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Central Pacific Producers Ltd v Waisang Kum Kee [2013] KIHC 7; High Court Civil Case 149 of 2007 (5 March 2013)

IN THE HIGH COURT OF KIRIBATI
HIGH COURT CIVIL CASE 149 OF 2007
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

BETWEEN:

CENTRAL PACIFIC PRODUCERS LTD
PLAINTIFF

AND:

WAISANG KUM KEE
DEFENDANT

FOR PLAINTIFF: BOTIKA MAITINNARA
FOR DEFENDANT: BATITEA TEKANITO

Date of Hearing: 1 & 19 November 2012

JUDGMENT

The plaintiff is a government owned company which carries on business as exporting fish to overseas and transporting fish from outer islands. The defendant is a businessman operating shipping business. Sometimes in 2006 the defendant's ship, MV Mataraoi, ran out of fuel near Teraina island, one of the islands in the Line and Phoenix group. The defendant knew that the plaintiff's ship MV Moamoa was also in that area so he requested the defendant if its ship MV Moamoa could assist his ship in delivering fuel to it. The claim arises out of this arrangement in which the plaintiff is claiming the balance of $8111 for the cost of fuel, freight, handling and diversion charge plus 15% interest and cost. The defendant denied that he should be charged for the freight, diversion and handling charges, claiming that they were not part of the agreement.

ISSUES

Both parties submitted different issues to be considered which are as follows:

Plaintiff's issue; whether the diversion, the freight and the handling charges formed part of the agreement for the delivery of diesel to the defendant's ship.

Defendant's issue; Whether the plaintiff is entitled to extend its claim to matters which were not part of the agreement or whether the plaintiff is legally entitled to recover damages on matters for which no statement of facts are particularized in the statement of claim.

EVIDENCE

Both parties called two witnesses. The plaintiff's first witness is Tautara Teburabura. He has been working with the plaintiff for more than 10 years. In 2006 he was one of the crews on MV Moamoa, he was on the ship when the delivery of fuel took place. His evidence is as follows; that their ship MV Moamoa was on its trip to the islands in the Line and Phoenix Group, which are Kiritimati Island, Tabuaeran, and Teraina. They first went to Kiritimati, then to Tabuaeran and Teraina. When they reached Teraina, MVMataraoi, the defendant's ship was there before them. They offloaded their passengers and cargoes and went back to Kiritimati. From Kiritimati, they were on their way to Tarawa when they received a message to go back to MV Mataraoi to deliver fuel. MV Mataraoi was near Teraina so they headed back to Teraina. When they reached MV Mataraoi they offloaded drums of fuel into the sea for the crews on MV Mataraoi to pick up as the sea was very rough.

During cross examination Counsel for the defendant submitted that MV Moamoa delivered fuel on their normal route to Teraina, that after dropping off the drums they headed straight to Teraina to drop off their passengers. This was strongly denied by the Mr Teburabura.

On the other hand, the defendant through its second witness submitted that after MV Moamoa delivered fuel to them she went to Teraina to drop off her passengers while MV Mataraoi waited a few distance away for MV Moamoa to complete her discharging first. This was again challenged during crossed examination. The plaintiff maintained their position that MV Moamoa did not go to Teraina after delivering fuel but went back to Kiritimati island,on its way to Tarawa.

The plaintiff's second witness is Mr Tekaata, who was a Finance Manager in 2006. He testified that the defendant, Mr Kum Kee, requested him if the CPPL's ship MV Moamoa could deliver fuel to his ship MV Mataraoi which ran out of fuel and floating near Teraina. His evidence stated that he did inform Mr Kum Kee of the diversion and other charges. Mr Kum Kee denied this. His evidence is that he was never informed of the diversion and that had he known about it he would have sought other options as another ship was also at Kiritimati. When Mr Tekaata was cross examined about whether he really informed Mr Kum Kee of the diversion, he was firm in his answer, that he had mentioned to Waysang that there will be a diversion, that the ship was at Kiritimati, on its way back to Tarawa. He further stated that Mr Kum Kee should be familiar with the related charges, diversion, freight and handling as he too runs a shipping business. Also during cross examination, an email from one Maen Robuti from Kiritimati to Mr Tekaata was tendered as part of the evidence. The email was about the estimation in hours of the diversion.

DISCUSSION

After weighing the first two evidences I tend to accept the evidence of Mr Teburabura. I find Mr Teburabura a credible witness and am willing to accept his evidence as being the true fact of the case, that is, that MV Moamoa had to return to Teraina to deliver fuel to MV Mataraoi and that after their delivery they headed back to Tarawa, not to Teraina.

Counsel for the defendant raised some inconsistency in some part of Mr Teburabura's evidence regarding the fact that he saw passengers on MV Mataraoi. This was clarified during re- examination that he did see some people on MV Mataraoi but was not sure whether they are passengers or just crews.

For the second part of the evidence, I tend to accept Mr Tekaata's evidence as being the true fact. That Mr Kum Kee was informed of the diversion and other related charges. Further, the email that was tendered through Mr Tekaata during cross examination talked about the estimated hours of diversion of MV Moamoa. After careful consideration of this email, it became very clear to me that there was really a diversion.

There is another point raised by the defendant that needs to be considered. That the plaintiff has failed to particularized facts regarding the diversion and freight in their statement of claim. The defendant submitted that what the plaintiff stated in the pleadings was for the balance in cost of fuel as per invoices 8981 and 8982 but nothing about the diversion and freight. After considering this argument, it is my opinion that this is not entirely true. Eventhough the plaintiff had failed to specifically mention the diversion and freight in their pleadings but they did mention the two invoices, numbers 8981 and 8982. In these two invoices the cost of the diversion and freight, amongst other items, are claimed. Therefore, I take this to mean that diversion and freight were also pleaded. This argument must therefore fail.

In light of the above, I find that the defendant is liable to pay for the balance of $8111, 15% interest from June 2006 to date of judgment plus cost to be agreed or taxed.

Dated 5th March 2013

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TETIRO M SEMILOTA
COMMISSIONER OF HIGH COURT