Solfish Ltd v Solomon Islands Ports Authority [2017] SBHC 72; HCSI-CC 225 of 2017 (6 October 2017)

SOLFISH LIMITED -V- SOLOMON ISLANDS (Claimant) PORTS AUTHORITY

(Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No. 225 of 2017

Date of Hearing: 13 July 2017
Date of Judgment: 6 October 2017

J.Sullivan QC with S.Lepe for Claimant
K.Ziru for Defendant

Brown J:

Following application for urgent interlocutory orders made on 31 May 2017 an order was made on 1 June enabling the claimant, Solfish to collect its cargoes from Point Cruise Port until judgment for the Port Authority [the Authority] had prevented the company from dealing with its cargoes while port charges remained unpaid.

By Category A Claim, in addition to permanent injunctive orders enabling the claimant company to go about its business at the Authorities Port, Solfish Ltd seeks a declaration that the Port Authority is not entitled to charge pilotage and berthage fees in respect of any vessel entering ports under its control, unless the Authority has actually provided such pilotage or berthage services in respect of such vessel. (The claim also seeks damages for detinue and conversion and consequent loss as a result of the Authorities refusal to release containers of the claimant at the Port because claimed pilotage and berthing fees had not been paid).

On the application of the claimant, in the absence of appearance of the defendant, on 13 July 2017 this court granted an order pursuant to Rule 12. 11 in an endeavour to resolve the underlying issue over pilotage and berthing services for such issue would appear to be one which if determined on the existing law, would substantially reduce if not wholly avoid issues for trial. The question posed was;

Whether or not the defendant is entitled to charge pilotage and berthage fees in respect of any vessel entering ports under its control including without limitation, the Port of Honiara, the Port of Noro and Leroy wharf [privately owned by the claimant], unless the defendant has actually provided those services in respect of such vessels.

Following appearance by the Authority on the 21 July the parties were directed to file and serve written submissions on the question by 25 August 2017 whereupon the court would address the question on the papers. On 24 August the claimant had complied with the order by filing its submissions, but the defendant by email to the lawyers for the claimant (copy to the deputy Registrar of the court) sought in effect an extension of time to file its submission, for it needed certain maps from the Ministry of Lands not then to hand. By reply on 29 August Mr Lepe for the claimant impliedly refused the request by Ms Ziru (for the defendant) for an extension of time and asked the Registrar to bring the fact of the absence of the defendant’s submissions and the filed claimant’s submission to my attention so that I may proceed with the determination of the question

On the 31^st August submissions on points of law were filed by Law Corporation, the lawyers for the Authority. The submissions were filed out of time and may be said to have been filed without leave of the court. Management of filing documents in these circumstances will need to be addressed for the practice has crept in whereby parties have been able to file documents beyond time allowed by rules of court and orders of this court. The courts use of such a late material would appear to vary from judge to judge although the expense to parties and the court by need for adjournment in fairness if such material was to be used and accepted in this fashion, may give this court grounds for punitive costs orders.

The presumption in the email by Ms Ziru that the obligation resting on a party to comply with time limitations in orders is one which may be varied at the parties convenience, is indicative of unprofessional conduct and may not pass without comment. In her email she said; - “should this matter be brought before his Lordship Brown J’s attention we request that our reason herein communicated, is also bought before his Lordship”.

A short application for leave to vary the earlier order to allow further time (in the absence of the other side’s written consent to such variation file by way of consent order) to be heard in chambers on short notice would I suggest be the appropriate course.

Mr Sullivan QC, anticipating this court would allow the late submission in any event, [in the absence of the court’s refusal to allow the submission to be read], has in fact filed short submissions in reply. I propose to read both the defendant’s late submissions and the claimants submissions in reply as well as the claimants opening submissions. Matters of this importance should not be allowed to pass when in fact the submissions have been made. The claimants have replied as they most likely would have done, had the submissions been made within time. The question of costs brought about by the work and inconvenience occasioned by these late submissions may be addressed at a later time if thought necessary.

I should say that I have been assisted by both counsels’ submissions.

By the question, “ pilotage and berthage” are usages separate by obvious divergence in meaning, and by the Ports Act, sections 52, 57 the division is recognised.

“ S. 52- subject to the provisions of this Part, the Authority may levy upon every ship entering or leaving port such Harbour dues... as the Authority may by rules made under section 72 prescribed”.

“S. 57- Subject to the provisions of this part, the Authority may levy on any ship-

(a) in relation to any port such ship’s due by way of ..berthing ..dues;

(b) in relation to any pilotage district such ship’s dues by way of pilotage dues, as the Authority may by rule made under section 72 be prescribed.”

In the absence of a defence at this point in time, I accept facts set out in the claim. As stated by Solfish Ltd, it is an importer and exporter of products on vessels using Ports of Honiara and Noro, and administered by the Authority. Solfish owns and operates its own private wharf named Leroy wharf, admitted to be within the bounds of Port of Honiara, but not within SIPA’s port facilities at Point Cruz.

It was a matter necessarily for determination by this court, whether or not Leroy wharf was within the Port of Honiara for admissions in these circumstances may not be a substitute by way of factual evidence. The imposition of Harbour dues is predicated by the need to prove the “bounds of the port”. It was this evidence which the claimant’s lawyers sought from the Ministry of Lands by way of map or chart. I am satisfied from the Declaration of Ports Limits (Legal Notice LN 95/1965) and by reference to the maps provided by counsel for the defendant in her submissions (D1 and D 2 at page 163, 164) the Ports Limits include Leroy wharf at Ranandi. I also find Leroy wharf falls within the prescribed area of control under the Customs and Excise Act, although both enclosing boundaries under the respective Acts are not the same. Once in both areas, however I need not be concerned with the separate boundary lines. I accept Ms.Ziru’s plan of the defined Port of Honiara having regard to her explanation relating to the drawn maps which, when superimposed on the Google map showing the Leroy wharf, clearly places Leroy wharf within the Port. Ms Ziru’s reasons were explained in her submissions;

“These limits are delineated on Admiralty Chart number 2893 deposited as Plan number 234 and miscellaneous plan number 201B which should be accessible at the office of the Commissioner of Lands. Unfortunately we were not able to obtain a copy of the Plan. We were informed that the Plan does not exist or that officers had lost track of the same. Given the coordinates however we applied to have the map drawn out following the coordinates in the Ports Act.

The claimant concedes by statutory process, harbour and ships dues levied on its ships, if valid charges, shall be the company’s liability. The question makes clear the issue.

By s. 36 of the Ports Act (Cap 161)
[1] the Authority may, by order, establish a pilotage district in any port;
[2] an order made under subsection (1) may-
[a] provide that in any pilotage district pilotage shall be compulsory.

The claimant accepts, such orders were made and in both Honiara and Noro Ports, pilotage has been declared compulsory.^[1]

Section 9 of the Ports Act provides;

9[1] it shall be the duty of the Authority-

[a] to provide and operate in Ports specified in the First Schedule such port facilities as appear to the Authority best calculated to serve the public interest;

B] to maintain, improve and regulate the ports specified in the First Schedule and the port facilities transferred to the Authority under the Act, to such an extent as may appear to the Authority expedient in the public interest;

[c] to provide for the ports specified in the First Schedule...such pilotage services ... as appears to the Authority best calculated to serve the public interest;

(3) in this section port facilities means facilities for berthing... of ships on entering a port......-

By section 72 of the Act, the Authority has power to make rules for levying dues and rates for the purposes of sections 52, 53 and 60. The Levy of Rates and Dues (Ports of Honiara and Noro) Rules 2015 prescribe current rates and dues. No issue is taken in relation to the prescription.

The defendant refers to these various statutory and regulatory parts as affording power to the Authority for particular purposes;

1] To ensure the safety of ports under the defendants responsibility and;

2] To collect revenue for the State.

I accept Mr Lepe’s submission (claimants submissions in reply on preliminary point of law) and find 2] above to be misconceived for if correct, such charges are impermissible as a tax within the Solomon Motors principles.^[2]

Rather the charges for berthing (s. 57[a]) and pilotage dues (s. 57[b]) broadly directed towards the purpose of 1] above must be seen in that purposive manner and be seen to be directed at the specific task or issue to be addressed. When approached in that manner I am satisfied berthing and pilotage can be seen to relate to services (s. 9[1][c]) and by Rules is a “service” to be provided by the pilot. The pilot is an employee or agent of the Authority. The Rates and Dues Rules levy ships dues under the Pilotage Service category. I accept this argument of the claimant for it stands to reason that where Port facilities, wharfs, and mooring buoys for instance, belonging to the Port Authority are to be accessed by others, the Authority uses such services as a means to maintain control, care, protection and safety about such facilities. It is incidental that charges follow. The fact of berthage is related to pilotage to and from the berth, under control of the pilot. It to, in these circumstances shall be considered to be a “service” by the Authority. Such conclusion that pilotage and berthage are “services” of the Authority, is a rational and reasonable exercise of the power to control its Ports in accordance with its statutory role.

It would be unreasonable in these circumstances to expect payment for services not rendered. For it is the characterisation of pilotage as a “service” rather than its mere definition or description, which leads this court to accept its purpose is one of service. While words may appear to afford the Authority the entitlement to charges and dues, following up on the compulsory necessity for pilotage (s. 36[1][2][a]) I find that the purpose to be served by the provision of compulsory pilotage is that characterised by the purposive nature of the word, not payment of dues which is an incident of the use of such “service”.

By argument the defendant says the “charges or dues” payable, may be seen to be “charges provided for in the public interest” mandated by the Ports Act. I prefer the claimant’s argument that “harbour dues” not in issue, reflect the public interest head, of “charge”.

The Interpretation and General Provisions Act at ss. 6,7, provide wide discretion in fee and charges regulation making power, but the claimant argues where “service” is not performed, dues and charges by regulation claimed, are ipso facto excessive and unreasonable i.e. liable to be struck down by s. 67[3].

Section 67 (3)-where any fees or charges referred to in subsection (1) is in respect of any services provided by any public body, such fees or charges shall as far as practicable be within a range properly chargeable in respect of the services provided and shall not be excessive or unreasonable.

It is immaterial whether the pilotage “services” were not performed at Point Cruise or Leroy wharf, both within the Port. If the “services” are not performed, dues or charges may not be claimed.

By Port Rules, made pursuant to s. 32 of the Act, a private berth is defined to mean a berth, wharf, or jetty not owned by the Port Authority. Leroy wharf is such a berth. It cannot be deemed to be “under the jurisdiction of the Authority”, when considering the definition of Berthage (rights and duties) Rules. For again occupation of any wharf jetty or land barge under the jurisdiction of the Authority may not be presumed to include private berth, without express words.

Once the characterisation of service arises there must be some arguable relationship between the fees (pilotage and berthing dues and charges) and the services provided.^[3] No such relationship can be shown in the absence of such service of pilotage. The preliminary question of law is answered in the negative. I make these directions.

__________________________
BROWN J

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^[1] Honiara LN 45/1982 Ss 2 & 3; Noro LN 7/1990 Ss 2&3
^[2] (1995) SBCA 2
^[3] Solomon Motors v Honiara Town Council (1995) SBCA 2 and cases referred to therein.