The plaintiff applied for the release of the Win Far 636 which is presently berthed at Tarawa Port. The defendant opposed the application. The Win Far 636 sailed into Tarawa Port on 7 March 2020 on the direction of its owners, following the reported death of an I-Kiribati observer on board the vessel. Upon arrival, the body of the deceased was taken off the vessel and police began their investigation into the alleged murder of the I-Kiribati observer. The deceased was medically examined and the autopsy report made by the examining doctor shows that the cause of death was 'severe intra-cranial hemorrhage and traumatic brain injuries due to severe traumatic head injuries and blunt force head trauma'.

The Win Far 636 was never the subject of an arrest. However, it was detained, not for committing any fisheries offences under the Fisheries Law or breach of fisheries agreements or licence conditions, but for the purpose of investigation by the police into the death of the I-Kiribati observer on board the vessel. The police investigation into the death of the deceased is said to be 'still on-going'. There is no order sought and no order issued by the Court for the continued detention of the Win Far 636 since its arrival in Kiribati. The owner of the vessel instructed counsel to seek release of the vessel. Attempts were made to release the vessel but were not successful. The owner of the vessel sought to post security as a condition for the release of the vessel. That attempt had also been unsuccessful.

It is claimed by the plaintiff, and not disputed by the defendant, that the owner of the vessel was losing money due to the detention of the vessel in Kiribati. The plaintiff has taken out a claim against the defendant, claiming damages against the defendant arising out of the detention of the vessel in Kiribati.

Held: The plaintiff's application for release of the vessel is refused.

The present application is for an order to release the vessel. The onus is on the plaintiff to show that the vessel should be released. There is no question here that the vessel was never under arrest for any offence against the fisheries laws or for breach of any conditions of its licence. A ship can only be arrested for a maritime claim under the law (local legislation or any of the international Conventions to which Kiribati is a party). In the present case, no breach of a local legislation has been shown nor a breach of an International Convention to which Kiribati is a party.

As the Win Far 636 has not been under arrest under any order of the Court since it arrived in Kiribati on 7 March 2020, what is the legal position of its detention? The plaintiff's argument is that the continued detention of the vessel is unlawful. The defendant's case is that ss 45(2) and 61 of the Police Powers and Duties Act authorises the police to detain a vessel without warrant for as long as is reasonably necessary.

The only reason to detain the vessel is that it is 'a crime scene' where the alleged crime was committed. In this regard, although the vessel is not under arrest for breaking fisheries laws, the police can detain the vessel since an alleged criminal offence is said to have occurred on the vessel which is a crime scene and must be preserved as such. Thus, having determined under s 54(1) that the vessel is a 'crime scene' the police can detain the vessel under s 45(2) of the Police Powers and Duties Act without a warrant.

There is a catch, however, when exercising the police powers under the Act to detain the vessel pending investigation, in particular where such detention is without an order of the Court under s 45(2) of the Police Powers and Duties Act. The catch in s 61 of the Act is that the detention must not be any longer than is 'reasonably necessary' in view of the fact that the detention is done without an order of the Court.

In Kiribati, the law, such as s 61 of the Police Powers and Duties Act is subject to the Constitution which protects the rights of individuals. However, the law also recognises reasonable limits to individual liberty: see s 5 of the Constitution. Section 61 of the Police Powers and Duties Act is one such law which authorises reasonable limits on individual rights.

In the present case, the detention of the Win Far 636 without a warrant is within the reasonable necessity to enable the investigation into the death of the I-Kiribati observer on board that vessel to be carried out and completed. For the above reasons, it would not be proper to order the release of the vessel at this stage of the investigation.