JOHN PHILLIP DORN v MARITIME SAFETY AUTHORITY OF NEW ZEALAND & ANOR [1999] NZCA 199 (22 September 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 300/98

	between	JOHN PHILLIP DORN
		Appellant

	AND	MARITIME SAFETY AUTHORITY OF NEW ZEALAND
		First Respondent

	AND	ENVIRONMENT WAIKATO
		Second Respondent

Hearing:	22 September 1999
Coram:	Thomas J Gallen J Doogue J
Appearances:	N. Cooke for appellant J.N. Burton with N.J. Rickit for first respondent K.J.L. de Silva with B.A. Parham for second respondent
Judgment:	22 September 1999

judgment of the court delivered by Doogue J

Introduction

[1] The appellant was the owner of the ship the "Otago", which lacked motive power.In May/June 1998 he intended to have the ship towed from a wharf in the Piako River to another mooring place west of the river mouth.The towing operation was unsuccessful and the ship ended up near the mouth of the Piako River.Concerns of the local authority as to the ship were drawn to the attention of the Director of Maritime Safety ("the Director"), who is the Chief Executive of the first respondent.He obtained reports in respect of the ship and, as a result, both appointed a Receiver of Wreck and, having determined that the ship was stranded and, in his opinion, an obstruction to navigation, or likely to become one, directed the Receiver to cause the ship to be removed under s. 110 Maritime Transport Act 1994 ("the Act").The appellant challenged the validity of the decisions that the ship was stranded and an obstruction to navigation or likely to become one and the service of the notice issued under s. 110 by the Receiver.

[2] Penlington J, in a careful and detailed judgment (Dorn v Maritime Safety Authority of New Zealand [1999] 2 NZLR 482), held that it was open to the Director to find that the ship was "stranded" within the meaning of s. 110(1) of the Act and that the Director had reasonable grounds for forming the opinion that the "Otago" was an obstruction to navigation, or was likely to become an obstruction to navigation, in the Piako River under s. 110(1) of the Act.In respect of the third point before him the Judge found that the requisite statutory notice was served in conformity with the requirements of s. 110(2) and s. 458(c) of the Act, but that, in any event, as the Judge was satisfied the appellant was aware of the notice, he would not have exercised his discretion in favour of relief should the challenge to service of the notice have succeeded.

[3] This appeal seeks to overturn those findings, which relate to s. 110 of the Act as it was prior to substantial amendment this year.

Section 110(1) of the Act

[4] This section provided:

(1) If any ship ... is sunk, stranded, or abandoned on or near the coasts of New Zealand or any tidal water within the limits of New Zealand or in any river ... , the Director may, and shall, if in his or her opinion the ship ... is, or is likely to become, an obstruction to navigation, direct a Receiver ... to cause that ship ... to be removed.

First issue: was the Judge entitled to find that there was evidence upon which the Director could properly conclude that the "Otago" was "stranded" for the purposes of section 110(1) of the Act?

[5] The appellant raises a preliminary submission that before s. 110(1) can apply there must be evidence that the ship is a wreck or unseaworthy.Neither the term "wreck" nor the term "unseaworthy" appears in s. 110(1).For the purposes of the Act the term "wreck" includes any ship that a Receiver is authorised to take into his possession (see s. 98).In any event, seaworthy ships can be stranded or abandoned.There is simply no substance in the preliminary submission on behalf of the appellant.

[6] The term "stranded" is not defined in the Act.Counsel cannot discover any reported cases on either the present s. 110(1) or its precursor, s. 353 Shipping and Seamen Act 1952.Nor is it suggested that there are any cases on comparable provisions in the United Kingdom legislation."Stranded" must therefore be given its plain, ordinary meaning in the context of the section, concerned as it is with navigational safety.

[7] The New Shorter Oxford Dictionary (1993) contains definitions consistent with other dictionaries cited to us or perused by us.

"Stranded" is defined as "That has been driven or washed ashore; that has run or been left aground"

and

"Strand" as "Drive or wash aground on a shore or bank; leave aground (esp. by the ebbing of the tide); beach, ground"

[8] Penlington J accepted the submissions for the first respondent supporting such a meaning based upon the ordinary meaning of the word as defined in dictionaries and common usage as shown by a text on seamanship.He rejected a limited construction which the appellant sought to put on the term in reliance upon insurance cases and in any event held that the authorities relied upon for the appellant did not support the appellant's contention.He went on to reach seven different conclusions as to the meaning of the term.In essence, he found that a ship is stranded when at least part of it, for whatever reason, is aground, at any stage of the tide.

[9] For the appellant, submissions are made seeking to limit the natural and ordinary meaning of the word "stranded" to where the stranding is the result of some accidental or extraneous cause and not as a result of taking the ground when moored or in the ordinary course of navigation.However, the cases upon which the appellant relies are in the context either of a specific policy of insurance or at what stage a vessel is to be treated as a "wreck" for the purposes of a wages claim by seamen in respect of an unrelated section of the Merchant Shipping Act 1894 (UK).

[10] The appellant also submits the ship must be stranded continuously during all cycles of the tide.

[11] We can see no justification or reason whatever for narrowing the natural or ordinary meaning of the word "stranded" in the context of a section which is directed towards marine safety.When s. 110 of the Act is given a fair, large and liberal interpretation, the true question is whether a ship that has gone aground, for whatever reason and for whatever period, is or is likely to become an obstruction to navigation.It does not assist to ask whether the grounding is deliberate or accidental, or total or partial, or for only certain stages of the tide.We are therefore satisfied that Penlington J did not misdirect himself as to the appropriate meaning of the word "stranded" in s. 110(1).

[12] There is no suggestion that there was no evidence or no adequate evidence upon which the "Otago" could be found by the Director to be stranded in accordance with the ordinary meaning of the word.The evidence established that the Director relied upon two reports which indicated that the "Otago" was aground two and a half hours before full tide and supported the advice in the reports that the "Otago" was partially aground at high tide and fully aground at low tide.

[13] There is thus no substance in the appellant's submissions in respect of the first issue.

Second issue: was the Judge justified in finding that the Director had reasonable grounds for forming the opinion that the "Otago" was an obstruction to navigation in the Piako River or that it was likely to become an obstruction to navigation in that river?

[14] The Director relied upon two reports obtained by him from Master Mariners whose expertise was not challenged.Penlington J identified 14 different points within the reports which in the Judge's view justified the Director in reaching the conclusion that he did that the "Otago" was, or was likely to become, an obstruction to navigation and that therefore he was obliged to exercise the power conferred on him by s. 110(1).

[15] The appellant submits that the Director's opinion that the "Otago" is, or would be likely to become, an obstruction to navigation is without foundation in fact and unreasonable.The appellant approaches this matter by focussing individually on the 14 points identified by Penlington J as collectively justifying the Director's decision when combined with the opinions of the two Master Mariners in the hands of the Director and the other information in his hands.

[16] It is sufficient to address one of these points in detail.There was evidence the "Otago" obscured the Piako beacon for vessels going down the Piako River.The appellant submits that no reasonable person could regard the "Otago" as obscuring the Piako beacon for vessels going down river as a basis for determining that the "Otago" was an obstruction to navigation.However, there was clear evidence that the Piako River was used as a navigable waterway, by day and by night, by a number of craft, differing in numbers according to the season, and that the "Otago" obscured the Piako beacon for small boats departing the river.Given the views of the two experts whose credentials were not challenged, there could be no possible basis for either the High Court or this Court to say that the Director's opinion was unreasonable.That in itself is enough to dispose of the appellant's submission under this head.

[17] However, similar reasoning applies to all the other matters where there is an attack by the appellant on the material which Penlington J identified as providing a basis for the Director's opinion.It was not for the High Court to determine what it might have done in respect of the evidence before it but to determine whether it was open to the Director to do what he did in the light of the evidence before him.The reports on which the Director relied showed the appellant's vessel was unlit at night, without an anchor light, without motive power, partially aground even at high tide, persistently dragging on the sea bed in the vicinity of a navigable channel, listing slightly with items on its deck which were not secured and had the potential to move or fall from the vessel in the event of strong winds, and without its own anchoring facility (the ship was held by objects attached to it by the Regional Authority).Given those circumstances, and others, it had to be open to the Director to conclude the "Otago" was likely to be an obstruction to navigation, and it would certainly have been impossible for the Court to say that the Director's opinion to that effect was unreasonable.

[18] It is submitted for the appellant that as one of the experts referred to "a hazard to navigation", as opposed to an "obstruction to navigation", the Director necessarily applied his mind to the wrong test.However, the Director's affidavit makes plain that his determination was in respect of an obstruction to navigation or likely to be an obstruction to navigation.It is nowhere apparent that the Director took into account irrelevant considerations or failed to take into account relevant considerations, and this particular submission does not assist the appellant in that respect.

[19] On this issue, as on the first, the appellant's argument is untenable.

Third issue: was service of the notice under section 110(2) of the Act effected?

[20] Section 110(2) of the Act provided:

(2) On receiving such a direction, the Receiver, by notice in writing given to the owner or master of the ship or any agent of the owner ..., shall require the owner to remove that ship ..., or any part thereof, in a manner satisfactory to, and within a time to be specified by, the Director.

[21] Section 458 of the Act provides:

Where for the purposes of this Act any document is to be served on, or any notice, notification, or instructions is or are to be given to, any person, that document may be served and any notice, notification, or instructions may be given, -

(a) ...

(b) ...

(c) If the person concerned is a master of a ship, where there is no master and the ship is within the limits or territorial sea of New Zealand, on the owner of the ship resident in New Zealand, on the agent of the ship in New Zealand, or, where no such agent is known or can be found, by fixing a copy to the mast of the ship or (if there is no mast) to some other conspicuous part of the ship; or

(d) ...

[22] The Judge accepted evidence that the Receiver's notice had been attached to the bottom rung of the access ladder to the "Otago" on 13 July 1998.He held that that was a "conspicuous part of the ship" in terms of s. 458(c).He therefore held there was compliance with the relevant provisions of the Act. In any event,however, he was of the view that the appellant on his own pleading became aware of the meaning and effect of the notice on 17 July 1998 and took no steps to respond to it before the Receiver moved the vessel.The Judge's view was that there was a reasonable time in which the appellant could have acted.

[23] The appellant argues that the notice should have been secured to the mast, but Penlington J had held that there was effectively no mast on the vessel because it was not practically possible to reach it.It was clearly open to the Judge to find that in affixing the notice to the boarding ladder it was being affixed to a conspicuous part of the vessel.In any event, the Judge was entitled to find that the appellant was aware of the notice with time to do something about it.

[24] The appellant's argument on this latter point relies on his being on bail as at 10 July 1998 and the conditions of that bail.There is nothing in the argument or material in support of it that could possibly justify this Court reversing the decision of Penlington J on this issue when he made clear that he would exercise his discretion against the appellant because in his view the appellant had sufficient notice and sufficient time to do something about the notice but did not do anything.There was clear evidence before the Court that the condition of bail was not, as is said for the appellant, a bar to his obtaining access to the "Otago".

[25] Once again the appellant's submissions are untenable.

Result

[26] The appeal is dismissed.

Costs

[27] The first respondent is entitled to costs in the sum of $3,000, and the second respondent is entitled to costs in the sum of $1,000, together with their reasonable disbursements, including the reasonable travel and accommodation costs of a single counsel for the second respondent, to be fixed by the Registrar.

Solicitors

Nigel Cooke, Auckland, for appellant

Izard Weston, Wellington, for first respondent

Tompkins Wake, Hamilton, for second respondent