N6197

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 776 OF 2014

BETWEEN:

RABAUL SHIPPING LIMITED
Applicant

AND:

PAUL UNAS, General Manager, NATIONAL MARITIME SAFETY AUTHORITY
First Respondent

AND:

NAFFIZUL HOSSAIN, Manager, SURVEYS AND INSPECTIONS, NATIONAL MARITIME SAFETY AUTHORITY
Second Respondent

AND:

NATIONAL MARITIME SAFETY AUTHORITY
Third Respondent

Kokopo: Higgins, J.
2016: 16th February
2015: 30th September, 2nd November

JUDICIAL REVIEW – maritime survey certificates – decision making to be based on factual evidence not disproved assumptions – right to be heard implies right to rational consideration – unreasonable delay in correcting patent error – unreasonable decision set aside.

Cases Cited:
Asiki v. Zurenuoc [2005] SC 797
Dr. Marat and another v. Hanjung Power Limited [2014] PGSC 33; SC 1357 
Hanjung Power Ltd v. Dr. Marat [2009] PGNC 133; N3751 

Counsel:
Ms. Jacqueline Marubu, for the Applicant
Mrs. Alzaria Yahamani, for the Respondents

JUDGMENT

19 February, 2016

1.	HIGGINS, J: This is an application for judicial review of a decision of the 3rd respondent taken by the 1st and 2nd respondents, to issue a survey certificate for a vessel owned by the plaintiff called "Calvados Queen".

2.	The vessel had been surveyed in 2008 and was then certified safely to carry 102 passengers and 10 crew, 122 persons.

3.	In 2012, a certificate was issued which it is now conceded, was erroneous on its face ie it provided for 102 passengers and 10 crew said to total 92. On 18 March 2015, an amended certificate was issued by the 3rd respondent allowing 92 unberthed passengers and 10 crew, a total of 102 persons, but only after numerous requests.

4.	It is conceded by the respondents that there has been no relevant alterations to the Calvados Queen after 2008. The reduction in numbers permitted to be carried on board must therefore be justified on other grounds.

5.	At the outset, it is inexplicable that a clearly erroneous certificate should be issued and stubbornly allowed to be unamended for over two and nearly 3 years. That is despite the error being pointed out and even acknowledged at an early stage.

6.	The Trim and Stability Booklet for the vessel, originally relied upon for the 2008 survey certificate makes the allowable load for the vessel dependent upon an assumed average weight of passengers and their luggage. The original certificate was based on a factual assumption that the average weight of passengers was 60kg and luggage an average of 15kg per passenger.

7.	Captain Peter Sharp, managing director of the plaintiff company, deposed that the employees of the plaintiff carried out weighing of passengers and luggage over a 2 year period to arrive at an average of 60.2kg per passenger and 15kg for luggage. The plaintiff has produced records purporting to verify those figures. That had been accepted as justifying the figures stated in the 2008 certificate.

8.	The respondents object that the primary evidence of the weigh-ins must come from the persons carrying them out, their recording of it being hearsay. It should be rejected, therefore as an unproven assumption, despite having been accepted for the purposes of the 2008 certificate.

9.	The respondents do not address the parallel issue as to why, if that be rejected the figure of 75kg plus 15kg luggage should be accepted instead, save that a circular from the International Maritime Organisation suggested that figure as a starting assumption. 

10.	The relevant portion of the Trim and Stability Booklet is annexed to Captain Sharp's affidavit (P.10) it states:

"3.4.6 Passengers

Loading Conditions are presented in this stability book for two passenger weights. Load Conditions 2 & 3 are based upon 92 passengers @ 75kg/passenger with a 15kg baggage allowance. Load conditions 4 & 5 are based upon a total passenger weight of 75kg/passenger inclusive of carry-on baggage. On this basis a maximum of 112 passengers may be carried. The Master of the vessel shall ensure that the vessel is loaded within these limits at all times." 

11.	Prima facie, the current Certificate, if rationally based on that booklet, the accuracy and authority of which was not disputed, should have reflected that requirement. It clearly did not. It assumed a total passenger and luggage weight of 90kg per passenger ignoring the alternative.

12.	The question then is whether the alternative contention the respondents advance is within the bounds of rational decision making.

13.	Captain Naffizul Hossain is the relevant decision maker for and on behalf of the Authority (National Maritime Safety Authority), albeit with the approval of the first respondent.

14.	He acknowledges that in issuing the new Certificate, he relied only on an assumed average weight of passengers and luggage at 75kg plus 15kg respectively and not the alternative in par. 3.4.6 of the Booklet.

15.	The reason he gave for choosing this inflexible standard was that (par 19 of his Affidavit):

"… the Administration has the overriding discretionary power to decide taking into account other factors including the safety of the passengers as a paramount consideration."
 
16.	The latter is undoubtedly a 'paramount consideration'.

17.	However, logically, the total weight of passengers and luggage is perfectly safe so long as it remains under the total produced by compliance with formula 1 (ie 92 passengers @ 90kg including baggage. There is another formula for deck space, 1m2 for each passenger. However, that restriction would not have been compromised by adopting the limit of 112 passengers @ 75kg per person.

18.	An empirical method for ensuring the total weight of passengers and luggage did not exceed the safe load limit would be to weigh all passengers and luggage.

19.	This the plaintiff had caused to be done. The respondents dismiss this in paragraph 21:

"The practise (sic – practice) of weighing passengers as claimed by the Applicant, through its Managing Director, has never been witnessed and acknowledged by the Third Respondent and its agents, hence this practise (sic) is not justifiable."

20.	That statement is plainly illogical. The deponent no doubt meant to convey that the practice was not verified otherwise than by the records of the plaintiff. That is tantamount to an assertion that those records are not reliable.

21.	No justification for that conclusion appears anywhere. Indeed, those records were accepted as reliable for the purposes of the 2008 Certificate.

22.	Indeed, nowhere is it suggested that the figures obtained by the plaintiff are incorrect. They are, of course, still subject to the caveat that, should a particular cohort of passengers exceed the load limit as calculated in kilograms, the Master of the vessel must ensure that it is met whether by off-loading passengers before embarkation or otherwise. It is after all a serious offence to send a ship to sea in an unseaworthy state where the life of any person is put in danger (s.331 Criminal Code). An overloaded ship would constitute a situation.
 
23.	There is no evidence that the taking of passengers and luggage up to but not beyond the weight referred to in the Trim and Stability Booklet is unsafe. Indeed, it is to be inferred that the loading standard conforms to safety requirements and creates no appreciable risk to safety. 

24.	There is, however, an Intact Stability Code 2008. Ms. Yahamani, for the Authority relies on that as justifying the minimum assumed weight of passengers at 75kg. The Code itself is not a legislative instrument but is a Merchant Shipping circular approved by the International Maritime Organisation of which PNG is a member. Even so, the terms of article 3.1 applicable to passenger ships as cited by the respondents states:

"A minimum weight of 75kg shall be assumed for each passenger except that this value may be increased subject to the approval of the Administration …"

25.	That is to be taken as allowing the use of some lesser average weight where that is justifiable, a proposition reflected in the Stability & Trim Booklet. The precise applicability of these standards to internal as opposed to international shipping is not clear. Nevertheless, it is not to be suggested that these standards are not relevant to the decision of the 3rd respondent to issue a survey certificate for the Calvados Queen. It is also apparent that the 3rd respondent accepted it as reasonable to issue the original Survey Certificate approving the carriage of 112 passengers at an assumed weight averaging no more than 60kg per passenger with an average of 15kg of luggage per passenger.

26.	That decision was not arbitrary. It was supported by the evidence presented by the plaintiff. By contrast, the decision to reduce the carrying capacity of the Calvados Queen by 20 passengers is arbitrary and unsupported by evidence. It follows that it cannot be supported.

27.	Ms. Maribu cited in support of that proposition, a decision of Cannings J in Hanjung Power Ltd v. Dr. Marat [2009] PGNC 133; N3751. However, she omitted a reference to Dr. Marat and another v. Hanjung Power Limited [2014] PGSC 33; SC 1357 which overruled that decision. That decision related to a decision to exercise legislative power, a different exercise than a decision to exercise an administrative discretion. That the efficacy of such latter decisions are open to challenge on grounds of unreasonableness and/or lack of natural justice is undoubted.

28.	The case of Asiki v. Zurenuoc [2005] SC 797 is an affirmation of that principle.

29.	There is, in the present case, no legislative provision which authorises or permits the 3rd respondent to make a decision that is capricious, illogical or irrational. It is obliged to apply the usual rules of natural justice. That means not only giving an affected party a right to be heard before making a decision adversely affecting that party but also giving proper consideration to what that party submits. It is not a mere formality.

30.	It is true that Collier J dissented in the Hanjung Power case but the decision of the majority is binding on me as a single judge. The right to be consulted applies to administrative and judicial decision making but not to the exercise of legislative power, primary or delegated.

31.	Nevertheless, given that the present case involves an administrative decision making process, the principles acknowledged in Asiki's case are applicable.

32.	In the present case, the 3rd respondent has been given reasons why the plaintiff contends that the original certificate was in compliance with the various Conventions, if applicable. On its face the decision of the 3rd respondent, applying fictitious assumptions as to body weight of passengers is unreasonable and against the evidence presented to it.

33.	It follows that the current certificate must be set aside and the 3rd respondent directed to re-issue it in the same or similar terms as the superseded certificate.

34.	Orders to issue accordingly.

35.	I will hear the parties as to cost

____________________________________________________________
Solwai Lawyers: Lawyers for the Applicant 
In-House Lawyer, National Maritime Safety Authority: Lawyers for the Respondents