COLLISION
Church of Tonga v Pacific Trading Ltd [2002] TOSC 26; C 0259 1999 (12 September 2002)
Collision- It is incumbent upon the defendant to show that the cause of the injury was unavoidable by the exercise of reasonable care. “Preliminary act” procedure not necessary when the plaintiff’s vessel is moored at the wharf.
The plaintiffs claim damages in negligence for damage to their vessel which occurred when the defendant’s vessel collided with a neighboring vessel while the vessels were moored at the wharf.
DECISION: Damages awarded to plaintiff
HELD: The collision occurred when the captain of the defendant’s vessel was unable to disengage the vessel out of the reverse gear. At the time of the collision the engineer was in the wheelhouse- the implication being that the engineer should have been at his proper post where he could have disengaged the gear. The defendant denied negligence but gave no indication as to why the gear jammed. The Court suggested that the plaintiff should have pleaded res ipsa loquiter. The undisputed evidence led to a prima facie case of negligence against the defendant, and it was incumbent upon the defendant to show that the jamming of the gears could not have been avoided by the exercise of reasonable care. In the result, the court found an unanswerable claim in negligence. The defendant argued that the “preliminary act” procedure should have been followed because the case involved a collision between vessels. The court disagreed- the procedure was unnecessary where the collision occurred when the plaintiff’s vessel was moored at the wharf.
Collision- Signing a Foreign Fishing Agreement does not confer upon the signatory Association liability for damages which might be awarded against the members of the Association in a tort action.
The plaintiff’s husband was killed in a collision at sea. The plaintiff sought compensation for loss and damages. The fishing association, Japan Far Seas Purse Seine Fishing Association, which had signed a fishing Agreement with the FSM was named as a defendant. The plaintiff relied on wording in the Agreement. It was claimed that the defendant operators of the vessel which collided with the plaintiff’s husband’s boat acted as agents of the Association; and secondly that the Agreement conferred liability on the Association for damages which might be awarded against the defendants. The Association filed a motion to dismiss for failure to state a cause of action.
DECISION: motion to dismiss granted.
HELD: The wording in the Agreement to the effect that the Association shall take the necessary steps to ensure that their members comply with the Act and the laws of FSM relating to fisheries, customs and immigration addressed statutory violations, not conduct governed by tort law principles. The Agreement stated that the Association shall take the necessary steps to ‘facilitate’ prompt and adequate settlement of any claim for loss or damage. The court said that ‘facilitate’ did not mean ‘to assume liability for claim or loss’.