The Owners of Cargo Lately Laden on Board the Ship "Artenis" v. Artemis Transportation Corporation

CACV000073/1982

Headnote

Practice - although the effect of O.3 r.3 (read with the definition of "pleading" in O.1 r.4) was that the days of a Court vacation did not prevent time running in respect of taking out a summons, where s.31(1) of the Supreme Court Ordinance was applicable the period of the vacation was to be excluded from the computation of the relevant time.

Civil Appeal No. 73 of 1982

BETWEEN

Civil Appeal No. 81 of 1982

BETWEEN

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Coram: Hon. Leonard, V.-P., Cons and Fuad, JJ.A.

Date: 4 November 1982

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JUDGMENT

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Fuad, J.A. :

The Background

1. We have two interlocutory appeals before us and they arose in relation to an Admiralty action which was commenced by a Writ issued on the 2nd December 1981. The Plaintiffs were described as "The Owners of Cargo lately laden on board the ship 'ARTEMIS' (the Cargo Owners) and they sued the Artemis Transportation Corporation as the 1st Defendant (Artemis Transportation) and Barber Ship Management Ltd. as the 2nd Defendant ("Barber Ship"). The endorsement on the writ was in these terms -

"The Plaintiffs' claim is for damages for breach of contract and/or duty in and about the loading, stowage, handling, custody, care and discharge of the Plaintiffs' cargo of timber and the carriage thereof upon the said ship ARTEMIS", owned and/or operated by the 1st Defendant and/or the 2nd Defendant, in the months of November and December 1980.

2. The affirmations show that Artemis Transportation is a company incorporated in Liberia. Barber Ship is a company incorporated in Hong Kong under the Companies Ordinance and is wholly controlled by a Swedish company. The registered owners of the vessel "ARTEMIS" were at all material times Artemis Transportation and the vessel sank off the coast of Japan at the end of December 1980. The Cargo Owners say that cargo belonging to them, to an insured value of US$2,358,198, was lost with the ship.

3. On the 9th December 1981 the Cargo Owners obtained leave from the Registrar to issue a concurrent Writ and to serve notice of it on Artemis Transportation Corporation, c/o International Trust Company of 80 Brand Street, Monrovia, Liberia by post or such other means at the Plaintiffs' disposal". The time within which the Acknowledgement of Service was to be filed was fixed at 22 days. On the 15th December 1981 an Acknowledgement of Service was filed on behalf of Artemis Transportation and Barber Ship, indicating that the proceedings would be contested.

4. On the 11th January 1982 Artemis Transportation and Barber Ship took out a summons which was in the following terms -

"(a) That the time for the making of the application for reliefs (b) and (c) below be extended by consent of the parties to 11th January 1982.

(b) An order in pursuance of Order 12 Rule 8 that

(i) the writ herein against the 1st Defendants and the service of the writ or notice of the writ herein on the 1st Defendants be set aside, on the ground that this Honourable Court has no jurisdiction to entertain the Plaintiffs' claim;

(ii) a declaration that the writ herein had not been properly served on the 1st Defendants;

(iii) the Order of Mr. Registrar Blackwell made herein on 9th December 1981 giving the Plaintiffs leave to issue a concurrent writ of summons and to serve notice of the writ on the 1st Defendants by post or other means at the Plaintiffs' disposal be set aside on the ground that:-

(1) the Plaintiffs' claim herein does not fall within the provisions of Order 11 Rule (1)(c) or (j) of the Rules of the Supreme Court;

(2) the Plaintiffs have no reasonable cause of action against the 1st Defendants;

(3) the Plaintiffs have failed to make out a proper case for leave for substituted service.

(c) A declaration that in the circumstances of the present case the Court has no jurisdiction over the 1st Defendants in respect of the subject matter of the Plaintiffs' claim or the relief sought by the Plaintiffs in the action.

(d) an Order that the claim against the 2nd Defendants herein be struck out in pursuance of Order 18 Rule 19 and/or in pursuance of the inherent jurisdiction of the Court in that:-

(i) the Plaintiffs has no reasonable cause of action against the 2nd Defendants, and/or

(ii) the Plaintiffs' claim against the 2nd Defendants is frivolous or vexatious and/or

(iii) the Plaintiffs' claim is otherwise an abuse of the process of the Court.

(e) Cost of this application to be borne by the Plaintiffs.

5. On the 27th May the Judge by whom the summons was heard made an Order dismissing paragraphs (a)(b) and (c) of the summons and stood over the hearing of the application for the relief set out in paragraph (d) of the summons. Artemis Transportation now appeal against that order ("the First Appeal").

6. On the 28th May the Judge made an Order in the following terms -

"IT IS ORDERED that the 1st Defendants [Artemis Transportation] be at liberty on at or after 16.35 hours, the 28th May, 1982 to withdraw the Acknowledgement of Service and time for entering a fresh Acknowledgment of Service and issue of a Summons under Order 12 r.8 and for service of defence to run from the 28th day of May, 1982.

The Cargo Owners appeal against this Order ("the Second Appeal").

7. On the 31st May the Defendants filed a fresh Acknowledgement of Service and, on the 8th June, renewed their O.12 r.8 summons.

The First Appeal (No. 81 of 1982)

8. The Judge gave the following as his reasons for dismissing paragraphs (a)(b) and (c) of the summons. He observed that O.12 r.8 was a slavish copy of the English Rules and noted that neither Artemis Transportation nor Barber Ship had taken out the summons within the 14 days limited by O.12 r 8(1). He drew attention to the fact that the Solicitors acting for the parties had agreed that the summons need not be issued until the 11th January 1982. He noted that the provisions of O.3 r.3 could not be prayed in aid (so that time would not run during the Christmas Vacation) in view of the fact that in O.1 r.4 the word "pleading" expressly excluded a "summons", and agreed with Mr. Edward Chan's concession made on behalf of the Defendants that the specific wording of O.12 r.8(2) [that "O.3, rule 5, shall apply in relation to the period of 14 days mentioned in paragraph (1) with the modification that the said period may be extended by the Court only on an application made before the expiration of the period"] excluded the operation of s.72 of the Interpretation and General Clauses Ordinance.

9. The Judge then went on to quote, and adopt, the strictures cast upon "the guillotine" in the equivalent English Order by Robert Goff J. in Carmel Exporters (Sales) Ltd. v. Sea-Land Services Inc. [1981] 1 W.L.R. 1068, at p. 1079, and discussed the attitude taken by Counsel during the hearing in the light of the previous agreement regarding the extension for the O.12 r.8 application reached by their instructing solicitors. He summarised the submission made by Counsel for the Cargo Owners thus -

"My Solicitors accept that they have waived whatever can be waived. However, their ability to waive the provisions of O.12 r.8(2) is a question of law, and as a matter of law, they cannot waive the point of time."

10. The Judge expressed the view that the Court had a discretion to extend time under O.3 r.5 but it was blocked by O.5 r.8(2) and nothing in O.2 could get round that unassailable point. He then went on to discuss the contentions put forward by the Defendants' Counsel, relying on the inherent jurisdiction of the Court, and reviewed the authorities cited to him. He felt, with reluctance, bound to reject these contentions for to accept the agreement between the Solicitors would be tantamount to conferring upon himself a jurisdiction which was expressly taken away from him by the legislature.

11. At the opening of this appeal, we invited Counsel to address us on a matter which was not considered by the Judge, for it was not drawn to his attention; nor did it feature in the Notice of Appeal. We referred to the Judge's comment that O.3 r.3 could not avail Artemis Transportation in view of the way that the word "pleading" was defined. We enquired whether s.31(1) of the supreme Court Ordinance Cap. 4, affected the position. That subsection is in the following terms -

"31(1) Where by any law regulating civil procedure, or by any special order of the Supreme Court, any period not exceeding one month is appointed or allowed for the doing of any act or in the taking of any proceeding, no days included in a vacation shall be reckoned in the computation of such time, unless the Court otherwise directs:

Provided that [ ... not applicable]".

12. We indicated our entirely tentative views as follows -

(a) the subsection was applicable, for O.12 r.8 required an application to be made within 14 days of giving notice of intention to defend the proceedings;

(b) if O.3 r.3 could be regarded as being in conflict with s.31(1) of the Supreme Court Ordinance (which we doubted), by the ordinary canons of interpretation, the latter prevailed - the Rules were made under the authority of the Ordinance;

(c) therefore, by virtue of s.31(1) the days of the Christmas vacation of 1981/82 had to be disregarded for the purposes of computing the time;

(d) by O.3 r.2(1) and (2), since the Acknowledgement of bervice had been filed on the 15th December 1981, time began to run on the 16th December;

(e) the relevant Christmas vacation, in accordance with O.3 r.2A (2), commenced on the 24th December and ended on the third weekday in January 1982;

(f) the third weekday in January was Monday the 4th January, and so the days from the 24th December 1981 to the 4th January 1982 (inclusive) had to be excluded - see also s.29(3) of the Ordinance;

(g) taking into account the period not to be reckoned, the summons should have been taken out on or before the 10th January 1982 - O.3 r.2 (3);

(h) but since that day was a Sunday, the time was extended to the next day by O.3 r.4;

(i) it therefore seemed, on the face of it, that the summons filed on the 11th January 1982 was in fact taken out in time.

13. Counsel asked for a short adjournment to consider the matter raised by the Court and, in the event, in view of the course then taken, it seems that Counsel agreed that this was the position. Mr. Chan then applied (and this application was not opposed by Mr. Dicks) for leave to amend his Notice of Appeal by adding a third paragraph to the following effect -

"(3) That the learned Judge erred in holding that the summons issued on the 11th January 1982 was outside the period of 14 days as required by O.12 r.8(1) in the light of s.31(1) of the Supreme Court Ordinance".

We allowed the amendment and Mr. Dicks indicated that he no longer wished to oppose the appeal on the new ground mentioned. My tentative views earlier expressed are now confirmed. I entertain no doubt that the effect of s.31(1) of the Supreme Court Ordinance, read with O.3, is to render the O.12 r.8 summons taken out in time. I would therefore allow the appeal and direct that the summons be heard on the basis that it was filed within the prescribed time.

Leonard, V -P. :

14. I agree that the appeal should be allowed for the reasons just given by Fuad J.A. The O.12 r.8 summons will be remitted to the Admiralty Judge, for hearing at an early date on the basis that it was taken out in time.

Cons, J.A. :

15. I also agree.

Fuad, J.A. :

The Second Appeal (No. 73 of 1982)

16. The Judge began his Reasons for making the Order appealed against by referring to his decision which led to the First Appeal. He then stated that he apprehended that one of his duties was to administer justice between the parties and the parameters of justice were often wider than the mere exercise of statutory jurisdiction. In other words (as he put it) while he had to exercise a discretion, that must not be allowed to develop into a licence to do anything in the name of justice. In reaching his decision, he had borne these factors in mind in addition to all the exhortations and guidelines contained in earlier authorities.

17. After briefly reviewing the facts, the Judge observed that Artemis Corporation's part of the summons was dismissed against the background of distaste and embarrassment among the Cargo Owners legal advisers, who felt themselves morally bound by their agreement, although, as a matter of law, they were not so bound. To that must be added the undue harshness of the rule, and the knowledge that its effect ran contrary to all that had been achieved in the Rules of the Supreme Court since the Revisions of 1962 and 1965 and in the subsequent amendments during the last 17 years. When reaching his decision on the summons now before him he had borne all those factors in mind, and had concluded that it was right (and he would finally be doing justice to Artemis Transportation, otherwise denied to it, without doing injustice to the Cargo Owners), to allow Artemis Transportation to withdraw the Acknowledgement of Service and to start afresh. The Cargo Owners were still able to contest the O.12 summons as if that of 11th January had been issued in time, or as if an extension of time, applied for within time, had been granted under O.3 r.5 and O.12 r.8(2).

18. Mr. Dicks has informed us that in the light of the decision just reached in relation to the First Appeal, while he stood by the contentions he had advanced in his Notice of Appeal, he felt that in practical terms it would be a wholly unfruitful and technical exercise for this Second Appeal to be pursued. The original Acknowledgement of Service ha in effect, been reinstated and therefore there was little point in forensic argument about the status of the second Acknowledgement of Service which now would be taken off the record. He drew attention to the Judge's remarks that if the First Appeal succeeded, his order which gave rise to the Second Appeal, could usefully be revoked. I would therefore treat this appeal as being withdrawn, by leave, and would dismiss it.

Leonard, V.-P. :

19. I would also give leave for the appeal to be withdrawn, and would dismiss it.

Cons, J.A. :

20. I agree.

Representation:

Mr. Edward Chan (Ince & Coi) for the Appellant in Civil Appeal No. 81/82 and for the Respondent in Civil Appeal No. 73/82.

Mr. Anthony Dicks (Clyde & Co.) for the Respondent in Civil Appeal No. 81/82 and for the Appellant in Civil Appeal No. 73/82.