In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 150 of 2010

Between:

Tekaai Mikaere t/a Shipping
Agencies of Kiribati
Plaintiff

And:

Kiribati Ports Authority
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Tumai Timeon

Date of Hearing: 16 November 2010

JUDGMENT

Originating Summons by a shipping agent asking for a declaration:-

That a shipping carrier is not responsible for overtime allowances, wet bonus, meals, transport expenses and other charges payable to the bargemen, coxswain, mechanics, operators and tally clerks who are needed for handling the discharge and loading of cargoes.

These proceedings have been prompted by the defendant's interpretation of its revised "Betio & Kiritimati Port Dues, Fees and Tariffs" which came into effect on 1 July 2010 [I shall refer to it as "The Document"].

Up to then the shipping carrier had been held responsible only for stevedoring charges. The consignee was responsible for all subsequent charges. The defendant now interprets the revised dues, fees and tariffs as making the shipping carrier responsible not only for stevedoring charges but also for subsequent charges on the wharf. The plaintiff complains about this. Preceding the request for the declaration he has asked these questions:-

A shipping carrier being responsible for stevedoring charges, is the carrier also responsible for overtime allowances, wet bonus, meals, transport expenses and other charges payable to the bargemen, coxswain, mechanics, operators and tally clerks who are needed for handling the discharge and loading of cargoes?

It is a matter of interpretation.

Mr Berina based his argument first on s.19(1) of the Kiribati Ports Authority Act:-

Dues known as wharfage dues shall be levied by and paid to the Authority in respect of goods landed or discharged within a port …..

Mr Berina argued that wharfage dues are separate and distinct from stevedoring dues. In the Glossary at the end of The Document stevedoring is defined as meaning:-

Loading/unloading of cargo or containers onto/off a vessel onto a wharf and into an open storage area and vice versa.

Stevedoring is completed once the cargo is "off a vessel onto a wharf …..". thereafter the dues payable are wharfage dues.

The definition complements the definition of wharfage dues in s.19(1) – "in respect of goods landed or discharged….."

No doubt the shipping carrier is responsible for stevedoring dues but what do those dues include and how far does that responsibility extend?

The answers to those questions are not easy to give. There is some ambiguity in the document. Construing it is not nearly as easy as 
Nei Rube Oromanga, the General Manager of the defendant, has so robustly suggested in her response to the plaintiff and in her affidavit in reply to the request for a Declaration. The ambiguity is compounded by the definition of "owner" in the Glossary at the end of The Document:

Owner when used in relation to goods, includes any person being or holding himself out to be the owner, importer, exporter, consignor, consignee, shipper, agent or person possessed of or beneficially or potentially interested in, or having any control of or power of disposition over, the goods and, when used in relation to a vessel, includes every person acting as agent of the owner thereof, or such agent to receive freight or other charges payable in respect of the vessel and any part-owner, character, operator, consignee or mortgagee in possession thereof of any duly authorized agent of any such person.

A most complex but apparently all embracing definition.

The whole document is drawn very much in favour of the Authority giving it complete discretion as to whom to charge.

In s.2 of the Document "charge against consignee/consignor/agent":

A:	Port & Handling Charges
		
	(i)	Administration
	$3.00 per release	
	(ii)	Lighterage if ship at anchorage 
On imports and exports
	$6.00/m3/tonne (whichever is greater)	
	(iii)	Wharfage levied on overseas
Imports and exports…..

This makes either consignee or consignor or agent liable for the charges, at the discretion of the Authority. The charges should be levied only against one of the consignee, consignor or agent – not against more than one – but the Authority may choose at will whom to charge.

Apart from this ambiguity there is no doubt that the shipping carrier is responsible for the stevedoring charges and these include all charges such lighterage incurred up to the landing of the cargo on the wharf.

I cannot therefore make a declaration in the terms asked for. All I can say is that the shipping carrier is responsible for stevedoring charges and may be responsible for wharfage charges as well at the will of the Authority, unless the charges are levied against anyone else.

Dated the 19th day of November 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice