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Bamatoa v WKK Shipping Services - Judgment [2007] KIHC 98; Civil Case 32 of 2007 (28 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 32 of 2007

Between:

Temaro Bamatoa
Applicant

And:

WKK Shipping Services
Respondent

For the Applicant: Ms Joelle Grover
For the Respondent: Mr Aomoro Amten

Dates of Hearing: 22 & 23 May 2007

JUDGMENT

Action alleging constructive wrongful dismissal and claiming liquidated damages of $11,050 and compensation for embarrassment and humiliation.

Paragraph 6 of the Statement of Claim:

6. On or around 28 May 2006, the Plaintiff was constructively and wrongfully dismissed by an agent of the Defendant.

Particulars

While on board the Defendant’s ship at port on Fanning Island, the Plaintiff and his wife were threatened with violence by the Ship Captain and fled from the ship.

The plaintiff Temaro Bamatoa, a man in his late 40’s, is by profession a second class marine engineer. The defendant, WKK Shipping Services employed him first as a mechanic on shore, then as chief engineer on MV "South Seas Mana": his salary was $200 per week gross. At the beginning of 2006 Waysang Kum Kee, the principal of WKK Shipping Services, transferred Temaro as chief engineer to the much bigger ship MV "Mataraoi". Temaro asserts Waysang promised him a rise in salary: he did not get it. Waysang denied having promised Temaro a rise.

Mataraoi sailed on 2nd January 2006 for Kiritimati, reaching there a month later. From Kiritimati it sailed to Tabuaeran-Teraina-Tabuaeran-Kiritmati-Tabuaeran where Temaro and his wife Nei Beiarung (who had travelled with him from Tarawa) left the ship.

The day before Temaro and his wife left, the winch on Mataraoi would not work properly. Temaro said it was fixed. The next day when he and his wife did leave the winch either was not working at all (because the engine was not running) or not running at full capacity. The captain, Omerete, had planned to leave Tabuaeran that day: the plan was frustrated as the winch was not working sufficiently to load the copra. The captain was ashore during the day. When he returned he became angry. He went looking for Temaro. He went first to the cabin occupied by Temaro and Nei Beiarung. Only Beiarung was there:-

Captain having a quarrel in our room: he came and bashed door. I was inside. Latch – bashed – he came in. Only me. Looking for Temaro "Where’s your husband?" "I don’t know". Left. Angry – loud. First time I’d seen him that day. About 5 pm. On his own. Second visit – he came and argued with me: short time later. He came for Temaro. "He’s stubborn". All he said.

Omerete went looking for Temaro in the engine room. Temaro:-

Saw him coming down to engine room: I was in engine room. Captain on floor on top of me. He was bashing things. Alone then some of crew came and took him away. I went upstairs to see him but he wasn’t there. Ioane took him away. He was drunk. Wife came and told me to go ashore. Took everything went ashore. Didn’t see captain. Saw some of the crew. Never went back.

Other evidence of what happened came from Kolone Opeta, the bosun:-

Captain went downstairs. I went after him. He went to CE’s room - opened door. Doors need to be slammed hard to close properly. Didn’t hear anything. He went to engine room.

So much for the behaviour of the captain. Omerete did not give evidence but in the amended defence it is conceded (paragraph 8) that he "only shouted and swore as he was very frustrated". This is not evidence but the concession is of more aggressive behaviour than the evidence.

I have already set out my note of Temaro’s evidence:-

Wife came and told me to go ashore. Took everything went ashore.

This is confirmed by Beiarung herself:-

I put pressure on Temaro to leave ship.

Finally Kolone:-

Heard the wife say they were going to leave the ship.

Beiarung was the one who made the decision to leave the ship.

All else I need mention about the incident is that each side alleges the drunkenness of the other. It may be that there had been some drinking. Drink did not have any significant effect on events.

Temaro and Nei Beiarung stayed with her relatives on Tabuaeran for a month before they could get a passage on a ship going to Teraina where they caught up with Mataraoi. In the meantime Temaro had been in touch with Waysang. Waysang told him to reconcile with Omerete. [In his evidence Waysang said it was his intention that Temaro should continue as chief engineer on Mataraoi.] At Teraina Beiarung (not Temaro) went to see Omerete:-

I went back to ship as Waysang had told us to make it even. Alone. Met captain. He asked me why I’d come back – told him what Waysang had said. "You can come back as passengers but not to be employed".

The facts are against the plaintiff. The evidence of the conduct, the actions of the captain, does not even nearly support the particulars of constructive and wrongful dismissal in paragraph 6 of the Statement of Claim. To the contrary the evidence shews that Temaro and Nei Beiarung left of their own accord, probably at the behest of Nei Beiarung.

That the captain became angry and frustrated is understandable in the circumstances. He vented his anger but it did not equate to dismissal, either expressed or implied.

Temaro and Beiarung were not justified in leaving by Omerete’s behaviour.

Having seen and heard the witnesses I find on the balance of probabilities that Beiarung made the decision that she and Temaro should leave the ship. It was a decision not justified by the captain’s behaviour. The claim for constructive, wrongful dismissal fails. With it fall claims depending on it. Statement of Claim paragraph 15:-

15. The Plaintiff’s claim is for 27 weeks of salary at $350 per week, totaling $9,450; and for compensation for living expenses and the return trip to Tarawa, totaling $1,600.

Having given up his job the plaintiff is not entitled to wages after he left Mataraoi: he paid the relatives $100 which Waysang had sent to him. The plaintiff and his wife had free passages back to Tarawa. The claim for compensation for embarrassment and humiliation likewise falls. As to the allegation that Waysang promised Temaro a rise, that is denied by Waysang. I prefer Waysang’s evidence to Temaro’s. The promise of a rise is not proven. Even if it were proven no increased amount of salary were mentioned except for Temaro’s assertion that he as chief engineer should be paid the same as the captain who was on $350 per week.

The defendant has counterclaimed:-

I was told that the supercargo (unnamed and who did not give evidence) fixed the fare at $2,100 for the wife. Nothing to shew that that is fair and reasonable. It looks to me to be rather high: I allow $1,250.

The captain kept a note of beer purchases by and of cash advances to Temaro. Omerete telephoned the amounts through to Nei Rewata Bauriri, the pay clerk, in Tarawa. Ms Grover complained that no records of these payments were discovered. I doubt if the captain kept any records after he telephoned the amounts through. Waysang said he allowed Temaro "a small amount" of beer. That sounds rather less than $320 worth. I shall allow $200 under this head. Likewise with the cash advance of which there was no primary evidence. Although I accept that there were cash advances, in case there has been an error in calculation, I allow $1,000.

The plaintiff’s claim is dismissed: there is judgment for the defendant on it. There will be judgment for the defendant on the counterclaim for $2,450.

Dated the 28th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice