Nicholas Jong (trading as Rose Shipping Services) v Kiribati Port Authority [2020] KIHC 33; Civil Case 107 of 2014 (24 October 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 107 OF 2014

[NICHOLAS JONG T/A ROSE SHIPPING
[SERVICES APPLICANT
[
BETWEEN [AND
[
[KIRIBATI PORT AUTHORITY DEFENDANT

Before: The Hon Chief Justice Sir John Muria

14 April 2020

Ms Kiata Kabure for Applicant
Ms Elsie Karakaua for Defendant

JUDGMENT

Muria, CJ: By a Writ issued out of the High Court on 6 November 2014, the plaintiff claims damages against the defendant arising out of a collision between the defendant’s barge and the plaintiff’s vessel at some time between 1400 and 1600 hours on 25 November 2013 at the defendant’s dockside. The defendant denied the plaintiff’s claim.

Brief background

2. On or about 25 November 2013 the plaintiff’s vessel, MV Itoman Raoi (“the Vessel”) was at the defendant’s dockside loading cargoes for its outer island trip. While it was still loading its cargoes, the defendant’s barge entered the dockside and collided with the plaintiff’s vessel. The fender of the defendant’s barge hit the side of the hull of the plaintiff’s vessel. The defendant’s barge left its marks to the side of the plaintiff’s vessel, although the defendant described the marks as “minor scratches”.

3. The body of the defendant’s barge, however, rammed into the aluminium boat which was tied to the side of the plaintiff’s vessel, causing dents to the body of the aluminium boat. The force of the collision rammed the plaintiff’s vessel into the side and against the concrete wall of the wharf.

4. As an insurance requirement the vessel was subsequently
dry-docked and inspected. A report was compiled following the inspection. The defendant also conducted its examination of the plaintiff’s vessel immediately after the collision and produced a report of its finding.

Collision

5. The circumstances of the collision are not disputed. The plaintiff’s vessel was stationary at the dockside, loading its cargoes for its next trip to the outer islands. The defendant’s barge entered the dock, unsteady and swerving and in the course of which hit the plaintiff’s vessel as well as the aluminium boat tied to the plaintiff’s vessel.

6. The impact of the collision rammed the plaintiff’s vessel against the concrete wall of the wharf. The evidence of the collision shows scratches to the body of the plaintiff’s vessel (outside part of the hull) and dent to the front part of the aluminium boat.

7. In his affidavit evidence of 9 April 2020, Betem Ueri, admits that the defendant’s barge collided with the plaintiff’s vessel. He also admitted that the defendant’s barge was, at the time it entered the dock, not steady. He said at paragraph 8:

“because the barge was never steady...... it accidentally hit the side of the plaintiff’s vessel”.

8. He continues in paragraphs 9 and 10 of his affidavit:

“9. Particularly during the incident, the fender of our barge contacted or hit the side of the vessel thereby causing minor scratches to the side of the vessel’s hull without any further internal damage. The body of the barge hit the Plaintiff’s aluminium boat causing it to deform only as shown in B1.

10. This aluminium boat was tied to the side of the Plaintiff’s vessel and therefore the hit only misshaped the aluminium boat only and not the Plaintiff’s vessel”.

9. There can be no doubt whatsoever that a collision took place between the defendant’s barge and the plaintiff’s vessel on
25 November 2013. The plaintiff’s vessel was stationary at the dockside, loading its cargoes. It was the defendant’s barge that slammed into the plaintiff’s vessel and aluminium boat. I find that the defendant’s barge caused the collision with the plaintiff’s vessel.

Liability

10. It is necessary next to determine the issue of liability. The plaintiff’s case is that it was the defendant who is liable for causing the collision and damages caused to the plaintiff’s vessel arising out of the collision. The defendant, while accepting that its barge caused the collision, appears to be luke-warm about accepting liability, not only for the collision, but also for any damages beyond the “scratches” to the outer hull of the plaintiff’s vessel and the dent or as Ueri described it “misshaped” to the body of the aluminium boat. The onus is on the plaintiff to establish the liability of the defendant.

11. In the light of the evidence before the Court and the admission by Ueri, there is a strong case for the plaintiff that the defendant is responsible and therefore liable for the collision caused by its barge with the plaintiff’s vessel. Secondly, on Mr Ueri’s evidence, the defendant’s barge itself had an unstable condition and an unpredictable swerving when in voyage. That clearly should have placed the captain or whoever was in charge of the barge at the time on notice to take extra care in handling or controlling the barge when entering the dock.

12. There is a suggestion by the defendant that the plaintiff’s vessel should not have been at the dockside of the wharf at the time, implying that if the plaintiff’s vessel was not there at the time, no collision would have occurred. That is clearly an attempt by the defendant to shift the blame on the plaintiff for the collision. However, the fact of the matter is that the plaintiff’s vessel was stationary at the dockside loading its cargoes. There was no reason at all for it, not to be there at the time. It is therefore incumbent on the defendant to show that even after exercising reasonable care, its barge could not have avoided colliding with the plaintiff’s vessel.

13. In the case of Baril –v- Beaumier [2018] QCCQ 3111 (26 April 2018) cited by Counsel for the plaintiff is apt in this case. That case was concerned with a collision between the defendant’s vessel and the plaintiff’s rowboat which was stationary and fishing. The defendant’s boat driven by the defendant, without changing its course, ran straight into the plaintiff’s rowboat. The plaintiffs had to jump out from their rowboat to avoid being hit as well. The Court found the defendant liable for the collision. The Court in that case also held that the burden was on the defendant to establish that he could not have avoided colliding with the plaintiffs’ boat which was stationary and fishing.

14. In view of the unstable condition of the defendant’s barge and difficulty in preventing it from swerving when it was loaded, the defendant must accept the responsibility of operating such a barge. In my view, the principle of res ipsa loquitur is also apt in the circumstances of this case to support the plaintiff’s claim, although the plaintiff did not seek to rely on that principle. In any case, the defendant, in the present case, bears the burden of establishing that its barge could not have avoided colliding with the plaintiff’s vessel which was stationary and loading its cargoes. The defendant has failed to discharge the burden required of them.

15. I find the defendant is responsible for causing the collision by its barge with the plaintiff’s vessel. As such the defendant is liable for the collision caused by its barge with the plaintiff’s vessel on
25 November 2013.

Damages

16. The next issue is the extent of the defendant’s liability in damages. In his affidavit, Mr Ueri states in paragraph 24:

“24. The plaintiff [should be the defendant] agrees that it is only liable for the damage caused to the aluminium boat and the scratch that occurred to the outer hull of the vessel. Apart from that since a report was never produced by the Director of Marine that a dry dock service was required or that the vessel was not seaworthy, such service was never necessary”.

17. Thus the defendant is prepared to pay for the damages in respect of the aluminium boat and the “scratches” to the outside of the hull of the plaintiff’s vessel. The costs of replacement of the aluminium boat is $6,533.50 and the costs of repair to the port bow and port beam of the vessel is $5,342.00. Those amounts cover part of the plaintiff’s claim admitted by the defendant and they relate to the damage caused by the defendant’s barge. I therefore find that the defendant is liable to pay to the plaintiff the sum of $11,875.50 representing the defendant’s admitted part of the plaintiff’s claim.

18. The plaintiff’s claim does not end there. The plaintiff also claims the costs of inspection on dry dock at Betio in the sum of $3,921.10. The defendant’s contention on this part of the claim is that the dry dock inspection was unnecessary because there was never a survey report by the Director of Marine showing that a dry dock service was necessary.

19. I do not accept the defendant’s argument that dry docking service is dependent on the Director of Marine’s survey report. I reject the suggestion contained in the defendant’s argument that in the absence of the Director of Marine’s survey report, the plaintiff’s vessel must be presumed to be seaworthy and that dry dock service was unnecessary.

20. The Director of Marine’s certification of seaworthiness was dependent on the ship’s condition that it was seaworthy. That entails that inspection had to be made following the collision with the defendant’s barge. Dry docking the plaintiff’s vessel to ascertain if there was damage done was necessary. The plaintiff had the insurance requirement to ensure that the vessel was seaworthy. It was therefore necessary for the vessel to be dry docked and serviced, so that it would meet the Director of Marine’s requirement for Certification of Seaworthiness. The plaintiff had his vessel dry docked and serviced at the cost of $3,921.10 following the collision caused by the defendant’s barge. The defendant is liable to reimburse the plaintiff for that expense in the sum of $3,921.10.

21. The defendant insisted that the damage its barge caused to the plaintiff’s vessel was minor. Whether the damage was minor or not, the fact of the matter is that the fault was entirely on the defendant. The plaintiff’s vessel played no part in the collision. It was stationary and busily loading its cargoes. The defendant must take its victim as it found it. The costs of replacement of the aluminium boat ($6,533.50), repair to the port bow and port beam of the vessel ($5,342.00) and dry dock service ($3,921.10) are all expenses arising out of the collision caused by the defendant’s barge which was at fault in this case.

22. Further, there is not a single evidence from the defendant to counter the figures claimed by the plaintiff as the expenses he incurred in having his vessel repaired and serviced after the collision. All that the defendant is saying is that the damage was minor. Whatever the word “minor” means to the defendant, in my view, “minor” in the context of ensuring seaworthiness of a vessel, collision with a vessel cannot be simply brushed aside as “minor”, since the risks associated with and arising out of such collision are too onerous to be considered minor.

Re-certification of Seaworthiness

23. The inspection and repair work done on the plaintiff’s vessel were necessary part of getting the vessel re-certified of its seaworthiness after the collision. The plaintiff had to incur the expense of obtaining the re-certification at cost of $1,124.98. There is no evidence to contradict that amount.

24. I feel that to make sense of the plaintiff’s position in this case, I need only refer to the affidavit of Koura Rokeatau who was a Senior Claims Officer with the Kiribati Insurance Corporation. He stated in paragraphs 4-6 of his affidavit as follows:

“4. On 25 November 2013, the Plaintiff reported to our office the accident which the vessel MV Itomanraoi involved in. Since the force of this collision slammed and crushed the vessel with the concrete dockside, we had to instruct the Plaintiff that if they do not arrange for their vessel to be properly inspected and to re-issue a recertification of its sea worthiness after full inspection, then its insurance cover could not be guaranteed.

5. The Plaintiff complied with our instruction and also meets the expenses incurred from this re-certification.

6. It is common sense that once the vessel was hit by a heavy object, in this case the barge, a full inspection of the vessel should be carried out in order for the safety of the vessel itself including its passengers and cargoes to be safe. We cannot risk allowing MV Itomanraoi to continue its journey without a proper inspection of its hull or else we will face with liability if something happened to the vessel. As a standard procedure, a full inspection of the hull should be carried out as well as a re-certification of its sea worthiness”.

25. The plaintiff did what was required of him to ensure his vessel was seaworthy again after the defendant’s barge rammed into it, through no fault on the part of the plaintiff. He incurred expenses in having his vessel inspected and repaired to ensure its seaworthiness including, now having to pay for the re-certification. The plaintiff must be reimbursed by the defendant for the cost of re-certification of the seaworthiness of his vessel. The defendant must pay the sum of $1,124.98 to the plaintiff being the cost of re-certification of his vessel.

Wages paid to the Crews

26. In his Statement of Claim, the plaintiff also claims reimbursement for Wages paid to the crews of his vessel during the 63 days the vessel was on dry dock service. In support of his claim, the plaintiff relied on the pay-slips and payroll for period 5 December 2013 to 23 January 2014. The total sum claimed under this head is $5,265.00.

27. The obligation to pay wages to the crew is always on the employer who, in this case, is the plaintiff. The fact that the vessel was put on
dry-dock service following the collision caused by the defendant’s barge, does not change the plaintiff’s obligation to pay wages to the crew of his vessel. He has to maintain them, whether they are out at sea or on shore, and as long as they are still employed as such.

28. In the present case, the plaintiff’s claim for reimbursement of wages paid to his crew during the dry dock service cannot be sustained. This part of the plaintiff’s claim is refused.

Claim for Loss of Income

29. The plaintiff also claims for loss of income for the period of 63 days during which his vessel was under dry dock service and repairs. The plaintiff relied on the record of his Bank Statement on his annual turn-over and his daily average account. The plaintiff put his claim to the defendant in a letter dated 14 March 2014. A follow-up of that letter was made by the plaintiff’s lawyer in a letter dated 1 April 2014. On
17 April 2014 the defendant replied refusing to accept the plaintiff’s claim.

30. The nature of the plaintiff’s claim for loss of income put to the defendant is made as follows:

Annual Turn-over: $194,425.53
Weekly Average: $3,738.95
Daily Average: $532.67
Date of Collision: 25^th November 2013
Resumption of Operations
(Voyage 1/2014 to Makin): 25^th January 2014
Total Days out of Operation for repair: 63 days
Claim of 63 days: $33,558.21

31. Apart from just refusing to settle the plaintiff’s claim, no evidence was ever produced by the defendant to counter the plaintiff’s evidence on this aspect of his claim. The defendant’s position on this part of the plaintiff’s claim and generally throughout the trial is that the damage to the plaintiff’s vessel was so “minor” as to make the vessel unseaworthy. As such, it is argued, that in the absence of a report from the Director of Marine, showing that the vessel was unseaworthy, the dry dock service was not required and as such all the expenses resulting from the dry dock service cannot be claimed from the defendant. The defendant’s final stand in this case is that the plaintiff’s vessel should not disrupt its voyage to the outer islands since the collision only caused “minor” damage to the plaintiff’s vessel.

32. Needless to say, I reject the defendant’s argument in this case. The plaintiff’s evidence, supported by the evidence of the Kiribati Insurance Corporation Senior Claims Officer have shown that the dry dock service undertaken on the plaintiff’s vessel was a direct consequence of the collision caused by the defendant’s barge to the plaintiff’s vessel. A collision which is admitted by the defendant to have been caused by its barge. That is the basis of the plaintiff’s claim.

33. The absence of the Director of Marine’s report cannot preclude the plaintiff from having his vessel undergoing dry dock service following the collision so as to ensure that his vessel was re-certified seaworthy. As it turned out, the plaintiff’s vessel was re-certified as seaworthy and undertook its first voyage after the collision to Makin, Voyage 1/2014 on 25 January 2014.

34. Having rejected the defendant’s argument in this case, I must find that the plaintiff has made good on his claim for loss of income for the 63 days that his vessel was out of operation. I accept the plaintiff’s claim of $33,558.21 for loss of income in this case.

General Damages

35. The plaintiff also claims general damages in this case. I need not deal with this claim in length since I am satisfied that on the facts and the evidence disclosed in this case, the plaintiff is entitled to general damages.

36. There is abundant proof on the evidence that the plaintiff has suffered loss as a consequence of the action of the defendant. The principles justifying awards of general damages are set out in
Tebetanga –v- Betio Town Council [2014] KIHC 43; Civil Case 192/2010 (17 October 2014); Koru –v- Tabiteuea Meang Island Council [2020]
KIHC 30; Civil Case 53 of 2017 (20 October 2020). See also
Baraniko –v- Solar Energy Co [2014] KICA 2; Civil Appeal 3 of 2014
(13 August 2014) which upheld the High Court’s decision including the award of general damages.

37. The Kiribati case law authorities show that the award of general damages in a case such as the present one, range from $2,000.00 to $5,000.00. In the present, I feel the plaintiff is entitled to general damages in the sum of $5,000.00 and it is so ordered.

Conclusion

38. On the evidence before the Court and for the reasons set out in this judgment, the plaintiff has succeeded in his claim against the defendant except for the claim for wages paid to the crew. Judgment is therefore entered for the plaintiff in the sum of $55,479.79 comprising of:
Cost of replacement of aluminium boat $6,533.50
Cost of repair to port bow and port beam
of the vessel 5,342.00
Inspection and dry dock service 3,921.10
Re-certification of seaworthiness 1,124.98
Loss of Income 33,558.21
General Damages 5,000.00
TOTAL $55,479.79

39. The plaintiff is entitled to interest on the judgment sum at 6% per annum from date of judgment until paid in full.

40. The plaintiff shall also have his costs of the action. Such costs to be taxed if not agreed.

41. ORDER:

1. Judgment for the plaintiff in the sum of $55,479.79.

2. Interest at 6% per annum on the judgment sum from the date of judgment until paid in full.
   

3. Costs to the plaintiff to be taxed, if not agreed.

Dated the 24^th day of October 2020

SIR JOHN MURIA
Chief Justice