South New Georgia Development Corporation Ltd v Chief Marine Officer [1981] SBHC 9; [1980-1981] SILR 225 (23 October 1981)

[1980-1981] SILR 225

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No.4 of 1981

SOUTH NEW GEORGIA DEVELOPMENT CORPORATION LIMITED

V

CHIEF MARINE OFFICER

High Court of Solomon Islands
(Daly C.J.)
Civil Appeal Case No.4 of 1981

23rd October 1981

Shipping - engine power for purposes of Shipping Regulations.

Facts:

The Appellants operated a ship with two 162 BHP engines. They contended that the ship therefore had main engines of "not more than 300 BHP" for the purpose of the Shipping Regulations in deciding what Engineer officer must be carried. The Chief Marine Officer decided that the ship had main engines of over 300 BHP. The appellant appealed to the High Court.

Held:

In the Regulations one criterion is size of the ship. On this basis the more the power the better qualified must be the engineering officer. As the total power of the engines producing motive power is greater than 300 BHP the Chief Marine Officer made the correct decision. Appeal dismissed.

Appellant represented by Mr M. Albers
For Respondent: A. Nori

Daly CJ: This case involves a point of interpretation which, although simple to express, is by no means simple to decide.

The appellants, the South New Georgia Development Corporation Limited, are the owners and operators of a ship, the M.V. Ulusaghe. The ship is equipped with two engines, both Gardner engines rated at 162.5 Brake Horse Power. There was a suggestion that the power produced by each of these engines is, in operating condition in Solomon Islands, probably less than 162.5 BHP and possibly under 150 BHP but this matter of fact is one with which I could only adequately deal on the basis of expert evidence and, such evidence not being available, the appellants did not pursue the suggestion before me. I therefore deal with the appeal on the basis that the engines are correctly rated at 162.5 BHP. This is, indeed, the basis upon which the matter was approached by the Licensing Officer and Chief Marine Officer who is the Respondent to the Appeal.

In accordance with Regulation 26 (b) of the Shipping Regulations (Cap 98 Subsidiary Legislation at page 3927) ("the Regulations") the Appellants are required to provide Engineering Officers for the M.V. Ulusaghe during the course of its operations. The question is what Engineering Officers should be provided?

The Licensing Officer considered the question and took the view that the M.V. Ulusaghe fell within the terms of Paragraph (ii of Regulation 26 (b) which reads so far as is relevant:-

"A vessel with main engines of over 300 BHP and not more than 500 BHP......."

This paragraph requires provision of an Engineer 500 BHP and a Mechanic 1st Class. However in exercise of his discretion to exempt a vessel from compliance with a requirement of the Regulations, the Licensing Officer reduced this requirement to provision of an Engineer 300 BHP and a Mechanic 1st Class.

However the appellants were not content and appealed to the Chief Marine Officer under Section 27 (1) of the Shipping Act. On 24th August 1981 the Chief Marine Officer wrote to the Appellant as follows:-

"I am informed that the Principal Licensing Officer has already issued a dispensation allowing you to employ a 300 BHP Engineer and a First Class Mechanic. In view of the complexity of the mechanical and electrical equipment on board I could not allow any further reduction."

It is clear, then, that the Chief Marine Officer too accepted that the M.V. Ulusaghe fell within paragraph (ii) of Regulation 26 (b).

Against the decision of the Chief Marine Officer the Appellants appeal to this court under Section 27 (2) of the Shipping Act. Mr Albers, who represented the Appellants, takes a short point and does so with admirable conciseness. The M.V. Ulusaghe, he submits, does not fall within paragraph (ii) of Regulation 26 (b), she falls within paragraph (iv) of that Regulation as:

"a vessel with main engines of over 100 BHP and not more than 300 BHP engaged on an inner island or coastal voyage."

As such, say the appellants, they need only provide for her a Mechanic 1st Class. There is no dispute as to the nature of the voyages, so the issue is, is the M.V. Ulusaghe a vessel with main engines of over 300 BHP or a vessel with main engines of not more than 300 BHP?

The contention for the appellants is that the words "main engines" require each engine to be considered separately and that therefore as each engine is of 162.5 BHP the "main engines" are not more than 300 BHP. This, say the appellant, is in accordance with the scheme of the Regulations in that a person qualified to deal with one 162.5 BHP engine is equally qualified to deal with two of them.

The Respondent on the other hand contends that the words "main engines" require that the power of the engines be added together in order to decide the final rating of the ship. In support of this submission counsel for the respondent argues that complexity of the engineering of a ship increases with overall horse power and to put a number of small engines in a ship would defeat the object of the Act and the Regulation in securing safety at sea. Such safety, he suggests, requires that larger and more complex Ships carry higher qualified engineering officers.

As far as the court and the parties are aware there have been no previous court decisions on this issue. Counsel for the appellant referred the Court to the equivalent U.K. Regulations (The Merchant Shipping (Certification of Marine Engineer Officers) Regulations 1977 S.I. 1977 No. 2072). These Regulations have a definition of "registered power" which is the expression used in those Regulations in relation to the designation of ships for the purposes of deciding the marine engineer officers to be carried. That definition refers to "the total continuous rated brake or shaft power of all the propulsion engines." While I am grateful to counsel for referring me to that definition, it does not directly assist me in deciding the meaning which I should give to different words in our own Regulations. Perhaps I might be permitted to express a view that it is regrettable that the Regulations do not embody a definition of similar clarity. But they do not and I am left with the task of giving the words the appropriate meaning in the context of the Act and Regulations free from direct assistance from that legislation and free from judicial authority.

Regulation 26 (b) is contained in a body of legislation to provide for the "control and safety of shipping" (long title to Cap. 98).

The theme of the Regulations is to establish minimum requirements. A number of Regulations refer to two criteria: (a) size of vessel and (b) nature of voyage to be undertaken. In paragraph (a) of Regulation 26 deck officers must be provided on the basis of both. For example paragraphs (ii) and (iii) of Regulation 26 (a) differentiate between vessels engaged on outer island voyages on the basis of whether or not the vessel is more or less than 100 feet in length. This is, no doubt, a somewhat crude test as there may be one vessel of 98 foot length far more difficult to handle than another vessel of 150 foot length. But the criterion is size. Questions of complexity may arise on the exercise of the discretion to exempt but the first tests are simply how long is the ship and what voyages are to be undertaken?

When one turns to paragraph (b) again one criterion is size. This time it is the amount of the power rather than the length. Again this might be a crude test but, in my judgment, the maker of the Regulations was endeavouring to say, the greater the power of the ship; the better qualified must be the engineering officer or officers. To give effect to this intention requires me to hold that the words "main engines" refer to the total of the engine power of the ship excluding those engines which do not provide motive power. Thus in the present case as the two Gardner engines both produce motive power the main engines, on the rating given, are of over 300 BHP. It follows that the M.V. Ulusaghe falls within paragraph (ii) of Regulation 26 (b) and, subject to the exercise of the power to exempt by the Licensing Officer, an Engineer 500 BHP and a mechanic 1st Class must be provided for her.

The letter of appeal suggested that, in view of the nature of the engines and the ship, the discretion of the Licensing Officer should have been exercised to allow operation with a Mechanic 1st Class in any event. However the appellants did not take this point at the hearing and it is not necessary for me-to consider it.

The appeal is therefore dismissed and the decision of the Chief Marine Officer upheld.