PNG Ports Corporation Limited v Islands Salvage and Towage Limited (2009) N3780

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 22 July 2009
• Court: National Court
• Citation: (2009) N3780
• Docket Number: WS NO 144 OF 2008
• Year: 2009
• Judgement Number: N3780

Full Title: WS NO 144 OF 2008; PNG Ports Corporation Limited v Islands Salvage and Towage Limited (2009) N3780

National Court: Makail J

Judgment Delivered: 22 July 2009

N3780

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 144 OF 2008

BETWEEN

PNG PORTS CORPORATION LIMITED

Plaintiff

AND

ISLANDS SALVAGE AND TOWAGE LIMITED

Defendant

Kokopo: Makail J,

2009: 10th & 22nd July

DAMAGES - Assessment of damages - Liability determined by entry of default judgment - Matters relating to liability resolved - Damage to wharf’s rubber fenders - Claim pursuant to an indemnity agreement - Claim for cost of repairs - Proof of - Whether corroboration of loss required - Claim established on balance of probabilities - Damages awarded.

EVIDENCE - Expert evidence - Principles of determining expert witness discussed - Dispute as to durability of rubber fenders - Opinion evidence of durability of rubber fenders - Whether opinion of durability of rubber fenders reliable - Opinion evidence unreliable and rejected.

Cases cited:

Yange Lagan -v- The State (1995) N1369

Jonathan Mangope Paraia -v- The State (1995) N1343

Firman Manua -v- Southern Highlands Provincial Government (2008) N3505

Coecon Limited -v- National Fisheries Authority (2002) N2182

Peter Aigilo -v- Sir Mekere Mourata & The State (2001) N2102

Enga Provincial Government -v- Roland Arlo (2002) N2271

Andrew Tony -v- The State (2008) N3477

Michael Kunumb -v- The State (2008) N3481

Albert Baine -v- The State (1995) N1335

Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331

James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

Brian McKenna -v- Nicholas Clarke [1980] PNGLR 175

Andrew Kewa -v- Johnny Lus & Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14th March 2007)

Text:

Evidence, Commentary and Materials, Law Book Co (5th ed 1998) Waight K P and Williams R C

Counsel:

Mr M. Ginyaru, for the Plaintiff

Mr P. Yange, for Defendant

JUDGMENT

22nd July, 2009

1. MAKAIL J: This matter comes before the Court for assessment of damages only because default judgment was entered against the Defendant on 05th September 2008 after the Defendant failed to file its defence within the time prescribed under the National Court Rules.

2. The claim is for cost of repairs incurred by the Plaintiff in replacing three newly fitted rubber fenders that the Defendant’s vessel, a Dump Barge called Kinglory No 88 damaged during un-berthing at the Plaintiff’s wharf at Rabaul. The basis of the claim for cost of repairs is under an Indemnity Agreement entered between the Plaintiff and the Defendant on 29th June 2007 for the Defendant to use part of the Plaintiff’s wharf for berthing its Dump Barge. Pursuant to the Indemnity Agreement, the Defendant agreed to indemnify the Plaintiff against any loss or damage that maybe suffered by the Plaintiff for the use of the wharf.

3. On 30th June 2007, at about 10 o’clock in the morning, after unloading its cargoes, the Dump Barge during the process of un-berthing damaged three newly fitted rubber fenders. One of them was completely ripped off. Following the damage, the Plaintiff, relying on the Indemnity Agreement, notified the Defendant to pay for the costs of the damage, said to be K17,652.80. Despite numerous requests for payment of K17,652.80 by letters to the Defendant, the Defendant failed to pay. This led to the Plaintiff instituting this action.

4. In support of the claim, the Plaintiff relies on the following Affidavits which were admitted by consent as evidence for the Plaintiff:

1. Affidavit of John Tungapik sworn and filed on 18th July 2008. (Exhibit “P1”);

2. Affidavit of Elias Pauria sworn and filed on 18th July 2008. (Exhibit “P2”);

3. Affidavit of Lawrence Patlo sworn and filed on 18th July 2008. (Exhibit “P3”).

4. Affidavit of George Fakepo sworn 30th January 2009 and filed on 3rd February 2009. (Exhibit “P4”).

5. As for the Defendant, it relies on the Affidavits of the following persons which were also admitted by consent as evidence for the Defendant:

1. Affidavit of Sup Kit Poorahong sworn on 16th March 2009 and filed on 17th March 2009. (Exhibit “D1”); and

2. Affidavit of Jurgen Ruh sworn on 11th March 2009 and filed on 12th March 2009. (Exhibit “D2”).

6. From the evidence presented thus far, the issue is whether the Plaintiff has proven its loss against the Defendant. For it is settled law in this jurisdiction that the Plaintiff bears the onus of proving his or her loss on the balance of probabilities, even though liability is not in issue. There are many case authorities that make this principle of law abundantly clear, some of which both counsel have cited in their respective written submissions which I respectfully adopt here like, Yange Lagan -v- The State (1995) N1369; Jonathan Mangope Paraia -v- The State (1995) N1343; and Firman Manua -v- Southern Highlands Provincial Government (2008) N3505.

7. From my reading of the Affidavits of the witnesses of the Plaintiff and also the Affidavits of the two witnesses of the Defendant, it is clear that the parties entered into an Indemnity Agreement on 29th June 2007 for the Plaintiff to allow the Defendant to berth its Dump Barge at the Rabaul wharf in return for a fee. It is also clear that one of the terms of the Indemnity Agreement is that, the Defendant shall indemnify the Plaintiff of any loss suffered by the Plaintiff. The relevant part reads as follows:

“to indemnify the Papua New Guinea Harbours Board, and keep it indemnified, from and against any loss, damage or injury to any person or property (including any property of the Board) caused by or arising directly or indirectly out of or incidental to the berthing, movement or un-berthing of the vessel or the loading, discharging, stacking, storage, handling or movement of cargo on, destined for or discharged from the vessel, whether carried out by a wharfinger employed by it or on its behalf or stevedores engaged by it or on its behalf, notwithstanding that the loss, damage or injury takes place in a wharf, she or other places vested in the possession of or occupied by the Plaintiff and in particular, (without affecting the generality of the foregoing) to indemnify the Board of:

(a) all actions, proceedings, claims and demands brought, in relation to such loss, damage or injury against the Board, and

(b) all damages, costs and expenses incurred or sustained by the Board as a result of, or in connection with, any such loss, injury or damage.”

8. But it is disputed that the Defendant’s Dump Barge damaged the three newly fitted rubber fenders and one of them was completely ripped off. It is also disputed that the cost of repairs is K17,652.80.

9. The Plaintiff’s witnesses have given sworn evidence that the Dump Barge damaged the three newly fitted rubber fenders and one of them was completely ripped off. For example, first, in his Affidavit (Exhibit “P2”), Elias Pauria says that he is employed as Wharf Superintendent at the Rabaul Port and witnessed the Dump Barge damaged the three rubber fenders. He says that on 30th June 2007 at around 10’o’clock in the morning, as the Dump Barge was un-berthing from the wharf, it proceeded forward and the starboard side seriously damaged the three rubber fending system and one of them was completely ripped off from the base plate before it left the berth.

9. Soon after the incident, he reported it to the Port Manager by submitting a report on 02nd July 2007; a copy of that report is marked as Annexure “A” to his Affidavit. He further states that the Defendant’s Managing Director, Mr Jurgen Ruh’s claim that the Dump Barge did not damage the rubber fenders is hearsay because he was not present at the wharf when the incident happened.

10. Secondly, it is the evidence of the Port Manager of Rabaul Port, John Tungapik in his Affidavit (Exhibit “P1”) that the Defendant was granted its application to berth one of its vessel at the wharf at the Rabaul Port and one of the conditions of the application was to indemnify the Plaintiff against any loss or damage to the Plaintiff’s wharf and property at the wharf. He received a report from Elias Pauria in respect of the damage of the three rubber fenders by the Defendant’s Dump Barge. On 10th July 2007, he forwarded a letter of notice to the Defendant notifying it of the damage to the three rubber fenders by the Dump Barge. The letter concluded by stating, “You are now notified that you will be held liable for the cost of repairs and you will be advised of the estimate cost of repairs.”

11. Subsequent to that letter, the works officers inspected the damage and assessed the cost of repairing it at about K18,000.00. They submitted a report to him and on 19th July 2007, he forwarded another letter to the Defendant. This time, he notified the Defendant of the estimated cost of repairs of K18,000.00 and sought the Defendant’s advice as to whether the Defendant would repair the damage at its own costs and if no response was received within 21 days, the Plaintiff would assume that it would repair the damage and charge the cost of repairs to the Defendant to pay later. Copies of the said letters of 10th July 2007 and 19th July 2007 are marked as Annexures “C” and “E” respectively to his Affidavit.

12. Following the letter of 19th July 2007, the Plaintiff did not receive...