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Bank Negara Indonesia v. S.S. "Sumbawa" Ex "Grandhing" (Panama)

Read the full judgment text of HCAJ 10/1968 on BabelCite. This HCAJ judgment was delivered on 3 July 1968.

1. This notice of motion is brought under rule 22 of Order 75 to determine the priority of various judgments which have been secured against the proceeds of the sale of the S.S. Sumbawa. The S.S. Sumbawa was sold by order of the Court for $400,000 on April 10th, 1968 and the proceeds of such sale were paid into Court. By an order of Court dated May 8th 1968 the Bank Negara Indonesia, who are the movers of the motion with the consent of those representing the other judgment creditors were paid ou

Case No.HCAJ 10/1968
Court
HCAJ
Date03 Jul 1968
Judge—
Case Document
100%Judiciary

HCAJ000010/1968

IN THE SUPREME COURT OF HONG KONG

ADMIRALTY JURISDICTION

ADMIRALTY ACTION IN REM AGAINST: S.S. "SUMBAWA" EX "GRANDHING"

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BETWEEN
BANK NEGARA INDONESIA Plaintiffs

AND
S.S. "SUMBAWA" ex "GRANDHING"
(Panama) Defendants

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Coram: Briggs J. in Chambers

Date of Judgment: 3 July 1968

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JUDGMENT

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1. This notice of motion is brought under rule 22 of Order 75 to determine the priority of various judgments which have been secured against the proceeds of the sale of the S.S. Sumbawa. The S.S. Sumbawa was sold by order of the Court for $400,000 on April 10th, 1968 and the proceeds of such sale were paid into Court. By an order of Court dated May 8th 1968 the Bank Negara Indonesia, who are the movers of the motion with the consent of those representing the other judgment creditors were paid out $320,000 from the proceeds of the sale. By a further order also made with the consent of all parties interested in the sum remaining in Court the sum of $13,604.79 was paid out to the Chief Bailiff to satisfy his account.

2. There are 5 judgments with which we are here concerned.

(1) A.J. No.10 of 1968. Judgment for $568,135.72 and interest in favour of the mover of this motion as mortgagees of the S.S. Sumbawa.
(2) A.J. No.11 of 1968. Judgment for $10,745.98 with $462.75 costs in favour of certain officers and seamen employed on the vessel for their wages.
(3) A.J. No.12 of 1968. Judgment for $3,196.50 with $162.75 costs which was a similar action to A.J. No.11 also for wages of the ship's officers and seamen.
(4) A.J. No.13 of 1968. Judgment for $37,991.58 and costs (which have yet to be taxed as agreed) in favour of Jacques Stanley Clark, the Master of the S.S. Sumbawa for wages and disbursements.
(5) A.J. No.14 of 1968. Judgment for $17,250 and costs (which also have yet to be taxed) in favour of Captain Clark, the Master, for wages.

3. When the parties appeared before me in Chambers it was agreed that so far as the question of priority was concerned the amount of the judgment debt in A.J. No.13 of 1968 should be reduced by $2,860. And that any order as to priority of the reduced sum should be subject to the filing of an affidavit by the plaintiff in that action to explain a certain figure in the account attached to a previous affidavit.

4. As to A.J. No.14 of 1968 it was pointed out that the sum claimed included wages after the vessel had been sold. The vessel was sold on April 10th 1968 and the claim for wages is a claim for wages up to April 30th 1968 when the writ in the action was filed. It was urged before me by the mover of the motion that the Master is not entitled to priority of so much of the judgment debt as represents wages for any period after the sale of the ship.

5. For Captain Clark priority was claimed on two grounds:

(1) that the position of a Master was on all fours with that of a seaman and that therefore he could claim for wages up to the date of the final settlement thereof:
(2) that the law allowed damages to be given for delay in paying a Master his wages and that what was claimed here should be regarded as being, in part, damages.

6. As to the first point, reliance was placed on section 134 of the Merchant Shipping Act, 1894 which permits seamen to claim wages up to the time of final settlement. Section 167 states that the "Master of a ship shall, so far as the case permits, have the same rights, basis, and remedies for the recovery of his wages as a seaman has under this Act ......"

7. As to the second point reliance is placed on section 57 of the Merchant Shipping Act, 1906 which does indeed allow a Court to award damages to a Master for delay in paying his wages.

8. Mr. Hobson for the mortgagees urged that there could be no priority for anything payable as a quantum meriut which is what an award under section 57 for damages is based upon. More cogently perhpas he pointed out that the judgment was in question was given in an action which was a claim for wages and not for wages and damages for delay. Finally he said that it was absurd to pay "wages" to a Master after the ship had been sold.

9. As to the first point section 167 of the 1894 Act only deals with rights and remedies. It does not equate the Master with the seaman. It does not state that a Master may claim wages up till a final settlement.

10. As to the second point I agree with Mr. Hobson that we here are dealing with a judgment for wages pure and simple. I do not see how we can go behind that judgment and say that part of it really represents damages.

11. The case of Vogiatzis v. S.S. Fairport(1) was brought to my attention. In that case there was a claim by a Master and seaman for wages. The question before the Court was whether the entitlement to wages came to an end when the writ was issued or whether it continued so long as they continued to serve. In that case the writ in the action for the recovery of wages was served before the sale of the ship. It was held that they were entitled to claim up and until the date of their discharge. And no distinction was made between the Master and the seamen. Though that point does not appear to have been taken. In the present case the facts are different. The writ was issued after the sale of the ship. The Master in my view must have known that the sale of the ship terminated his service. He might well have an action for damages for breach of contract it is true but with that I am not here concerned. Another way of putting is what services as Master could he or did he perform after the sale of the ship.

12. I am of the opinion therefore that there can be no priority for that portion of this judgment which refers to the period between the sale of the ship and the 30th April 1968 is concerned: i.e. $2,200.

13. The order for priority therefore is:

(1) The taxed or agreed costs up to the sale of the vessel of the plaintiffs in A.J. No.10 of 1968.
(2) The taxed or agreed costs of the plaintiffs in A.J. No.11 and A.J. No.12 of 1968.
(3) The judgment debts in A.J. No.11 and No.12 of 1968.
(4) The taxed or agreed costs in A.J. No.13 and A.J. No.14 of 1968.
(5) The judgment debt in A.J. No.13 of 1968 as reduced by agreement between the parties and the judgment debt in A.J. No.14 of 1968 less the sum of $2,200.
(6) The unsatisfied portion of the judgment debt in A.J. No.10 of 1968 and the sum of $2,200 referred to above in A.J. No.14 of 1968.

(G.G. Briggs)
Puisne Judge

3rd July, 1968.

Representation:

Hobson (Deacons) for Plaintiffs in Folio (Action) 10, 11 & 12 of 1968.

Payne (Brutton & Co.) for Plaintiffs in Folio (Action) 13 & 14 of 1968.

(1) (1966) 3 W.L.R. 426.