The Owners of the Ship "Kapitan Shvetsov" v. The Owners and/or Demise Charterers of the Ship "Nanta Bhum"

IN THE COURT OF APPEAL

1996, No. 212
(Civil)

______________

______________

Coram: Hon Litton V-P, Liu JA and Cheung J in Court

Date of hearing: 11 March 1997

Date of judgment: 11 March 1997

______________

J U D G M E N T

______________

Litton V-P:

1. This is the decision of Cheung J and I.

2. We have before us a notice of motion lodged by the defendants, the owners of the ship "Nanta Bhum", for leave to appeal to the Privy Council against the judgment of this Court given on 21 February 1997. The motion is taken out under rule 2(b) of the 1909 Rules governing appeals to Her Majesty-in-Council.

3. In the notice of motion three "questions of law" have been formulated but we need not refer to those because they have been somewhat altered and refined in Mr Clifford Smith's skeleton argument: In the process of refinement they have somewhat changed shape.

4. The judgment we gave on 21 February turned essentially on two points: (1) The weight to be given to the undoubted right of the Russian owners to have their claim for damages adjudicated in Hong Kong: That is, to what extent that right might be displaced by the fact that parallel proceedings were on foot in Singapore; and (2) the difference between the limitations imposed by the 1957 and 1976 Conventions regarding the quantum of damages.

5. Our judgments applied well-known propositions of law and where the minority differed it was not on a question of law. We cannot see any questions of law of great general or public importance which ought to be referred to their Lordships.

6. As to the application of the words "or otherwise" in Rule 2(b), the argument is this: The circumstances of this case are unusual and the final resolution of the issues would help the maritime community, and the solicitors advising them, regarding similar situations when the parties do not wish to litigate in "the natural forum".

7. It is not easy for us sitting here to judge the impact of this case on development of the law generally. If it were thought that this case might be a useful platform for further refinement of the law on the subject, this can be better judged by their Lordships than by us. And for this purpose the defendants have the ability to apply for special leave. In these circumstances our decision is that the application must be refused.

Liu JA:

8. I am unable to agree.

9. Three questions are posed for our consideration in this application. Question (a) was, as I understand it, conceded by both parties in the course of the appeal to be a question never decided before and one of great general and public importance. Question (b) is a subsidiary question inevitably or closely linked to question (a). I shared then and still uphold now what I perceived to be counsel's joint view. I have to say that that joint view was clearly what I bore in mind when I attempted the resolution of the issues in the appeal. When one reads the judgments of the Court of Appeal, one would find in the backbone of those decisions the very essence of the same questions as distilled by Mr. Smith. For these questions, this case is unique.

10. At least in its broader spectrum, that is to say whether Hong Kong's adoption of a Convention later in time would per se constitute a juridical advantage for considering an application for a stay, question (c) should likewise be allowed to be further ventilated under r.2(b). Moreover, questions (a) and (b) form an introductory part to question (c) which would not arise if questions (a) and (b) should be decided in favour of the applicants/defendants.

11. For these obvious reasons, leave should be granted. I would also grant a stay.

Representation:

Michael Thomas QC (M/S Holman, Fenwick & Willan) for the Appellants

Mr Clifford Smith (M/S Ince & Co.) for the Respondents