government of Kiribati in this case.

The two affidavits of Capt Tabwebweiti Tekabu show that following its complete engine failure, the MV Adana with more than 200 passengers on board could not sail on to Tabiteuea North or Tabiteuea South. There was no food or water provisions for the passengers on board.

Capt Tekabu then made a distress call to the Marine Guard which transmitted the distress call to nearby vessels to assist. The plaintiff's vessel, MV Nei Momi came to the rescue of the stricken vessel.

In her first argument, Ms Bruce stated that the vessel, MV Adana, was not in distress since the passengers were still on board and that their lives were not in danger. Counsel submitted that only in cases where the vessel is suffering from uncontrollable fire or is sinking that the lives of the passengers can be said to be in imminent grave danger and requiring immediate assistance. In such a case the ship would be in distress, says Counsel.

I must say that I am at a loss to follow the logic of Counsel's argument on this point. On the one hand, Counsel argued that the ship was not in distress here. On the other hand there is evidence to show that the MV Adana sent a distress call which the Marine Guard received and passed it on to a nearby vessel, MV Momi which then proceeded to the scene of stricken vessel. Whatever the logic of the argument is, there is one thing so obvious: the stricken vessel, MV Adana, was not safe for the passengers on board. The vessel's engine failed completely and it was in danger of drifting away. Not only that, the people were in danger of starvation with no food or water but the vessel itself was in danger and at risk since its engines were no longer functioning. Quite rightly, the Captain sent a distress call because the vessel was in distress. I do not think that the Captain had to wait until his vessel was engulfed in uncontrollable fire or waited until the vessel was sinking before he could justify sending a distress call. It might well have been too late.

The vessel, MV Adana, was clearly in distress in the present case and I so find.

The more important consideration for the Third Party to be concerned with in this case is whether they should be made to indemnify the defendant for the cost of towing the defendant's vessel to safety. On this issue, Ms Bruce submitted that there was an agreement between the plaintiff and defendant on the payment of charges for towing the stricken vessel to safety. The liability to pay the charges, says Counsel, lies with the defendant and cannot pass it on to the Government. Mr Berina on the other hand argues that the Government has the obligation to provide assistance to vessels in distress. Additionally, Counsel suggests that the agreement between the plaintiff and defendant does not absolve the Government of its obligation to provide assistance to the stricken vessel, such as the defendant's vessel in this case.

To my mind, this is a case of a contract for marine towage between the towing vessel owner and the stricken vessel owners. Very often, many salvors, upon arriving at the scene of the stricken vessel, would present to the owner of the stricken vessel with what is sometimes called "No cure, No Pay" contract prior to undertaking the salvage or towage service. However, towage service provided, without initial contract, to a vessel in peril can claim payment for service rendered. The plaintiff's vessel having received the distress call proceeded to the place where the defendant's vessel lie in peril and provided the towing services even without any contractual agreement. The stricken vessel Captain accepted the towing services by the plaintiff's vessel, as it must certainly be the only rational choice for him to make in the circumstances. To do otherwise would be to expose the vessel and passengers to grave danger and risks. The Agreement later entered into by the captains of the respective vessel was simply to buttress that arrangement. Thus, a marine tower who renders towing services to a vessel in peril, even without contractual agreement before providing his services is entitled to demand and receive payment for his services.

In Kiribati, section 18 of the Wreck and Salvage Ordinance (Cap 103) provides the statutory basis for such a claim. Section 18 states as follows:

18. When -

(a) any vessel is stranded or wrecked or otherwise in distress on or near the shore of any sea or tidal water within the limits of Kiribati and services are rendered by any person -

(i) in assisting such vessel; or

(ii) in saving the lives of the persons belonging to such vessel; or

(iii) in saving the cargo or apparel of such vessel or any portion thereof; and

(b) when any wreck is saved by any person other than the receiver within Kiribati,

there shall be payable by the owners of such vessel, cargo, apparel or wreck to the person by whom such services or any of them are rendered or by whom such wreck is saved a reasonable amount of salvage with all expenses properly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and expenses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner hereinafter mentioned. (Emphasis added).

The Government's position in the present case differs from that in Waysang Kum Kee –v- KIISS Civ. Case 176/07. In that case, there was agreement between Government and the plaintiff that the Government would provide assistance to the plaintiff to tow the vessel from Banaba to Tarawa. In the present case, the Marine Guard received the distress call from the defendant's vessel, passed it on to the nearest vessel in the vicinity of the stricken vessel. That is as far as the Government's obligation goes in the present case and one which was carried out. The plaintiff's vessel responded with assistance and signed an agreement to that effect with the defendant. It would therefore be too far-fetched to justify any order or direction to the Government to indemnify the defendant in this case.

I hold that the vessel MV Adana was, at the time of the incident, in distress. I further hold that the Third Party (Government) has no obligation to indemnify the defendant on costs incurred for towing its distressed vessel MV Adana to safety.

Dated the 23rd day of July 2012

SIR JOHN MURIA
Chief Justice