IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 6/2008

Walter Trading Company Ltd

v

Ports Authority

Burchett, Salmon, and Moore JJ 
21-23 July 2008; 25 July 2008 

Appeal – trial judge had all the evidence – appeal failed 

For the facts and the Supreme Court decision, see Walter Trading Company Ltd v Ports Authority [2008] Tonga LR 7. 

Held: 

1. The trial judge had before him a report on evidence not adequately tested, which the appellant relied on, and evidence for the respondent that raised possible answers to the report's finding of fault on the part of the Port Authority. 

2. There was no error in the trial judge's conclusion that the appellant's appeal failed. It was the appellant which bore the onus. The appeal was dismissed with costs.  

Statute considered: 
 Shipping Act (Cap 136) 

Counsel for the appellant : Mr Tu'utafaiva 
Counsel for the respondent : Mr Garrett

Judgment

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. 

As to the alleged defect in the mooring system, the Ports Authority's expert evidence was that the use of two buoys avoided the problem to meet which a swivel might otherwise have been needed. There was also dispute whether a swivel was not in fact provided. But what appeared to be principally relied upon was the report of a diver, Mr Keller, supported by an expert, Captain Hawkins, that the cause of the loss of the Lotoha'angana was not related to any defect of the mooring system, but to the impact on it of the drifting vessel, the Olovaha, which was also wrecked. The Olovaha ended up high on the reef, whereas the Lotoha'angana capsized on impact with its edge. According to Mr Keller and Captain Hawkins, with whom Commander Vi, the manager of the Ports Authority, was in agreement, a dragging anchor of the Olovaha probably became entangled with the ground tackle connecting the buoys to their anchors (in the case of the second buoy, referred to as the "old buoy", two concrete blocks and a sunken vessel), breaking the connections to the old buoy and dislodging the anchor of the new buoy, and then towing the Lotoha'angana, with its buoys, to the reef. There was evidence the buoys, after the loss, were seen between the Olovaha, on the reef, and the Lotoha'angana, on her side just at the edge of the reef. 

What has been said is no more than a summary of the salient features of the factual dispute. We do not need to descend to greater detail because of the way in which the case was fought below. To understand that, it is necessary to refer to events subsequent to the loss of the two vessels. A Court of Marine Inquiry was set up under the Shipping Act (Cap 136). By s 196 of that Act, the Magistrates' Court, sitting with assessors, constitutes a Court of Marine Inquiry. By s 198, it is provided:

In every case in which a charge of incompetency, or misconduct, or wrongful act or default arises against any owner, master, mate or engineer, the court shall cause to be furnished to him a statement of the case upon which the inquiry has been directed and shall give him an opportunity of making a defence either in person or otherwise. 

The Court of Marine Inquiry, in this case, produced a report containing summaries only of evidence and concluding that the incident happened to the Lotoha'angana "because of the shortfalls of the Port Authorities [sic] in their methods of preparing the moorings for the vessel."

The Appellant, in the hearing below, contented itself with seeking to prove its case by tendering the report of the Court of Marine Inquiry, which was admitted over objection. There are plainly difficulties raised by the appellant's course: the Port Authority is not an "owner, master, mate or engineer", and it received no opportunity under s 198 or otherwise of making a defence; there was no cross-examination of witnesses relied upon by the Court of Marine Inquiry; and the notes of their evidence are not at all complete. The very fact that s 198 does not give the Port Authority the right it gives an owner raises a question whether the statutory inquiry was meant to deal with an allegation against the Port Authority. At all events, if admissible, the report of the Court of Marine Inquiry, in the circumstances, cannot have much weight for the purposes of the present case. Its conclusion was rejected by expert evidence called for the authority, which was subject to cross examination. 

One expert witness who had given evidence in the Court of Marine Inquiry suggesting a defect in the mooring system, gave evidence in the Supreme Court to the effect that he had misunderstood an important feature of the system when he attended the inquiry and now considered there was nothing defective about it. 

What this all comes down to is that the trial judge had before him a report on evidence not adequately tested, which the Appellant relied on, and evidence for the Respondent that raised possible answers to the report's finding of fault on the part of the Port Authority – the shorter chains used by the Appellant could have caused the system to fail; or the Olovaha's dragging anchor could have been the sole cause of what happened. Both these possibilities were supported as probable by expert witnesses who maintained their views under cross-examination. In that situation, we detect no error in the trial judge's conclusion that the Appellant's action failed. It was the Appellant which bore the onus. The appeal should be dismissed with costs.