Zhu Ruanda and Other v. The Owners of the Ship or Vessel M.V. "Tai Shan"

HCAJ000344/2001

HCAJ344/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.344 OF 2001

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Admiralty action in rem against : the ship or vessel M.V. "TAI SHAN"

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Coram: Hon Waung J in Court

Date of Hearing: 25 September & 9 October 2002

Date of Judgment: 9 October 2002

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J U D G M E N T

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1)This is the application by 26 plaintiffs for default judgment. It is unusual in a default judgment for this court to have taken some time over the scrutiny of the proper basis for the application. At the end of the day, I am satisfied that the plaintiffs have made out a good claim to be given judgment. I would like to say a few words to explain how this has come about.

2)The 26 plaintiffs had been rendering their maritime services to the ship in question, the "Tai Shan". "Tai Shan" was a passenger vessel that ran a daily service between Hong Kong and Gongye in Guangdong Province. Everyday it left Hong Kong, arrived in Gongye (near Tai Shan City) and then came back the same day in the afternoon. The actual number of crew that served on board each day was only about 12, but because of the rotation system, at least 18 (if not more) of the plaintiffs were regularly rendering service on board the vessel. The Statement of Claim shows clearly that the 1st to 17th plaintiffs and the 22nd plaintiff were those regularly serving on board on the vessel. Their case has presented no problem to this court even though the court was somewhat surprised at the long period of time when these crew members had not been paid their full wages. Their explanation was that as the road connection between Hong Kong and Tai Shan City improved, more and more people were using the roads and the buses and the business of the passenger vessel "Tai Shan" went down from year to year. Starting from mid-July 1990, the crew were receiving, every month, less than their full pay. This state of affairs went on until eventually the vessel was arrested in Hong Kong and they had to leave the ship.

3)The position, therefore, in relation to those 18 crew members is that it presented no difficulty to the court in terms of establishing jurisdiction in rem and the liability of the defendants in rem. What had caused a lot of problem, is the question whether the remaining eight plaintiffs, namely the 18th - 21st and 23rd - 26th plaintiffs, who were not sailing with the ship on a daily basis, could be said to be "member(s) of the crew" within the meaning of s.12A(2)(n) of the High Court Ordinance so as to give rise to the jurisdiction of the court in rem to give judgment in rem in favour of those plaintiffs. Those eight plaintiffs occupied different positions vis-à-vis the ship. There were engineers, assistant engineers, safety officers, dispatch officers, and two of them were in fact administration officers, namely they were shore managers dealing with the ship.

4)At first glance, it seems to me that if one merely looks at the relevant contracts, it could be said that these eight plaintiffs might not be considered to be sailors or members of the crew. However, a closer scrutiny suggests that they were in fact considered as part of a group together with the 18 other plaintiffs. There are two indications to suggest that this is the case. The first is the series of the monthly documents starting at page 172 of the bundle, which is in the nature of a receipt record signed by each of the 26 plaintiffs, acknowledging that they were receiving only part of their entitlement of their wages. This is a contemporaneous document covering all 26 plaintiffs, showing their different jobs and showing, in relation to each, the amount outstanding and bearing at the last column their signatures. The job shown under each of these records suggested that they were all rendering services to the ship and certainly from the company's point of view, i.e. the defendants owners' point of view, as well as that from the 26 plaintiffs who were signing these records, all of them regarded the 26 plaintiffs as being a group, namely crew members of the ship. These contemporaneous documents powerfully suggest to me that they could be and should be regarded as members of the crew. Then there is another consideration which is a weighty matter to be taken into account and it is the fact that these are People's Republic of China personnel who were paid in Hong Kong dollars and they were all globally paid in Hong Kong dollars. This must be to be contrasted with, for example, other shore personnel of the defendants shipping company such as accountants, clerks and so on and so forth, who were paid in RMB. Hong Kong dollars, of course, is an extremely valuable currency in China but these 26 plaintiffs were paid in Hong Kong dollars because of their intimate maritime contribution to this vessel which sailed regularly to Hong Kong and which stayed every night, in fact, in Hong Kong. It seems to me, therefore, that looking at the matter as a whole and giving a generous interpretation to the facts presented to me, I should regard those eight members who did not sail with the ship everyday also as members of the crew. If one takes further into account also what is said in the affirmation of Li Jianrun at pages 217 to 219, then that powerfully reinforces the case of those plaintiffs that they were members of the crew and that they were making the same substantial contribution to the ship as the other members of the crew. I am, therefore, satisfied that on a matter of admiralty jurisdiction in rem, that all the 26 plaintiffs have a claim in rem against the ship.

5)The matter of quantum has given the court some difficulty. It has now been resolved by the most helpful Table produced by Mr Ng for the plaintiffs and the position is that : interest on the outstanding 80% of the wages per the contract are now shown in the first four columns of the document that is put before me as Schedule C of the draft judgment. As for interest on the remaining 20%, that is agreed to be retained until the termination of the contract, I am satisfied that because of the actual termination of the contract as described to be by the master on 31 July 2002, that the interest calculations shown in the last four columns of Schedule C set out the right quantum of interest to be awarded.

6)I, therefore, order that the judgment be entered for the plaintiffs against the defendants for the sums particularized in Schedule B of the draft judgment, i.e. in a total sum of $1,433,894.00 plus interest as particularized in Schedule C of the draft judgment in the total sum of $163,472.00. There would be interest upon the judgment sums in the usual way from the date of judgment at the judgment rate. The costs of the action including the costs of and incidental to the Notice of Motion be to the plaintiffs and the plaintiffs' own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Lawrence K.F. Ng, instructed by Messrs Holman Fenwick & Willan,for the Plaintiffs

Defendants in person, absent

Acting Chief Bailiff