Huang Chih Hsin and Others v. The Steamship "New Asia"

Case No.HCAJ 41/1967

Court

HCAJ

Date29 Mar 1969

Judge—

Case Document

100%Judiciary

HCAJ000041/1967

IN THE SUPREME COURT OF HONG KONG

ADMIRALTY JURISDICTION

ACTION NO. 41 OF 1967

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BETWEEN
	HUANG CHIH HSIN, CHANG YAO LIEN, HSU YI CHIEN, HWANG JEN WEN, KUNG CHIH HAN, CHANG YA MO, YAO A KANG, LO FU TIEN, TSANG TIEN TSUN, SHU WEN ZE, SHIA CHUNG MING, LING TSE NAM, CHENG YUAN, LEE FU, CHU WEI PING, YEN MING, LEE HU SHAN, TSAO A FU, CHOU HSING CHUAN, MA KUO CHUN, TANG HUI, YANG HUA CHEN, LEE HAI, CHIEN CHU KUN, CHUAN CHAO YI, LIN KAO SHIUM, and CHEN YUNG YI	Plaintiffs
	AND
	THE STEAMSHIP "NEW ASIA"	Defendant

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Coram: Briggs, J.

Date of Judgment: 29 March 1969

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JUDGMENT

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1. This is an application to enter final judgment against the defendant for $155,418.86 which represents the wages and allowances of some twenty-seven officers and seamen, members of the crew of a steamship, the "New Asia".

2. The writ was issued on 29th August 1967. Two months previcus to this a writ was issued against the New Asia by Yin Fun Sung who claimed the sum of $191,359.20 being the amount of principal and interest due to him under a mortgage on the ship. The solicitors for the plaintiff in that action were Messrs. K.C. Yung. Judgment was filed in that action on 4th August 1967 when it was ordered that the New Asia be appraised and sold. This was done and the ship was eventually sold for $210,000 which was paid into court by the Chief Bailiff on or about 19th September 1967.

3. The solicitors in the present action who are representing the members of the crew are Messrs. Johnson, Stokes & Master. It is quite clear that they knew that the ship had been sold and the proceeds paid into court because on 2nd December 1969 they consented to an order that $14,815.90 be paid out of the moneys in court to the Chief Bailiff.

4. Messrs. K.C. Yung & Co. ceased to act for the plaintiff in A.J. No.11 of 1967 and Messrs. Stewart & Company were appointed to act in their stead on 20th September 1968, namely one year after the sale of the ship.

5. Messrs. Stewart & Co. applied to a judge in chambers for payment out of the sum due to the plaintiff in A.J. No.11 of 1967. And since there was no caveat in force against the release of the money it was ordered that the sum of money not exceeding the sum claimed be paid out to the plaintiff. And the sum of $175,005 was therefore paid out.

6. This sum would have more than satisfied the claims of the members of the crew who are the plaintiffs in the present action, and had their solicitors sought fit to enter a caveat their claims would have been fully satisfied.

7. The case came before me on 21st March 1969 when I was told that a caveat had been entered on 19th March 1969. A classic example of bolting the stable door after the horse has bolted. It had been found that there was still $11,083.48 in court which was interest on the purchase price of the ship. This had not been asked for by the solicitors in A.J. No.11 of 1967 and so no order had been made as to payment out.

8. The plaintiffs in the present action asked for judgment for $155,418.86 and for payment out of the sum in court less an unspecified amount which is owed to the Inland Revenue.

9. I asked counsel for the plaintiff why no caveat had been entered when the ship was arrested or the money paid into court and I was told that there had been a gentleman's agreement between Messrs. Johnson, Stokes & Master and Messrs. K.C. Yung & Co. that the latter would not ask for the release of the money. There had been a change of solicitors as I have said and the order for payment out took Messrs. Johnson, Stokes & Master by surprise.

10. The net result is that there is only about $10,000 odd to satisfy a claim of $155,000 odd. Incidentally in another action, A.J. 39 of 1967 there is a claim by the master of the ship. He was also represented by Messrs. Johnson, Stokes & Master. And again no caveat was entered.

11. Not to enter a caveat in such a case as this is the grossest negligence. It is not sufficient to engage in a "gentleman's agreement". And the fact that the claims of the members of the crew will only be met with a minute amount instead of being fully satisfied is directly due to the conduct of the solicitors in the lamentable manner in which they acted in this case.

12. I refused to order that costs be paid out of the sum to be paid out.

	(G.G. Briggs)
	Puisne Judge.
	29th March, 1969.

Representation:

Mr. Ignatius Wong (J.S.&M.) for the Plaintiffs.

Mr. Mayo A.R. for Registrar, S.C.

Oral judgment reduced into writing