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Mikaere v Kiribati Port Authority [2010] KIHC 67; Civil Case 41 of 2010 (21 June 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 41 of 2010

BETWEEN:

TEKAAI MIKAERE T/A SHIPPING AGENCIES OF KIRIBATI
Plaintiff

AND:

KIRIBATI PORT AUTHORITY
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Kiata Kabure

Date of Hearing: 17 June 2010

JUDGMENT

The plaintiff by Originating Summons applies for an answer to this question:-

Does the defendant have the power, under the Kiribati Port Authority Act 1990 or under any other law to stop the plaintiff from carrying out any stevedoring service?

He also asks for this declaration:-

That the defendant has no power, under the Kiribati Port Authority Act 1990 or under any other law to stop the plaintiff from carrying on his stevedoring service.

Tekaai Mikaere has set up his own stevedoring business and registered the name "Shipping Agents of Kiribati" with the Ministry of Commerce.

On 11 March he notified the Kiribati Ports Authority that SAOK would carry out the stevedoring on Pacific Horizon voyage 14 on its arrival in Tarawa. He was met with a reply from Nei Rubee Eromanga, General Manager of Kiribati Ports Authority telling him he would not. The General Manager’s letter dated 11/03/10:-

Thank you for your letter dated 11 March 2010.

I regret to advise that SAOK cannot carry out any stevedoring service for the following reasons:

1. Your Agency Service has not been renewed after being expired so this means that your licence is invalid;

2. SAOK will not be allowed to enter the port without approval from the Authority to enter the Gate or wharf;

3. SAOK will not be allowed to board our barges or tugs without approval from the Authority;

4. Our stevedores will still board your vessel and carry out the stevedoring as no proper arrangement has been done between KPA and your company;

5. The pilot cannot board your vessel to take it into the port without prior approval from the Authority. If it does enter the port without formal approval, KPA will report the matter to the Maritime Police for their actions;

5. SAOK needs to settle its outstanding debts from the previous voyages at the amount of $242,745.99. The Authority has the power to detain any vessel which has not cleared its debts – port dues, etc. The matter will be reported to the Maritime Police and your vessel will not be able to leave the country until 100% payment is made;

6. Under the KPA Act Part VIII (43): Obstructing Authority in performance of duty

43. Any person who at any time hinders, obstructs, intimidates or molests the Authority or any of its employees, agents or contractors in the performance and execution of its or his duty or of anything which they are respectively empowered or required to do by virtue or in consequence of this Act, or removes any mark set up for the purpose of indicating any level or direction necessary to the execution of works authorized by this Act, commits an offence under this Act and shall be liable upon conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months.

This means that, if you hinder our stevedores from doing their job, the matter will be reported to the Maritime Police immediately and your stevedores or you will be charged or imprisoned.

Tekaai, if you still insist to carry out the operation, too bad, KPA will pilot in Southern Pasifika which is arriving on the same day and leave your vessel out there. Things must be sorted out properly first while KPA does the operation for JSL’s vessel.

Remember, KPA’s equipments are very expensive for hiring by ‘private’ stevedore companies. This would cost much more than what is normally charged if not hired by private companies. On the other hand, it is good for KPA as it will earn more money from hiring of tug boat, barges,
self-propelled barge, cranes, forklifts and so forth.

Well, to conclude, KPA will still carry out its functions as stipulated in the KPA Act Part III (7 & 8) as usual without any change at all. Your stevedores are rejected by the Authority.

Should you require further information, please, do not hesitate to contact me.

There followed, the next day, another warm exchange of letters but they did not carry the matter further.

Nei Rubee in her affidavit, sworn on 14th June, confirms the impression one has from reading the letters, that she is determined to stop the plaintiff’s stevedoring business, determined to protect the monopoly which the KPA has enjoyed up to the present:-

3. The plaintiff stated in his affidavit that he set up his stevedoring business, however, that does not mean that he can enter the Port or board a cargo ship/vessel at any time to carry out stevedoring duties. There are several procedures including security channels to go through before entering the port or the ship. Such procedures are laid out in the International Ship & Port Facility Security Code (ISPS code) and Port Facility Security Plan (PFSP).

4. The Plaintiff in doing so, sent a last minute letter notifying me that he will carry out stevedoring one or two days before the ship arrived. KPA must have an agreement with whoever wishes to take over its functions in a way that all is properly discussed and agreed. KPA has been the sole provider of stevedoring services to all overseas cargo ships since 2000 and also when KPA was part of KSSL prior 2000. Since this is a very new concept of ‘private’ stevedoring, proper discussion and agreement must be done and set.

5. The ship, Pacific Horizon voyage 14, arrived on 13th March 2010 and departed on 15th March 2010. It was this voyage that the Plaintiff intended to carry out his ‘private’ stevedoring on.

6. I rejected the stevedoring operation to be made by the Plaintiff based on the following reasons:

(a)The totality of section 8 of the KPA Act indicates the primacy of the KPA as far as all stevedoring activities are concerned in Kiribati.

(b) There is no single provision in the KPA Act that makes the KPA a joint-holder of the powers stipulated under section 8.

(c) Part VIII (43) of the KPA Act 1990 .....

(d) The ISPS code Section 14 clearly states the roles and responsibilities of the Port Facility security – in this case, the Kiribati Ports Authority (KPA) Security section. Because all container vessels are ISPS vessels, they must comply with the ISPS code. KPA, being an ISPS port, must also comply with the ISPS code. 14(14.2) of Part A (Mandatory Requirements) of the ISPS code, the KPA must control access to the port facility, supervise handling of cargo and so forth. 16.17 of Part B (Guidance) of the ISPS code, the KPA must check identity of all persons seeking entry to the port facility in connection with a ship, including passengers, ship’s personnel and visitors, and confirming their reasons for doing so by checking, for example, joining instructions, passenger tickets, boarding passes, work orders, etc. In this case, SAOK did not have any work orders to present to KPA well in advance for allowing entry into the Port facility and the ship.

(e) There has never been any proper arrangement between KPA and SAOK in relation to ‘private’ stevedoring.

7. It will amount to a usurpation of the legitimate governmental powers if the Plaintiff or any one or any organization for that matter seeks to assume the powers of the KPA in any way.

[The "ISPS code" is the International Ships & Port Facility Security Code which many countries observe. To my belief the code does not lead to a stevedoring monopoly in those countries. If I am correct, it should not be used to stifle competition as Nei Rubee implies: perhaps to regulate but not to prevent, competition.]

The question is, does the KPA have the power to stop the plaintiff carrying on business as a stevedore?

The relevant law is in the Kiribati Ports Authority Act 1990.

Section 7 sets out the functions of the Authority. Nothing in that section even to hint that the Authority has a monopoly.

The powers of the Authority are in section 8. They are enabling, not exclusive. In answering the question subsection (f) is most relevant:-

(a) To provide services within a port or the approaches to a port –

(i) In berthing, towing, mooring, moving slipping or docking any vessel;

(ii) In loading or discharging goods or embarking or disembarking passengers in or from any vessel, including the provision of landing places;

(iii) In providing stevedores and other labour and equipment at wharves and anchorages;

(iv) In sorting, weighing, measuring, storing, warehousing or otherwise handling any goods;

(v) In providing lighterage;

(vi) In piloting any vessel;

(vii) In supplying fuel, water or telephone services to vessels; or

(viii) For rendering assistance to any vessel or recovering property lost, sunk or stranded; .....

There is, so far as counsel could tell me or I could find, nothing in the Act giving the Authority exclusive powers. Section 43 which the General Manager quoted in her letter and in her affidavit does not help. There is no reason why simply because stevedores other than those employed by the KPA are doing the work they should be assumed to be hindering, obstructing, intimidating or molesting.

Counsel could not suggest any other Act which gives the KPA a monopoly. I know of none.

The answer to the question, "does the defendant have the power, under the Kiribati Port Authority Act 1990 or under any other law to stop the plaintiff from carrying out any stevedoring service?" is No.

The Court declares that "the defendant has no power, under the Kiribati Port Authority Act 1990 or under any other law to stop the plaintiff from carrying on his stevedoring service".

Dated the 21st day of June 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice