DS Venture Ltd (DSV) was the owner of the Duzgit Venture. On 20 January 2019, as the vessel approached the Port of Nuku'alofa, its starboard anchor and chain were prematurely released from their housing. As the anchor and chain were winched back in, they caught and damaged a cable. The cable was one of two undersea communications cables owned by Tonga Cable Ltd (TCL) connecting Nuku'alofa, Ha'apai, and Vava'u with Fiji. As a result of damage to the cable, Tonga was without cable telecommunications for almost three weeks. TCL initially claimed damages from DSV for USD 1,237,890.06. On 20 December 2019, DSV commenced proceedings for a decree of limitation of its liability for the incident pursuant to s 2 of the Shipping (Limitation of Liability) Act 1980: see DS Venture Ltd v Tonga Cable Ltd [2020] TOSC 12 (CMI783). On 22 December 2020, the Court granted DSV’s application for limitation of liability: see DS Venture Ltd v Tonga Cable Ltd [2020] TOSC 119 (CMI1403). A limitation fund was established by a letter of undertaking (LOU) from DSV’s insurers for TOP 952,407.70 as calculated in accordance with the relevant international Convention, the LLMC 1957.

Ezinet Ltd (Ezinet) was a licensed internet service provider in Tonga pursuant to the Communications Act 2015. It provided services through the TCL cable and by a satellite connection owned by Kacific Broadband Satellite Ltd (Kacific). Ezinet filed a claim against the limitation fund for costs incurred in providing TCL, as well as Tonga Telecommunications Corp (TCC) and Digicel (Tonga) Ltd (Digicel) (Tonga’s other internet service providers) with satellite connectivity until the cable was repaired, totalling TOP 302,391.50. DSV argued that Ezinet's claim did not set out any cause of action in law. On the assumption that Ezinet's claim sounded in negligence, it was inadmissible, as it was for pure economic loss sustained as a result of damage to another's property.

Ezinet filed an amended claim pleading, among other things, that the bases for the existence of a posited duty of care were, principally, reasonable foreseeability and vulnerability; DSV’s negligence had caused a 'national crisis' which required Ezinet, as a licensed communication service provider, 'good corporate citizen' and 'key stakeholder' in the internet service provider market, to assist the Tongan Government and TCL to restore internet services in the interests of the Government and the people of Tonga; and Tongan cultural norms of co-operation and Christian values obligated Tongan people and businesses to provide assistance when there was a national crisis or emergency. DSV submitted that under the common law of England, there was a well-established exclusionary rule in the tort of negligence, that no duty of care was owed by a defendant who negligently damaged property belonging to a third party to a claimant who suffers loss because of a dependence upon that property or its owner; and that the policy factors which underpinned the exclusionary rule were equally applicable in the Kingdom of Tonga. In the alternative, even if the claim in negligence against DSV could be sustained as a matter of law, it faced significant causation and foreseeability issues.

Held: Judgment for DSV. Ezinet's claim is not admitted against the limitation fund.

Having reviewed the development of the exclusionary rule in English, Canadian, and New Zealand law, his Honour noted that in Tonga Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (The Mineral Transporter) [1986] AC 1 and the English exclusionary rule were referred to (somewhat tangentially, but with apparent approval) in Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [1998] Tonga LR 178. The issue has not been raised in any other published decisions in the Kingdom to date. The rule continues to be applied in some other Commonwealth jurisdictions in the Pacific region: in Papua New Guinea, see Mack Contractors Ltd v Wailo [2009] PGNC 279; in Fiji, Manubhai Industries Ltd v Lautoka Land Development (Fiji) Ltd [2002] FJCA 96. Slightly further afield, Singapore has departed from it: see Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] SGCA 37.

Ezinet does not assert any legal, beneficial, or possessory interest or right in TCL’s cable that might exempt it from the application of the rule. Instead, Ezinet seeks to circumvent the operation of the exclusionary rule by arguing, in essence, that s 4 of the Civil Law Act requires the exclusionary rule to be necessarily qualified by reason of Tongan custom or norms; or that there is a provision of an Act in force in the Kingdom which governs claims in negligence for economic loss and displaces or modifies the exclusionary rule; or that there are local circumstances which necessarily require qualification of the exclusionary rule.

The Tongan custom or norm asserted by Ezinet does not constitute local circumstances which necessitate qualification of the exclusionary rule. Accordingly, that argument fails. As to the other local factors advanced by Ezinet, namely, that Tonga is a very small island state, whose economy relies primarily on foreign aid and remittances and that the Government has 'enormous budgetary restraints' and is 'constantly lacking in resources', there was no admissible evidence adduced to prove those assertions. In this day and age, every developed or developing nation is dependent upon telecommunications and internet capability. If that factor alone warranted abandoning the exclusionary rule, one would expect England to have done so decades ago. Section 103 of the Communications Act, which provides that '[d]uring any period of national emergency, a licensee shall place its facilities that are used to provide content applications services, free of charge, at the service of Government, and shall also supply competent persons to operate such facilities and provide content applications services', also does not advance Ezinet's claim.

Pursuant to ss 3 and 4 of the Civil Law Act, the English common law exclusionary rule applies to this case. There are no other statutory provisions in force in the Kingdom, nor are there any local circumstances which require departure from, or qualification of, that rule. As such, Ezinet is precluded from recovering against DSV for losses claimed to have been suffered by reason of DSV's negligent damage of TCL's communications cable. Further, as the exclusionary rule does not permit of the existence of an actionable duty of reasonable care on the part of DSV not to have caused Ezinet economic loss, Ezinet's pleaded claim has no prospects of success.