PB Sea Tow Ltd v Attorney General [2014] WSCA 6 (28 April 2014)

COURT OF APPEAL OF SAMOA

PB Sea Tow Ltd v Attorney General [2014] WSCA 6

Case name: PB Sea Tow Ltd v Attorney General

Citation: [2014] WSCA 6

Decision date: 2 May 2014

Parties: PB SEA TOW LTD (Appellant) and ATTORNEY GENERAL (Respondent)

Hearing date(s): 28 April 2014

File number(s): CA 24/13

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: PB Sea Tow Ltd v Attorney General (Supreme Court matter)

Order:

Representation:
P Barratt and D Clarke for Appellant
M Lui and L Vili for Respondent

Catchwords:

Words and phrases:

Legislation cited:
Shipping Act 1998

Cases cited:
Sellers v Maritime Safety Inspector
A New Zealand Guide to International Law & its Sources

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A24/13

BETWEEN

PB SEA TOW LTD

Appellant

A N D:

ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: P Barratt and D Clarke for Appellant

M Lui and L Vili for Respondent

Hearing: 28 April 2014

Judgment: 2 May 2014

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal from a judgment of Sapolu CJ in proceedings relating to the ship PB Matua.

[2] The PB Matua was built for and is operated by the appellant, Sea-Tow. She is under charter to the Administrator of Tokelau (an arm of the New Zealand Government). She provides the only sea transport service between Samoa and Tokelau, which has no air service.

[3] The PB Matua is a 45m, 450 tonne vessel built in early 2012. She was built to the Offshore Supply Vessel Code promulgated under the Convention on the Safety of Life at Sea (“SOLAS”). The ship complies with the Load Line Convention, Marpol, the Tonnage Convention, and the requirements of her classification society, Det Norske Veritas (“DNV”). She flies the Cook Island flag.

[4] On 25 July 2013, upon the registration of this ship in the Cook Islands (“the Flag State”), the Cook Islands Government issued her with a document entitled “Vessel Safety Certificate”. This recorded that the ship had been surveyed in accordance with the Ship Registration Act 2007 in that jurisdiction, and that:

(a) She complied with the requirements of that Act;

(b) The survey established her structure, equipment, systems, fittings and machinery to be satisfactorily;

(c) She was able to carry a maximum of 62 passengers (50 seated and 12 berthed), but with a maximum of 15 passengers when carrying dangerous goods as cargo;

(d) The certificate was valid until 31 May 2017, subject to annual surveys.

[5] For reasons which will become apparent, this document is not a valid SOLAS passenger ship safety certificate.

[6] After an inspection, the respondent detained the PB Matua from sailing from Apia save as a cargo vessel with no more than 12 passenger as permitted under SOLAS.

[7] The dispute between the parties blossomed. Some interim arrangements were reached between them, but no overall resolution was reached. So Sea-Tow sought a declaratory judgment that the respondent’s actions were unlawful. That proceeding was dismissed in the Supreme Court. This appeal was then lodged.

[8] It was intimated from the Bar that if successful, the appellant will seek compensation under SOLAS for what it regards as unlawful interference with its rights. We do not need to address that downstream issue.

The heart of the concerns

[9] The powers which the respondent has purported to exercise arise under SOLAS. That is an international convention entered into between “Contracting Governments”, including Samoa, the Cook Islands and New Zealand. As its name and the Preamble to SOLAS make clear the purpose of the convention is to promote safety at sea.

[10] SOLAS comprises 12 Articles of Agreement. It has been amended twice, by Protocol. The first was replaced and abrogated by a second. The second Protocol was adopted on 11 November 1988 by the International Conference on the Harmonised System of Survey and Certification. It came into force on 3 February 2000. Amendments have since been effected by various resolutions of the International Maritime Organisation’s Maritime Safety Committee.

[11] It was common ground between counsel that because SOLAS is an international convention, the rules of international law dictate that it is binding as between contracting states but not (without more) as between states and private individuals. In the simplest terms, SOLAS does not form part of Samoa’s domestic law unless it is incorporated into domestic law by statute. The major issue in the appeal is whether that has been effected in this case.

[12] The Ministry of Works, Transport and Infrastructure, Maritime Division (MWTI) administers the Shipping Act 1998 (Samoa) and is the shipping administration for Samoa. The Act applies to all vessels registered or required to be registered or licensed under the Shipping Act or Regulations on any voyage and in any waters, and to a vessel in Samoan waters or in a Samoan port or harbor, and to a vessel on which Samoan seamen are employed. It does not apply to naval interests.

[13] Matters came to a head in Apia Harbour, where the PB Matua then was, over the following issue. The Vessel Safety Certificate (“VSC”) issued by the Cook Islands on 25 July 2012 and produced to the MWTI officials indicated:

• PB Matua was operating both as a cargo and passenger vessel;
• The vessel had been carrying up to sixty two (62) passengers; and
• An exemption had been issued relieving the ship from full compliance with the provisions of SOLAS passenger ship requirements.

[14] On a review of this Certificate, MWTI took the view that it was not acceptable for a number of reasons:

• First, PB Matua was not exempted from passenger safety requirements under the SOLAS Convention, as the exemptions identified under SOLAS did not apply to the PB Matua. However, as a cargo vessel of less than 500 tonnes, it was exempted from the SOLAS regulations when carrying no more than 12 passengers.
• Second, the SOLAS convention sets out various certificates with very distinct forms, details and validity periods, which include a Passenger Ship Safety Certificate with a validity period of 12 months. On the other hand, a Cargo Ship Safety Certificate has a validity period of 5 years. There could be an Exemption Certificate under a particular regulation. MWTI took the view that given the different validity periods of each certificate, the three certificates could not be merged into one certificate. This certificate gave the PB Matua greater downstream rights in some respects than she would otherwise have under an appropriate SOLAS passenger ship certificate. In short, the three in one certificate issued by Cook Islands for PB Matua was not valid.
• Third, in relation to an agreement between contracting states, such states can decide on special rules regarding a particular ship navigating between their respective ports. These rules had to be set out in an agreement which must be sent to the Secretary-General of IMO. Samoa had not signed any such agreement to allow PB Matua to conduct domestic voyages between Samoa, Cook Islands and Tokelau. In any event, no such agreement had been sent to the Secretary-General.

[15] In summary, MWTI as port administrator contended SOLAS applied in Samoa. It had, it said, a responsibility under SOLAS to ensure that vessels travelling through its ports have the proper and valid certification. In this case the certificates were not valid as they referred to a non-existent agreement between Tokelau, Cook Island and Samoa. And, the certificates submitted by Cook Islands were not in any event valid as they were not in any recognisable form in merging three different certificates into one, and hence gave inappropriately enlarged rights in some respects.

[16] So Samoa would not permit PB Matua to operate out of Apia under this documentation. It agreed that PB Matua could operate as a cargo vessel only. But the appellant takes the view its rights have been unlawfully constrained.

• 
  

[17] So the second central issue in the case, assuming that SOLAS applied in this particular instance, was whether there was compliance with the terms of it.

[18] The learned Chief Justice found against the appellant on both the central issues we have articulated.

The grounds of appeal

[19] Ms Barratt conveniently summarized the grounds of appeal in the following propositions.

(1) That the Shipping Act 1998 does not, itself, provide a power vested in the respondent to:

• Insist that documents issued to a foreign flag vessel by a foreign government should take the form which the respondent believes it should take;
• Either detain, or restrict the passenger numbers to below the level for which the vessel has been licensed by her Flag State, on the sole ground that the form of one of her documents is different to the form which the respondent believes it should take and does not meet the respondent’s approval. The appellant says that the documents which the ship is required to hold are those that are prescribed by its Flag State, and it does hold them. The ship is subject to the primary jurisdiction of the Flag State. There is no ability to require the Flag State to issue different documents to those prescribed under its own law.
  

(2) Second, that SOLAS does not provide such a power either.

(3) Even if SOLAS did provide such a power, SOLAS is an agreement between states which is not binding on private parties. To make its intent binding, the particular obligations assumed as between states would have to be translated into Samoan domestic law. That has not been done.

[20] The respondent supports the reasoning of the Chief Justice.

Does SOLAS apply in Samoa?

[21] The Chief Justice held that “[SOLAS] is part of Samoa’s domestic law by virtue of the provisions of the Shipping Act 1998” (at [67]).

[22] In our view, Chief Justice was not in error in his holding. Ms Barratt’s argument, when presented in the abstract and without context, has force. But of course as Keith J pointed out in Sellers v Maritime Safety Inspector [1998] NZCA 248; [1999] 2 NZLR 44 such a view is subject to the actual arrangements made by contracting States, and the terms of them when enacted into domestic legislation.

[23] Here, the Chief Justice carefully traversed the relevant provisions of the Shipping Act 1998 (Samoa). The Long Title is very clear, along with s2 of the Act, that the purpose of the statute is precisely to give effect to SOLAS. Section 3 (1) then stipulates that SOLAS “[has]” the “force of law” in Samoa. That is a legal term of art. As was demonstrated by the New Zealand Law Commission in A New Zealand Guide to International Law & its Sources (Report 34, 1996, at [45] authored substantially by Sir Kenneth Keith, now a Judge of the International Court of Justice) that phrase when utilised is taken as giving “direct effect” to the text of a treaty. It is a standard legislative “signal.”

[24] The Chief Justice then traversed various other provisions in the Act which are premised upon SOLAS being actively engaged in Samoa (see paras [21] to [28]).

[25] The Chief Justice said that “it is loud and clear” that SOLAS has “been statutorily incorporated into our domestic law”. We entirely agree.

An inoperable scheme?

[26] Then the argument was run that, even if that be so, in practical terms SOLAS is not readily operable in Samoa, which has not made any “regulations” in respect of things persons subject to it need to know about.

[27] This argument misconceives both the scheme of SOLAS and its present regulatory effects.

[28] As to the scheme of SOLAS, it has both structural principles and regulatory features. Under the former, what might be termed the scheme of arrangement, are included the setting up and boundaries of the agreement, the modification of it, and the way in which it is to be given effect to. Then, in the “annex” there are Chapters, within which there are “Regulations.” Within many of those “Regulations” are many important matters of detail and operation, which are described throughout the annex as “the present regulations.”

[29] Chapter 1, Part B, deals with surveys and certificates. Regulation 7 relates to passenger ships – which, if carrying more than 12 persons, the PB Matua is. R7 (b) (1) is very detailed as to what is required for a ship of that kind to be “fit for purpose.” “Full compliance” is required both with R7 and any additional requirements Samoa may have enacted. This exercise is an annual one (R7 (a)). The SOLAS Certificate has to comply with R15.

[30] Ms Barratt argued that what has happened in this case is nevertheless unlawful interference with a “citizen” (the ship) of another jurisdiction, by Samoa. The Cook Islands, she suggested, can do things “their way” when it comes to certifying ships, as the “Flag” State.

[31] She said Samoa is merely a “Port” State which PB Matua is visiting. SOLAS is a treaty, but has not been adopted into Samoa domestic law. In any event, it is not possible to comply with SOLAS, in essence because Samoa has not breathed sufficient life into it. It is deficient in procedures and particulars; and even has some fatal gaps in it.

[32] As to “control” R19 provides that when in a port of “another contracting government” (here, Samoa) the ship is subject to review by authorized officers whose duty it is to “verify” that the relevant certificates are “valid.”

[33] Valid certificates “shall be accepted” unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond “substantially” with the relevant particulars or provisions.

[34] Where “a certificate has expired or ceased to be valid” the officers have a duty to see that “the ship shall not sail” (R19(c)) save for proceeding to “the appropriate repair yard, or without danger to the ship or persons aboard.”

[35] Here, on one reading of R19, there never was a certificate of the requisite kind. That said, the purpose of R19 is plain: under SOLAS uncertified passenger vessels are to be prevented from putting to sea, in the interests of maritime safety. This is implicit in the scheme of the Act, and the matters addressed by R19.

[36] We consider that at least in the context of this case SOLAS is not too nebulous, nor has it inappropriate gaps.

[37] There was authority for Samoa to prevent the ship sailing, as it did, with more than 12 passengers in the absence of a valid SOLAS ship passenger certificate.

Result

1. The appeal is dismissed.
2. Costs in the Supreme Court were resolved by a determination of the Chief Justice.
3. In this Court, the respondent will have costs of $5000 and usual disbursements, if necessary as fixed by the Registrar.

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard