Smith's Ferry Services Ltd v BVI Ports Authority

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles
• Judgment Date: 17 August 2007
• Court: High Court (British Virgin Islands)
• Date: 17 August 2007
• Docket Number: Claim No. BVIHCV2000/0071

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Before: Her ladyship Justice Indra Hariprashad-Charles

Claim No. BVIHCV2000/0071

BETWEEN

Smith's Ferry Services Limited

Claimant

and

BVI Ports Authority

Defendant

Appearances:

Dr Joseph S. Archibald QC and Ms Anthea Smith [of J.S. Archibald & Co.] for the Claimant

Mr Paul Webster QC and Ms Willa Liburd [of O'Neal Webster] for the Defendant

Cases referred to and considered in the judgment

1. Grant v Motilal Moonan Ltd. and another (1988) 43 WIR 372.

2. Ratcliffe v Evans, (1892) 2 Q.B. 532.

3. Gunness v Lalbeharry (unreported from the Court of Appeal of Trinidad and Tobago).

4. Bonham-Carter v Hyde Park Hotel Ltd, (1948) 64 TLR 177

CATCHWORDS

Claim for damages for overpayment of harbour dues to BVI Ports Authority — Proof of Special Damages — must be pleaded and particularised and strictly proved — case of Grant v Motilal Moonan Ltd and Another (1988) 43 WIR 372 relied upon — Section 5 of Harbour and Wharves Act, 1955 — Section 4 and Fourth Schedule of Port Dues and Charges Act, 1972 — Section 87 of the Ports and Marine Services Act, 1985 — Section 100 of the Ports and Marine Services Regulation — Sections 3, 15 (3), 19 (1), 116 and 90 of the BVI Ports Authority Act, 1990

HEADNOTE:

The claimant carries on a ferry service business operating within the British Virgin Islands (the ‘BVI’) and the United States Virgin Islands (the ‘USVI’). The defendant is a statutory corporation of the Government of the BVI established under the BVI Ports Authority Act, which came into effect on 27 November 1990.

The claimant claims that the defendant collected port charges and harbour dues from 1 July 1987 to February 1999 from it for the use of port facilities in the BVI but should have only collected port charges because the law dealing with harbour dues was repealed in 1985. In its defence, the defendant denied that it collected port charges and harbour dues from the claimant. It alleged that if it did collect the port charges and harbour dues as alleged, the amount collected from the claimant is far less than the amount which the defendant was by law empowered to collect from the claimant for the use of the defendant's port facilities and the difference is due and owing to it by the claimant. The defendant does not admit that the claimant made any overpayment of monies to it and does not admit the monies claimed in the statement of claim.

The defendant counterclaimed the sum of $7,750.00 for rent owed to it by the claimant for occupation of the defendant's ticket office at the West End Ferry Terminal for the period 1 June 1994 to 31 December 2000. The defendant alleged that the rental of the office was $150.00 per month and was increased since January 1991 to $250.00 per month but the claimant has unilaterally refused to pay the said rent. In addition, the defendant claims the sum $164,881.01 for berthage fees which the claimant has failed, neglected or refused to pay for the use of its facilities at West End and Road Town, Tortola for the period January 1997 to June 1999. The claimant denied that the rental of the ticket office is $250.00 per month and stated that it has been paying $150.00 per month to which the defendant issued receipts. The claimant also stated that no notice as mandated by law has been sent to it and the claim for berthage is therefore unsustainable.

HELD:

• 1. The defendant was created on 27 November 1990 pursuant to section 3 of the BVI Ports Authority Act, 1990. Section 99(1) of the said Act expressly exempts the defendant from any liability incurred prior to that date. As a consequence, the defendant is plainly not liable for any sums claimed prior to its establishment.

• 2. During the period 27 November 1990 to January 1997 there was no legislation authorizing the collection of harbour dues. The only applicable charges were port dues pursuant to the Ports and Marine Services Regulations, 1997 which were prescribed at $10.00 and $20.00 depending on the size of the vessel.

• 3. The claimant was paying $2.00 and $5.00 as harbour dues during this period. It also paid port dues for the period 1996 to 1997 with the exception of 6 months. Though the claimant paid port dues and harbour dues for the most part of 2006, it still has underpaid not overpaid during the periods November 1990 to 1 January 1997.

• 4. During the period 1997 to 1998, the defendant was not collecting the harbour dues under the BVI Ports Authority Regulations because of directions given to it by the Minister. It also could not legally collect any other fees or charges under the earlier legislations as they were effectively repealed. Any payment that the claimant can prove that it paid during this period should be refunded. It is not precluded from doing so as it had given notice to the defendant that there was an overcharge.

• 5. In civil litigation, the maxim ‘he who asserts must prove’ has not been relaxed. The claimant must prove its case on a balance of probabilities. To state that the claimant has overpaid and compile its own records is not what is required particularly when the proof is available. The circumstances of this case would suggest that more certainty and particularity should be insisted upon. Special damage, if sought, must be pleaded and particularized and it must be ‘strictly’ proved.

• 6. From the documents provided by the Customs Department to the defendant (though some of the documents are missing), the defendant has accepted and/ or is not challenging that the claimant made some payments during the period in question. In that event, those unchallenged invoices will be accepted as proved. This is in the amount of $14,414.50.

• 7. There exists a lease agreement between the defendant and the claimant for $150.00 monthly. There was no agreement for the payment of $250.00 monthly as was conceded by the defendant. The counterclaim for rent fails.

• 8. By virtue of Section 90 of the BVI Ports Authority Act, the defendant cannot collect an undercharge since it did not, within six months after the date when the services were rendered (January 1997 to February 1998) or when the mistake was discovered, (the date of the defence and counterclaim) send a written notice to the claimant.

• 9. The defendant did not only plead the underpayment as a defence but is claiming the underpayment by way of its counterclaim and therefore section 90 is applicable. Accordingly, the counterclaim for berthage fails.

Introduction

HARIPRASHAD-CHARLES J

1 On 5 December 2000, Smith's Ferry Services Limited (‘the claimant’) instituted these proceedings against BVI Ports Authority (‘the defendant’) seeking overpayment of port dues in the sum of US$91,818.00. The claim is defended and the Defendant has counterclaimed for the sums of $7,750.00 for unpaid rental as well as $164,881.01 for unpaid berthage fees. The matter took over 6 years to be heard essentially because there were talks aimed at an amiable settlement of the dispute which sadly, failed. This is unfortunate as the facts and issues surrounding this matter are not convoluted. Be that as it may, the matter was trenchantly argued by both parties when I heard it exactly 3 months ago. The delay in handing down a more expeditious judgment is much regretted.

The factual matrix

2 The claimant carries on a ferry service business operating within the British Virgin Islands (the ‘BVI’) and the United States Virgin Islands (the ‘USVI’). It is not disputed that the claimant operated the following vessels during the periods in question namely:

Name of vessel	Tonnage
• Marie Elise	22.38
• Daphne Elise	71.29
• Bomba Charger	71.29
• May Flower	88.00

3 The defendant is a statutory corporation of the Government of the BVI established under the BVI Ports Authority Act, 1990, Cap 1990 (‘the 1990 Act’) which came into effect on 27 November 1990. Prior to the establishment of the defendant corporation, ports and marine services in the BVI were carried on and regulated by the Ports & Marine Services Department of the Government.

4 The purposes of the defendant are, among other things, to provide and maintain all port and harbour services and facilities in the BVI and to collect the dues and charges authorized by the 1990 Act.

5 The thrust of the claimant's claim is that the defendant collected port charges and harbour dues from 1 July 1987 to February 1999 from the claimant for the use of port facilities in the BVI but should have only collected port charges because the law dealing with harbour dues was repealed in 19851.

6 On 2 February 2001, the defendant filed a defence and counterclaim. In its defence, the defendant denied that it collected port charges and harbour dues from the claimant. It alleged that if it did collect the port charges and harbour dues as alleged, the amount collected from the claimant is far less than the amount which the defendant was by law empowered to collect from the claimant for the use of the defendant's port facilities and the difference is due and owing to it by the claimant. The defendant does not admit that the

claimant made any overpayment of monies to it and does not admit the monies claimed in the statement of claim.

7 In its counterclaim, the defendant claimed the sum of $7,750.00 for rent owed to it by the claimant for occupation of the defendant's ticket office at the West End Ferry Terminal for the period 1 June 1994 to 31 December 2000. The defendant alleged that the rental of the office was $150.00 per month and was increased since January 1991 to $250.00 per month but the claimant has unilaterally refused to pay the said rent alleging that the office space was not worth the increased rental. In addition, the defendant claims the sum $164,881.01 for berthage fees which the claimant has failed, neglected or refused to pay for the use of its...