THE Captain of the MV Princess Ashika Viliami Makahokovalu Tuputupu sailed with a Provisional Certificate of Survey issued by the Government of Tonga's Department of Marine declaring the vessel seaworthy to sail in Tonga, defence counsel Sifa Tu'utafaiva submitted today.

Sifa who represents the captain of the ferry that sank on August 5, 2009, told the Supreme Court in Nuku'alofa during his final argument on March 22, that in addition to the Provisional Certificate of Survey issued, the vessel was never stopped from sailing by either the former Minister of Transport Paul Karalus or the Marine Department.

He told jurors that the captain is charged with six counts, one for manslaughter by negligence in relation to the death of Vaefetu'u Mahe and five other counts of taking an unseaworthy ship to sea.

Manslaughter

The counsel said the basis of the manslaughter by negligence allegation was that the captain committed an unlawful act when he took an unseaworthy to sea resulting in the death of Vaefetu'u Mahe.

He said that the Crown Prosecution must prove beyond reasonable doubt that the Ashika was unseaworthy to sail.

"We are disputing this as well as the element in which my client is alleged to have been grossly negligent in taking an unseaworthy ship to sea, knowing it was unseaworthy," he said.

Sifa said the crown must also prove his client was grossly negligent causing the death of Vaefetu'u.

"We do not dispute that Vaefetu'u died from drowning but we dispute the allegation that her death was caused by my client's being grossly negligent," he said.

He advised jurors if they are not satisfied with one or all of the elements they are required by law to acquit his client of the manslaughter charge.

Charges

Sifa said the essence of all six charges was the allegation that the vessel was unseaworthy and that the captain knew it was unseaworthy.

"I submit this vessel had a valid provisional certificate of survey so it sailed in Tonga," he said.

He said the Crown called in its evidence marine experts, surveyors, crewmembers and provided pictures in its effort to prove the vessel was unseaworthy.

In addition there was also a list of deficiencies provided by the government surveyors, a report by marine expert Mosese Fakatou and photos of welding jobs done on the vessel, he said.

He told to the jurors it is the duty of the owner to ensure the vessel is seaworthy. And the owner of the Ashika according to its registration is the Government of Tonga and the Shipping Corporation of Polynesia Ltd. was its agent.

Experts

He argued the Government of Tonga nominated its own expert surveyors to survey the vessel to determine its seaworthiness and they in return listed a list of deficiencies to the Acting Director of Marine, defendant Viliami Tu'ipulotu.

He said a Provisional Certificate of Survey was then issued stating the vessel was considered seaworthy. "And this is what we are faced against," he said.

Sifa submitted to the jurors that the provisional certificate of survey was never cancelled and the Department of Marine and the Minister of Transport had never stopped the vessel from sailing since its first voyage on July 3, 2009 to its fifth and last on August 5, 2009.

He pointed to the evidence by Vaka'utapola Vi and a report by Mosese Fakatou who surveyed the vessel for an insurance company in which they both pointed that the vessel was unseaworthy.

"My submission is the Crown had not proven that this report was given to the captain," he said.

He added although the captain in his answer to a question by Sgt 'Atevalu during his interview by the police said it was of his opinion that the vessel was unseaworthy it was based on two things.

"The captain thought that the hull was too low and there was nothing to protect the open area on the ramp."

Deficiency

Sifa then drew the jurors attention to the list of deficiencies issued by the surveyors and pointed out there was no mention of the hull being too low and the open area to be closed, as part of the deficiencies.

"When Viliami Tu'ipulotu made his handwritten points on the document and said to repair the deficiencies it did not include repairing the hull because it was too low," said Sifa.

He said the Crown had also not proven whether the list of deficiencies was handed to the captain because there was no evidence.

The captain said in his police interview that he relied on the Provisional Certificate of Survey that deemed the vessel was seaworthy to sail in Tonga, he added.

"Despite my client telling the police of his opinion that the vessel was unseaworthy, the certificate issued by the Marine and Ports contradicted this by stating the vessel as seaworthy."

He stressed the captain relied on the provisional certificate and therefore he sailed the Ashika.

Sifa also agreed with defence counsel Laki Niu's initial argument that the provisional certificate of survey was issued since July 3, 2009 and it was only questioned when the vessel sank.

"These are reasons why we submit the Crown had not proven the vessel was unseaworthy," said Sifa.

Welders

Regarding the manslaughter count that the captain was grossly negligent when he took vessel to sea knowing it was unseaworthy, "what is important here is the Provisional Certificate of Survey and the fact that it is still valid. All problems on the vessel were reported to the workshop manager Sateki Tupou and welders gave evidence that repair works of welding done on the vessel," he said.

"I submit the Crown has not proven that my client was grossly negligent when he sailed the Ashika on August 5, 2009."

In regards to the charge that the captain was grossly negligent resulting in the death of Vaefetu'u, counsel said, "We do not dispute she died from drowning but we dispute that her death was caused because my client was grossly negligent, he said.

"Remember the captain was sleeping as he was resting from his previous shift in preparation for his next shift and he was only woken up a few moments before the vessel sank and at that time he could not save Vaefetu'u," said Sifa.

"I submit Vaefetu'u's drowning was caused by those who were awake who did not perform their duties. Vaefetu'u's drowning was caused by the shortfall by others not my client."

Took vessel to sea

In regards to the five counts of taking an unseaworthy ship to sea there are two main elements the crown must prove. "Firstly that my client knew the vessel was unseaworthy. We dispute this," said Sifa.

He said the second element was that in his capacity as captain he took the vessel to sea. "We do not dispute that my client took the vessel to sea on August 5, 2009," said Sifa

He told jurors that the Crown might stress the last question given by his client in his record of interview to the police when he was asked whether he knew the vessel was unseaworthy. And he answered "yes".

Sifa drew the jurors recollection to the evidence by Sgt 'Atevalu when he asked him that his client's "yes" answer was based on his belief that the hull was too low and area above was open, and the Sergeant agreed.

"I submit although my client chose not to give evidence in court it was clear from the evidence that it was not his fault in taking the Ashika to sea because it was the SCP and the Government of Tonga who wanted the vessel to sail and transport people to the outer islands."

"And secondly the provisional certificate of survey declared it seaworthy and I submit it was therefore reasonable under this circumstance to take the vessel to sea," said Sifa.