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Fung Chen Pen v Wulf [2008] WSSC 108 (18 December 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEAULA FAAMANATU FUNG CHEN PEN of Tulaele, Self-Employed
Plaintiff

AND:

PETER WULF of Togafuafua, Businessman
Defendant

Counsel: Mr S Leung Wai for the plaintiff
Mr Brunt for the defendant

Judgment: 18 December 2008

JUDGMENT BY JUSTICE VAAI

Plaintiff’s Claim

The plaintiff was the owner of an alia fishing boat which he advertised for sale in the Observer newspaper at twenty thousand tala in January 2004. The fishing boat was at Fagasā, Savaii where it was taken onto dry land by a local family as Cyclone Heta approached. During his return trip from Savaii to Upolu on the Fotu Samoa barge the plaintiff met the defendant who was in the company of another man Tau Vili. They conversed. The defendant was interested in the fishing boat, they arranged to meet at the defendant’s place at Togafu’afu’a, near Apia. They met to discuss the sale. They met again at the Vaisala hotel as arranged before they went to inspect the boat at Fagasā. The plaintiff requested from the defendant one thousand tala before they departed the hotel to inspect the boat. They inspected the boat before it was put to sea and at the defendant’s direction the boat was taken to the defendant’s marina at Auala village, a short distance from Vaisala. On their return to the Vaisala hotel after the inspection the defendant paid one thousand tala to the plaintiff. Tau Vili was also at the hotel.

The defendant returned to Apia whilst the plaintiff stayed at Savaii. When the plaintiff next saw the defendant in Savaii, he requested the balance of the purchase price for the boat, but the defendant was preparing to go fishing with his brother and Tau Vili. They planned to meet the following week at Togafu’afu’a where the defendant gave three thousand tala cheque and promised to pay the balance in three months. When the plaintiff saw the defendant after three months the defendant has just returned from Tau Vili’s funeral. Tau Vili lost his life and the fishing boat during a fishing trip. The plaintiff lost his boat, he was not paid the rest of his money. As a result this action was instituted. He claimed:

1. that the defendant orally agreed to purchase the fishing boat for twenty thousand tala. As a result of the said agreement, the sum of sixteen thousand tala is still outstanding; or alternatively.
   
2. The defendant was the bailee of the plaintiff’s fishing boat which was lost and damaged as a result of the defendant’s negligence and consequently the defendant is liable for the value of the damaged goods.
   

Defence by Defendant

The defendant denied any agreement to buy the boat for twenty thousand tala. He admitted meeting with the plaintiff on the Fotu Samoa trip from Savaii but he was not interested in the boat, he never wanted, and never told the plaintiff he wanted to buy the boat. He admitted meeting with the plaintiff at the Vaisala Hotel, he admitted going with the plaintiff to Fagasā to inspect the boat before it was put to sea and he admitted telling the plaintiff to take the boat to his marina at Auala where he had other developments under the supervision of his older sister Sophie. He told the court that he gave four thousand tala to the plaintiff as an advance as the plaintiff was pressured by the family who looked after the boat at Fagasā to pay compensation before the boat is released. Utuutu Peteli Faitau the matai of the Fagasā family told the court that he demanded ten thousand tala from the plaintiff when the plaintiff came to take the boat away from Fagasā after the cyclone. When the plaintiff returned a week later with three hundred tala he agreed to release the boat.

Bailment

By his own admission that he directed the boat to be taken to his marina at Auala the defendant became the bailee of the boat. He told the court in response to questions during cross-examination that he directed the boat to be taken to his home at Auala as security for his money. It was lost and damaged when Tau Vili, an agent of the defendant, took the boat to sea in dangerous weather conditions. Tau Vili was with the defendant on the Fotu Samoa trip when the sale of the boat was discussed, he was present at Fagasā where the boat was inspected, he was at Vaisala hotel when the one thousand tala was paid by the defendant to the plaintiff, and he was preparing to go fishing with the defendant when the plaintiff next saw the defendant after the boat was delivered to the defendant’s marina.

The common law imposes upon the defendant as bailee an obligation to take reasonable care of the chattel bailed to him. The common law prima facie presumption of negligence against the bailee arises from the fact that the accident caused damage to the boat during the time the boat was bailed to the defendant and which he placed in the care of his sister at Auala Savaii. The common law presumption can be rebutted if the defendant as bailee can show that the mishap occurred without his negligence: see Yan Kum v Ah Ben (unreported 29/9/06) and Fawcett v Smethurst (1914) 84 LJKB 473. The defendant has not rebutted the presumption. Even if Tau Vili was not an agent or employee of the defendant, he obviously had unrestricted access to the outboard motors of the boat which were placed in the care of defendant’s sister, who was the defendant’s agent taking care of the defendant’s developments at Auala. The defendant is liable for the negligence of his sister, as agent, who obviously did not keep the outboard motors of the boat in safe custody. As bailee the defendant is liable for the loss of the boat.

Agreement to Purchase

In his affidavit the defendant said he gave four thousand tala to the plaintiff during daytime at Vaisala hotel, but in his testimony he told the court he gave one thousand tala at Vaisala hotel as it was the only cash in his pocket at the time. The three thousand tala was given at his home at Togafu’afu’a later on. Again by his testimony the defendant confirmed the evidence of the plaintiff that the plaintiff saw the defendant at Togafu’afu’a after the delivery of the boat to the defendant’s marina to collect the balance of the purchase price. They had obviously arranged to meet at the Vaisala hotel before proceeding to Fagasā to inspect the boat and I accept that they also arranged to meet again at the defendant’s residence at Togafu’afu’a concerning the balance of the purchase price. The defendant’s claim that the four thousand tala was an advance to pay the Fagasā family to release the boat lacks credibility simply because the boat was already released before one thousand tala was paid to the defendant at the Vaisala hotel and three thousand tala was paid a week later at Togafu’afu’a. He travelled to Savaii to inspect the boat at Fagasa because he was interested and wanted to buy the boat. A deposit was paid immediately after inspection and delivery of the boat.

The defendant did agree to purchase the defendant’s boat at twenty thousand tala otherwise there was no reason for the plaintiff and the defendant to meet a week later after the boat was delivered to the defendant. Four thousand tala was paid and the balance of sixteen thousand tala is still owing.

Orders

1. The defendant is ordered to pay $16,000 to the plaintiff.
   
2. The defendant is ordered to pay plaintiff’s cost of $2,000.
   
3. The defendant’s counterclaim is dismissed.
   

JUSTICE VAAI