The Owners and/or Those Entitled To Sue in Respect of a Cargo or Vessel "Goodeast" v. The Owners and/or Demise Charterers of the Ship or Vessel "Goodeast"

HCAJ000268A/1997

-----------------

Admiralty Action in Rem against the Ship "GOODEAST"

-----------------

Coram: The Hon, Mr. Justice Waung in Chambers

Date of Hearing: 9 October 1997

Date of Delivery of Judgment: 9 October 1997

-----------------

JUDGMENT

-----------------

1. The Plaintiffs applied by Summons dated 26th September 1997 for inspection of the ship and on the 3rd of October 1997 after hearing Mr. Barber for the Plaintiffs and Mr. Kidd for the Defendant I gave my oral judgment refusing the application. The order I made however was not sealed. Mr. Coleman today on behalf of the Plaintiffs invited me to reconsider the application having regard to the additional materials and information which the Plaintiffs are able to put before the Court and I acceded to his invitation in the special circumstances of the case.

2. Two objections are raised by Mr. Kidd to the application, namely the Unseaworthiness point and the Bills of Lading point. So far as the Bills of Lading point is concerned, the position today is totally different from that prevailing on the 3rd of October 1997. As can be seen from Mr. Barber's 4th Affidavit, the Plaintiffs and their solicitors have the originals of both sets of Bills of Lading and the 2nd set is now in Court with the first set (the Master's Bill) on its way to Hong Kong. In these circumstances, it is clear to me that the Plaintiffs have at least a good arguable, case on the Bills of Lading issue.

3. On unseaworthiness, the new Affidavit of Mr. Wild which is placed before the Court shows a very different situation from that found by the Court on the 3rd of October 1997. I accept the submission of Mr. Coleman that the new Affidavit shows that the Plaintiffs have a genuine desire and need to inspect the vessel in order to obtain information and evidence on three issues of unseaworthiness and cause of fire:-

Having regard to the new material and the very helpful submissions made by Mr. Coleman, it can no longer be said that the Plaintiffs are on a fishing expedition or that the Court would not likely be assisted by the inspection. Mr. Kidd asked me to scrutinise the new material with care as the case of the Plaintiffs have shifted and the language used in the new Affidavit still does not show a sufficiently good arguable case. I have looked at the material now presented to me with care and I accept of course that the case now presented to the Court by Mr. Coleman is different. I must however look at the picture broadly and not be too unnecssarily demanding or suspicious. I have no reason to doubt what are said in the Wild Affidavit are genuinely said and at least highly arguable and capable of dispute (notwithstanding what Mr. Kidd in his new draft Affidavit says to the contrary). These disputes arising out of the latest set of Affidavits in fact serve to reinforce the desirability of allowing the proposed inspection to take place.

4. It seems to me that the Court could well be much assisted by the inspection of the fire expert of the Plaintiffs (specially if there will be a joint inspection by fire experts on both sides) and that the fire expert's inspection will very probably result in considerable saving of costs (for example Mr. Wild's evidence could be considerably curtailed) and time.

5. Although Sheen, J. in The Mare del Nord [1990] 1 Lloyd's Rep. 40 had provided useful guidance as to circumstances under which inspection should be ordered including the showing of a good arguable case on the merits, it seems to me that primarily the Court must have regard to the words of Order 75 rule 28:-

"the inspection of which may be necessary or desirable of the purpose of obtaining full information or evidence in connection with any issue in the action."

The key words are full information and evidence. Are these what the Plaintiffs genuinely desire to obtain by the fire expert with the proposed inspection. I believe they are. The issue of cause and spread of fire no doubt will be hotly debated in the Action and it seems to be beyond argument that the obtaining of full information and evidence on that issue must be both necessary and desirable in the circumstances.

6. The Vessel in question was ordered by the Court to be appraised and sold on the 24th of September 1997. The appraisement I understand from the Chief Bailiff is now being prepared and it will be some time before the Vessel can be actually sold. In the meantime the Vessel is a deadship in Hong Kong and the balance of convenience therefore overwhelmingly points toward the making of the Order rather than against it. Having regard to all the circumstances, I am now of the judgment that the fair result of the application ought to be in favour of the Plaintiffs. I hereby order that the fire expert of the Plaintiffs be permitted to inspect the Vessel.

7. I finally turn to the documents to be made available to the fire expert on the inspection. The documents in question are the engine log, the deck log, the GA plan, the fire control plan, the bunker receipts and the statement of facts. The question relating to these documents is whether they ought to be made available to the fire expert to enable him to carry out the inspection to obtain the full information and evidence in relation to the cause and spread of fire. Although it is said by Mr. Coleman that it would be beneficial for the fire expert to have these documents, I am not persuaded that the immediate discovery of these documents are necessary for the inspection. Accordingly therefore paragraph 2 of the Summons remains dismissed as ordered last week.

8. As for costs, it seems to me that in these special circumstances, the fair costs order should be that the Plaintiffs to pay the Defendants costs of the application up to and including the 3rd of October 1997 and that the costs of the application after the 3rd of October 1997 should be costs in the cause.

Representation:

Mr. Russell Coleman instructed by Messrs Richards Butler for the Plaintiffs

Mr. Kidd of Messrs Ince & Co. for the Defendants

Mr. C.W. Tsang, the Chief Bailiff