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MOEL Trading Co Ltd v Kiribati Port Authority [2005] KIHC 149; HCCC 80-04 (11 November 2005)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case No. 80 of 2004

Between:

MOEL TRADING CO. LTD
Plaintiff

And:

KIRIBATI PORT AUTHORITY
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Birimaka Tekanene

Dates of Hearing: 7 November 2005

JUDGMENT

The plaintiff has claimed $5,980.75 from the defendant. MOEL had paid that amount (as the receipt, Exhibit P2, shews but may be a bit more – the record produced by the defendant, Exhibit D1, shews a total of $6,205.75) to have released from the wharf four containers of merchandise. It is agreed that MOEL paid the storage fees under protest to get the containers released and is entitled to have the money refunded if it should not have had to pay. Likewise there is no dispute as to amount: the plaintiff will be happy with $5,980.75.

There is only one point in dispute: whether or not the KPA was entitled to demand fees for storing the containers in its warehouse.

When cargo arrives at the port of Betio the first step, after the consignee has the bill of lading, is to have the cargo cleared by Customs: second step is to pay the port charges.

MOEL through its employee Teetu Ritang, the cargo release officer, took these steps. Teetu had, by November 2004 been the cargo release officer since March. He struck me as a sensible chap upon whose evidence I could rely. Although employed by MOEL he spent his working days on the wharf arranging for the release of cargoes. The two witnesses for the defendant, Tarakia Uakeang, Warehouse Superintendent and Buiranti Itinnaibo, gang leader, both confirmed my impression of Teetu. Tarakia described him as "experienced":-

I’d had experience of him since he became Release Officer – he is experienced. He had followed proper procedures.

Buiranti:-

I meet Teetu every day – he’s at wharf with us. He comes to me and I tell him what containers I’ve made accessible He has to remind me. Whenever he comes to me I tell him what [accessible].

The third step to have cargo released is to take the documents already stamped by Customs and the Port Authority to the warehouse: the warehouse makes arrangements for the cargo to be released to the consignee.

Teetu said he took this step:-

I went to clear them from warehouse as soon as I’d paid on 19 November.

Teetu went to Buiranti, who according to Teetu said, "he regretted he could not assist – vehicle to transport the crane was damaged".

Which piece of equipment was damaged is not clear. The crane must be moved by the forklift into position to uplift a container: a container may be in the middle of a stack. Either the crane or the forklift or both was out of action when Teetu first approached Buiranti on the 19th November. Teetu saw that. Teetu says it was not until 28th or 29th December that both pieces of equipment were working. He asked Buiranti again to move the four MOEL containers into position for uplifting by MOEL. He was met with the request to pay storage. Storage becomes due 21 days after the ship which has brought goods to Tarawa leaves port. Two of these containers had arrived on Kiribati Chief and storage fees started on 30 November: two came on Pacific Islander II and the fees started on 7 December.

The plaintiff paid under protest: it claims it should not have been charged anything. MOEL was ready to uplift the containers on 19 November: responsibility for the delay until the end of December lay with the KPA.

The KPA on the other hand, through Tarakia and Buiranti, said it was Teetu’s fault: he did not submit the documentation at the warehouse as he should have. Said Tarakia, "He revealed his failing to me. He said he never went to warehouse". If Teetu had put in the paperwork the containers would have been released long before they were. The KPA equipment may have broken down for one or two days but certainly not for many weeks.

Teetu was by the end of last year an experienced cargo release officer. This is the only occasion, Teetu said, either before or since that he has been delayed. Buiranti said, speaking of this time:-

Teetu used to come and remind me. Teetu always pushing me ......... he wanted desperately the four containers. He was pretty desperate.

And one can imagine how Teetu's superiors must have been pushing him! This was Christmas: MOEL had goods in those containers to sell.

It defies belief that Teetu, an experienced, and I find, reliable man, "desperate" to have the containers released, should not have done what he always had done, followed proper procedures and lodged the documents with the warehouse. He says he did. I accept that he did. I do not accept Tarakia’s assertion that Teetu admitted fault. In any case one would have thought someone in the KPA would have been decent enough to remind Teetu about lodging the documents.

Just what happened within the KPA I cannot say. Was the forklift out of action and not able to move the containers? Were the documents mislaid? Were they too busy – there were many containers to be released – to get to MOEL’s containers?

One person whom I would have expected to be able to shed some light on the matter was Rakentaake, the Wharf Superintendent, Buiranti’s boss. Rakentaake, according to Buiranti, gives him instructions to move containers. According to Buiranti Teetu said he had approached Rakentaake: Rakentaake told Buiranti Teetu had not. Even more puzzling is that Buiranti said Rakentaake gave him permission to move one MOEL container: later permission for the other three. If the paperwork were missing why release one container before the others? Rakentaake was not called and no explanation given for not calling him.

The questions remain unanswered. Answers are not necessary for a decision. Either the equipment was not available to move the containers, the Port was so busy MOEL had to wait or the KPA mislaid the documents. Teetu did everything he should have done or could have done to have the containers released. The KPA was not justified in charging storage.

I am satisfied well beyond the balance of probabilities that the plaintiff has proved its claim.

There will be judgment for the plaintiff for $5,980.75.

Dated the 11th day of November 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice