Raeboy v Ever Grow Corporation Ltd [2018] SBHC 16; HCSI-CC 246 of 2016 (31 January 2018)

RAEDLY RAEBOY, ALLAN -V- EVER GROW
AGASI & HARINGTON CORPORATION LTD
LOGARA (Defendant)
(Claimant)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.246 of 2016

Date of Hearing: 26 July 2017
Date of Judgment: 31 January 2018

A. Hou for claimant
M. Tagini for defendant

Damages for tortious acts on collision by tug boat and barge on reefs of the claimant

Brown J:

These proceedings by those representatives of landowners affected by damage caused by the sinking of the tug boat and barge carrying logging equipment were commenced after, it is pleaded, failure to negotiate a settlement of the claim. The claim succinctly details the incident and indicated the nature of the damage caused.^[1]
“On or about 07^th October, 2015 around 2:00am, the Defendant’s Tug Boat M.V Target 9 which at the relevant time was towing a Barge loaded with its logging machineries and equipment including round logs, fuel and oil wrecked on the reef off the Mijanga Point. The wreckage resulted in the Barge continuously hitting the reef and sunk within minutes with everything on board.

Apart from the round logs, fuel, oil and equipment on board the Barge, heavy logging machineries include five (5) excavators, one (1) dump truck, one (1) log truck and one(1) land cruiser.

The wreckage of the Tug Boat and the latter’s subsequent sinking with its load have caused substantial damages to the reef and its immediate marine environment while floating objects including the logs as well as fuel and oil spillage extend the same to the surrounding marine environment. Most important is the likely long term destruction and effects the wreckage through, rusting fuel and oil spillage including other associated pollutions would have not only on the surrounding marine environment, ecosystems, flora and fauna but also on the very livelihood and health of the Claimants and the members of their tribe living in the neighboring villages.

Prior to the wreckage, the Bill/Tomba chain of islands from Minjanga to Sanuhulumu and Vorusu islands has been a tourist diving spot for Bilikiki Cruises with the National Fisheries Development Ltd (NFD) also using it as its bait fishing ground pursuant separate agreements entered into with the Claimants and from which the Claimants earn money. The Claimants and the members of their tribe are also dependent the same for their livelihood.”

In the absence of defence, summary judgment was entered for the claimants on the basis of the material filed, restricted to the issue of liability.
The proceedings according went to trial on the question of damages, reliant on the various statements filed by the claimant, particularly statement of Josef Hurutarau, (environment valuer consultant, Warutana Solomon Eco-Service and Solution, Honiara), that of Enoch Fa’abasu, Environment and Conservation Division, Ministry of Environment, Climate Change, Disaster Management and Meteorology as well as Exhibit 1, tended by the claimant, an “Environment Import Assessment of the Environment caused by the wreckage and sunken Barge-Target 9 at Minjanga Island Marovo Lagoon”.

As well, the claimant have filed a statement by Captain Timothy Harris, Director (Ag) Solomon Island Maritime Safety Administration, Ministry of Infrastructure Development who say the particular vessels which went aground on the reef, were not registered as Solomon Islands vessels nor was Ever-Grow Corporation Ltd on the Solomon Island Ship Register. He goes on to say such vessels, in the circumstances were operating illegally in the Solomon Islands. No notification of the incident, the maritime accident and sinking, had been given, as required to SIMSA.

I am satisfied, on the evidence of Raedly Raeboy (by statement filed 13 September 2016) that Raedly Raeboy is the authorized representative of the Tomba Bili Tribe^[2] and that the tribe is the owner in custom of the Bili/Tomba chain of islands in Marovo Lagoon, Western Province. I have regard to the tribes agreement with the National Fisheries Development Ltd for bait fishing fees for Mbili bait ground^[3] and the agreement with Bilikiki Cruises to use their waters.

I am also satisfied when I read the letter of Global Lawyers dated 8 March 2016 in answer to that claim for damages by Bili/Tomba Tribe^[4], directed to “ The Manager Ever Grow Ltd, P. O. Box 656, Honiara” that Ever Grow was the ostensible owner and responsible for the vessels whilst in Solomon Island Waters. In that letter, where no privilege is claimed, the lawyer acknowledges representing Ever Grow Ltd, and goes on to say in part,
“We attach hereto copies of claims from the other persons regarding this same matter. It is our view that unless our client is certain as to who is the rightful owner, it cannot start entering into any negotiation for settlement yet with your clients or any other claimant.”

This evidence was sufficient, in the absence of defence, for summary judgment, restricted to the question of liability, to be entered.
Assessment of Damages
That report by the Environment and Conservation Division was very well written and by Section 3, addressed the Environment Audit Finds:
3.1 Field finding by Environment officer and scupper diving team.
3.2 Potential Environment impacts.
3.2.1 Increased Sedimentation and siltation.
3.2.2 Destruction of coral reef habitat.
3.2.3 Future Oil spill (Marine Pollution).
3.2.4 Lose (sic) of fish ground and tourist diving site.

The filed findings and under water diving report confirmed the tug boat has been recovered and removed, while the barge and equipment on it has sunk to the sea floor some 50-60m down. The underwater team had found one log truck, one metal container and iron chains some 30m down, and had witnessed major damage to the coral reef in the area. The report did not go on to address the effect of depth on the oxygenation of salt water and the likely rusting time frame of particular metals, but in the conclusion stated.
“The damages and disturbances done to the Marine ecosystem and surrounding coastal area is significant and irreversible.”

Exhibit 1, the Environment Impact Assessment rather loses some of its authority by finding beyond it competence.
“It is here confirmed that Sunny Hill Company and Ever Grow Company Limited is the joint owner of the barge......” and later
“The following are highly recommended Sunny Hill or Ever Grow must pay compensation for the damages caused with an amount of $1,100,000 USD denominated in US dollar. The company to assist in every way possible to rehabilitate the damaged area through me”.

Such conclusion rather reflects the self-interest of the author whose last page of the report in regrettably missing so that I cannot determine the authors credentials or position. Why the author should seek to denominate damages in US dollar when the damage has happened in the Solomon Islands is neither explained nor justified.

I will however reach what I consider to be a fair and just assessment of the monetary value of the damage occasioned. (It must be remembered, for instance that diving in the Solomon Islands by tourist, is often located about “wrecks” so that the existence of “wrecks” can be a positive from a tourist (Bilikiki) point of view, and that corals and fish attracted to such “wrecks” are equally attractive as adjacent corals).

The table 4 in Exhibit 1, has been reproduced.

Task Specification	Compensation cost/USD
Recovery and replacement of the beach soil extracted ✓ Rehabilitation of breach soil and coastal sea front ✓ Reforestation of fast growing native trees and shrubs.	100,000.00
Executing risk abatement strategies Securing boundary of land encroached site Building or renewing of an understanding between the original landowners and other stakeholders, government to avoid further Encroachment and trespass.	100,000.00
Threaten species re-establishment plans ✓ Replacements	50,000.00
Marine ecosystem Habitat rehabilitation ✓ Enrichment planting of mixed coastal tree species	50,000.00
Re-establishment and recovery of species and environmental communities ✓ Ex-situ conservation activity of captive breed species of marine lives	50,000.00
Sub-total	350,000.00

There has been frankly repeated claims for the same “loss” without explanation “executing risk abatement strategies and securing boundary of land encroachment site Building or renewing of an understanding between the original landowners and other stake holders, government to avoid further Encroachment and trespass” is plainly meaningless, yet the author claim $100,000. The whole of Table 4 giving rise to the Claim for US $ 1 Million suffers from the same mischievous absurd wording. How the figure of $100,000 is reached for “Loss of useful shrubs, plant products other ...... orchids, herbs and coastal reef ecosystems” is systematic of the authors careless approach. It does not give the court any assurance that reliance may be had on the report.

I propose to rely on the first report by the Department. Damage has been done to the reef system and consequently the fisheries of all types reliant on it. There is evidence the loss will be on-going but no good estimate can be given when full recovery may be expected. Since it may be expected both Bilikiki Cruises and the Bait fish contract have been terminated for the time being, the monetary loss of tens of thousands of dollars for some years will be suffered. The environmental

loss is more difficult to calculate in the absence of similar awards in adjacent jurisdictions, PNG or Vanuatu for instance, but the court assesses this damage now and continuing in the amount of $ 500,000. Coupled with the prospective loss directly caused there shall be an award of damages in the sum of $600,000 plus interest from the date of institution of the claim.

Costs shall be in favour of the claimant on the 3 schedule scale.

__________________
BROWN J

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^[1] Claim (Cat. A) filed 7/6/16
^[2] Exhibit “RR5” to statement)
^[3] Exhibit “RR4” to statement
^[4] Exhibit “RR5”