Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Fischer v Fung Shing Development Co Ltd [2006] TongaLawRp 29; [2006] Tonga LR 295 (4 September 2006)

IN THE SUPREME COURT OF TONGA

Fischer

v

Fung Shing Development Co Ltd

Supreme Court, Nuku'alofa
Ford J
CV 242/2002

18 and 19 April, 29 June and 5 July 2006; 4 September 2006

Tort – negligence – res ipsa loquitur – defendant negligent – liable

Damages – mitigation of loss – plaintiff should have repaired earlier – damages adjusted

On the night of 28 February 2002 a collision occurred at Fua wharf, Nuku'alofa, between a fishing vessel "M V Fung Shing 2" owned by the defendant and the plaintiff's much smaller pleasure launch called the "Topaz". The plaintiff brought a damages claim against the defendant alleging that the accident was caused by the negligence of the defendant. The defendant contended that the accident did not result from any negligence on its part but from cable and nylon rope becoming entangled in the propeller of the Fung Shing causing the master to lose control of the steering. At the time of the accident the Topaz was stationary, moored against another vessel three out from the wharf. The Fung Shing was carrying out certain manoeuvers at the wharf and as the ship was asterning the captain was unable to stop and reverse the propeller thus resulting in its collision with the Topaz. The plaintiff claimed damages totalling $181,910. The defendant challenged the damages claim on the grounds that the plaintiff was negligent in not having his vessel insured; that the repair estimates were not reasonable and that the plaintiff had failed to take appropriate steps to mitigate his loss.

Held:

1. The maxim res ipsa loquitur applies to an accident which would not, in the normal course of things, have occurred without the lack of reasonable care on the defendant's part.

2. Although the defendant did not have to explain the precise cause of the collision in order to dislodge the inference of negligence, it was still required to produce credible evidence which explained how the collision may have occurred without negligence on its part.

3. The defendant had failed to produce such evidence and the plaintiff succeeded, therefore, in establishing its cause of action in negligence.

4. The challenge to the damages claim on the basis of the vessel not being insured and the repair estimates not being reasonable were dismissed but the claim that the plaintiff had failed to mitigate his loss was upheld on the basis that the repair work should have been carried out within a reasonable period which was assessed at nine months. The plaintiff was awarded damages totalling $46,348.00 together with costs.

Cases considered:

Esso Petroleum Company Ltd v Southport Corporation [1955] 3 All ER

F C Nichol v Simiki [2006] TOSC 31

Llanover, The (79 Lloyd's Rep 163)

Merchant Prince, The [1892] P 9

Scott v London Dock Company (3 H&C 601)

Southport Corporation v Esso Petroleum Company Ltd [1954] 2 All ER 561

Tukutau v Masoe [2001] Tonga LR 116

Counsel for plaintiff: Mr Mangisi
Counsel for defendant: Mr Niu

Judgment

Background

[1] During the night of 28 February 2002 a collision occurred between two vessels at Fua Wharf, Nuku'alofa. The fishing vessel "M V Fung Shing 2" collided with a much smaller pleasure launch called the "Topaz". The Topaz, which was moored at the time, is owned by the plaintiff. The Fung Shing 2 is owned by the defendant company.

[2] In this proceeding the plaintiff seeks damages from the defendant claiming that the accident resulted from the negligence of the defendant in one or more of the various respects particularized in the statement of claim. The defendant contends that the accident did not result from any negligence on its part but from cable and nylon rope becoming entangled in the propeller causing the master of the Fung Shing 2 to lose control of the steering.

[3] The writ was issued on 9 May 2002 and the statement of defence was filed on 12 June 2002. It is fair to say that since then, however, the case has only meandered its way to trial. Both parties changed solicitors at different points in time and that no doubt would explain some of the delays but it cannot be claimed that the proceeding has proceeded to trial as expeditiously as it should. The delays in turn seem to have had a consequential adverse effect on the availability of potential witnesses and this has been another unsatisfactory feature of the proceeding.

The plaintiff's case

[4] The plaintiff told the court that he emigrated from Germany in 1990. He had been a chef all of his working life and the intention was that he would be running a restaurant in a local guesthouse. It is not entirely clear from the evidence, however, what exactly he did for a living up until 1999 when he purchased the Topaz.

[5] The plaintiff described the Topaz as an 8 m fibreglass game fishing boat which he used for charter work. He said that he had purchased the vessel for $50,000 cash and at that stage it had just undergone a complete refit. A colour photograph of the boat was produced as an exhibit along with a business brochure. The vessel appears to have been an attractive, modern game fishing boat with all the necessary accessories.

[6] The brochure is headed "Game and Sport Fishing. Top M V Topaz Charters. Topaz is 8 m And boat with flybridge powered by 205hp. Equipped with Chart-plotter, GPS, fish fineler (sic), down rigger, quality fishing equipment. After giving contact telephone numbers and an e-mail address, the brochure goes on to state:

"We take charters 2 or 3 anglers and fish for Marlin, Sailfish, Yellowfin tuna, Wahoo, Mahimahi (El Dorado) operating from Tongatapu. Prices: from T.$600 per day. Minimum: 10 hours."

[7] The plaintiff said that in addition to charter work he would take people out for half day fishing trips at a cost of $400 and whale watching during the season. The boat was also available for hire for barbecues and other functions. The plaintiff acknowledged that the demand for the Topaz varied and there could be periods of up to two weeks at a time when he would have no business.

[8] The vessel has still not been repaired. The plaintiff said that he had been unable to afford to meet the repair costs. He was asked in evidence to estimate his losses and in response he told the court that his earnings would have averaged $3500 per month but he was claiming only $2500 per month for the period between the date of the accident and the date of trial. He also seeks storage costs of $3 per day which he said he has had to pay the Ports Authority while the Topaz remains on Authority land.

[9] At the time of the accident the Topaz was moored against another vessel three out from the wharf. It was a mooring position specifically allocated to it by the Ports Authority. The plaintiff paid an annual rental to the authority for the berth. He told the court that the Topaz had always used that berth without any incident.

[10] The plaintiff said in evidence that he understood the collision had occurred around 3 a.m.. His statement of claim showed the date of the incident as, "the night of 5 -- 6 March 2002" but during the hearing that date was amended by consent to 28 February 2006. The plaintiff told the court that he first learned of the collision from a taxi driver in the early hours of the morning. He drove down to the wharf and inspected the damage to the Topaz. He described what he saw to the court. He said that he also met up with a Mr Martin Ke who told him that he was in charge of the Fung Shing. Martin Ke gave the plaintiff his business card and, according to the plaintiff, admitted liability for the damage caused to the Topaz and agreed to pay for the damage.

[11] The plaintiff admitted in evidence that at the time of the collision, the Topaz was insured only against third-party risk. He explained that originally the vessel had been fully insured but because of some problem he had encountered over a claim the previous year, the full cover had not been renewed. The plaintiff said that immediately after the accident he proceeded to obtain a quotation for repairing the Topaz to a seaworthy state. The quotation he obtained from KW International Marine Ltd, a company specialising in marine fibreglass work, amounted to T.$32,038.00. The quotation dated 5 March 2002 was signed off by the General Manager of KW International Marine, Stephen Leeson, and concluded with the observation:

"We look forward to your quick response as the sooner we have the boat under cover from the elements the better repair..."

[12] The court was told that the Topaz in its damaged state has remained exposed to the elements and vandalism since the accident. The estimated repair costs today are approximately $55,000. The expert witness called to give evidence from KW International Marine, Laka Vaifo'ou, agreed with the proposition put to him by the court that rather than try and repair the Topaz to a seaworthy condition, it would be more realistic these days to treat the vessel as a complete write-off.

[13] The plaintiff also called evidence from Uaisele Pau'u, who in 2002 was the captain of a vessel belonging to the Deep Blue Diving Company. He was also a diver for the company. He told the court how one day after the collision he and another diver working for Deep Blue, who he knew only as Paula, were required to carry out a dive to inspect the shaft and propeller of the Fung Shing 2. He said that the defendant company had approached Deep Blue and had made a specific request for the underwater inspection to be carried out.

[14] Uaisele said in evidence that Paula was under water for approximately 20 minutes. He took with him a 12 inch bread knife which he used to cut a length of nylon rope about the diameter of an electric cord and 5 m in length from around the propeller. On his second dive, he surfaced with some cloth and plastic bags. The witness remained on the surface and marked the spot where Paula had dived. He said that afterwards all the material was given to a Korean man who was present representing the Fung Shing. He (the Korean man) took the length of nylon rope with him but the other material was thrown back into the sea. Uaisele could not recall the exact date of Paula's dives but he estimated that it was at least two weeks after the collision.

The defence

[15] The defendant denied any negligence on its part. It pleaded:

"The collision was due to a big heavy rope and wire which had been discarded on the bottom of the harbour and which, because of the low tide at the time, became entangled in the propeller of the defendant's vessel, causing the propeller not to turn when required nor to turn in reverse for the vessel to go forward when required, so that the vessel could not stop the momentum of its backward movement or turn its stern away from the plaintiff's boat."

The defendant also denied that the man who had made the admission of liability to the plaintiff, Martin Ke, was a representative of the defendant and it challenged all aspects of the damages claim alleging that the amounts sought were excessive.

[16] The first witness called for the defence was Raymond Yu, Managing Director of the defendant company. He had no first-hand knowledge of the collision but he had been told about it by Martin Ke who he referred to as the manager of the Fung Shing. Mr Yu said that Martin Ke had returned to China in 2004 and the captain of the Fung Shing, captain Zhang, had left the company, "over a year ago." Mr Yu described the Fung Shing 2 as a 26.5 m long line fishing vessel. At the time of the trial it was said to be in Fiji undergoing maintenance work.

[17] Mr Yu produced a letter which Martin Ke had written to the Ministry of Marine and Ports on 11 March 2002, some 11 days after the collision. The letter was written on a Fung Shing Fishing Company Ltd letterhead. I set the contents out in full:

" Re: Marine Incident Report

Dear Sir or Madam,

I regret to report to you one incident which happened at Faua Wharf on February 28. Because MV "Fangafa" would come from Ha'apai and moor in the berth where " Fung Shing 2" (outside) and "Fung Shing 3" (inside) already alongside, so " Fung Shing 2"'s captain Mr Zhang Jinbiao shift the boat to Seastar's wharf with the chief engineer and the crew.

After "Fangafa" and "Fung Shing 3" finished mooring, " Fung Shing 2" return back and wanted (sic) alongside "Fung Shing 3". While asterning, Mr Zhang already saw MV "Topaz" in the back, and immediately turned the key to stop the propeller and wanted to ahead, but the propeller no answer and still astern, so the captain has no way and informed the engineer to stop the main engine immediately. But it was still too late and the incident happened, the back of "Fung Shing 2" hit the starboard bow of MV Topaz at about 2:30 a.m. on Feb 28, 2002.

Because of the propeller's problem, the captain decided to anchor the boat and moored one rope from the back to one pole in the wharf.

After finishing anchoring, I asked the captain and the Chief Engineer, they thought the incident came from the problem of the adjustable propeller.

And we are looking to your department for assistance in this matter.

Sincerely yours,

Martin Ke"

No objection was taken to the production of Mr Ke's letter.

[18] Mr Yu told the court that between four to seven days of the collision the company, through Martin Ke, arranged for a diver, who he only knew as "Tevita" to dive and remove rope tangled in the propeller. Mr Yu was asked in cross-examination whether his company contacted the Deep Blue Diving Co to inspect the propeller of the Fung Shing. He replied: "Any problems we always call Tevita." Earlier, in examination-in-chief the witness had been asked whether any of the company's vessels had ever had "a problem like this before" or since? The witness answered, "no, I don't think so."

[19] Mr Yu was also asked in cross-examination and by the court about the plaintiff's claim that Martin Ke, on behalf for the defendant, admitted liability for the damage caused to the Topaz and agreed to pay for the repairs. Mr Yu appeared to concede in the end that Martin Ke did have a authority to make such a commitment on behalf for the defendant but he claimed that the quotation of $32,038 for the repair work was too high and Martin Ke was unaware of that figure when he made his representation. Mr Yu admitted that the defendant did not obtain a quotation of its own and he knew of no other local company that could carry out repair work to fibreglass vessels. He told the court that an acceptable figure for the repair work, in his view, would have been $5,000.

[20] The defence also called evidence from 39-year-old Tevita Raass who described himself as a mechanic and a diver. He said that he had been diving for 10 years. Tevita told the court that he carried out diving work for the Port Authority, inspecting the keels of vessels, and he also carried out diving work inspecting boats for fishing companies. He was very familiar with the two Fung Shing vessels. He said that he recalled the collision between the Fung Shing 2 and the Topaz. At that time he was working for himself. Previously he had been working for the Deep Blue Diving Company Ltd.

[21] Tevita estimated that within five to seven days of the collision he had been required by "a Chinese man", on behalf for the defendant company, to dive and check the propeller of the Fung Shing 2 which had become entangled. He duly dived and reported that a length of rope and cable had tied itself around the propeller. He was then asked to remove it and he did so using bolt cutters, a hacksaw and a knife. He said that the job took him three hours and he used three tanks of oxygen. No one else assisted him. He said that when he removed the rope, the propeller free flowed and he was able to turn it by hand. Mr Raass explained that in high tide the distance between the keel of a fishing vessel the size of the Fung Shing 2 and the bottom of the harbour was only about 1 1/2 metres and in the low tide the vessel would sit on the mud.

[22] Continuing in examination-in-chief, the following exchange then took place between the witness and Mr Niu:

"Q. Did you see the boat again after you did your dive that day -- the Fung Shing boat?

A. They asked me about a month later working again -- the same thing -- they always have (indecipherable).

Q. They asked you again?

A. Yes.

Q. How long after?

A. About a month.

Q. After a month?

A. Yes.

Q. They asked you to do what?

A. To dive again and take the ropes off the propeller.

Q. And did you dive?

A. Yes.

Q. And what did you find?

A. The same thing, ropes and tyres.

Q. The same boat?

A. The same boat.

Q. What about before this dive when it damaged the Topaz, did you ever dive before that?

A. Yes, every time a big vessel like that moves around the wharf, when they're ready to move I have to dive and check that everything is clear to go out (indecipherable).

Court: I'm sorry, I'm having trouble, just keep your voice up -- you were asked did you ever dive before, now tell me again what was your answer?

A. The same problem -- all these ropes and stuff.

Court: So that happened before the accident with the Topaz?

A. Yes.

Court: The same problem?

A. The same problem.

Court: Yes Mr Niu.

Q. And where, can you remember, where was the Fung Shing vessel when you did the dive before? Before this accident with the Topaz you did dive before?

A. Everywhere at the wharf. They come in parking this side and parking that side.

Q. Was there any accident before?

A. All the boats are like that. All these fishing boats at the wharf. They have -- when they get any movement, the propeller sucks in the tyres and those big ropes and when they hit the propellers they stop the engine.

Q. And did this boat hit another boat before?

A. Yes, (indecipherable) move closer to another boat. They did not damage but they drive closer. It depends on how strong the vessel.

Q. How many times do you think you have dived to clear the propeller of the Fung Shing vessels -- let's say the Fung Shing 2 and the Fung Shing 3?

A. Every month, every month like that. These boats go out for three months, two months (indecipherable) but when they arrive, every month."

[23] This line of questioning was pursued further by Ms Mangisi in cross-examination:

"Q. When did you inspect the Fung Shing's propeller, before they leave the wharf or after they arrived at the wharf?

A. Before they leave and sometimes after. It depends on when they asked me to dive. Sometimes they asked me to check when they arrive or when they are ready to leave they asked me or sometimes when they moved out from the wharf to get out (indecipherable).

Q. When was the last time you inspected the Fung Shing 2 before the accident?

A. Three weeks before the accident."

[24] Mr Raass was also asked questions in cross-examination about the nature of the resulting damage when a vessel like the Fung Shing 2 collided during manoeuvers in the harbour. He indicated that if the other vessel was a steel hulled vessel the damage would be superficial but he then volunteered the statement: "I don't know why the Ports Authority lets them come into the wharf. They are too big for the wharf."

Submissions

[25] Mr Niu submitted that the plaintiff had not established that the defendant was negligent. The following were his principal submissions under this head:

" 3. The collision of the defendant's vessel and the plaintiff's vessel was due to ropes and wire being sucked up by the propeller of the defendant's vessel from the bottom of the harbour and entangling and stopping the propeller of the vessel from turning.

4. The captain of the defendant's vessel turned the "key " which controlled the propeller, so that the propeller would stop spinning in reverse and to spin forward instead, so that the vessel would go forward and avoid colliding with the plaintiff 's vessel. But the propeller did not respond because it had already been entangled too tightly with the ropes, wires and nylon.

5. The captain even had the engine of the vessel stopped but the vessel was still, no doubt because of its momentum, moving backwards and collided with the plaintiff's vessel, which was moored and stationary, and then stopped.

6. It is clear that the captain was unaware at that time of the entangling of the ropes, wires and nylon on the propeller."

[26] The thrust of Ms Mangisi's submissions in response was that, given the evidence of the defendant's own witness, the diver Tevita Raass, of previous accidents involving the Fung Shing caused by its size and its propeller having been entangled by rope and cable, the defendant had a duty of care to ensure that the propeller was free of obstruction before the vessel was moved and the defendant had breached that duty on this occasion.

The law

[27] The written submissions received were of a rather summary nature. Neither counsel referred to any authorities or legal principles. The maxim res ipsa loquitur applies to an accident which would not, in the normal course of things, have occurred without the lack of reasonable care on the defendant's part. On the face of it, therefore, the occurrence of the collision between the Fung Shing 2 and the stationary Topaz would constitute prima facie evidence of negligence on the part of the defendant.

[28] The legal maxim applies, however, only in the absence of some explanation. The classic test is that laid down by Erle CJ in Scott v London Dock Company (3 H&C 601):

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

[29] Balkin and Davis in Law of Torts second edition, p.289, state that the res ipsa loquitur rule:

"is dependent on the absence of explanation. This merely means that if the court finds on the evidence adduced how and why the occurrence took place, then there is no room for inference. The occurrence at this point ceases to speak for itself and the question becomes whether, having regard to the now known cause, the defendant is negligent."

[30] In Southport Corporation v Esso Petroleum Company Ltd [1954] 2 All ER 561, a tanker developed a steering fault and stranded on a revetment wall in the Ribble estuary. The plaintiff company which owned the foreshore brought an action in trespass and negligence for damages arising from a subsequent oil discharge. They alleged that the master was guilty of negligent navigation in entering the channel when the steering was erratic. The defendants denied negligence and alleged that the accident had been caused by the steering gear being out of control because the propeller had twice struck some object. Devlin J. dismissed the action holding that the plaintiffs had not proved the negligence pleaded. In allowing the appeal, the majority of the Court of Appeal held that the defendants were liable for negligence because the stranding of the vessel was an accident which did not happen in the ordinary course of things and the onus, therefore, was on the defendant to give an explanation of its occurrence which they failed to do. The case then went to the House of Lords -- Esso Petroleum Company Ltd v Southport Corporation [1955] 3 All ER where the decision of the Court of Appeal was reversed in part on the grounds that the negligent acts or default relied upon had not been pleaded. The House of Lords did not, however, appear to take issue with any of the statements of principle relied upon by the Court of Appeal.

[31] In the Court of Appeal Singleton LJ quoted with approval the following passage from Bucknill LJ in The Llanover (79 Lloyd's Rep 163):

"On the undisputed evidence as to the circumstances leading up to the collision, it seems to me that a prima facie case of negligence is made out against the Llanover which she has failed to rebut. Her rebuttal rests on her evidence that her steering gear jammed, which made it impossible for her to keep out of the way. It is not sufficient for a ship to say: "My steering gear has jammed and therefore I can do nothing." I think that the burden is cast on her showing that the jamming could not have been avoided by the exercise of reasonable care and skill on her part, or at least that she used all reasonable care and skill to prevent the jamming of the gear, and that it might reasonably have jammed for a cause which they could not have prevented by the exercise of reasonable care and skill."

[32] Another relevant decision referred to in both the Court of Appeal and the House of Lords in the Esso Petroleum case was The Merchant Prince [1892] P 9, 179. In that case a ship under way in broad daylight and normal weather conditions collided with a ship at anchor in the Mersey. The court held that in those circumstances, the onus lay on the colliding ship to negate the charge of negligent navigation that had been made against it and to discharge that onus the defendant had to show that the accident was inevitable. The defendant claimed that the collision had occurred because the steering gear had jammed through no-fault on its part. The question before the court was whether the steering gear had jammed through some negligence on the part of the defendant's servants. The Court of Appeal concluded that, on the evidence, the jamming of the steering gear was a danger which ought to have been foreseen. Consequently, the defendant had failed to discharge the onus of showing that the accident was inevitable and judgment was entered for the plaintiffs.

[33] Morris LJ in the Court of Appeal in the Esso Petroleum case, in reference to The Merchant Prince said at p.579:

"It seems to be both good sense and good law that if a ship runs into another ship which is at anchor . . . it is not enough for the colliding ship merely to say that its steering became defective. It is necessary to go on and explain how and why the steering became defective and to negative negligence."

[34] In the House of Lords, after referring to The Merchant Prince, Lord Morton of Henryton said at p.672:

" . . . assuming that the event was itself prima facie evidence of negligence, and that the respondents had so framed their case . . . the appellants would not have displaced that evidence by merely showing that their failure in navigation was due to a failure in the steering apparatus of the ship. They would have had to go further and show that they had not omitted any reasonable precaution to ensure that failures did not occur in their steering apparatus or in their control of the steering."

Findings

[35] In the present case, as I understand it, the defendant contends that the steering apparatus or control of the steering had became defective because the propeller had become entangled with the rope and cable Tevita Raass described in evidence, not through negligence on the part of its servants. The defendant's case has not been helped, however, by the absence of any witness who could give first-hand evidence of the events leading up to the collision. The court has not had the advantage of hearing from the captain of the Fung Shing 2 or from the vessel's engineer or even from its shore based manager, Martin Ke. In his submissions cited under paragraph [25] above, defence counsel speaks about the entanglement "stopping the propeller from turning" whereas in the very next paragraph he speaks about the captain turning the "key so that the propeller would stop spinning in reverse and to spin forward instead." Without hearing direct evidence on these matters, it is difficult to reconcile these seemingly contradictory submissions.

[36] More significantly, however, I am not satisfied on the evidence that the defendant did, in fact, take all reasonable precautions to prevent the accident occurring. It is clear that the problem of propellers of large fishing vessels like the Fung Shing 2 becoming entangled with ropes and other obstacles within the area of Faua Wharf is generally recognised as a commonplace hazard. I accept the evidence of both the divers I heard from. Despite Mr Yu's denial of any knowledge of the diver Paula and his assertion that only Tevita carried out diving for the defendant company, I am satisfied that Paula was in fact retained, most likely by Martin Ke, to check the propeller of the vessel as the witness Uaisele Pau'u described. I also accept Tevita Raass's evidence that both before and after the accident, he was regularly called upon to dive and check the propeller of both Fung Shing vessels to ensure that they were free from entanglement. I also accept his evidence that there had been previous collisions between the Fung Shing 2 and other vessels while manoeuvring within the confines of the wharf but because the other vessels had steel hulls, no serious damage had resulted. In the present case, of course, the Topaz was a fibreglass vessel and the consequential damage was significant.

[37] There was no evidence as to when the Fung Shing 2 had arrived at the wharf or when precisely its propeller had last been inspected for entanglement prior to the collision. There was no direct evidence as to why the manoeuvres the Fung Shing 2 was carrying out within Faua Wharf at the time of the collision had to be carried out at 2:30 a.m. or as to how much prior notice the captain had been given of the requirement for such a manoeuvre. What was clear from the evidence, however, was that prior to carrying out any manoeuvres within the confines of the wharf area, prudent servants of the vessel's owner should have taken the reasonable precaution of having the propeller checked for entanglement. In the Court of Appeal in the Esso Petroleum case Singleton LJ at 569 was critical of the fact that:

"The defendants were content to rely on the fact that the master noticed nothing wrong with the steering until after the heavy seas were shipped. There is no evidence of any inspection, routine or other, beforehand."

On this occasion likewise, for whatever reason, the precautionary step of having the propeller checked for any type of obstruction at some appropriate time between the vessel's arrival at the wharf (whenever that was) and its carrying out of the manoeuvring in question was not taken.

[38] Mr Niu submitted: " It is clear that the captain was unaware at that time of the entangling of the ropes, wires and nylon on the propeller." The only entanglement the diver Tevita Raass spoke about on his inspection after the accident was of the rope and cable that he described. I am satisfied that the entanglement the other diver, Paula subsequently encountered involving nylon and other obstacles related to a separate entanglement altogether. When Tevita Raass finished his work, which he estimated took three hours, the propeller was free of all obstruction and he was able to revolve it by hand. But that apart, Mr Niu's submission as to what the captain might or might not have been aware of is pure conjecture. The captain did not give evidence and there is no knowing what he thought at the time. He may, for example, have noticed some earlier problem with the ship's movements -- particularly if the rope had been picked up some time earlier and was slowly tightening itself around the propeller. If an appropriate inspection had been made at any time between the Fung Shing's arrival at its berth and the commencement of its manoeuvres on this particular night and it had revealed that the propeller was free of any obstacle then, of course, there would be substance in Mr Niu's submissions but without hearing direct evidence on these matters, I am not prepared to simply assume that the vessel was completely free from rope entanglement before it commenced the manoeuvres leading to the collision. In this regard, I respectfully adopt the following passage from the recent judgment of Chief Justice Webster in F C Nichol v Simiki [2006] TOSC 31:

"Plaintiffs and their counsel must understand that at a trial, even according to the lesser standards required under the civil law, the facts necessary to prove their case must be established in court by hard evidence. If that is not the case, then a plaintiff will not be able to succeed."

The same principle applies, of course, to a defendant in a case where that party is trying to establish a question of fact.

[39] Another puzzling feature of the case which called for direct evidence was the defendant's explanation of the accident in its official report to the Ministry of Marine and Ports (see para [17] above). No mention was made in that report of rope entanglement. The report, written 11 days after the collision and after the diver, Tevita Raass, had carried out his inspection of the propeller, states that the captain and Chief Engineer of the Fung Shing 2, "thought the incident came from the problem of the adjustable propeller." What was meant by that statement is not something that was explored in evidence before me. The term "adjustable propeller" was not mentioned at any stage during the trial. Commenting on the Martin Ke letter of 11 March 2002, Mr Niu in a supplementary submission said:

" 12 So that when Martin Ke wrote his letter of 11 March 2002, that is, only 11 days after the collision, Tevita Raass may have already carried out his dive but had not freed the propeller from the entanglements, because the vessel (Fung Shing 2) could still not move, and Martin Ke, writing his letter, thought that the problem was the adjustable propeller. But another dive was carried out subsequently, by Paula, subsequent to which, according to Uaisele Pau'u, the vessel, Fung Shing 2, was able to leave the point A he marked and carried out its longline fishing again, about two weeks after Paula did his dive.

13 The defendant therefore respectfully submits that no inference can properly be drawn from the letter of Martin Ke that the adjustable propeller did have a problem, because evidence had been given by witnesses of both the plaintiff and the defendant that the propeller was found to be entangled with ropes, nylon ropes, etc which had to be cut and cleared to free the propeller. Tevita Raass says that the propeller was stuck fast and he had to use bolt cutter and hacksaw to (get) the entanglements off."

[40] With respect to counsel, I do not consider that these submissions adequately explain the terminology used in Martin Ke's letter. If the sole cause of the problem had been rope and cable entanglement in the propeller then surely it would have been very easy for Martin Ke to have stated exactly that. At the time he wrote his letter, Tevita Raass had carried out his dives (over a three hour period) and had freed the propeller from the rope and cable obstruction. He told the court that after he removed the obstructions he was able to turn the propeller by hand. Mr Niu submits in submission 12, set out in the previous paragraph, that the vessel "could still not move" but the defendant called no evidence to that effect. In any event, if the vessel was still unable to move after the rope and cable had been untangled by Tevita Raass, it could only mean that there must have been some other problem which the court did not hear any evidence about. Ms Mangisi submitted that the Martin Ke Letter indicates that there may have been some recurring problem with the Fung Shing 2 which the defendant had failed to remedy. She may well be correct. Although the defendant does not have to explain the precise cause of the collision in order to dislodge the inference of negligence, it is still required to produce credible evidence which explains how the collision may have occurred without negligence on its part. For the reasons set out above, my finding is that the defendant has failed to satisfy that criteria in the present case and the plaintiff has succeeded, therefore, in establishing its cause of action in negligence.

Quantum

[41] Under the prayer for relief in his statement of claim, the plaintiff seeks:

"Damage to the vessel amounting to TOP 32, 038.

And loss of income while the vessel is repaired.

Lifting charges.

Storage charges at TOP 3 per day.

Legal costs."

At the trial those claims were quantified as follows:

"(a) costs of repairs, which initially was $32,038 in 2002 and which subsequently at the trial in 2006 was $55,000.

(b) loss of income of $122,500 which (the plaintiff) averaged at $2,500 net profit per month from 2002 to 2006, and

(c) storage costs of $4,410 which is $3 per day for 1470 days, making a total claim of $181,910.

[42] One of the submissions made by Mr Niu in relation to the damages claim is that the plaintiff was negligent in not having his vessel insured because an insurance company would have had the repairs carried out immediately with minimal consequential loss. However, no authority was cited for that proposition and the defendant did not plead contributory negligence. Another submission made by defence counsel in relation to quantum was that neither the original 2002 estimate of repair costs provided by KW International nor the company's updated 2005 estimate disclosed KW International's profit percentage figure. He submitted that that "left the court guessing as to whether or not KW International's profit margin is reasonable or not." Having listened to the representative from KW International who gave evidence, and having considered the written quotations from the company, I am prepared to accept that the company is reputable and that its repair estimates were genuine and reasonable. If either estimate was to be seriously challenged then it was always open to the defendant to obtain its own quotation from some other company but it did not do so.

[43] Mr Niu is on much stronger ground, however, when he criticises the plaintiff in his submissions for failing to take appropriate steps to mitigate his loss. From the plaintiff's own evidence, it seems that he has not worked in any other employment since the accident to the Topaz. He now claims loss of income for the four years between 2002 and 2006 in the total sum of $122,500. It also appears that he has made no real efforts to try to borrow funds to have the repair work carried out. The vessel has remained on Port Authority land in its damaged state exposed to the elements and vandalism. It is now effectively a write-off.

[44] In Tukutau v Masoe [2001] Tonga LR 116, this Court affirmed the obligation on a plaintiff to mitigate his loss. In that case the court cited the following extract from Charlesworth & Percy on Negligence, 8th ed, para 4.83:

"Consequential loss does not include any extra damage, occasioned by the impecunious position of the injured party, whereby the lost chattel could not be replaced within a reasonable time."

[45] I am prepared to accept from the evidence that it may have taken up to nine months to have the repair work carried out to a satisfactory standard. I am, therefore, prepared to allow consequential losses for such period of time. The claim of $2,500 net profit per month, however, was completely unsupported by any documentary evidence and for that reason I am not prepared to allow any more than $1,500 per month under this head -- making $13,500 in total. The storage charge of $3 per day seems reasonable and is allowed but only for a period of nine months -- $810 in total. On the same basis and having regard to the plaintiff's duty to mitigate his loss, I am not prepared to allow the repair costs claim at the updated figure of $55,000. In any event, no application was made by plaintiff's counsel to amend the figure in the statement of claim under this head of loss which still stands at the original repair quotation figure of $32,038.00. I accept that item of claim in full.

Conclusions

[46] The end result is that the plaintiff has succeeded in his claim and is entitled to recover damages made up as follows:

(a) repair costs $32,038.00

(b) loss of income $13,500.00

(c) storage costs $810.00

making a total figure of $46,348.00. No interest is claimed.

[47] The plaintiff is also entitled to costs at a figure to be agreed or taxed.