‘Evona ‘Akau [55] was sentenced to a suspended sentence of 18-months imprisonment, for carrying an excessive number of passengers on the 'Eua ferry MV 'Onemato, and proceeding to sea in January last year.

Hon Mr Justice Cato during sentencing on June 12, became so concerned at the evidence heard concerning boarding of the vessel, the false statements made by a Marine officer and the accused's decision to put to sea, when there was an obvious very significant breach of survey requirements, that he called for further details on the ownership of the vessel and the power he had, it seemed to forfeit the vessel under section 122(2) of the Shipping Act.

The Director of Public Prosecutions, Semisi Lutui also candidly admitted that matters could have been handled better by the Police, who charged the wrong person as the owner of the vessel.

This person was discharged shortly before trial. The owner is in fact the 'Eua Sea Transportation Council Cooperative Society Limited and it was not charged.

"Had the owner been charged and convicted in this case, I would have imposed a heavy fine," said the judge.

Evidence

The accused was found guilty on May 4 of permitting the vessel to proceed to sea carrying 365 passengers, when the vessel's Survey Certificate permitted only 150 passengers (daylight).

The judge found the Crown had proven beyond any reasonble doubt that the MV ‘Onemato sailed on January 9, 2019, from ‘Eua to Tongatapu with 356 passengers on board, when the permitted number was 150 passengers.

“On the evidence heard, the accused had taken over the role of Captain it would seem at short notice when the previous Captain, after a disagreement with management left the ship, at 'Eua some hours before it's eventual return voyage to Nuku'alofa.

"I have no doubt contrary to his evidence that he was aware that the vessel was carrying far in excess of the permissible number of passengers. I am satisfied that a representative of the Marine Department at 'Eua, who is now deceased, inaccurately indeed falsely, filled out details of the vessel time sheet that was also required to be endorsed by the Master and Captain of the vessel but was not endorsed to the effect that the ship was carrying only 150 passengers."

The judge said this was a disturbing aspect of the practice of the Marine Department at 'Eua.

Ownership

The Court heard, the vessel started its voyage later than intended and arrived in Nuku'alofa at about 9:00pm, and most of the voyage took place ;in darkness.

“A Ports Officer in Nuku'alofa saw clearly that the vessel was overloaded with passengers, when it arrived and did a head count of passengers as they left. Plainly, he was concerned, at what he saw when he described passengers sitting on containers and not in their rightfully allocated passenger position.”

The Director of Prosecutions said it was not uncommon for the ferry to be overloaded as passengers came onto the ship anxious for passage from ‘Eua. However, this was the first prosecution in Tonga or excess passenger breach of section 122(1) of the Shipping Act.

Details on the 'Eua Sea Transportation Society revealed that it owns the MV 'Onemato and the MV Maui, and that both vessels had been provided as security for a substantial loan from the Tonga Development Bank.

In these circumstances, forfeiture of the vessel would have been out of the question, said the judge.

“Mr Lutui in any event, explained that, whille section 122 stated that the ship was subject o forfeiture to the Crown, the actual decision to forfeit under section 38 of the Shipping Act is the Minister's.

“The Minister must follow the statutory procedure and make application to& the Supreme Court. After an order for forfeiture is made the ship may be sold and this may cause mortgages, charges, liens and other encumbrances of whatsoever nature to cease to attach to the ship, except those assumed by the purchaser with the consent of the holders.

"No application for forfeiture by the Minister has been made."

Mr Lutui also indicated there appeared to have been laxity in the operation of this ferry.

The standards of operation must be strictly adhered to and it is incumbent upon the owner of the vessel as well as the Master of the vessel, the accused, to enforce those standards set under the Shipping Act for public safety, said the judge.

Sentence

The accused has no previous convictions. He has worked in different shipping companies and ferryboats for many years and succeeded in gaining a Ticket of Master class 5 (five yearly renewable).

"There is no criticism in this case of his technical competence as a Maste to captain this vessel. Indeed, I take into account that he was thrust into the& role of Captain when the former Captain left the ship at Eua, and there was plainly pressure exerted upon him to get the ship, although seriously overloaded, back to Nuku'alofa."

“As I have said, in the verdict however, section 122( b) of the Shipping Act places responsibility on him to ensure that the vessel does not exceed 50 as provided for in the survey. He failed to do so.

“This voyage was also at night, being late than intended. Mercifully, there was no tragedy here because,if a life had been lost as could happen easily if he ferry rolled and a person with an insecure footing fell overboard, more serious charges could have been laid under the Criminal Offences Act involving possibly manslaughter by negligence,” said the judge.

The Shipping Act, section 122(2) provides penalties for proceeding to sea improperly, which includes carrying passengers in excess of survey. In the case of an owner, to a fine not exceeding $50,000 or to a term of imprisonment not exceeding five-years or both;

In the case of a master is a fine not exceeding $30,000 or to a terms of imprisonment not exceeding three-years or both. In either case the ship is subject to forfeiture to the Crown.

"In my view, the fact that no harm came to anyone on this voyage means that an adequate starting point is two-years imprisonment. I consider that this should be mitigated by six-months to take into account his long and incident free marine history, his good character with no previous convictions."

The judge then fully suspended his sentence and order that the accused undertake 50 hours community work under the direction of a probation officer.

No fine was imposed.

Taking into account that Tonga, as have many other countries, has experienced tragedy with unsafe vessels or practices, and also taking into account that the ferry is the island's principal means of transport to and from ‘Eua, it is incumbent upon the 'Eua Sea Transportation Council Cooperative Society Limited, as the owner, to take a much more robust role in the operation and management of their vessels ;to ensure public safety, said the judge.