Court acquits captain for carrying excess passengers to escape life threat, citing port permit and Convention Article V(b).

[*22] 1984 Nov 19

(FR.NICOLAIDES, AG.S.D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Limassol Police.

v.

Hanna Geoffrey RHYS

Accused.

(Case No. 1O610/84).

The International Convention for the Safety of Life at Sea, 1960, ratified by Law 30/65 - Carrying 49 passengers on board a pleasure vessel without a certificate of passengers’ safety, contrary to the said Convention - Finding that accused carried a larger number of persons than otherwise permissible under the Convention, in order to avoid a threat to the security of their lives - Further finding that the Port Authorities of the port of embarkation, namely Saida, Lebanon granted a clearance, meaning that the ship left with their permission and approval - Article V(a) of the Convention - Question whether passengers paid a fare or not irrelevant - Difference between English and Greek texts - Greek text prevails - The permission under the said Article may be granted by any contracting Government — Article IV(b) of the Convention - “Force Majeure” - Meaning of - Article V(b) of the Convention - It means that a contracting state has the right to refuse a permit to such a ship to sail from its ports with passangers in excess of the permitted number, but it does not mean that the State of the port of arrival may, notwithstanding the issue of such a permit by the State of the port of embarkation, prosecute for carrying passangers in excess of the number permitted - In the light of the said findings and of the provisions of the aforesaid Articles accused should be acquitted. [*23]

Chief Inspector Christoforou, for the Prosecution.

Chr. Pourgourides, for the Accused.

JUDGMENT

The following judgment was delivered by:-

Fr. NICOLALDES , Ag.

S. D. J. : In the present case the Accused is charged with carrying 49 passengers on board the pleasure vessel “SEA VICTORY” without the relevant certificate of passengers’ safety,

contrary to the “International Convention for the Safety of Life at Sea, 1960 which was ratified by the Republic of Cyprus by Law 30/65.

P.W.1 Georghios Christodoulides,

Marine Surveyor at the Department of Marchant Shipping, testified that on 24.4-.84 the vessel “SEA VICTORY” arrived at Limassol coming from Saida

Lebanon, carrying 49 passengers. The said vessel which is a pleasure yacht, and is not entitled to carry more than 12 passengers, did not have the necessary Passeners’ Ship Safety Certificate. The Accused was the captain of the said vessel. The witness said that, the Accused did not allege that he was carrying passengers whose life was in danger, but that his vessel was chartered to make return trips from Cyprus to Lebanon. The ship of the Accused flies the British Flag.

P.W.2, P.S.1507 Georghios Rayias, who is attached to the Marine Police at the Limassol New Port, said that the Accused produced a clearance from Saida. The witness explained that the said clearance was a permit to sail issued by the Port Authorities of Saida. In cross-[*24]examination he said that the clearance means that the ship sails with the approval of the port authorities. If the ship carries passengers in excess, the port authorities would not allow the ship to depart.

The accused testifying, said that many times in the past he carried passengers from Lebanon to Cyprus on board the “SEA VICTORY”. He further said that, on the day they sailed from Saida there were gunshots and firing ashore and the port of Saida was closed by the Israelites who occupied the area. The ship was anchored out, not in the port, and the Israelites opened the port in order to facilitate the departure of persons who wanted to leave. The port authorities gave the Accused permission to carry 49 passengers to Limassol as there was no other means of transportation for these people. The Accused admitted that the vessel does not carry the International Safety Certificate for Passengers and he said that he asked the Port Authorities of Saida for a permission which would entitle his ship to carry persons considered to be in distress. The permission was granted and the departure of the ship from Saida was perfectly legal and with the approval of the local authorities. At the time the “SEA VICTORY” was there, the only way out of Saida, was by small vessels, as the roads were closed by the hostilities present in Lebanon at the time. The Accused said that he would not have made the trip without the permission of the Saida Port Authorities. In cross-examination he admitted that the ship [*25] is classified as a “pleasure yacht”. The vessel is not specially constructed to carry passengers, although it has been used in Cyprus waters for one-day tourist trips.

Inspite the exhaustive cross-examination, the Prosecution failed to challenge the allegation of the Accused that the port authorities of Saida, issued to the Accused a permission to carry passengers in excess.

The International Convention for Safety of Life at Sea, 1960 which was ratified by Law 30/65, provides in Article v (a):

"Συμβαλλόμενον Κράτος

δύναται να επιτρέψη την μεταφοράν επί πλοίων αριθμού προσώπων μεγαλυτέρου του

υπό άλλας περιστάσεις επιτρεπομένου υπό της παρούσης Συμβάσεως, εφ' όσον

πρόκειται περί μεταφοράς προσώπων εκ περιοχής τινός, ένθα απαιτείται η προσωπική των ασφάλεια."

“For the purpose of moving persons from any “territory in order to avoid a threat to the security of their lives a Contracting Government may permit the carriage of a larger number of persons in ships than is otherwise permissible under the present Convention.”

Article v (b) provides:

"Η τοιαύτη άδεια

δεν στερεί άλλα Συμβαλλόμενα Κράτη του δικαιώματος να ασκήσουν έλεγχον, δυνάμει

της παρούσης Συμβάσεως επί των πλοίων τούτων, όταν ταύτα ευρίσκωνται εις τους

λιμένας των."[*26]

“Such permission shall not deprive other Contracting Governments of any right of control under the present Convention over such ships which come within their ports. “

It has not been challenged that the Saida Port Authorities permitted the carriage of a larger number of persons than the permissible under the Convention. It is judicially known that at present and for sometime now there are continuous hostilities in Lebanon and there is in evidence that at the time the ship was in Lebanon there were war activities and the only means of exit for a large number of persons was through the small port of Saida. It has been alleged by the Prosecution that the Accused was carrying passengers from Lebanon to Cyprus habitually and that the: authorities of Lebanon did not permit the Accused to carry passengers in excess. The Prosecution further suggested that the contracting Government, as referred to in Article V of the Convention, means the country of the flag of which the ship flies and, therefore, the authorities of Lebanon could not have issued a permit. Lastly, it was suggested that the Acco# was doing the trips for commercial purposes and, therefore, he was not entitled to the exception of Article v (a).

The Accused admitted that he made several trips carrying passengers to Cyprus. The Accused faces a charge for a specific voyage, and the circumstances of that specific voyage only are to be examined in order to see whether the [*27] Accused committed the offence he is charged with. Anyhow it is in evidence that on previous occasions the port authorities in Cyprus accepted the certificate which the Accused produced and never questioned the number of passengers his ship was carrying. This issue is connected with the allegation that the Accused was doing the trips on a commercial basis and for money. Although the Accused did not directly admitted that he was accepting money, he said that presumably a fare was paid by the passengers. With respect the question whether the passengers were paying a fare is irrelevant. Nowhere is the Convention is provided or even implied that the permit for the carriage of a large number of persons in distress should not be given if the ship accepts the payment of a fare.

I do not equally agree with the submission of the Prosecution that the permit to carry passengers in excess as provided by Article v(a) should be issued by the State whose flag the ship flies. A mere reading of the Greek text of the said Article shows that a Contracting Government may permit the carriage of a larger number of passengers on any ship.

It is true that the English text of the International Convention for Safety of Life at Sea, 1960, is different and provides that a Contracting Government may permit the carriage of a larger number of persons in its ships for the purpose of moving persons in order to avoid a threat to the security of their lives. (See [*28] Singh’s International Conventions of Merchant Shipping, 2nd Edn. P.134). But our law (Law 30 of 1965) is to be applied by the Courts of the Republic. Therefore as our law stands any Government may give permission to any ship to carry passengers in excess if their security is endangered.

Furthermore Article IV(b) of the Convention provides that persons on board a ship by reason of force majeure or in consequence of the obligation laid upon the master to carry shipwrecked or other persons shall not be taken into account for the purpose of ascertaining the application to any ship of any provisions of the Convention. Although it has not been suggested that this is a case of force majeure. I find it useful to refer briefly to the legal position on the matter.

The meaning of “force majeure” has been considered in a number of cases but it is not a term of art in English Law. (Per Lord Goddard C.J. Re Podar and Tagher (1949) 2 K.B. 277 at 286).

In Zinc Corporation v. Hirsch (1916) 1 -#.B. 541 Swinerr Eady L.J. pointed out that the term as used on the Continent includes war. In Lebeaupin v. Crispin (1920) 2 K.B.714, McCardie

J. said that any direct legislative or administrative interference would come within the term, e.g. an embargo; he further thought that an abnormal tempest or storm might well fall within the term; but that in each case the “force majeure” clause must be construed with a [*29] close attention to the context and with a due regard to the nature and general terms of the contract ln Cowden v. Corn Products Co (1920) 2 L.J.L.R. 344, “force majeure” was held to include an embargo causing congestion in railways which prevented starch sold under the contract from being shipped. In Hackney Borough Council v. Doro

(1922) 1 K.B. 431, the Court said that the term “force majeure” meant in that case some physical or material restrain and did not include a reasonable fear or apprehension of such a restrain.

It is in evidence that on that particular day there were hostilities in Saida, and that the port authorities permitted the Accused to enter with his ship the port in order to carry a number of persons away from. Saida. There is no evidence to the contrary, i.e. that there were no hostilities at that time and that there was no threat to the security of the lives of the passengers. Therefore, I find that the Accused carried on his vessel “SEA VICTORY” a larger number of persons than otherwise permissible under the Convention, in order to avoid a threat to the security of their lives. The port authorities in Saida issued a clearance and, as even P.W.2 admitted, such clearance means that the ship left with the permission and

approval of the local port authorities. It has also been suggested that such a permission pursuant to Article V (b) of the Convention does

not deprive other Contracting Governments of any right of control under the present [*30] Convention for ships which come within their ports and therefore, even if the Accused did in fact carry persons in distress or even if he had the relevant clearance from the local port authorities, the Republic of Cyprus had the right to prosecute the Accused for violation on the Convention. With all due respect, I find such an allegation unfounded. What Article V (b) provides, is that any Contracting Government has the right of control in the sense that it may refure permit to such ship to sail from its port carrying passengers in excess of the number she is entitled to carry. If Article V(b) would mean that inspite the fact that a permit for the carriage of a larger number of persons whose life was threatened may be issued by the authorities of the port of embarkation and later at the port of arrival the captain would be prosecuted for carrying passangers in excess, this would lead to an absurdity as no ship would carry persons in distress or persons whose life is in danger knowing that although a permit legally issued from the local port authorities, will not protect him from prosecution at the port of arrival. If this was the case, there would have been no need for the existence of Article V (a).

In view of all the above, I find that the Accused carried a larger number of passengers legally and with the permit of the authorities of the port of embarkation and, therefore, he is not guilty of an offence. As a result, the Accused is acquitted and discharged.

Accused acquitted and discharged.