Superintendent Marine v Olifasia Shipping Co Ltd [2003] SBHC 121; HC-CRC 177 of 2003 (15 August 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 177 of 2003

SUPT MARINE

–V-

OLIFASIA SHIPPING CO. LTD AND BUMAI

High Court of Solomon Islands
Muria, CJ

Date of Hearing: 04^th August 2003
Date of Judgment: 15^th August 2003

Mr K. Averre for Prosecution
Mr V. Talaburi, Secretary Representing Olifasia Shipping Co. Ltd. Present
Mr F. Bumai, Master of Vessel, present

JUDGMENT

MURIA, CJ; The two accused, Fena Bumai (“the Master”) and Olifasia Shipping Co. Ltd (“the owner”) of the vessel, (“MV Liofagu”), have been charged with offences under the Shipping Act 1998. The Master, Fena Bumai, has been charged with the offence of going to sea without a valid certificate contrary to section 57(2) of the Shipping Act. He pleaded not guilty to the charge. The owner, Olifasia Shipping Co. Ltd, has been charged with the same offence under section 57(2) of the Act. Through its company secretary, the owner pleaded not guilty to the charge. It is for the prosecution to prove its case beyond reasonable doubt.

Allegations

The allegation against the master as stated in the particulars of offence is that he was the master of the vessel Mr Liofagu which, between 27^th and 28^th May 2003 went to sea without there being in force valid certificates as required under Part IV of the Shipping Act 1998. The same allegation was also made against the owner, that is, it was the owner of the vessel that went to sea between those dates without valid safety certificates. Notably the allegations are of strict nature and this, I feel, is the reflection of the need to be strict on safety of vessels that go out to sea.

The Evidence

The prosecution called the Marine Superintendent, Mr. Elliot Cortis and the Assistant Marine Officer, Mr. Kendall Boso. The evidence of these two witnesses clearly confirmed that the vessel, MV Liofagu, did not have a valid ‘safety certificate on 27 May 2003 and that it sailed to the Western Province on that date without a valid safety certificate. There was, on the evidence clearly also, no exemption granted for the vessel to sail on that date to Western Province without a valid safety certificate.

The defendants’ evidence were that they had been granted an exemption on 23^rd April 2003 to sail to Temotu Province to deliver disaster relief supplies to the cyclone victims there. That trip was cancelled. The defendants further said that they had been assured by the Marine Division that they could sail also to the Western Province and that question of exemption would be sorted out for them by the Marine Division. There was no arrangement in place for the vessel to sale to Western Province on an exemption status.

The evidence in court shows that while there is power to issue exemption to vessels to sail without valid safety certificates, it can only be done on a specific basis on conditions: See Shipping Regulations 1967, reg. 39. The reason is obvious. It is a grave risk to allow vessels without valid safety certificates to go out to sea. So, save for emergency cases, the requirement for the need for vessels to possess valid safety certificates before going out to sea must be strictly complied with.

Strict liability

Apart from the other offences created under the Act, the offence of going out to sea without a valid safety certificate is an offence of strict liability. It matters not, whether the defendant did not know that they did not have a valid safety certificate. If matters not whether they believed they had a valid safety certificate, nor does it matter whether they believed an arrangement for issue of valid certificate or an exemption is in place. All that the prosecution needs to prove is that defendant was the master or owner of the vessel in question and that it has no valid safety certificate or no exemption has been issued. There is no dispute that Fena Bumai was the master and Olifasia Shipping Co. Ltd was the owner of the vessel, MV Liofagu. Thus all that I need to decide is whether I am satisfied beyond reasonable doubt that the vessel did not have a valid safety certificate on 27 May 2003, the date it sailed to Western Province.

Whilst I accept the evidence of Mr Kendall Boso, I am startled, however, to note from his evidence as to manner in which he and his superior officer, Allan Indu, went about their duties in enforcing the shipping laws on that day in question. In his evidence Mr Boso said that on the 27^th May 2003 at about 1700 hrs, he and Allan Indu saw the vessel, MV Liofagu, being loaded at the wharf bound for Western Province, knowing full well that the vessel had no valid safety certificates, and that it was under detention. Mr Boso then reported the matter to the police and then he and his superior officer walked off to the market, leaving the vessel to continue to be loaded for its trip to the Western Province. That was an unbecoming manner of enforcing shipping laws by Marine Officers who are supposed to be disciplined officers. Since such a conduct may well amount to condoning the commission of an offence by members, of a discipline body of which the Marine Division is one.

Decision

I accept the evidence of the prosecution on this case. I am satisfied beyond reasonable doubt that on 27 May 2003 the vessel M V Liofagu set sail to Western Province without a valid safety certificate. That was in breach of section 57(2) of the Shipping Act 1998 and accordingly, I found the master and owner of the vessel guilty of the offence as charged. They are convicted.

Sir John. B. Muria
Chief Justice