Tonga's Supreme Court will consider forfeiture to the Crown of an 'Eua passenger ferry that carried an excessive number of passengers in dangerous waters at night in January last year, after the Master was found guilty yesterday of permitting the MV 'Onemato to sail carrying excess passengers.

“The circumstances of this offending concerns me as to the integrity and security of this operation,” Hon. Mr Justice Cato said yesterday.

The accused Master of the vessel, ‘Evona ‘Akau was found guilty of carrying 365 passengers, when the vessel's Survey Certificate permitted only 150 passengers (daylight).

He adjourned the sentencing for June 5 and ordered the provision of a probation report.

In addition, the Judge must be provided with full details concerning the ownership of this vessel, said to be the ‘Eua Sea Transportation Council Cooperative Society Ltd., its constitution, membership, officers and financial position.

"The excess of passengers was so great on this voyage, in waters acknowledged to be dangerous at times, and at night, that I am very concerned at the safety of this operation, and the management of it. The fact that I know so little about the ownership and the circumstances of this offending concerns me as to the integrity and security of this operation."

“I am considering forfeiture of the vessel to the Crown," Mr Justice Cato said.

Excess

The Court heard on January 9, 2019 at 'Ohonua, the accused acted as the Master of the vessel on its return trip from 'Eua to Nuku'alofa, after the captain had left due to a disagreement with a manager.

The judge heard three-days of evidence in a trial that started on April 27, that the accused was qualified to be a Master holding a level 5 qualification.

On the voyage to ‘Eua from Tongatapu earlier on January 9, he had been first mate to the captain Mr Sione Pateta. 


However, Pateta in his evidence said he had a disagreement with the manager from Nuku'alofa and as a consequence informed the manager that he would be leaving the ship at ‘Eua. He did so after the voyage to ‘Eua had been completed on January 9.

The judge said, although the return trip was to start about 2.45pm on January 9, it did not do so for several hours.

Evidence was given concerning various reasons for the delay, a faulty ramp, other mechanism, and a delay while a suitably qualified first mate was found on ‘Eua to accompany the accused on the voyage back to Nuku'alofa.

In addition, the vessel did have a full crew as required under the terms of its Safe Crewing Certificate, when it set out for the capital sometime after 6:00pm, arriving at about 9.30pm on January 9.

There was no complaint concerning the way in which the vessel was sailed or any aspect, aside from the fact that it 
was carrying a much greater number of passengers than its Certificate of Survey allowed.

Complaint


The Court heard from Senituli Lavaka, who was the Ports Authority Officer at the Faua Wharf in Nuku'alofa when the vessel arrived.

He observed that the vessel, which he could see clearly, because there was light on the ship as it approached the wharf, had a lot of passengers on board.

He saw that there were people on 
containers and he did not know that the Captain was not on board, although he knew there had been an argument.

Lavaka had worked at the Ports Authority for a long time as a checker, which involved checking numbers of passengers, prior to departure clearance and other relevant documentation.

He saw there was an excessive number of passengers on the vessel so he counted them.

The judge said he did this in a deliberate and careful way.

Lavaka faithfully recorded the number present and made a note in his diary, which was produced in evidence that the vessel arrived at 9.30pm with, as he noted, the passengers on board.

"I accept his evidence that passengers were on board that evening and that this was greatly in excess of the survey maximum allowed of 150, in daylight conditions."

The judge said, after Lavaka counted the passengers, he found out that the accused was the Master of the ship and had replaced the former captain.

He told the accused that he would report the matter. The accused was reported to have informed him that the Marine officer at ‘Eua, who was involved with departures, had allowed him to take the amount of passengers he did.

“Although [defence counsel] Mr Fili, in his submissions, tried to persuade me that the Marine officer, in this case Mr Napa'a, was the person responsible for clearing departure and that the fact that he had done so absolved the accused from his responsibility as Master of the ship, so that he could not be responsible for ferrying an excessive number of passengers... I do not accept this submission. I accept that Pateta gave honest and reliable evidence that the practice was to require the Master to satisfy him that the information in the form was accurate. I consider that this must be so because there would be no other purpose for the Master to have to sign the document but to confirm the information contained within it,” said the judge.

He also considered the Shipping Act and in particular sections 122 (1) and 2 (b), which plainly prohibit the Master proceeding to sea. “I consider the responsibility of ensuring the number of passengers does not exceed the survey number permissible is placed squarely on the master (section 122(b)) and owner (section 122(2a)) and both committed offences for breaching the survey allowance.

“Forfeiture of the ship to the Crown is also available as a penalty signifying the importance of compliance with these provisions,” he said.

Evidence

The accused gave evidence and admitted that he took over from Sione Pateta and was qualified to do so because he had the required qualification of master class 5.

He had been first mate on voyages taken with Captain Pateta, and also had acted as captain on occasions before Captain Pateta took over this position.

The judge had no doubt that the accused was a very experienced seaman and would have known full well the importance of the requirements of exhibit 2, the time sheet and that he was required to also sign it listing the number of passengers before leaving 'Eua.

“That he did not do so, I infer can only have been because he was reluctant to sign a document, which he knew was inaccurate.

“He said, in evidence, when asked whether he could see into the area where passengers were seated that he could.

“I reject any assertion by him that he did not know there were on board an excessive number of persons. It was his obligation to satisfy himself as to the number of passengers on board. Before he left 'Eua, and the fact he may have been under pressure, as his counsel suggested, made no difference,” said the judge.

"This requires me to be satisfied beyond a reasonable doubt that the accused knew that he was carrying passengers in excess of the maximum number allowed under the survey, and, knowing this, travelled with excess passengers on board. In this case, the number was so greatly in excess that I consider beyond any reasonable doubt that he must have known that he was carrying an excess."

Company's integrity

For sentencing, the judge asked to be given full details concerning the ownership of the vessel. This was after noting that its business licence was cancelled on April 1, 2019 having reapplied for a licence in the name of the ‘Eua Ferry Service Management Board on October 1, 2018.

The judge was advised that the Crown was unable to locate any of this kind of material from the Register and this was concerning.

By considering the forfeiture of the vessel to the Crown, the judge required full submissions on whether forfeiture is a mandatory provision, and if not, arguments for and against forfeiture.

In addition, he invited the Director for Public Prosecutions Semisi Lutui to appear on sentence because of the importance of this issue in the public interest and for the people of 'Eua, who depend on the ferry.

Counsel for the prosecution was Ms H. Aleamotu'a. Counsel for the accused was Mr S. Fili.