By Linny Folau
A captain of Tonga's inter-island domestic ferry, the MV ‘Otuanga’ofa, was found guilty of proceeding to sea improperly by taking excess passengers on the vessel and serving on the vessel knowing his Certificate of Competency had expired.
Viliami Makahokovalu Tuputupu was convicted of the two charges after a trial at the Magistrates Court in Fasi on 21 October. He will be sentenced on 11 November.
The lower court heard that the first charge was of proceeding to sea improperly, when on 22 April 2023 in Nomuka, Ha’apai as the Master of the MV ‘Otuanga’ofa, he knowingly permitted the vessel to proceed to Tongatapu improperly with 420 passengers on board, which was in excess of the 400 passengers permitted on the Vessel’s Survey Certificate.
The second charge was serving on the vessel without a proper Certificate when on 22 April, 2023 he proceeded to sea from Tongatapu to Vava’u, but his Certificate of Competency to be a Master had already expired on 17 April 2023.
The Magistrate in a written ruling pointed out evidence by witnesses given during the trial, in the lower court.
This included evidence from a vessel surveyor. Mosese Molisi, an officer with the Marine Department, told the court that on 18 April 2023, he was at home when at around 9:00pm, he was informed to go and check on the MV ‘Otuanga’ofa as there was a technical problem. He went down to Taufa’ahau Wharf.
He stated that the vessel was ready to set sail but the engine needed to be looked at. He checked it for around half an hour and determined it was fit to sail. He informed the Chief Engineer on the state of the engine so he could relay the information on to the captain. However, the Chief Engineer asked him to ring the captain and tell him personally. He rang the captain and told him that it was good for them to sail. He also said that he asked the captain the status of his certificate and he was told that it was being processed. He then said ok and returned home.
The witness said he did not know what time the vessel set sail nor did he remember where he heard that the captain’s certificate had expired.
The Magistrate stated that when being cross examined, Molisi stated that he did not have any authority to stop the vessel from sailing. It was also not procedure that when a certificate is being processed one is allowed to sail. It is only the Minister that makes the decision to approve a certificate. Furthermore, there is no specific time as to when a certificate will be granted and issued but it can take up to one week.
Another witness, Kelela Tonga, the Director of Marine, said in evidence that the captain came in and apologised that he took excess passengers. She told him that there were three issues they were concerned with, the first was that he sailed when the conditions were rough, secondly, his expired Certificate of Competency and thirdly, he took excess passengers.
She stated that the accused was about to respond to these concerns but she told him that she would write him a letter and that he should send a reply. Her letter was sent on 24 April, and he replied on the same day, and stated that that he allowed the excess passengers to board because some needed to fly overseas, some had coolers, while others had appointments at the hospital. It is only the Minister that has the authority to grant the Certificate of Competency Certificate.
On 17 April, 2023 she had not received any application and did not know that his license had expired. It was also confirmed from the MV ‘Otuanga’ofa’s Certificate of Survey that its passengers stands at 400.
A witness, Susitina Ta’ai in her evidence said they were told to go and count the passengers and after they did they went up to find the accused so that he could sign off on it. She testified that when they handed him the form with the numbers, he looked at them and asked them to take off the over (excess) number. He then told them that he would not sign off on it.
The witness said that she and Tapaita then went on to write their report for Kelela.
The Magistrate stated that in every criminal trial, the Prosecution must prove beyond reasonable doubt the charges.
The evidence given by Mosese Molisi proved that he had asked the accused about the status of his Certificate, to which he replied that it was being processed.
Kelela Tonga’s evidence was that she only knew that the captain’s certificate had expired as shown in P43. She also testified that the accused came and apologised to her for the excess passengers, which was not contested.
Moreover, Tonga in her letter dated 24 April 2023 to the accused listed the three main concerns they had against him, which included the excess passengers that were on board. The accused in his written response listed the reasons on why he made the decision to allow on board the excess 20 passengers.
In addition, the testimony of Susitina Ta’ai that they had counted the passengers and went to the accused to sign off on it, but when handing him the form with the numbers he asked them to take off the over and said he would not sign it.
“From the evidence in court, the Prosecution has indeed proven beyond reasonable doubt the two charges against the accused, that he not only knew his certificate had expired but that he knew very well that he was taking on excess passengers. Accordingly, he is convicted on both charges,’ ruled the Magistrate.
The accused will be sentenced on 11 November.
