MAERSK (GH) LTD vs. HONESTY FISHERIES LTD [1999-2000] 1 GLR 627

CASES REFERRED TO

(1) Braun v Mallet [1975] 1 GLR 81.

(2) Kome v Yemoh [1961] 1 GLR 192, SC.

(3) Addy v Irani [1991] 2 GLR 31.

(4) St John Shipping Corporation v Rank (Joseph) [1957] 1 QB 267; [1956] 3 WRL 870; [1956] 3 All ER 683.

NATURE OF PROCEEDINGS

APPEAL by the defendants, owners of a ship, MV Maersk, against the judgment of the High Court, Tema in an action brought against them for, inter alia, damages by the defendants, owners of a fishing vessel, TF 430 Honesty, for the loss of their fishing net which was destroyed by MV Maersk when they were on a fishing expedition. The facts are sufficiently stated in the judgment of Essilfie-Bondzie JA.

COUNSEL

Hayibor for the defendant/appellants.

N. Kuenyehia for the plaintiff/respondents.

JUDGMENT OF ESSILFIE-BONDZIE J.A.

By its writ of summons filed on 22 December 1995, the plaintiff-respondents (hereinafter referred to as the plaintiffs) initiated an action against the defendant-appellants (hereinafter referred to as the defendants) for two reliefs namely:

“(1) An order to enforce the arbitration award dated 21 November 1995 made by the Greater Accra Region Fisheries Department against the defendants which the defendants have failed and or refused to comply with.

(2) General and special damages for the injuries, loss and damage suffered by the plaintiffs as a result of the negligence of the defendants’ MV Clara Maersk.”

Before I examine the facts, it will be well to relate them. On 6 September 1995, whilst the plaintiffs’ vessel TF 430 “Honesty” was on a fishing expedition and had cast its net, and was in the process of hauling it in, the defendants’ vessel Clara Maersk steamed to-

[p.629] of [1999-2000] 1 GLR 627 wards them and despite warning lights given out by the crew, the defendants’ vessel continued to proceed on its course and eventually steamed through the net and cut it into three parts. The captain of the vessel reported the matter to the managing director of the plaintiffs’ company, one Mensah Sosu and wrote a report dated 6 September 1995 to the Regional Fisheries Officer, Tema. The report was tendered in evidence and marked as exhibit A.

The defendants denied the plaintiffs’ claim in their entirety. Their main defences were:

(1) That what took place at the Fisheries Department cannot be described as an arbitration but an abortive attempt at a negotiated settlement.

(2) That without admitting any involvement in the incident, the act of the plaintiffs in engaging in fishing at a time when it was dark without placing lighted markings on the net allegedly damaged as required by law was in contravention of the relevant provisions of the laws governing fishing.

(3) They denied any involvement of the vessel Clara Maersk in the alleged incident.

In his judgment, the trial judge, dismissed the first relief of the plaintiffs’ claim which sought to enforce an arbitration award made in favour of the plaintiffs by the Fisheries Department on 1 November 1995. I have read the proceedings of the said Fisheries Department as contained in exhibit F, and entirely agree with the trial judge’s reasons for dismissing the plaintiffs’ first relief. I have nothing more to add to his conclusions.

In their second relief as stated above, the plaintiffs claimed “General and special damages for the loss and damage suffered by the plaintiffs as a result of the negligence of the defendants’ MV Clara Maersk.” (The emphasis is mine.)

In the judgment, the learned trial judge found the defendants negligent for the injuries, loss and damage suffered by the plaintiffs. He concluded his judgment as follows:

“In sum, the plaintiffs’ action succeeds and they are awarded:

(1) ¢20 million damages as cost of repairs to their damaged net.

[p.630] of [1999-2000] 1 GLR 627

(2) ¢25 million a month for loss of use for a period of 3 months, a total award of ¢95 million. The plaintiffs are awarded ¢750,000 costs.”

It is against this judgment that the instant appeal has been lodged on several grounds. I propose to deal with ground (a) which is the omnibus ground that the judgment is against the weight of the evidence adduced at the trial, as well as ground (c) which I consider very crucial for the determination of the appeal. Ground (c) of the grounds of appeal reads:

“The learned trial judge erred in law when he found that although the plaintiffs had breached the statutory requirement to place lighted markings on the nets, yet they had taken sufficient steps to draw the defendants’ attention to their presence thereby granting the plaintiff the right to benefit from its admitted breach of section 26 of the Fisheries Law, 1991 (PNDCL 256).”

It is to be recalled that after the learned trial judge had found as a fact that what transpired at the Fisheries Department as recorded in exhibit F did not amount to an arbitration, he dismissed the first relief of the plaintiffs’ claim which was for an order to enforce an arbitration.

Thereafter the only matter which the court was called upon to adjudicate was the plaintiffs’ claim as endorsed on the writ of summons, namely “General and special damages for the injuries, loss and damage suffered by the plaintiffs as a result of the negligence of the defendants’ MV Clara Maersk.” (The emphasis is mine.)

The issue therefore joined between the parties was whether or not the loss or damage suffered by the plaintiffs was caused as a result of the negligence of the defendants. In support of their claim, the plaintiffs called one Mensa Sosu, a representative of the plaintiffs’ company, who as said, is the managing director. He was not present when the incident happened. The captain informed him about the alleged damage to the net. Mr Ernest Kodjo Normegbor, the first witness for the plaintiffs who described himself as the captain of the plaintiffs’ vessel TF 430 Honesty, however, testified that on 6 September 1994 he went to sea at 2.00 am. At about 4.00

[p.631] of [1999-2000] 1 GLR 627 am they saw some fish and therefore cast their net. They put on all the lights on the vessel to warn other vessels that they had cast their net in the area. They waited up to ten minutes past 5.00 am and then started to draw out the net. At a point they sighted a light advancing towards them. They flashed their torchlights but the alleged vessel continued to advance until it passed over their net which they had cast. The vessel tore their fishing net into three parts.

The captain said that he readily prepared a report the same day at sea and sent it to the Regional Fisheries Office with a copy to the managing director of the plaintiffs’ company to formally inform them of the incident. The report was tendered in evidence and marked as exhibit A. Exhibit A which is under the letter head of the company reads:

“6 September 1995 The Regional Fisheries officer Fisheries Department P O Box 160 Tema.

Dear Sir, ACCIDENT AT SEA INVOLVING VESSELS NO TF 450 HONESTY & MAERSK LINE We went to fishing at about 2.30 am this morning at Kpone waters and casted our net at the depth of 24 fathoms at 4.40 am. While hauling the net at about five ten (5.10 am) we saw a vessel steaming towards our direction. With all attempts to let the vessel divert its course, the vessel sped through the net and cut it into three parts.

Sir, because the vicinity was clear, we identified the vessel with a nickname “MAERSK LINE.” Under cross-examination the first witness for the plaintiff deposed as follows:

Q You wrote exhibit A the same day the alleged accident occurred?

A Yes.

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Q How long after your return did you write it?

A I wrote the letter on the high sea before we returned.”

As already mentioned, the defendants denied the plaintiffs’ claim. It was their case that their vessel was not involved in any accident. They further contended that the accident was caused as a result of the plaintiffs’ failure to place lighted markings on their nets when fishing in the night. They claimed that the act of the plaintiffs in engaging in fishing at a time when it was dark without placing lighted markings on the submerged net as required by the law governing fishing, was the cause of the accident. Unquestionably, the evidence of the first witness for the plaintiff and the contents of his report—exhibit A—established that the plaintiffs’ vessel was fishing in darkness. They went to fishing at 2.30 am and cast out their net at the depth of 24 fathoms at 4.40 am.

In support of their claim they also called as a witness one Thomas Matthias Appiah, a marine surveyor, as the third witness for the plaintiffs. Although he was initially commissioned by the defendants to survey the damaged net, it was the plaintiffs who subpoenaed the surveyor to give evidence on their behalf. As said, after the third witness for the plaintiffs’ survey, he made a report which was tendered in evidence and marked as exhibit L. The third witness for the plaintiff testified that he made the recommendation in exhibit L purely in the interest of safety of fishing and that it was made to point out the failure of fishermen to locate their nets with lights and their failure to use proper warning signals while fishing, to approaching vessels. His evidence was that during their investigation, they learnt that the accident happened in the early hours of the morning during a period of darkness.

Under cross-examination the third witness for the plaintiffs amplified his evidence as follows:

“Q Look at page 4 of exhibit I. There is a heading. ‘Recommendation’. Read that:

A [Witness reads passage in page of exhibit L beginning from line 17].

Q Why did you make this recommendation?

A In the interest of safety at sea, and the failure of local fishermen, to locate the portion of their fishing net with

[p.633] of [1999-2000] 1 GLR 627 light when fishing at night and use proper warning signals to warn oncoming vessels of their of [1999-2000] 1 GLR 627-636net. During our investigation, I learnt that the incident occurred in the period of darkness in the early morning where there was an element of darkness.

Q What is the local fisherman to do during the hours of darkness?

A They are required to exhibit light to locate the position of their vessel as well as their net to prevent oncoming vessels from running into them.

Q How wide is the net that you examined?

A It is stated in exhibit M—page 5, it is in excess of 420 fathoms.

Q What area could be possibly covered by a net of that size?

A It is a ring net that would cover a wide area, but I cannot give a precise figure.”

In his testimony, the captain of the plaintiffs’ vessel, the first witness for the plaintiff, said that although they showed some light indications on their vessel after they had cast their net, they failed to put lighted markings on its net. In other words, despite the fact that their net was 420 fathoms long when it is cast, there was no light indications to show the position of the net in the water.

Under cross-examination by counsel for the defendants, the first witness for the plaintiffs further gave the following evidence:

“Q So you agree that on the day of the incident you did not have any light marking on your net?

A No, we do not light the net; we only light the vessel.

Q If your net had been lighted, the accident would not have occurred.

A I do not agree with that.”

He continued his evidence under cross-examination as follows:

“Q The committee came to the conclusion that you caused the accident because: ‘There was no lighted marking on the net as required by the Fisheries Law.’

[p.634] of [1999-2000] 1 GLR 627 A The Fisheries Department has never insisted that we put lighted markings when we cast our net. We only have to hoist up the flag Q The reason you gave at the meeting for not having any lighted markings was that it would scare away the fish?

A I did not give any such reason.

Q I am putting it to you that this whole accident was caused by your singular negligence as captain of the vessel.

A That is not true.”

There is also on record, copious evidence to support a finding that the plaintiffs failed to place lighted markings on their net whilst fishing in a period of darkness. In his judgment, the learned trial judge stated: “Although it is true that the plaintiffs did not place markings on their nets, their failure is sufficiently explained . . .”

With great respect to the learned judge, I do not find any evidence on record which offered legal explanation for the plaintiffs’ failure to place lighted markings on their net. It cannot be accepted that doing what the plaintiffs preferred to do can be substituted for the clear provisions of section 26 of the Fisheries Law, (PNDCL 256). The captain of the vessel made it clear that they only put on the lights of the fishing vessel to warn oncoming vessels that they are fishing in the area. It must be pointed out that when a vessel puts on its lights, it merely shows its position on the high seas. The fact that lights are put on a vessel does not ipso facto indicate to other mariners that they were fishing and that by a mere look at the lights on the vessel one can know the whole area covered by a submerged net.

As I said, the captain of the plaintiffs’ vessel submitted that on the day of the accident he did not have any light markings on their net. He made this admission in the teeth of the evidence of the third witness for the plaintiff (his own witness) that local fishermen are required to exhibit lights to locate the position of their vessel as well as their net to prevent oncoming vessels from running into their nets. It is also on record that when this witness was cross-examined he was not shaken in his evidence.

Now the law governing fishing in Ghana is contained in PNDCL 256. Section 26 of PNDCL 256 reads:

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“26. Every submerged stationery fishing gear or surface drifting gear shall bear conspicuous markers using brightly coloured buoys, flags or floating poles and at night, markers all of which must at least be visible in clear weather at a distance of one nautical mile; except, that in the case of a net the markers shall be placed at intervals of 25 meters, along the full length of the net.”

(The emphasis is mine.)

It is quite clear, and there is no question of doubt, that the provision of section 26 of PNDCL 256 is mandatory and it does not make any distinction as to the kind of nets which are required to have lighted markings on them. I do not think any explanation of the plaintiffs’ failure to place lighted markings on their nets at the time in question can be held to have exonerated them from the breach of the unambiguous and explicit provisions of section 26 of the PNDCL 256.

It is noteworthy that section 27 of PNDCL 256 goes on to prescribe penalties for contravening section 26. In other words, section 27 of the PNDCL 256 makes contravention of section 26 of PNDCL 356 an offence. Section 27 of PNDCL 256 states:

“27. Any person who contravenes any of the provisions of this part shall incur a pecuniary penalty of not less than 4300,000.00 or the value of the catch, whichever is the greater, and addition to the catch, fishing gear or other apparatus or any combination of them may be forfeited or the fishing licence may be cancelled or suspended for such a period as the Director of Fisheries thinks fit.”

The third witness for the plaintiff said that: “During our investigation I learnt that the incident occurred in the period of darkness in an element of darkness.” Now, since that was the case, why did the plaintiffs fail to place lighted markers along the full length of their net so as to make the nets visible for oncoming vessels? I am satisfied that the plaintiffs contravened the provisions of PNDCL 256. Section 26 of PNDCL 256 obviously envisaged the situation in which the plaintiffs found themselves and that was why provisions were made to prevent an accident. In this case, the plaintiffs were saying to the court that notwithstanding the fact that they have

[p.636] of [1999-2000] 1 GLR 627 admitted breaching the provisions of section 26 of PNDCL 256, and must be sanctioned, the court should allow them to benefit from their wrong doing. I do not think the plaintiffs ought to have been allowed to benefit from their unlawful act.

The principle of law is that no one can found an action on an illegal act or that a party cannot benefit from his own wrongdoing. This principle has formed the basis of a number of decided cases such as Brain v Matlet [1975] 1 GLR 81; Kome v Yemoh [1961] 1 GLR 192 at 194, SC and Addy v Irani [1991] 2 GLR 31.

I hold that the learned trial judge erred when he found that although the plaintiffs had breached section 26 of PNDCL 256, their breach had been sufficiently explained. It is my judgment that the accident was caused as a result of the negligence of the plaintiffs. To accept any explanation offered by the plaintiffs, would amount to asking the court to condone and connive at an unlawful act. And as Devlin J (as he then was) put it in the case of St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267 at 288; “Persons who deliberately set out to break the law cannot expect to be aided in a court of justice.” It is my judgment that the plaintiffs failed to make a case for the grant of all the summons. And the learned trial judge ought to have dismissed their claim in its entirety.

I set aside the judgment of the lower court and allow the appeal.

JUDGMENT OF SAPONG JSC.

I agree.

JUDGMENT OF AFREH J A.

I also agree.

DECISION

Appeal allowed.

LSNA