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Airports Fiji Ltd v Air Pacific Ltd [2008] FJHC 81; HBC210.2007 (9 May 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No.: HBC 210 of 2007

BETWEEN:

AIRPORTS FIJI LIMITED
Plaintiff

AND:

AIR PACIFIC LIMITED
Defendant

Mr. H. Lateef for Plaintiff
Mr. N. Barnes for Defendant

Date of Hearing: 31st March 2008
Date of Judgment: 9th May 2008

JUDGMENT

Introduction:

[1] Security at any international airport is a vital component of air travel. As there is an ever increasing threat to safety of airlines, the costs associated with it are bound to increase. The issue in the present case is whether it is the airline or the plaintiff which is responsible to provide security at the airports including the cost of passenger and baggage screening at the airports.

Departure Tax:

[2] Prior to 1986 there was no departure tax levied on passengers departing overseas from Fiji. In 1986 the Airport Departure Tax Act (No. 5 of 1986) introduced a departure tax of $10.00 on all departing passengers over the age of 12 years. This tax has progressively increased over the years. It now stands at $40.00 by virtue of the Airport Departure Tax (Amendment) Regulations Legal Notice 55 of 2007. These Regulations are made by the Minister of Finance pursuant to powers given to him under Section 8 of the Airport Departure Tax Act 1986. The $40.00 departure tax has the following components:

- $25.00 to be paid to the Consolidated Fund

- $5.00 to be paid directly to Airport Fiji Limited

- $10.00 to be paid to the Civil Aviation Authority.

Airports Development and Security Charges:

[3] In addition a departing passenger pays a further $10.00. This levy was introduced in 2003 by Legal Notice 10 of 2003 titled Airports Development and Security charges 2003. There are two components to the $10.00 levy namely $5.00 development charge payable to Airports Fiji Limited; $5.00 security charge payable to Airports Fiji Limited. So both these charges are payable to the plaintiff for "services performed or facilities provided".

Submissions of Parties:

[4] Mr. Lateef in his submissions stated that the right to search a passenger and his baggage falls on both the plaintiff and the defendant. He submitted that the security of the airport and its infrastructure is the responsibility of the plaintiff but security of what goes into the aircraft namely baggage, cargo, passengers and food is the responsibility of the airlines. Therefore the defendant should suffer costs of passenger and baggage screening.

[5] He also added that if the defendant incurs expenses in providing the screening, then it can pass the expenditure onto the passengers. He added that it is not compulsory that the plaintiff provide passenger and baggage screening. It is to only provide these services where it considers advisable.

[6] The defendant on the other hand submitted the responsibility for security airport including screening of passengers and baggage is the sole responsibility of the plaintiff. It submits that since the defendant is providing screening of passenger and baggage, which is the responsibility of the plaintiff, the defendant is entitled to hold back from the $5.00 security charges the expenditure it incurs in screening each passenger. It is not insisting on retaining the entire $5.00 per person but expenses actually incurred in respect of each passenger.

Whose responsibility is passenger and baggage screening?

[7] To consider this issue one has to look at the provisions of the Civil Aviation (Security) Act 1994 a copy of which was helpfully provided to the court by Mr. Barnes.

[8] The long title of the Act states that it is an Act "to make provision for offences against the safety of civil aviation; the protection of civil aviation from acts of unlawful interference, airport security; the powers of search and arrest of operators and commanders of aircraft and related matters". Airport security is one of the stated objectives of the Act. It is dealt with in greater detail in part IV of the Act being Sections 19 to 32 of the Act.

[9] Section 21 of the Act states that the responsibility for prevention of offences against the provisions of Part II of the Act is the joint responsibility of the Fiji Police Force and the Airport Security Service. The section imposes no statutory obligation on the airlines themselves of this responsibility.

[10] Part II offences include hijacking (Section 3); Aircraft sabotage (section 4); Endangerment of Aircraft (Section 6); Airport sabotage (Section 7); offences in relation to certain dangerous articles (Section 13), to name a few. The statutory responsibility to prevent all these offences lies on the police and the airport security service. Obviously hijacking can be more easily carried out if a passenger could conceal weapons or explosives of any sort and get them into the aircraft and then carry out his intentions. Section 13 makes it an offence for any person to have with him without lawful excuse a firearm or explosive device in any aircraft or in any part of the aircraft. Section 13(3) is a deeming provision. It says that an article is deemed to be with a person if it is part of his baggage. Section 13(3) does not differentiate between baggage which is to be placed into the hold of the aircraft and any baggage which the passenger carries with him into the cabin of the aircraft.

[11] Section 13(3) of the Act states:

"(3) For the purposes of this Section a person who is for the time being in an aircraft, or in part of an airport, shall be treated as having with him in the aircraft, or in that part of the airport, as the case may be, an article to which this Section applies if –

(a) where he is in the aircraft, the article, or an article in which it is contained, is in the aircraft and has been caused (whether by him or by any other person) to be brought there as being, or as forming part of, his baggage on a flight in the aircraft or has been caused by him to be brought there as being, or as forming part of, any other property to be carried on such a flight; or

(b) where he is in part of an airport (otherwise than in an aircraft), the article, or an article in which it is contained, is in that or any other part of the airport and has been caused (whether by him or by any other person) to be brought into the airport as being, or as forming, part of, his baggage on a flight from that airport or has been caused by him to be brought there as being, or as forming part of, any other property to be carried on such a flight on which he is also to be carried, notwithstanding that the circumstances may be such that (apart from this subsection) he would not be regarded as having the article with him in the aircraft or in a part of the airport, as the case may be."

Hence the responsibility to prevent a person without lawful excuse having weapons or explosive devices with him in an aircraft or in any part of the airport lies with the police or Airport Security Service. The obvious way to prevent a passenger being able to carry dangerous articles into the aircraft or have with him in any part of the airport is to be able to screen passengers and their baggage.

Airport Security Service:

[12] The Act also requires the plaintiff to establish Airport Security Services which is the body carrying joint responsibility with the police. The functions and duties of the Airport Security Services are provided for in Section 23 of the Act. Of relevance to the issues before me is Section 23(a)(c) and (e).

"23. The Airport Security Service shall have the following functions and duties –

(a) to carry out passenger and baggage screening of all international aircraft passenger services and of such other services (where the service or the screening is judged advisable by the Airports Fiji) and, where necessary, to undertake searches of passengers, baggage, cargo, aircraft, airports and air navigation installations;

(c) generally, to maintain public safety and order at airports and air navigation installations;

(e) for the purpose of better carrying out of any of its functions under this Act to co-operate with the Fiji Police, Government departments, operators and authorities administering the airport security services of other countries, and with any appropriate international organization."

Section 23 sets out in mandatory words the duties and functions. The passenger and baggage screening of all international aircraft is the duty of the plaintiff. Under subsection (a) the plaintiff is under a firm obligation to screen every passenger and baggage on every international flight. There can be no exceptions to that. The defendant has no discretion to waive that requirement. It has discretion to screen or not to screen in "other services" like the domestic flights, where it judges to be advisable.

[13] As a result of the importance attached to security, the plaintiff is required to keep itself informed of modern security techniques and how security is administered in other countries.

[14] The respective positions taken by the defendant and the plaintiff are set out in annexures JY5 and JY7 to the affidavit of Josephine Yee Joy sworn on 22nd August 2007. The plaintiff states that the airport security and development charges were introduced in 2003 to prefund the improvements to its security system and to make improvements to the terminal buildings. It took the view that both the plaintiff and the airlines were responsible for screening of passengers and baggage on all international flights. It said that the plaintiff only carried out screening where judged advisable by it. It stated that in view of the fact that the airlines were doing a sterling work, there was no need for the plaintiff to come to the rescue.

[15] The defendant says that the plaintiff’s argument is circular. It submits that rather than the plaintiff carrying out its statutory duties, it expects the defendant to come to its rescue. It cannot both ask for the $5.00 levy and not provide the service. It says because the defendant is providing passenger and baggage screening service it is entitled to retain what it actually costs to provide such service.

[16] The functions and duties of the plaintiff have been reinforced with certain coercive powers it has been given under Section 28 in the Act. It can ask a person to submit to search of his person or goods which he intends to carry into an aircraft. The airport security officer can remove a person from an aircraft. He also has powers to use reasonable force to remove a person if the person ordered fails or refuses to leave an aircraft. In contrast the operator of an aircraft can only search a passenger or his baggage with his consent.

Consideration and Relevance of International Civil Aviation Organisation policies:

[17] The defendant also relies on International Civil Aviation Organization’s (ICAO) policies and guidelines on airport charges: annexure 9 to the affidavit of Josephine Yee Joy. Fiji is one of the contracting states to the International Convention of Civil Aviation also known as the Chicago Convention. Paragraph 29 of the guidelines provides that States are responsible for ensuring implementation of adequate security measures at airports. It also provides that the State can delegate the task of providing individual security functions to various entities, air carriers and local police. The State has by statute already allocated the responsibility of providing security at Nadi and Nausori to Airports Fiji Limited. Paragraph 29 further at (iii) provides that any charges or transfers of security costs should be directly related to the costs of providing the security services concerned and should be designed "to recover no more than the relevant costs incurred".

[18] The State’s responsibility for safety and security at the airports is further underpinned by Clause 13 on ICAO; policy. It provides that states

"when considering the commercialization or privatization of airports and providers of air navigation services, bear in mind that the State is ultimately responsible for safety, security, and, in view of the monopolistic nature of airports and air navigation services, economic oversight of their operations".

[19] These provisions of ICAO clearly suggest that the prime responsibility for the safety and security at airport is that of the state even if it establishes entities to look after security and safety. To say that the responsibility for baggage and passenger screening lies with the individual carriers is an attempt to pass the statutory responsibility to someone else.

System at Nadi and Nausori Airports:

[20] The departure tax levied under the Airport Departure Tax (Amendment) Regulations 2007 and the development charge and security charge levied pursuant to Airports Development and Security Charges Regulations 2003 are collected from a passenger when a ticket is purchased and remitted to Air Pacific for onward transmission to proper authorities. After a passenger passes through an immigration counter, they are then subjected to a personal and cabin baggage screening.

[21] The defendant has contracted with a third party to provide these services of screening as the plaintiff does not provide these services. The defendant has retained from the security charges it collected what it costs the defendant in providing passenger and baggage screening services. The statutory duty, I hold, to provide airport security services including passenger and baggage screening rests with the plaintiff. The plaintiff has not provided those services leaving the defendant little choice but to provide those services for the sake of protecting its interests and passengers. The defendant is entitled to retain the exact sum it spends on passenger and baggage screening.

[22] Accordingly the orders sought in the plaintiff’s originating summons are refused and I grant the following counter orders sought by the defendant that is –

(1) that the plaintiff is required under the Civil Aviation Security Act to provide security services including passenger and baggage screening at the international airports in Fiji.

(2) that the defendant is entitled to retain a sum equivalent to what it expended in providing the passenger and baggage screening at the international airports.

Is Legal Notice 10 of 2003 ultra vires?

[23] The legal notice was made pursuant to Civil Aviation Reform Act 1999 Section 12 of the Act so far as material provides –

"12(1) The operator of an airport may from time to time determine charges for services performed and facilities provided at the airport in connection with aircraft.

(2) Charges under subsection (1) may be set by –

(a) fixing the amounts

(b) fixing maximum amounts or

(c) setting methods of calculation."

The defendant submits that the plaintiff has not satisfied the necessary preconditions as it does not perform the services or provides facilities in connection with aircraft. The defendant submits that the plaintiff does not have the ability to levy on international passengers for service or development charges if those funds are not used solely for providing services at the airport in connection with the aircraft.

[24] I agree with Mr. Lateef that development and security in whatever form around the buildings and airport is in connection with aircraft. These facilities are either directly or indirectly used for purposes of the aircraft. Section 12 does not use the word solely. I am of the view that Section 12 of the Act must be given a broad interpretation. I hold that Legal Notice 10 of 2003 is not ultra vires.

Final Orders:

(1) That the legal notice 10 of 2003 is not ultra vires.
(2) That the plaintiff is required under the Civil Aviation Security Act to provide security services including passenger and baggage screening at the international airports in Fiji.
(3) That the defendant is entitled to retain a sum equivalent to what it expended in providing the passenger and baggage screening at the international airports.
(4) That the plaintiff’s application is dismissed with costs to the defendant.
(5) I order that costs be taxed on the standard basis if parties cannot agree.

[Jiten Singh]
JUDGE

At Suva
9th May 2008