The Owners and/or Those Entitled To Sue in Respect of a Cargo Lately Laden on Board the Ship or Vessel “Kappa Sea” v. The Owners and/or Demise Charterers of the Ship or Vessel “Kappa Sea”

CAMP 38/2017

[2018] HKCA 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 38 OF 2017

(ON AN INTENDED APPEAL FROM HCAJ NO 101 OF 2015)

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REASONS FOR JUDGMENT AND
DECISION ON COSTS

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Hon Lam VP (giving the Reasons for Judgment and Decision on Costs of the Court):

1.At the hearing of 15 December 2017, we dismissed the summons of the Plaintiffs of 10 October 2017. Here are our brief reasons for refusing leave to appeal.

2.The decision of Ng J is an exercise of discretion involving evaluation of various factors and the circumstances of the case.  This Court will be slow to interfere with a decision of that nature, see SPH v SA [2014] 3 HKLRD 497 at [65].

3.Notwithstanding the submissions of Mr Sussex SC, we are of the view that the judge was plainly right in holding that Hong Kong is not the natural or appropriate forum and the Yangon Court is clearly and distinctly the more appropriate forum in respect of this dispute.  In this connection, on the facts of this case we agree with Mr Alder that the points involving English law are not of great moment.  

4.In respect of the time-bar, we agree with the judge that this is a case where the observation of Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 at 483-484 is germane, in particular:

“ … suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction …”

5.We do not accept Mr Sussex’s submission that the Plaintiffs had not acted unreasonably in failing to issue a protective writ in Myanmar.  We see no justification for this Court to disturb the judge’s conclusion in this regard at [57] to [60] of the judgment of 25 August 2017. The discharge port was Yangon, the Plaintiffs should have considered proceedings in the Yangon Court.  The evidence of Mr Hung also indicated that this was an option considered by the solicitors for the Plaintiffs.

6.In short we are not satisfied that the judge’s evaluation of the facts and circumstances pertaining to the unreasonableness in the Plaintiffs’ not issuing a protective writ was so wrong and aberrant that this Court can interfere.

7.Nor can we say that the judge’s declining to impose a condition for stay that the Defendant should waive the time bar is outside the range of reasonable exercise of the discretion on the facts of the present case.

8.We also order the Plaintiffs to pay the Defendant’s costs of this application.  Having considered the statement of costs and the objections of the Plaintiffs’ solicitors on the same, we fix the costs at $92,300. 

Mr Charles Sussex SC, instructed by Reynolds Porter Chamberlain, for the plaintiffs

Mr Edward Alder, instructed by Tsui & Co, for the defendant