IN THE HIGH COURT OF FIJI
AT SUVA
ADMIRALTY JURISDICTION

ACTION NO: HBG0001 OF 1998

BETWEEN:

CKP FISHING COMPANY LIMITED
Plaintiff

AND:

THE OWNERS OF MOTOR VESSEL WOO YANG
Defendant

AND:

MARINE PACIFIC LIMITED
1st Intervener

AND:

SHIPBUILDING (FIJI) LIMITED
2nd Intervener

COUNSEL: Mr V. Kapadia for Plaintiff
: Mr W. Clarke for 2nd Intervener

Hearing: 3rd December 1999

Decision: 20th January 2000

JUDGMENT

This is an application by Shipbuilding (Fiji) Limited (the 2nd Intervener) for priority in respect of the proceeds of sale of the vessel Woo Yang #205, for the cost of docking, wharfing and berthing of the vessel.

The application is made under section 25 of the Supreme Court (Admiralty Rules) Order IV Rule 4. It was agreed by the parties that the application should be considered before the claim of Marine Pacific Limited (the 1st Intervener) for priority ranking in respect of the proceeds of sale for salvage costs for the vessel.

The Woo Yang 205 was arrested by order of the High Court on 11th January 1999. From the date of arrest, the Admiralty Marshall was responsible for the care, maintenance and custody of the vessel. The vessel was sold on 28th September 1999.

The application was heard in chambers on 3rd December, 1999. Mr W. Clarke for the 2nd Intervener relied on the affidavits of Jainoor Mallam dated 19th November 1999 and 1st December 1999 and the affidavit of Mark Stinson dated 3rd December 1999.

Mr V. Kapadia for the Plaintiff relied on the affidavits of Kim Sung Soo dated 30th November 1999 and the 3rd of December 1999. In the course of his submissions Mr Kapadia asked for an order for the release of the vessel from the custody of the 2nd Intervener. I refused that application on the ground that the application had not been made properly by the new owners of the vessel. A subsequent application was then made before Scott J on 6th December 1999 for the joinder of the new owner Pratidina Pratama, and for an order for the release of the vessel. That order was made by Scott J on the same day.

At the hearing of the application by the 2nd Intervener, counsel for the plaintiff conceded that the berthing charges claimed by the 2nd Intervener, had priority over other claims. However he disputed the amount claimed. In particular, he argued that no berthing fee should be payable once the ship was berthed to a dolphin. He submitted that the dolphins were not within the area controlled by the 2nd Intervener. He conceded that the amount of $10,810.00 was payable to the 2nd Intervener but denied all other charges.

Mr W. Clarke for the 2nd Intervener submitted that the vessel had been moved to the dolphin to free wharf space for other vessels, and that the dolphins had been transferred to the 2nd Intervener as an asset. Furthermore the Lands Department had transferred the use of the seabed which include the dolphins. He said that the 2nd Intervener had charged the Admiralty Marshall only half of its normal berthing duties. The total claimed is $23,717.53 less the $582.00 conceded by counsel.

Judgment, in this case was entered for the Plaintiff in the sum of $179,216.38 on 14th September 1999. The vessel was sold by the Admiralty Marshall in the sum of $50,000. The vessel was berthed at the 2nd Intervener’s facility from 4th August 1998 to 30th June 1999, when it was shifted to a dolphin buoy 30 metres off-shore.

The dispute is whether berthing charges can be levied whilst the vessel was berthed at the dolphin. It is not in dispute, nor in my opinion can it be, that berthing charges are payable, at the outset, from the proceeds of sale.

The affidavit of Jainoor Mallam of 19th November 1999, is silent on charges payable for the use of the dolphin. However, the affidavit states at paragraph 11, that when the vessel was brought to the wharf by the plaintiff, “we agreed between ourselves to charge only half that rate owing to our long term relationship with that company.”

In reply Kim Sung Soo, in his affidavit of 30th November states that the correct charge should be $1.50 per day per metre, which should amount to $10,822.00 from 15th January 1999 to 30th June 1999. Thereafter the vessel was shifted to a buoy. In response Jainoor Mallam states in the affidavit of 1st December 1999, that the vessel was moved to a dolphin “so that (the Applicant) could service other fee-paying vessels. It would have been irrational to continue to moor the vessel on the Applicant’s wharf when it did not need to occupy that area. The fact that it was idle misses the point. The Applicant had to continue caring for the vessel.”

The affidavit of Mark Stinson states that the dolphins were transferred to the 2nd Intervener as an asset. The Sale and Purchase Agreement between the 2nd Intervener and the Government of Fiji (Annexure A) defines “properties” as the property defined in the lease, and an exclusive licence to use the seabed and waters in Schedule 5. Whilst the words “concrete dolphin structure” is included in the list of assets transferred, it is not clear where these structures lie. The lease (at Annexure C) provides that the licensee (the 2nd Intervener) shall use the licensed area for, inter alia, berth and slipway. The licensed area is that shown on the diagrams, for “the sole right of occupation and use for the purposes of ship repairing, shipbuilding, berth and slipway and any other purposes reasonably incidental to such purposes.”

It is clear from the diagrams that the lease included, repair wharf, waters and seabed, slipway waters and seabed dock waters, reclaim area, and floating dock. The 2nd Intervener says that the dolphins fall within the diagram repair berth and slipways. However, the dolphins themselves are not marked on the lease diagrams.

Nevertheless, on a reading of the Sale and Purchase Agreement, and of the lease, it seems clear that the 2nd Intervener had exclusive rights over the seabed where the vessel was moored, and that the dolphin structures were part of the assets transferred under the agreement.

I am satisfied therefore that the vessel was berthed at a dolphin under the jurisdiction of the 2nd Intervener. However, the 2nd Intervener has made no further concession for charges at the dolphin. The invoices annexed to the affidavit of Jainoor Mallam charge for “Repair Wharf Charges” at 43.46 metres x $2.00 per metre per day. No changes for the charges were made when the vessel was shifted to the dolphin. At paragraph 9 of the affidavit of Jainoor Mallam of 1st December, the services provided were security to ensure there was no theft or vandalism and insurance cover to protect the vessel from damages.

However Kim Sung Soo in his affidavit in reply of 3rd December 1999, states that the Plaintiff had provided security for the vessel, that the insurance cover does not apply to the vessel since the 2nd Intervener advised all vessels that berthing was at the owners’ risk.

In all the circumstances, I am not satisfied that the 2nd Intervener can levy charges for berthing at the dolphin from 30th June to September 1999. Their invoices fail to specify what the charges are for. The claim that security and insurance were provided for berthing at the dolphin is contradicted by the Plaintiff. Furthermore, there appears to be no agreement that the 2nd Intervener would levy the same charges for berthing at the dolphin, as at the wharf.

For these reasons, I allow the 2nd Intervener’s claim but limit it to the period between 14th January and 30th September 1999.

As to the correct amount levied, it appears from the Schedule of Charges annexed to the affidavit of Jainoor Mallam of 19th November 1999 (Annexure E) that the correct rate at half-price was actually $3.25 per day for “vessel requiring berth only” or $1.00 per day for “vessels requiring berth and work carried out by SFL.” Since Kim Sung Soo in his affidavit of 30th November, states that slipping was done, I accept that the proper rate was $1.50 per day per metre.

The total amount due to the 2nd Intervener from 15th January 1999 to 30th June 1999 is therefore $10,822.00. I order that this sum be paid to the 2nd Intervener by the Admiralty Marshall to cover berthing fees.

Nazhat Shameem
JUDGE

At Suva
20th January 2000