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Final arguments heard in 2009 tragedy

NUKU΄ALOFA, Tonga (Matangi Tonga, March 21, 2011) - The Shipping Corporation of Polynesia Ltd (SCP) in its defense argued at the Nuku'alofa Supreme Court on March 21, that the company acted lawfully when sending the Motor Vessel (MV) Princess Ashika to sea, because they were issued valid Provisional Certificates of Survey and Registration.

The certificates allowing it to sail in Tonga were issued by the appropriate authority, the Department of Marine and Ports.

[PIR editor’s note: 74 people died when Ashika sank on August 5, 2009.]

Vuna Fa'otusia, counsel for the first defendant SCP, was the first of the six counsel to make his final argument this morning. He submitted that the company was not negligent since it authorized work done on the vessel to make sure the deficiencies were repaired according to the Provisional Certificate of Survey that allowed the vessel to sail.

SCP is charged with six counts, one is manslaughter by negligence in relation to death of a passenger Vaefetu'u Mahe and five counts of sending an unseaworthy ship to sea.

Vuna put to the jurors that the evidence in court showed the Ashika was issued with two main documents, a Provisional Certificate of Registration and a Provisional Certificate of Survey allowing the vessel to sail on Tongan waters.

Both were obtained in the appropriate manner and there was no evidence from the crown that it was not. "What is important in this issue is the fact that the Ashika sailed on all of its five voyages and it had the permission from the appropriate authority in Tonga to do so," said the counsel.

"SCP operated the Ashika and did so lawfully in all of its five voyages. What happened was the decision of the individual crewmembers on this fateful night on August 5, 2009 was not a decision of the company. Therefore it is not right for you the jury to hold SCP liable," he submitted.

He argued the company made no unlawful decision as to what happened because there were decisions made by individuals on that night and it was a mistake in judgment, unfortunately, the decision made resulted in the tragic sinking of the Ashika.

There charges include of manslaughter by negligence in which the company is alleged to have been grossly negligent in sending an unseaworthy to ship causing the death of Vaefetu'u.

A second charge is sending an unseaworthy ship to sea in which the Crown alleged that the company send the sea under the knowledge that it was unseaworthy, starting from its first voyage on July 3 to the last voyage on August 5, 2009.

"What is important in this issue is the fact that the Certificate of survey was issued by the appropriate authority the Marine and Ports, confirming the Ashika was seaworthy to sail," said Vuna.

He said there were quite a lot deficiencies in the vessel and a lot to be done but the Certificate of Survey clearly said as far as could be ascertained that if the deficiencies were fixed within the three months duration it was therefore considered seaworthy.

He then pointed out to Marine Engineer 'Onesi Tu'ifua's evidence who told the court a provisional certificate may be issued but the ship owner must fix the main deficiencies before a permanent certificate is issued.

"'Onesi also said if he was to strictly comply with the law no vessel in Tonga would operate and another marine expert Mosese Fakatou agreed with this," said Vuna.

He then said the truth is, the vessel was not required to comply 100 percent with the law but at least the owner must upgrade the ship to ensure they vessel is safe.

"And from the evidence in court, this is what happened with the Ashika when it was issued with a certificate to operate in Tonga and the company lawfully operated the vessel in all if its five voyages," he said.

He pointed to evidence by brothers Netaleni and Manase Katoa who both did welding jobs on the Ashika, and they worked on the vessel after all its five voyages, authorised by SCP.

The license was given in the understanding that SCP would rectify the deficiencies in three months and it did so with all the work done, said Vuna.

He then drew the jurors' attention to the provisional certificate that it was valid for six months, until October 2009.

"My point is in all five voyages of the Ashika it was well within the valid timeframe and the last voyage, which caused the death of Vaefetu'u, was also lawful," he said.

He added for the allegation of SCP being grossly negligent, "we have heard evidence that work was done on vessel. The welders' said that they worked on the vessel after each voyage.

"So the question is was SCP negligent in all its duties according to the Provisional Certificate of Survey? I remind you the work was done within the duration given by the certificate and the welders knew a lot of work was to be done and they were satisfied with the welding work they did.

"The company did its job each time the vessel came back and performed its duties by fixing the deficiencies," he said.

"From all evidence by passengers and crew on August 5 they had no idea it would sink, including Mosese Fakatou, who knew the vessel was heavily corroded when he surveyed it for insurance but he did not think it would sink."

The counsel put to the jurors that the company was not negligent but it assisted people in their inter island ferry needs and the vessel was issued with a Provisional Certificates to operate in Tonga which was still had 33 days valid from the day it sank on August 5.

"Tragedy happened even those who are confident that everything is done that is the way of life is and referred to Titanic that it was built by men ensuring it would sink but we all know what happened," he said.

He added what happened was a mistake in judgement and not of gross negligence as pursued by the Crown Prosecution.

"What happened on the Ashika on this fateful night on August 5 cannot be attributed to the company as it was a mistake of judgement by those who were directly involved in that night and those who authorised the vessel to leave. At the same time it was a mistake by those on watch on that night. It was a mistake in judgement but was not negligent," he said.

He then put to the jurors it would be unwise for them to hold SCP liable on all charges when the company obtained the proper certificates from the right authority and worked to have the deficiencies repaired.

He submitted to the jurors on that basis to find SCP not guilty as they were given the license by the Marine and Ports on the understanding the deficiencies would be repaired in three months and they would assess then whether a permanent certificate is to be issued or not.

He concluded that allegation in regards to manslaughter by negligence the SCP did not commit such a crime as the Crown had not proven beyond reasonable doubt that SCP committed such an offence.

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