IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

PACIFIC FORUM LINE LIMITED a duly incorporated company having its registered office at Matautu-tai, Apia.

AND

SAMOA SHIPPING SERVICES LIMITED a duly incorporated company having its registered office at Matautu-tai, Apia.
Plaintiffs

AND:

SAMOA PORTS AUTHORITY a ' statutory corporation established pursuant to the Ports Authority Act 1998.
Defendant

Counsel: R Drake for plaintiffs
 D Clarke and P Barratt for defendant 

Judgment: 8 September 2011

JUDGMENT OF SAPOLU CJ

Nature of proceedings

1.	The plaintiffs in these proceedings are two shipping companies, the Pacific Forum Line Ltd (PFL) which has its registered office at Matautu-tai in Apia and the Samoa Shipping Services Ltd which also has its registered office at Matautu-tai in Apia. The defendant is the Samoa Ports Authority (SPA) a statutory body established under the provisions of s.4 of the Ports Authority Act 1998.

2.	The defendant has brought a motion to strike out (a) the plaintiffs first cause of action which is pleaded in contract in their statement of claim on the ground that it discloses no reasonable cause of action, and (b) para 31.2 of the plaintiffs statement of claim on the ground that there is no statutory or common law basis for this allegation. The defendant in its motion also seeks further and better particulars of the plaintiffs cause of action in negligence as it is claimed that these are necessary to properly identify the allegations against the defendant and to prevent surprise at the trial.

The strike out jurisdiction 

3.	The principles governing the exercise of the Court's strike out jurisdiction are well-known. These have been stated in a number of cases which include Enosa v Samoa Observer Co Ltd [1005] WSSC 6; Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC1. For present purposes, the Court's strike out jurisdiction may be stated as follows. The jurisdiction to strike out a particular cause of action in a statement of claim as not being maintainable in law must be sparingly exercised. The factual allegations in support of the cause of action are assumed to be true, that is to say, capable of being proved. The jurisdiction is only to be exercised where it is plain and obvious that the cause of action is so clearly untenable that it cannot possible succeed. The right of access to a Court is not to be lightly denied to a litigant.

4.	The above principles which apply to a motion to strike out a statement of claim which discloses no reasonable cause of action or a particular cause of action which is not maintainable in law would also apply, with the necessary modifications, to a motion to strike out a particular pleading in a statement of claim on the ground that it is frivolous, vexatious, and an abuse of process.

5.	The Court's strike out jurisdiction is inherent but it has been incorporated in r.70 of the Supreme Court (Civil Procedure) Rules 1980.

The jurisdiction to order further and better particulars

6.	Like the jurisdiction to strike out a statement of claim which discloses no reasonable cause of action or to strike out a particular cause of action which is not maintainable in law, the Court's jurisdiction to order a plaintiff to provide further and better particulars of a cause of action is also inherent. This inherent jurisdiction has been incorporated in r.16 of the Supreme Court (Civil Procedure) Rules 1980. Rule 16 provides:

 "The Court may require a plaintiff at or before the trial of the action to file a further and more explicit statement of his claim, and may stay further proceedings in the action until this has been done".

7.	The New Zealand authorities which are relevant to the exercise of the Court's jurisdiction whether to order further and better particulars of a statement of claim are collected and discussed in Twin Bright Shipping Co, S.A. and Soki Kisen Co Ltd v Tauwhareparae Farms Ltd and Gisborne District Council (2003) (unreported judgment of the High Court delivered on 4 December 2003 by Williams J) which was cited by Ms Barratt for the defendant. The first of those authorities is the decision of the New Zealand Court of Appeal in Price Waterhouse v Fortex Group Ltd (1998) (CA 179/98, unreported judgment delivered on 30 November 1998). At pp 17-18 of the Court's judgment, it is stated:

 "It has become fashionable in some quarters to regard the pleadings as being of little importance…Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish the parameters of the case, not the briefs of evidence.

 "Pleadings should be read as conveying what they would reasonably convey, in the context of the case, to a sensible legal mind. Even less are we advocating prolixity of pleadings, or the raising of every conceivable cause of action irrespective of its potential for success; this type of pleading often contains the additional flaw of overlooking R114 which requires each cause of action to be separately pleaded. What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence and all necessary ingredients of it, so that subsequent process and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings". 

8.	The second New Zealand authority cited by Ms Barratt is the decision of the High Court of New Zealand in Speedy Parcels Ltd v Johns (1989) (CP 269/89, unreported judgment of the High Court delivered on 1 December 1989 by Master Hansen) where His Honour approved the six functions of particulars recognised in English practice, three of which are:

 "The first is to enable the other side to know what evidence they ought to be prepared with and to prepare for trial (per Cotton LJ in Spedding v Fitzpatrick (1888) 38 Ch. D 410 page 413).

 "The second is to limit the generality of pleadings (per Thesiger J in Saunders v Jones (1977) 7 Ch. D 435).

 "Thirdly, to limit and define the issues to be tried and as to which discovery is required (per Vaughan Williams LJ in Millbank v Millbank [1900] 1 Ch. D 367 page 385)". 

9.	Ms. Barratt also cited a passage from McGechan on Procedure which relates to r.5.21 of the New Zealand High Court Rules. That passage states:

 "Generally, inability to give particulars properly required is no excuse. Failure to comply with an order, or to comply adequately, may lead to the pleading concerned being struck out: Reid v New Zealand and Trotting Conference [1984] 1 NZLR 8 at 14: Harbord v Monk (1878) 38 LJ 411. In Public Trustee v Mahar 7/2/90, Neazor J, HC Wellington, CP818/88, the Court observed at 4:

 " '…it is no objection to a request for particulars of a pleading that knowledge of the matter is in the hands of the opposing party; nor that the defendants are trying to bind the plaintiff to a definite story. The purpose of the statement of claim is to give notice of what the plaintiff alleges so that the defendant knows what has to be met, is not taken by surprise at trial, and can prepare evidence within the framework of the issues raised and defined by the statement of claim: the Supreme Court Practice 1988 para. 18/12/44'.

 "In Nand v Williams (No2) (9/9/98), Master Kennedy – Grant, HC Auckland CP429/971, the Master commented that if the party in question is unable to particularise his or her allegations then the allegations ought not to be made"

10.	 To the above authorities cited by Ms. Barratt for the defendant may be added Fitzpatrick Property Sydicate v White Fox & Jones [2009] NZHC 682 where Associate Judge Osborne said at para [4]:

 "[4] I adopt these as principles applicable to the consideration of any application for further and better particulars:

 "(a) The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.

 "(b) The statement of claim should state the claim in each case so that the ' Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare for trial.

 "(c) Specifically required by r 5.26(b) are such particulars '…of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff's cause of action'.

 "(d) The pleadings must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.

 "(e) The nature and level of particulars will depend on the facts of the particular case.

 "(f) The distinction between particulars and interrogatories is important, particulars are matters of pleadings designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statements of facts, procured by the opposite party to assist that party in proving his or her case.

"(g) A request for further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.

"(h) Questions which a Court can usefully ask itself are:

 "(i) Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?

"(ii) Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?

"(iii) Is the request oppressive or an unreasonable burden upon the party concerned?

"(i) In considering whether any party is likely to be taken by surprise, the Court is entitled to have regard to the fact that briefs of evidence will be exchanged well in advance of the hearing (see Petrocorp Exploration Ltd v New Zealand Refining Co Ltd (1993) 7 PRNZ 53). The Court is also entitled to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff". 

11.	The New Zealand practice of exchanging briefs of evidence in civil cases before the trial of the plaintiff's claim would be a good practice to be followed in Samoa. We have adopted a similar practice in some of the civil cases where the parties and their witnesses are required to exchange affidavits before trial.

The relevant facts in the plaintiffs statement of claim 

12.	The relevant facts pleaded in the statement of claim are as follows. The plaintiffs are the owners of the ship Forum Samoa II (Forum Samoa) which is registered in the Samoan register of ships. The defendant is the owner and operator of the port of Apia which is the primary international port for Samoa.

13.	At all material times, the defendant represented on its website to port users including the plaintiffs that the port of Apia was safe and suitable for ships as the Forum Samoa.

14.	The Forum Samoa arrived in Apia from Pago Pago, American Samoa, on Friday 28 August 2009. As she was berthing, and when about 200 metres from the wharf, her engine failed. She was taken alongside with harbour tugs and was all fast by 2136 hours whatever the expression " all fast" means. 

15.	 On the next day 29 August 2009 at about 11am to 12 noon, two representatives of the plaintiffs attended at the office of the port master and met with the acting port master Mr Lolesio Filo (the port master). The port master was informed that Forum Samoa needed to remain at her current berth within the port of Apia in order to complete repairs to her engine which had failed and because of the prevailing adverse weather and sea conditions.

16.	It is then alleged that the port master's reply was (a) Forum Samoa could not remain at her current berth due to the scheduled arrival of another ship at 1300 hours, (b) Forum Samoa could not remain within the port at the mooring buoys, and (c) Forum Samoa be towed as a 'dead ship' to an anchorage just outside the harbour entrance.

17.	At 1220 hours, two of the defendant's pilots boarded the forum Samoa. Two harbour tugs were used to tow the Forum Samoa to anchor. At 1254 hours, all lines were clear of the Forum Samoa's berth. At that time there was 25 knots of wind and a two meter swell. It is further alleged by the plaintiffs that at that time the defendant's general manager was observing from the wharf at Matautu-tai the Forum Samoa being shifted under tow and knew or ought to have known that the ship should have remained at the berth within the harbour in the prevailing circumstances.

18.	At 1316 hours, Forum Samoa dropped anchor upon instructions by the defendant's pilots who had boarded the ship as one of the tug boats had lost engine power. At 1318 hours, on the order of the defendant's pilots, the anchor of the Forum Samoa was lifted without making the tug boat that was still operational 'fast'. When the captain of Forum Samoa gave instruction to return the ship to the secure berth within the harbour, the defendant's pilots refused citing the order by the port master to take the Forum Samoa to anchor just outside the harbour entrance.

19.	At 1326 hours, the Forum Samoa grounded upon the reef outside the harbour entrance. At 1330 both tug boats which had been used became operational again and they attempted to pull the Forum Samoa from the reef but she remained aground. At 1350 hours, another tug boat supplied by the defendant arrived to assist but it,too, broke down.

20.	At 1616 hours, Forum Samoa regained engine power and her engine was re-started but she remained aground on the reef.

21.	The remaining factual allegations in the statement of claim relate to damages and losses.

The plaintiffs pleading in support of the alleged existence of a contract with the defendant

22.	The plaintiffs pleadings to support their claim that a contract existed between themselves and the defendant are set out in paras 29 and 30 of their statement of claim. In para 29 it is alleged that on or about 28 August 2009 the plaintiffs port agent entered into an oral contract on behalf of the plaintiffs with the defendant for use of the port of Apia by Forum Samoa for the purposes of discharging and loading cargo. The particulars in support of this allegation are (a) that prior to the arrival of Forum Samoa at the port of Apia on 28 August 2008, the plaintiffs port agent advised the defendant that Forum Samoa wished to call at the port for the purposes of discharging and loading cargo, and (b) the defendant agreed and subsequently permitted entry by Forum Samoa into the port and to provide port services to Forum Samoa on the basis that it would charge the plaintiffs for the use of the port and its facilities by Forum Samoa.

23.	Paragraph 30 pleads what is claimed to be the implied terms of the oral contract between the plaintiffs and the defendant. These are (a) the implied term that the port would be operated by the defendant with the degree of care and skill to be expected of a competent port owning and operating company, and (b) the implied term that the port was safe and its facilities and systems were suitable for a ship of the size and type of Forum Samoa.

24.	Paragraph 31 of the statement of claim then sets out the allegations as to how the defendant was in breach of the alleged oral contract between the plaintiffs and the defendant. It is then alleged in para 32 that as a result of the said breaches by the defendant the plaintiffs have suffered loss and damage.

25.	 Counsel for the plaintiffs has submitted a document headed "Notice To All Port Users – Port Users Terms and Conditions" and claims that this document shows that the relationship between the plaintiffs and the defendant is not purely statutory but also contractual. With respect, I do not think that counsel for the defendant contended that the relationship between the defendant and a port user is purely statutory and can never be contractual. Counsel for the defendant pointed out in their submissions that the defendant has the power to enter into contracts as provided in ss.4(2) and 9(2) (b) of the Ports Authority Act 1998. What counsel for the defendant submitted was that in the circumstances of the incident alleged by the plaintiffs to have happened to the Forum Samoa there was no contractual relationship between the plaintiffs and the defendant, the duties performed by the defendant are duties mandated by the Act and not by any contract. In any event the document headed "Notice To All Port Users – Port Users Terms and Conditions", as properly acknowledged by counsel for the plaintiff, only came into effect on 1 January 2011 so that it could not have formed part of any contract between the plaintiffs and the defendant in August 2009 when the alleged incident happened to the Forum Samoa.

The relevant provisions of the Ports Authority Act 1998

26.	 Section 4 of the Ports Authority Act 1998 (the Act) establishes the Samoa Port Authority (SPA), the defendant in these proceedings, as a body corporate and provides that it shall have the powers and functions conferred upon it by the Act. These are the powers of (a) entering into contracts, acquiring, holding and disposing of real and personal property, (c) suing and being sued, and (d) doing and suffering all such other acts and things that bodies corporate may lawfully do and suffer. As a statutory body, the SPA does not have unlimited common law powers to enter into contracts. Its powers to enter into contracts are to be found in the Act.

27.	Section 8 sets out the functions of the SPA. These include (a) the provision, management and maintenance of adequate and efficient port services, facilities and security in ports and approaches (s.8(a)), (b) the regulation of navigation and maintenance of navigation aids, within ports and approaches (s.8(c)), and (c) the co-ordination of all activities of or within ports and approaches (s.8(e)).

28.	Section 9 confers broad powers, rights and authorities upon the SPA to enable it to carry out its functions under the Act. These powers include the powers (a) to enter into any contract, covenant, bond or agreement of any kind for the purpose of the Act (s.9(2) (c)), (b) to authorise any person to carry out any work or perform any act in furtherance of its functions and powers (s.9(2) (c)), (c) to provide services within a port or its approaches including the berthing, unberthing, towing, mooring, unmooring, moving or docking any vessel (s.9(2) (f) (i)) and piloting any vessel (s.9(2) (f) (iv)), and (d) to do everything necessary or convenient in connection with or incidental to the performance of its functions under the Act or any other enactment.

29.	Section 10 requires the SPA in the exercise of its functions and powers to have regard to the general policy of Cabinet as communicated to it in writing by the Minister and to comply with every lawful direction given by the Minister on any matter relating to such policy.

30.	Section 19(1) provides for the appointment by the SPA, with the approval of the Minister, of a general manager on terms and conditions. Section 19(2) provides that the general manger shall not be removed from office without the consent of the Minister. Section 19(3) provides, inter alia, that the general manager may act as a member of any board, committee or commission established by the Government. Section 19(4) provides that the SPA may delegate any or all of its powers and functions to the general manager.

31.	Section 20 provides for the powers of the general manager. In particular, s.19(1) (b) (ii) provides that the general manager shall:

 "in any case of emergency, direct the execution of any work or the doing of any act which the Authority is empowered to execute and do and the immediate execution or doing of which is, in his opinion, necessary for the operation of port services or the safety of persons on vessels, and he may direct that the expense of executing the work or doing that act shall be paid from the funds of the Authority".

32.	Section 21 provides for the appointment of a port master and deputy port masters. Sections 22-24 provide for the powers of the port master in relation to vessels. Section 25 excludes liability on the part of the SPA for any act, omission or default of the port master.

33.	Section 36 provides for dues payable in respect of vessels. Such dues are to be determined from time to time by the SPA with the approval of the Minister and are to be given public notification in the Gazette or the Savali. Section 39 provides for the rates payable which are to be determined by the SPA with the approval of the Minister and are also to be given public notification in the Gazette or the Savali. The current dues payable in respect of vessels and rates are set out in the Samoa Ports Authority Dues and Rates 2009.

34.	In addition, under s.64 (1) (z) the Head of State, acting on the advice of Cabinet, may make regulations settling the mode of payment of dues and rates, facilitating their collection and preventing their evasion.

35.	 Section 47 which provides for compulsory pilotage in any pilotage area states that the navigation of any vessel in any pilotage area shall be conducted by a person authorised by the SPA to be a licensed pilot. Section 49 provides that no vessel shall be piloted in a pilotage area by any person other than a person appointed by the SPA to be a licensed pilot. The SPA is exempted from liability for the actions of any such pilot.

36.	Sections 46 and 52-57 provide for criminal sanctions for breaches of the statutory obligations imposed on port users.

Cases relevant to the contractual issue

37.	In the case of Norweb Plc v Dixon [1995] 3 A11 ER 952, the appellant Norweb was a public electricity supplier in accordance with s.16(1) of the Electricity Act 1989 (UK) and the respondent was the occupier of certain premises and was a customer of the appellant. The respondent laid an information against the appellant alleging it had harassed him with demands for the payment of money claimed as a 'debt due under a contract' in a manner calculated to subject him to 'alarm, distress or humiliation'. Section 16(1) of the Electricity Act 1989 (UK) provides that a public electricity supplier shall, upon being requested to do so by the owner or occupier of any premises, give a supply to those premises. One of the questions for the opinion of the Court was whether the transaction entered into by the customer in requesting a supply of electricity from the appellants and the appellants providing that supply pursuant to s.16(1) of the Act constituted a contract so that any monies owing as a result thereof constituted 'a debt due under a contract' under the provisions of the legislation by which the respondent had laid the information against the appellant.

38.	Dyson J, in whose judgment McCowan LJ concurred, said at pp 958-959:

 "But there are other cases in which a relationship created by legal compulsion is clearly not contractual. Thus a person whose property is compulsorily acquired against his will does not make a contract with the acquiring authority, even though he receives compensation (see Sovmots Investments Ltd v Secretary of State for the Environment [1976] 1 AII ER 178 at 201, [1977] QB 411 at 443). In Pfizer Corporation v Ministry of Health [1965] 1 A11 ER 450, [1965] AC 512 the House of Lords held that a patient to whom medicines are supplied under the national health service does not make a contract to buy them from the chemist or the Minister of Health even if he pays a subscription charge. The transaction is sui generis, the creation of statute and not a sale pursuant to a contract". 

39.	Further on at p.959, Dyson J said:
 
 "The issue in this case is: which side of the line does the relationship between a tariff customer and a public electricity supplier fall? In my judgment, the legal compulsion both as to the creation of the relationship and the fixing of its terms is inconsistent with the existence of a contract. As regards the creation of the relationship, the supplier is obliged by s.16(1) of the 1989 Act to supply if requested to do so… [If] a consumer requests the supply of electricity the supplier is obliged to supply. 

 "As for the terms of the supply, Mrs Cover submits that there is scope for what she calls 'bargaining'. I cannot agree. The tariff is fixed by the supplier (s.18). The supplier can require the consumer to defray any expenses reasonably incurred in supplying any electric line or plant (s.19) and to give reasonable security (s.20(1)). The supplier can also impose additional terms of supply (s.24). The consumer has no bargaining power in relation to these matters. It seems to me that the principal terms are imposed on the consumer by the supplier not as the result of any bargaining, but by the supplier exercising the power conferred on it by the Act".

40.	Dyson J then concluded at p.961 that the relationship between the appellant as a public supplier of electricity in accordance with the 1989 Act and the respondent as a tariff customer was not contractual. The relationship was statutory.

41.	In Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211, Hely J in the Federal Court of Australia said at para 600:

 "In Norweb PLC v Dixon [1995] 3 A11 ER 952 the English High Court held that legal compulsion as to both the creation of the relationship and the fixing of its terms is inconsistent with the existence of a contract. Reference was made in Norweb to the decision of the House of Lords in Pfizer Corporation v Ministry of Health [1965] AC 512 where their Lordships held that there was no consensual bargain where one party was obliged by statute to supply medicines at a particular price, and the other party had a statutory right to obtain medicines at that price. Similarly, in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 542, Gummow J held that the routine dealings between the Postal Corporation and members of the public were non-contractual, although there was power to enter into special arrangements which would have contractual force".

42.	At para 606, Hely J went on to say:

 "The question of whether there was 'agreement' and 'mutual assent' presupposes that the parties had a choice in the matter of whether they could agree and assent, as well as in relation to the terms or conditions on which they would do so. Where there is compulsion, no question of contractual intent in either party arises: Lismore County Council v Stewart (1989) 18 NSWLR 718 at 726 (Hope AJA, Kirby P and Samuels J A agreeing). 

43.	Then at para 608, Hely J said:

 "The Corporation's performance of its port safety function in relation to the provision of pilotage services for the Fortius was imperfect, since it assigned an unlicensed pilot to conduct the Fortius into and within the Harbour, contrary to the stipulation in its operating licence that a duly licensed pilot should be available at all times. This, however, has no bearing on the issue of whether there was a contract between the defendant and the Corporation of the kind which the defendant alleges. There is no reason why a consequence of imperfect performance by one party of a statutory obligation should be the creation of a contract which would not have come into existence had the statutory obligation been properly performed".
 
44.	In Coughlan v Earthquake Commission [2007] NZHC 1787, Venning J in the High Court of New Zealand said at paras [22] – [24]:

 "[22] Fundamental to the concept of a contract is an agreement between the contracting parties. In Burrows, Finn & Todd in The Law of Contract in New Zealand (3rd ed 2007) the authors describe at pp.26-27 how statutory obligations on parties can at first sight resemble a contract:

 "Statutes may oblige a public utility to supply electricity or gas to those requesting it, and oblige the persons to whom it is supplied to pay for it. The statutory relationship thus created bears a resemblance to a contract in that there are mutual obligations which could be said to be in consideration of each other. The Courts have normally held, however, that such arrangements, mandated by statute, are not contracts. This has been held in relation to a local authority's statutory obligation to supply pure water paid for out of water rates; and an electricity supply authority's obligation to supply electricity".

 "[23] The authors go on to describe and identify a number of factors that tell against a contractual relationship: (a) where a party is obliged to provide the service and has no discretion not to do so; (b) where the terms of the supply/service are dictated by the Act and are not the result of a bargaining process; (c) where the statute in addition to providing the standard case of supply also makes provision for the negotiation of special contracts. See Norweb Plc v Dixon [1995] 1 WLR 636.

 "[24] The above factors militate against the plaintiffs argument in the present case that the plaintiff and the Commission were in a contractual relationship. The Commission is statutorily obliged to provide insurance to all qualifying persons. The terms of the insurance, bar the setting of premiums, are dictated by the Act. The premiums (the consideration on a contractual analysis) are fixed by regulation. Further, the Act makes quite separate and express provision for the negotiation of special contracts (pursuant to s.22).

45.	Counsel for the plaintiffs in support of her submissions that the relationship between the plaintiffs and the defendant was contractual and not purely statutory relied on a passage cited from the English text Marsden on Collisions at Sea (2003) 13th ed by Simon Gault et al where the learned authors at 8-12 p. 378 state:

 "The basic duty of harbour authorities is to make the port reasonably safe for the persons who have contracted to use it, or failing that, to give warning that it is not. The general rule was stated as follows:

 " 'Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care and skill on the part of any person concerned with the construction, alteration, repair or maintenance of the premises: MacLenan v Segar [1917] 2 KB 325 at 332 per McCardie J'"
 
46.	In my view, the passage cited by counsel for the plaintiffs from Marsden on Collisions at Sea (2003)13th ed by Simon Gault et at at 8-12 p.373 does not affect the basic premise that a statutory body being a creature of statute derives its powers from the statute. It will only have the power to enter into contracts to the extent that it is given such power by the statute. It does not have unlimited common law powers to enter into contracts. Furthermore, the case of MacLenan v Segar [1917] 2 KB 325 was not concerned with an accident to a ship at sea. It was concerned with an action for an alleged breach of warranty and negligence by a guest of a hotel against the occupier and lessee of the hotel.

Discussion 

(a)	 The plaintiffs cause of action in contract

47.	In considering whether the plaintiffs cause of action in contract against the defendant is maintainable in law certain basic premises need to be re-stated. The defendant PFL is a statutory body established under the provisions of the Ports Authority Act 1998. As a creature of statute, the PFL derives its powers from the Act. It does not have general common law powers; its powers are to be found in the Act. It follows that if the PFL has the power to enter into contracts, such a power must be found in the Act.

48.	Fundamental to the concept of contract is an agreement or consensual bargain which the parties have entered into as a matter of choice. Legal compulsion as to both the creation of a relationship and the fixing of its terms is inconsistent with the existence of a contract: Norweb Plc v Dixon [1995] AII ER 952. Thus, where a public body is obliged by statute to provide a service and the terms of the supply are dictated by the statute and are not the result of a bargaining process, the Courts have normally held that such an arrangement mandated by statute is not contract: The Law of Contracts in New Zealand (2007) 3rd ed by Burrows, Finn & Todd at pp. 26-27. The fact that a statute contains a provision which authorises a public body to enter into special contracts does not mean that such a public body has general powers to enter into any kind of contract.

49.	The functions of the SPA are provided in s.8 of the Act. The SPA is obliged by the Act to perform those functions. It has no discretion not to perform them. It is required by the Act to do so. These functions include the provision, management and maintenance of adequate and efficient port services, facilities and security in ports and approaches (s.8(a)), and the regulation of navigation and maintenance of navigation aids within ports and approaches (s.8(b)). Whether the performance by the SPA of those statutory functions is perfect or imperfect does not result in a contract. As stated by Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211 at para 600:

 "There is no reason why a consequence of imperfect performance by one party of a statutory obligation should be the creation of a contract which would not have come into existence had the statutory obligation been properly performed".

50.	The powers of the SPA, insofar as relevant, are provided in s.9 of the Act. The SPA has no discretion as to what powers it should have or not have. It simply has to accept as its powers the powers given to it by the Act. These powers include the powers (a) to appoint and employ such persons as it may consider necessary for the efficient performance of its functions (s.9(2)(a), (b) to enter into any contract, covenant, bond or agreement of any kind whatsoever for the purpose of the Act (s.9(2)(b)), (c) to authorise any person to carry out any work or perform any act in furtherance of its functions and powers (s.9(2)(c)), (d) to provide services within a port or its approaches including berthing, unberthing, towing, mooring, unmooring, moving, or docking any vessel (s.9(2)(f)(i)), piloting any vessel (s.9 (2)(f)(iv)) and rendering assistance to any vessel (s.9 (2)(f)(viii)), and (e) to do anything for the purpose of improving the skill of the employees of the Authority or improving the equipment of the Authority and the manner in which such equipment is operated and maintained.

51.	The dues payable in respect of vessels are provided in s.36 while the rates payable are provided in s.39. Section 64(1) (z) provides that the Head of State, acting on the advice of Cabinet, may make regulations settling the mode of payment of rates or dues, facilitating their collection and preventing their evasion. So the imposition of dues and rates together with their mode of payment and collection are prescribed by the Act.

52.	Having given careful consideration to the law which applies to this type of case, I cannot agree with counsel for the plaintiffs that the relationship between the plaintiffs and the defendant at the material times was contractual even though it may resemble a contract. When, as it is pleaded in paras 29 and 30 of the statement of claim, the plaintiffs port agent advised the SPA that Forum Samoa wanted to call at the port of Apia and the SPA agreed on the basis that it would charge for the use of the port and its facilities by the Forum Samoa, the SPA was acting pursuant to its statutory powers and obligations and not pursuant to any contract. The consideration for allowing Forum Samoa to enter the port of Apia are the dues and rates provided under the Act. Likewise, when SPA permitted Forum Samoa to call at the port of Apia that did not give rise to a contract. It was a service that the SPA was obliged to provide in terms of the Act. The dues that were to be paid by the plaintiffs for the use by Forum Samoa of the port and its facilities are also provided by the Act and not pursuant to any process of bargaining between the parties. The services provided by the SPA to Forum Samoa like berthing, unberthing, towing and piloting were services that the SPA was obliged to provide pursuant to s.9(2)(f). If in the opinion of the plaintiffs those services were imperfectly performed, that still did not result in a contract. 

53.	The plaintiffs cause of action in contract is therefore not maintainable in law.It is clearly untenable and should be struck out.

(b)	Paragraph 31.2 of the plaintiffs statement of claim

54.	In para 31.2 of the statement of claim it is alleged that the defendant SPA is vicariously liable for the neglect of duty by its general manager in failing to act to prevent Forum Samoa depart the berth (presumably the one inside the harbour) or return to the berth in light of the tug failure when he knew or ought to have known that Forum Samoa should have remained at the berth in the prevailing circumstances. I have considered the submissions presented by Ms Barratt for the defendant in this connection and have decided to accept them.

55.	Like the SPA, the position of general manager of the SPA is also a creature of statute. It is a position established under the Act. Its powers are therefore to be found in the Act. These powers are set out in s.20. The only possible relevant power is in s.20 (1) (b) (ii) which provides insofar as relevant:

 "(1) The general manager shall

 "(b) Subject to the provisions of this Act…he may – 

 (ii) in any case of emergency, direct the execution of any work or the doing of any act which the Authority is empowered to execute and do and the immediate execution or doing of which is, in his opinion, necessary for the operation of port services or the safety of persons on vessels, and he may direct that the expense of executing the work or doing that act shall be paid from the funds of the Authority". 

56.	It is clear from the wording of s.20(1)(b)(ii) that the power it gives the general manager may only be exercised where there is an 'emergency'. In such a situation, the general manager is required to direct the execution or the doing of any necessary work or act which the SPA is empowered to perform for the purpose of the operation of port services or the safety of persons on a vessel. In other words, unless there is an 'emergency' the power given to the general manager under s.20 (1)(b)(ii) does not become exercisable. In paras 13 and 14 of the statement of claim, it is alleged that at 1254 hours on 29 August 2009, there was 25 knots of wind and a two metre swell and all lines of Forum Samoa were clear of the berth. It is further alleged that at that time the general manager of the SPA was observing from the wharf Forum Samoa being shifted under tow and knew or ought to have known that Forum Samoa should have remained at berth in the prevailing circumstances. As correctly submitted for the defendant, there is no pleading of an 'emergency' in terms of s.20(1)(b)(ii) in the statement of claim.

57.	Furthermore, the power given to the general manager under s.20(1)(b)(ii) includes the power to direct the performance of work or an act that the 'SPA was empowered to execute or do'. But under ss.4(2) and 9 which provide for the powers of the SPA, the SPA has been given no power to either direct a vessel to remain at its berth or to vacate its berth. Such a power is vested by s.22 in the port master and is exercisable by the port master independently of the SPA and the general manager. Section 20(1)(b)(ii) is clear that the type of work or act that the general manager may perform in an 'emergency' is work or act that the SPA is empowered under the act to perform. But there is no power given under the Act to the SPA either to direct a vessel to remain at its berth or to vacate the berth. In my view, the submission by counsel for the defendant that the general manager had no power to direct Forum Samoa to remain at its berth or to vacate its berth is correct. The SPA cannot be vicariously liable for the neglect of duty alleged against the general manager. These allegations are clearly untenable and not maintainable in law. Paragraph 31.2 should therefore be struck out.

(c)	Further and better particulars of the cause of action in negligence in plaintiffs statement of claim

58.	Counsel for the defendant submitted that the plaintiffs cause of action in negligence is fundamentally defective in numerous respects. It is claimed that the statement of claim as it presently stands does not plead the required elements of a negligence cause of action and neither does it provide sufficient details to the defendant to enable the defendant understand the case it is being asked to meet. The defendant therefore seeks in para 3 (a) – (n) of its strike out motion further and better particulars of the plaintiffs cause of action in negligence.

59.	I accept that the plaintiffs should plead the elements which need to be established to sustain a cause of action in negligence. These are (a) the existence of a common law duty of care owed by the defendant to each of the plaintiffs given that there are two separate plaintiffs, (b) a breach or breaches by the defendant of his duty/duties of care, and (c) how such a breach or breaches resulted in loss or damage to each of the plaintiffs. The damages must not be too remote. I also accept that the statement of claim does not provide sufficient details to enable the defendant understand the nature of the case in negligence it is being asked to meet. Given the number and the nature of the further and better particulars sought by the defendant, it would be best for the plaintiffs to file an amended statement of claim for their cause of action in negligence, pleading the necessary elements of negligence, and incorporating the further and better particulars sought by the defendant in its motion.

Conclusions 

60.	The plaintiffs cause of action in contract is not maintainable in law and is therefore struck out.

61.	Paragraph 31.2 of the statement of claim is also not maintainable in law and is therefore struck out.

62.	The plaintiffs are to file and serve an amended statement of claim by 19 September 2011 to re-plead their cause of action in negligence, including the elements of a cause of action in negligence, and incorporating the further and better particulars sought by the defendant in its strike out motion. This matter will be re-mentioned on 19 September 2011 at 10am.

63.	Costs reserved. 

CHIEF JUSTICE