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Walter Trading Company Ltd v Ports Authority [2008] TOCA 6; AC 06-2008 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA

AC 6 of 2008

BETWEEN:

WALTER TRADING CO. LTD
Appellant

AND:

PORTS AUTHORITY
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel: Mr. Tu’utafaiva for the Appellant
Mr. Garrett for the Respondent

Date of hearing: 21, 22 and 23 July 2008
Date of judgment: 25 July 2008

JUDGMENT OF THE COURT

This matter arose out of the loss of a vessel of 209.2 gross registered tonnage, the Lotoha’angana, in a cyclone. She had been unnavigable for some years, being, at the time, moored to two buoys near Pangaimotu Island within the port of Nuku’alofa. On 15 January, 2003, both the Lotoha’angana and another vessel, the Olovaha, were wrecked on the reef near Popua. The appellant, as owner of the Lotoha’angana, sued the Ports Authority in negligence, alleging it was responsible for the removal of the vessel from a safe berth some six months before the loss and for carelessness in the construction of the system of mooring, in particular in relation to what was called " the new buoy", which was said to lack a necessary swivel in a chain connecting the buoy to its anchor. The Ports Authority defended the proceedings on a number of grounds. As to the removal of the Lotoha’angana from her berth, it called evidence that, as the port authority, it had, over a very long period, required the removal of this inoperable vessel, and the appellant had failed to comply. Ultimately, the Ports Authority carried out the removal itself, and thereafter the appellant had changed the mooring system by replacing ropes mooring the vessel to the new buoy with considerably shorter chains.