State v Billy [2016] PGNC 24; N6173 (29 January 2016)

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Madang: Cannings J
2013: 25 October,
2015: 16 April, 18, 19 June, 10 July,
2016: 29 January

CRIMINAL LAW – offences – taking/sending unseaworthy ships to sea, Criminal Code, Section 331(1) – elements of offences – proof of unseaworthiness – whether a ship that is undermanned is unseaworthy.

Each of the accused was charged with an offence under Section 331 (sending or taking unseaworthy ships to sea) of the Criminal Code in relation to the taking of a passenger ship to sea. The first accused, the ship's captain, was charged under Section 331(1)(b): he, being the master of the ship, knowingly took it to sea in such an unseaworthy state that the lives of the persons on board were likely to be endangered. The second accused, the branch manager of the shipping company that owned the ship, was charged under Section 331(1)(a): he sent the ship to sea in such an unseaworthy state that the lives of the persons on board were likely to be endangered. Both pleaded not guilty and a trial was conducted. The State relied on the evidence of an officer of the National Maritime Safety Authority who testified that when the ship sailed it was 'under-manned': its second engineer was under-qualified and therefore the ship, proceeding to sea in that condition, failed to comply with the safe manning certificate pertaining to it, issued by the National Maritime Safety Authority.

Pius Pundi v Chris Rupen & National Maritime Safety Authority (2015) SC1430
Pius Pundi v Chris Rupen (2013) N5306

This was the trial of two accused charged with offences under Section 331(1) of the Criminal Code.

1. CANNINGS J: Each of the accused is charged with an offence under Section 331 (sending or taking unseaworthy ships to sea) of the Criminal Code in relation to the taking of a passenger ship, MV Madang Queen, to sea on Tuesday 19 February 2013. At 5.30 pm the ship proceeded to sea from the port of Madang to Wewak, with fare-paying passengers on board.

2. The first accused, Robin Billy, the ship's captain, is charged under Section 331(1)(b): he, being the master of the ship, knowingly took it to sea in such an unseaworthy state that the lives of the persons on board were likely to be endangered.

3. The second accused, Steven Tata Lanto, the Madang branch manager of the ship's owner and operator, Rabaul Shipping Ltd, is charged under Section 331(1)(a): he sent the ship to sea in such an unseaworthy state that the lives of the persons on board were likely to be endangered.

4. Both pleaded not guilty and a trial has been conducted. The State's case is that when the ship sailed it was 'under-manned': its second engineer was under-qualified and therefore the ship was unseaworthy and the lives of all persons on board were endangered.

6. The offences with which the accused are charged are created by Section 331 (sending or taking unseaworthy ships to sea) of the Criminal Code, which states:

(a) sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be endangered; or

(b) being a master of a ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be endangered,

(2) It is a defence to a charge of an offence against Subsection (1) to prove that the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable.

(3) It is a defence to a charge of an offence against Subsection (1)(a) to show that the accused person used all reasonable means to ensure the ship being sent to sea in a seaworthy state.

7. Under Section 331(1)(b) of the Criminal Code the offence of taking an unseaworthy ship to sea has five elements:

8. Under Section 331(1)(a) of the Criminal Code the offence of sending an unseaworthy ship to sea has three elements:

9. In Pius Pundi v Chris Rupen and National Maritime Safety Authority (2015) SC1430 the Supreme Court (Kandakasi J, Cannings J, Hartshorn J) indicated that the Section 331(1)(a) offence has five elements, but I have for present purposes incorporated three of those elements into one.

10. It is a defence to a charge under Section 331(1)(a) or (b) to prove that the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable (s 331(2)).

11. It is a further defence to a charge under Section 331(1)(a) to show that the accused person used all reasonable means to ensure the ship being sent to sea was in a seaworthy state (s 331(3)).

12. As to the first accused, it is agreed that he was the master of the ship and that he took it to sea on 19 February 2013, so the first two elements of the offence under Section 331(1)(b) have been proven. It is not agreed, and the State must prove beyond reasonable doubt, that the ship was in an unseaworthy state, such that the life of any person was likely to be endangered and that the first accused knew that it was in such a state.

13. In relation to the second accused, it is agreed that he sent the ship to sea on 19 February 2013, so the first element of the offence under Section 331(1)(a) has been proven. It is not agreed, and the State must prove beyond reasonable doubt, that the ship was in an unseaworthy state, such that the life of any person was likely to be endangered.

16. The first issue is whether the State has proven beyond reasonable doubt that the Madang Queen was in an unseaworthy state when the first accused took it to sea on 19 February 2013. Determination of this issue requires, first, a summary of the evidence, then a finding of fact as to whether the ship was undermanned and then a determination of the critical question: was the ship in an unseaworthy state?

17. The State's case is based on the oral testimony of Mr Kamang, the safe manning certificate dated 4 October 2008 (exhibit P1), the records of interview of each accused (exhibits P2 and P3), and a statement by Joseph Pyawan, the Manager of Maritime Standards for the NMSA (exhibit P3).

18. Both accused remained silent, as is their constitutional right, but three documents were brought into evidence on application by the defence: the survey certificate for the Madang Queen (exhibit D1), the interim safe manning certificate dated 18 October 2012 (exhibit D2) and the further safe manning certificate dated 8 March 2013 (exhibit D3).

19. One witness gave evidence for the State, as summarised in the following table.

1	Carl Kamang	Senior Inspector, National Maritime Safety Authority
Evidence
He was concerned when he inspected the vessel for the purposes of the survey report that it appeared to be under-manned as the second engineer did not meet the manning requirements – the safe manning certificate he was applying (dated 4/10/08, exhibit P1) required a class 2 second engineer but the Madang Queen only had a class 5 second engineer – once a vessel is under-manned it is deemed by s 94 of the Merchant Shipping Act to be unsafe and therefore unseaworthy – it remains unseaworthy until the lack of conformity with the safe manning certificate is rectified. He brought his concerns to the attention of the second accused who said that he was arranging for a replacement second engineer to be flown in from Rabaul – but that person did not arrive – he found out about that after the ship left – when he did his rounds on 20 February 2013 he confronted the second accused and put to him that he had sent an unseaworthy ship to sea, with passengers on board, the previous evening. He has no discretion to allow an under-manned to go to sea. In cross-examination the interim safe manning certificate dated 19/10/12 (exhibit D) was shown to him – he had not sighted it before – in any event, it expired on 18/1/13, so in February 2013 it was the original safe manning certificate issued 4/10/08 that had to be applied – the required class of engineer can change over time, particularly if there is a material change in the vessel, especially the horsepower of the engine. He began his inspection of the Madang Queen on 5 February 2013 – he observed 11 deficiencies including the undermanning of the ship – but he did not issue a detention notice – he maintained that he has no discretion to allow an undermanned ship to sail. He maintained his evidence that when the Madang Queen sailed on 19 February 2013 it was undermanned and therefore unseaworthy, which is a very serious matter.

P1: The safe manning certificate dated 4/10/08, showing the required second engineer as class 2.

P2: The second accused's record of interview: he states that he sent Madang Queen to sea on 19 February 2013 as Mr Kamang had authorised a voyage on 15 February 2013 with a class 5 engineer and he thought the same "understanding" would apply to the 19 February 2013 voyage.

P3: The first accused's record of interview: he states that he sailed the ship on 19 February 2013 after receiving authorisation from Mr Kamang, through the second accused. He otherwise remained silent in relation to most questions.

The MV Madang Queen is a passenger ship owned by Hamamas Lines Ltd, which is a subsidiary of Rabaul Shipping Ltd. The ship carries passengers between Madang and Wewak.

On 19 February 2013 the ship was put to sea in the afternoon undermanned. The second engineer, Mr Steve Isaac, was not on board the ship when the ship left for Wewak from Madang and returned to Madang. Mr Bob Tingyu, who has a class 5 certificate, which is the lowest grade, was acting as the second engineer, putting the lives of the crew, the passengers and the marine environment at risk. In accordance with the ship's safe manning certificate, the ship's second engineer shall hold a class 3 certificate. Mr Steve Isaac holds a class 3 certificate. ...

Undermanning puts the ship in an unseaworthy state, meaning the ship is not fully manned to go to sea and at the same time the ship cannot withstand any mechanical breakdowns while cruising at sea. Taking a ship to sea in such a state is in breach of Section 94 of the Merchant Shipping Act and Section 331 of the Criminal Code.

D1: The survey certificate dated 5/2/13, stating amongst other things that the Madang Queen complied with the Merchant Shipping Act and was allowed to carry 260 passengers subject to conditions including manning the ship in accordance with the requirements of the 19 February 2013 safe manning certificate.

D2: The interim safe manning certificate dated 18/10/12, showing the required second engineer as class 3.

D3: The safe manning certificate dated 8/3/13 showing the required second engineer as class 4.

20. Clearly it was, and this is so irrespective of which of the three safe manning certificates was applicable on 19 February 2013. I find that the applicable certificate was the original one, dated 8/10/08 (exhibit P1). It was superseded by the certificate dated 19/10/12 (exhibit D2) but only for the latter's period of operation, which expired on 18/1/13. The third certificate, dated 8/3/13 (exhibit D3), did not commence operation until that date. Accordingly in the period from 19 January to 7 March 2013 – in particular, on 19 February 2013 – the applicable certificate was the original one.

21. The original certificate required a second engineer, class 2, but the first accused took Madang Queen to sea with only a second engineer, class 5. The ship was undermanned, significantly so.

22. If the second certificate, dated 19/10/12, requiring a second engineer, class 3, were applicable, the ship was still undermanned.

23. Likewise, if the third certificate, dated 8/3/13, requiring a second engineer, class 4, were applicable, the ship was still undermanned.

24. To reiterate, I find that the original certificate, dated 8/10/08, requiring a second engineer, class 2, was the applicable certificate on 13 February 2013, which means that the ship was significantly undermanned when the first accused took it to sea.

Was the Madang Queen in an unseaworthy state when the first accused took it to sea?

25. Mr Popeu submits that because the ship was significantly undermanned it was unseaworthy. There were inevitable risks in taking a ship to sea in such a condition. He referred to the opinion of Mr Pyawan (exhibit P4): the second engineer was under-qualified, which meant that the ship was not in a position to withstand a mechanical breakdown at sea.

26. This is a useful point and it is certainly a serious matter if a ship is taken to sea when it is undermanned. But is an undermanned ship an unseaworthy ship? I uphold the submission of Mr Meten that the answer to this question is 'not necessarily'. There is no definition of 'unseaworthiness' in the Criminal Code. Nor is there a reference to the term 'undermanning'. It cannot be presumed that proof of a ship being undermanned leads to the inevitable conclusion that the ship is unseaworthy.

27. The provisions of Division IV.8 (unsafe ships) of the Merchant Shipping Act, consisting of Sections 94, 95 and 96, support Mr Meten's submission. The term 'unseaworthiness' is not used, but similar terms such as 'unsafe' and 'unfit' are used, for the purpose of setting up procedures for such ships to be detained and for sanctions to be imposed on those who send or take them to sea.

(1) A ship shall be deemed to be unsafe where the Authority is of the opinion that, by reason of—

the ship is unfit to go to sea without danger to life having regard to the voyage which is proposed.

(2) In deeming a ship to be unsafe under Subsection (1) the Authority shall, where the ship is a Load Line Convention ship or a Safety Convention ship, have regard to the provisions of the Load Line Convention or of the Safety Convention, as the case may be.

(2) It is a defence to a prosecution for an offence under Subsection (1) if the person charged with the offence proves that—

(a) he used all reasonable means to ensure that he sent or took the ship to sea in a safe state; or

(b) having regard to the circumstances, the sending or taking of the ship to sea was reasonable and justifiable.

(1) An unsafe ship may be detained until, in the opinion of the Authority, she ceases to be an unsafe ship.

(2) Where an unsafe ship is detained, the Authority shall give written notice to the owner or to the master setting out the reasons for the detention.

(3) Where a ship that is registered in a country other than Papua New Guinea is detained under Subsection (1), the Authority shall, as soon as practicable, cause the Consul or other diplomatic representative of the country in which the ship is registered to be informed of the detention and of the reasons for the detention.

29. There is no suggestion in any of the above provisions that a ship that is undermanned will necessarily be regarded as unsafe. A ship will only be deemed to be unsafe by reason of undermanning where, under Section 94(1)(b), the NMSA is of the opinion that by reason of the undermanning it is "unfit to go to sea without danger to life having regard to the voyage which is proposed".

30. Returning to the Criminal Code, and to the particular question being posed – whether the Madang Queen was unseaworthy when the first accused took it to sea – I consider that the fact that it was undermanned, and significantly so, is just one of a number of considerations to take into account when deciding whether it was unseaworthy. Mr Meten suggested that others might be:

32. All of the above are relevant considerations. As Davani J pointed out in Pius Pundi v Chris Rupen (2013) N5306, in dicta affirmed on appeal by the Supreme Court in Pius Pundi v Chris Rupen & National Maritime Safety Authority (2015) SC1430, evidence of a ship being deemed unsafe and detained will not necessarily be sufficient to prove that the ship is unseaworthy. Each case must be assessed on its merits. This is a criminal case and the elements of the offence must be proven beyond reasonable doubt.

33. I also agree with Mr Meten's submission that the State needed to present some evidence of the existence of one or more of the above or similar considerations to be able to prove beyond reasonable doubt that the ship was unseaworthy. There is no such evidence here. The failure of the State to present such evidence leads to the reasonable inference that none of those circumstances existed on 19 February 2013. It can safely be presumed therefore that:

34. The State has, I conclude, failed to prove that the Madang Queen was in an unseaworthy state when the first accused took it to sea. It has failed to prove the third element of the offence under Section 331(1)(b) of the Criminal Code. That is an essential element. It is unnecessary to consider any other elements or the question of whether there is a defence. The first accused must be acquitted.

35. He must also be acquitted. As in the case of the first accused, an essential element of the charge against the second accused is that the ship was in an unseaworthy state when he sent it to sea. That element has not been proven.

36. Both accused must be found not guilty due to the State's failure to prove beyond reasonable doubt that the Madang Queen was in an unseaworthy state when it sailed from Madang to Wewak on 19 February 2013.

Verdicts accordingly.
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Public Prosecutor: Lawyer for the State
Meten Lawyers: Lawyers for the Accused

National Court of Papua New Guinea

State v Billy [2016] PGNC 24; N6173 (29 January 2016)