IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 38 of 2014

BETWEEN:	TIAON TEMAAKI 					Plaintiff

AND:	ALEXANDER NAUAN iro KIRIBATI EMPLOYMENT AND MARINE SERVICES		Defendant

Date of Hearing:		     	27 February, 3 March, 10 & 14 March 2025 (w/sub)
Date of Judgment:			10 April 2025

Appearances:		  Mrs. Kiata Kabure Ariera for the Plaintiff
                                              Ms. Taoing Taoaba for the Defendant

JUDGMENT

Introduction

1.	By Writ of Summons, the plaintiff sues the defendant for compensation regarding injuries sustained while working as a seafarer aboard a vessel named Inari Maru. The plaintiff contends that the defendant is liable for compensation as his employer under a contract of service signed by both parties on May 6, 2013.

2.	On May 19, 2013, while the plaintiff was working on the vessel, large waves caused by a typhoon struck the vessel's side, resulting in the conveyor snapping and falling onto the plaintiff’s legs. The plaintiff sustained severe injuries to his left knee, ligaments, bones, and meniscus. He was hospitalised from June 21 to July 1, 2013. Upon his release from the hospital, he stayed at a hotel from July 2 to 14, awaiting his return flight to Kiribati. 

3.	 The plaintiff left Japan on July 15 and arrived in Tarawa on July 18, 2013. On July 25, he returned to work on the vessel because he needed money, knowing he would not be paid unless he resumed work. After four months, on November 26, 2013, he left work due to his inability to cope with his injuries. Upon returning, the plaintiff underwent a medical check-up. His medical report indicated that he had a 50% injury to his left knee ligament and a 40% injury for his fracture avulsion of the malleolus articular of the tibia. He sought compensation from the defendant, which was denied on the grounds that he had recovered from his injuries and because the defendant claimed they were not his employer, but rather an agent of the employer.

Issues

4.	i) Whether the defendant was an employer.
ii) If so, whether the plaintiff is entitled to compensation under the Workman Compensation Ordinance.

Submissions and Analysis

5.	The defendant claims they were not the employer but rather an agent. The signed contract of service between them and the plaintiff was executed on behalf of the owner, Inari Co., Ltd. According to the defendant, clause one states that the principal is Inari Co., Ltd. For ease of reference, clause one is provided below:
“1. Duration of the employment
The duration of the employment shall be one year unless agreed between the vessel owner and the Fisherman.
This fisherman shall work for Inari Maru from 6th May 2013.

6.	To further support their argument, the defendant states that the vessel owner, Inari Co. Ltd, was responsible for paying the plaintiff's wages, which were sent to the defendant to disburse to the plaintiff. The owner was also accountable for additional matters, such as providing safety gear and paying insurance for death, injury, medical expenses, etc. The plaintiff did not contest this during cross-examination.

7.	The defendant also argues that it was evident the contract, although signed by the defendant, was clearly between the plaintiff and the owner, Inari Co., Ltd, and that the plaintiff did not dispute this during cross-examination. The owner, Inari Co., Ltd, also determined the duties and services, hours of work, and termination. These facts were confirmed during the examination-in-chief and cross-examination of the defendant’s witness. 

8.	The other point raised for the defendant is that in the signature clause, it was clearly stated that the defendant signed for and on behalf of the owner.  

9.	On the other hand, the plaintiff submits that the defendant officer, Mr Alexander Nauan, signed the contract for and on behalf of the owner, KEMS, as stated in the signature part, clause 14 of the contract. The plaintiff argues that nothing in the contract specifically indicates that the defendant signed on behalf of the owner, Inari Co Ltd.

10.	Clause 14 of the contract looks like this;
“14. Effect
This contract becomes effective from the day of contract and remains FOR ONE YEAR or 18 MONTHS.

………………………….			………………………………..
Signed for and on behalf of the owner		Signed by Fisherman
KIRIABTI EMPLOYMENT AND
MARINE SERVICES (KEMS)

11.	In support of their claim, the plaintiff asserts that the defendant paid the wages. However, during the examination in chief and cross-examination, the defendant clarified that their company is merely an agent; thus, their company received the funds from the owner, Inari Co Ltd, and subsequently disbursed them to the fisherman. The plaintiff points out that there is no evidence of money being transferred to the defendant’s account. 

12.	According to the plaintiff, clause 10 supports the assertion that the defendant paid the wages, as it empowered the owner to suspend wage payments if the fisherman was terminated early due to incompetence, negligence, or other similar reasons. The plaintiff contends that the owner mentioned here is the defendant, given that they were responsible for paying the fisherman. Clause 10 is quoted below:

“10. Early Termination of Contract
The contract with the Fisherman may be terminated early by the order of the captain of the vessel if he has been found unqualified, incompetent, or negligent in his duties. The owner shall promptly suspend the payment of any or all wages of the Fisherman.”

13.	The plaintiff further states that the defendant was also responsible for dropping off and picking up the fishermen from the airport in Tarawa. The defendant recruited the fishermen and arranged the travel documents to ensure smooth travel; these responsibilities lie with the owner.  

14.	In analysing the arguments, this Court refers to the contract preamble, which specifies that the contract applies to the plaintiff as the Fisherman working on the vessel Inari Maru, owned by Inari Co., Ltd. Clause one then confirms that the Fisherman works for Inari Maru. Furthermore, clause one states that the contract period is to be determined between the Fisherman and the vessel owner. Therefore, there is no doubt that the vessel owner is Inari Co., Ltd. 

15.	For ease of reference, the Preamble and Clause One are stated below;

“This Contract applies to Kiribati Fisherman (hereinafter referred to as “Fisherman”) working on the fishing vessel Inari Maru, owned by Inari Co. Ltd.

1.	Duration of the employment
The duration of employment shall be one year unless signed by the vessel owner and the Fisherman.”

16.	This Court also finds the following: -	
-	The Fisherman (plaintiff) worked for the vessel, which is equivalent to working for the vessel owner, Inari Co., Ltd.
 -	The duration of the contract was determined by the vessel owner, Inari Co., Ltd.
-	The vessel captain and other senior officers decided the duties, services, and work hours for the Fisherman. In other words, the vessel owner was responsible, as the captain and other senior officers were his subordinates.
- The early termination of the Fisherman’s service was vested in the vessel’s captain; in other words, the vessel owner. 
- The transportation of the Fisherman upon completion of the contract is the responsibility of the vessel owner, Inari Co., Ltd.
 -	Insurance was provided by the owner.  
- The vessel owner covered wages while the Fisherman was sick abroad until repatriation. 
-	The provision of safety gear was the responsibility of the vessel owner, Inari Co., Ltd. 
-	The owner has the power to suspend the payment of wages on the grounds of early termination. 
-	The defendant was responsible for dropping off and picking up the Fisherman from the airport.
	When the plaintiff was injured, the vessel owner, Inari Co., Ltd., paid his medical bills and return ticket.
-	The defendant sent the list of newly certified seamen to the vessel owner, Inari Co., Ltd., who then selected their crew from that list.
- The defendant is the vessel owner's agent.  

17.	Based on the Court’s findings above, most of the critical decisions were the responsibility of the vessel owner and his officer, the captain. Such decisions are the determination of the Fisherman’s duties, services, hours of work, early termination, the duration of the contract, the provision of safety gear, airfare, and medical bills while at work. All of these responsibilities are clearly spelled out in the contract as the owner’s, Inari Co. Ltd. 

18.	The defendant was also responsible for minor tasks, such as facilitating recruitment on the ground by sending the names of newly graduated seafarers from the marine training center to the owner’s agent in Japan. The owner, Inari Co., Ltd., selected their crew members from the list received from the defendant. Additionally, the defendant handled the travel documents of the fishermen and arranged for their transportation to and from the airport in Kiribati. 

19.	The only issues in dispute are the wages and the insurance, which are outlined in the contract as the owner's responsibilities without clearly specifying that it was the vessel owner. The plaintiff, through Counsel, argues that the defendant is the owner mentioned in the contract, as indicated in the signature clause by mentioning the defendant’s name, KEMS. 

20.	To determine this critical issue, the Court referred to the plaintiff’s understanding of the nature of his contract. From his responses to the questions posed by the defendant’s counsel, I note that he was aware he worked for the owner, Inari Co. Ltd. He also stated that his wages were paid by the owner, Inari Co. Ltd., and he understood that the defendant was merely an agent who signed the contract on behalf of the owner, Inari Co. Ltd. Additionally, he confirmed that the defendant was not his employer. The questions and the plaintiff's answers are listed below:

Ques: Annexure 6, is the employment contract, the owner is Inari Co. Ltd, so wages came from Inari Co,. Ltd?
Ans: Yes

Ques: The duration of the employment was one year and you would work from 16 May 2013?
Ans: Yes

Ques: So you will agree that the employment was between you and Inari Co. Ltd?
Ans: Yes

Ques: Kiribati Employment Marine Services was only an agent for Inari Co. Ltd to speed up the recruitment process, and the contract they signed was on behalf of Inari Co, Ltd?
Ans: Yes

Ques: Employee of Inari Co,. Ltd assisted you in returning to Kiribati, including Hospital, Transport, and Ticket payment?
Ans: Yes

Ques: So, the defendant was not your employer?
Ans: No

Re-examination
Ques: Annexure 6 (contract) was signed between the defendant and you?
Ans: Yes

Ques: The last paragraph was signed for and on behalf of the owner, Kiribati Employment Marine Services?
Ans: Yes

21.	Although there may be some ambiguity regarding the identity of the owner, it becomes clear upon reading the entire contract that the owner refers to the vessel owner, Inari Co. Ltd. This is explained in the Court’s findings stated from paragraph 14 above, which state that Inari Co. Ltd, the vessel owner, possessed the authority to make crucial decisions outlined in the contract. During cross-examination, the plaintiff confirmed in his responses that his employer was Inari Co. Ltd. His answers also clarified the confusion surrounding the last part of the contract that mentioned Kiribati Employment Marine Services (KEMS) in the signature clause.

22.	I accept that KEMS could not be the owner intended in this contract, but it was stated there to emphasise that the officer signing was affiliated with KEMS. That is the only interpretation that makes sense.

Summary

23.	 In light of the above, I find the defendant not the owner and employer of the plaintiff and, therefore, is not liable for any damages claimed.

24.	Cost is awarded to the defendant, to be agreed or taxed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice