Mamaloni v Moto Vessel Kaona [2011] VUCA 7; Civil Appeal 05 of 2011 (8 April 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 05 of 2011

BETWEEN:

BILLY MAMALONI
First Appellant

AND:

JIMMY MAKANA
Second Appellant

AND:

JOSEPH NOLLAND
Third Appellant

AND:

LAWRENCE SAMANI
Fourth Appellant

AND:

PHILIP JUNIOR WANGA
Fifth Appellant

AND:

EZEKIEL WEFIA
Sixth Appellant

AND:

FRANCIS LAKWASIA
Seventh Appellant

AND:

SAMMY SATU
Eighth Appellant

AND:

THE MOTOR VESSEL "KAONA"
First Respondent

AND:

THE MOTOR VESSEL "CHRISTIE LEIGH"
Second Respondent

AND:

THE OWNERS OF THE MOTOR VESSELS "KAONA" AND "CHRISTIE LEIGH"
Third Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Oliver A. Saksak
Hon. Justice John Mansfield
Hon. Justice Daniel Fatiaki
Hon. Justice Raynor Asher

Counsel: Mr. F. Laumae for the Appellants
Mr. J. Tari for the Respondents

Date of Hearing: 4th April 2011

Date of Decision: 8th April 2011

MEMORANDUM OF CONSENT ORDERS

1. This appeal arises from the terms upon which the two respondent vessels were released from arrest by paragraph 8 of the Decision and Orders made on 7 March 2011. The appellants, who were the masters and crews of the two vessels, had claimed various allowances, wages, redundancy payments and repatriation expenses against the respondents, as well as more general damages, and had secured the arrest of the two vessels. On 7 March 2011, the respondents tendered to the appellants plane tickets to secure their repatriation to their homes in the Solomon Islands the following day. They also tendered to them VT2,885,974 to meet all their claims for outstanding wages and redundancy payments, and a portion of their claims for 'Allowance for delivery of vessels to Vanuatu'. That sum was paid into Court, and then paid to each of the appellants in accordance with the schedule attached to the Decision and Orders made on 7 March 2011. The issues on this appeal concern the costs orders then made, and the appellants' outstanding claims.
   
2. At the commencement of the hearing of this appeal, the parties by their counsel indicated that they agreed to orders as to its disposition.
   
3. After hearing counsel, the Court is prepared to make the orders proposed by the parties. That will result in some undecided issues being remitted to the trial judge, but that is a matter which he anticipated (see paragraph 11 of the Decision and Orders of 7 March 2011). The parties identified the remaining issues and this memorandum records what they are.
   
4. Accordingly, by consent, the Court orders that:
   
   • (a) The appeal is allowed for the limited purpose of setting aside the orders for costs made by paragraphs 9 and 10 of the Decision and Orders made on 7 March 2011;
     
   • (b) The matter is remitted to the Supreme Court for hearing and determining the remaining issues between the parties;
     
   • (c) There be no order as to the costs of the appeal.
     
5. The Court notes that the remaining issues to be determined are:
   
   • (a) Whether the appellants are entitled to the further sum of US$19,815.00 being the difference between the amounts claimed by the appellants under the heading '(A) Allowance for Delivery of vessels to Vanuatu' in paragraph 4 of the Amended Statement of Claim and the amounts paid by the respondents on account of those claims as specified in the column headed 'Delivery US$' in the schedule attached to the Decision and Orders made on 7 March 2011 [the respondents agree that the amounts paid by them as specified in that schedule were amounts proposed by them but not then agreed by the appellants, and they further accept that the trial judge has power to consider that claim] and
     
   • (b) Whether the appellants are entitled to the sum of VT716,000 claimed by the appellants under the heading '(D) Disbursements' in paragraph 4 and claim 1 of the Amended Statement of Claim.
     

We note further that the appellants no longer press the claims for damages or compensation, and for exemplary damages, made in paragraphs 5, 6, 7, 8 and 9 and claims 2 and 3 of the Amended Statement of Claim.

6. The costs of the proceedings to 7 March 2011, as well as hereafter, are matters which the trial judge may further consider. The Supreme Court will, no doubt, list the matter for a further conference in due course.
   
7. There was no order that the respondents pay to the Admiralty Marshall the costs and disbursements of the arrest of the two vessels. That is because there were no such costs incurred. If there were, they are a primary liability of the appellants as the persons causing the arrest of the two vessels, and they become a first charge on the vessels themselves, so normally a vessel is not released from arrest unless any Marshall's costs are paid.
   

DATED at Port Vila, at 8th day of April, 2011.

BY THE COURT

Chief Justice Vincent Lunabek

Justice Oliver A. Saksak

Justice John Mansfield

Justice Daniel V. Fatiaki

Justice Raynor Asher