Wong Wai Chun v. The China Navigation Co Ltd

HCA000792/1967

IN THE SUPREMS COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 792 OF 1967

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Coram: Briggs, J.

Date of Judgment: 24 December 1968

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JUDGMENT

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1. This action arises out of an accident which occurred on board the S.S. Taiyuen, a cargo vessel, carrying passengers, owned by the China Navigation Company, the defendants. It is brought by the widow and administratrix of one Cheung Chung Wai. On 5th July, 1966 Cheung Chung Wai, whom I shall refer to as 'the deceased', was travelling as a 'Steerage/Deck Passenger' on the S.S. Taiyuen. The voyage was from Sydney to Hong Kong and the ship sailed from Sydney on or about 18th June 1966. On 5th July the ship was docked in Manila having previously stopped on the voyage at Brisbane and Port Moresby. The cargo hatches were open as loading and unloading was in progress.

2. One of the persons with whom the deceased shared a cabin was one Wong Wai Sun. Mr. Wong gave evidence and he said that he and the deceased went sightseeing in Manila together on the morning of the 5th of July, after which they returned to the ship for lunch which they took in their cabin. This would be at about 1 p.m. The deceased left the cabin to go to purchase some post cards, leaving Mr. Wong to finish his lunch in the cabin. About 10 - 15 minutes after the deceased left, Mr. Wong heard a commotion. Leaving his cabin he saw that the deceased had fallen from the deck into an open hatch. The deceased was being attended to. Later it was found that he was dead. Almost at once Mr. Wong fetched his camera and took photographs of the scene. He made no report to the authoritie on board nor to the police in Manila or Hong Kong, but when he arrived in Hong Kong he got in touch with the family of the deceased and provided them with the undeveloped negatives which he had taken. The family of the deceased had them printed and the negatives and prints, which are in colour, have been exhibited in court. There are 6 prints showing the state of deck of the S.S. Taiyuen at the relevant period of time.

3. Very shortly after the accident a plan of the relevant part of the deck of the ship was made by two of the ships officers, Mr. Newman and Mr. Wilson on the instruction of the Master of the ship. Also a drawing of the details of the hold with its coaming was prepared.

4. The former which was referred to as R.S.N. 1 at the trial is chiefly of value in that it shows various dimensions of the different portions of the deck in relation to each other. However a glance at the photographs shows that it is not an accurate drawing of the then state of the deck. R.S.N. 1 shows neat rectangles which are labelled 'Hatches stowed on deck' and 'Beams on deck'. It indicates that there were clear pathways round these hatches and beams both near to the bulwark rail of the ship and between the open hold and the hatches stowed on the deck. Further there is marked a spot from which the deceased was said to have fallen into the hold. The deck is shown to be clear of obstruction of any sort in R.S.N. 1 at this point.

5. The photographs on the other hand show that the hatches and beams were piled up on the deck in a haphazard manner and that this was the true position was borne out by the evidence of Mr. Wong. In particular the pile of hatches stacked athwart the deck clearly shown in the photograph 03 does not appear to be shown in R.S.N. 1.

6. It is clear I think from the evidence that R.S.N. 1 was intended to show to the court an accurate representation of the scene at the time. Mr. Newman who was the ship's 3rd officer made this clear when he was confronted with the photographs in his cross-examination. And Mr. Wilson who was the chief officer of the ship at the time went so far as to disagree with the position of the beams and hatches as shown in the photographs. Until that moment these witnesses were unaware that any photographs were in existence.

7. In his evidence Mr. Wong said that the hatches and beams obstructed the free passageway of passengers along the deck. He was particularly referring to the deck on the starboard side of the vessel, the side away from the wharf. The side from which the deceased fell into the hatch. It is common ground that there were no restrictions on passengers leaving the ship when she was in dock. And a steerage or 3rd class passenger would have to traverse the deck in order to leave the ship or to go to the purser's office from his cabin. He would use the starboard side of the deck since unloading or loading on to or from the wharf was in progress at the time.

8. Mr. Wong said that when the ship docked at Brisbane and at Port Moresby the hatches and beams were neatly piled up on the deck during loading operations. But, he said, this was not so at Manila. There, the hatches and beams were stacked anyhow and it was difficult to get past them if you wished to leave the ship. He said that you could either climb over the hatches and beams or you could pass alongside them keeping close to the side of the open hatch. When he went sightseeing he himself chose the former route i.e. he climbed up over the hatches. In particular he referred to the photographs numbered 03 and 06 which he said showed the passage one would have to use close to the edge of the hold if one did not climb over the hatches. He said the hatches and the deck were greasy slippery and it was a difficult route to take.

9. In particular he said that the hatches were piled right up to the ship's rail on the starboard side. Namely there was no clear passage along the ship's rail as is shown in R.S.N. 1. Mr. Wong also made the telling remark that after the accident the hatches and beams were all tidied up. There is a direct conflict of evidence between the ships officers and Mr. Wong. I regard Mr. Wong as a disinterested witness. He was but a ship-board acquaintance of the deceased. And he gave his evidence clearly. Indeed his evidence was hardly challenged. Where there is a conflict between his evidence and the photographs which he took and R.S.N. 1 and the evidence of the ship officers I much prefer the former to the latter.

10. It would seem from Mr. Wong's evidence and from that of the photographs that a person who wished, say, to leave the ship would have only a very narrow way which he was difficult to negotiate. It lay alongside the edge of the hold and at an point the hatches came very close to the edge of the hold. It was put to Mr. Wilson in cross-examination that if the photographs were accurate one explanation of the accident [, discounting for the moment the defence theory that the deceased commited suicide,] could be that in squeezing through the passage way the deceased stepped up on to the coaming of the hold slipped and fell into the hatch. Mr. Wilson admitted this but of course did not agree with the position of the hatches as shown in photograph 06, even when confronted with the photographs themselves.

11. The plaintiff's claim lies in negligence. The defendants deny liability and have made four clearly distinct points. They are:-

12. As to the first ground, was the deceased himself negligent? I find as a fact that the defendants had allowed the hatches and beams to be stacked on the deck in such a way that the only through passage way was as was described by Mr. Wong and shown in the photographs. There was no other way along the deck other than by climbing over the piled up hatches. It was said in evidence that the deceased was returning to his cabin from the purser's office which is in the stern of the ship. He had a right to be there on the deck and in manoeuvering his way past the hatches must have stood on the coaming of the hold in order to get passed them. I do not think that in the circumstances that it was negligent of him to step up on to the coaming.

13. The case of Merrington v. Ironbridge Metal Works⁽¹⁾ was relied upon it being suggested that the doctrine of volenti non fit injuria applied. With respect I do not think that that doctrine does apply. There is no evidence here that the deceased was 'volens'. In the words of Mr. Justice Hallet in that case there was not 'a real consent to the assumption of the risk without compensation'. The second point raised by the defence is that the deceased committed suicide.

14. The ship's fourth officer, Mr. Watson Jones gave evidence. His evidence was taken de bene esse by the Registrar of the court and so I did not myself see him in the witness box. This is a pity, for the transcript of his evidence is a remarkable document.

15. He said that he saw the deceased fall into the hold. He pointed out on R.S.N. 1 where he himself was standing at the time watching the discharge of the cargo. And he said he saw the deceased 'approach the hatch mount the coaming and step into the hatch'. He saw him first when he the deceased was about 2 yards from the coaming. He said the deceased had no difficulty in moving across the deck. He pointed out on R.S.N. 1 the point at which he said the deceased was when he 'stepped into the hatch'. Though he and other witnesses said there were several other people on deck at the time busy with the unloading, Mr. Watson Jones was the only eyewitness to the accident called by the defendants.

16. In cross-examination he said that the man was coming from the direction of the forecastle i.e. in the direction as shown by a dotted line in R.S.N. 1. Indeed Mr. Watson Jones supplied the information as an eyewitness to the officers who actually drew R.S.N. 1. He gave a statement to the Master which was put into the ship's log book and the officers took such information as he had supplied from there. The information was also given to Mr. Newman direct.

17. The witness also said that he only saw the deceased for 5 seconds at the most. And he used the expression that 'he mounted' the coaming. He received the impression that it was an accident or a deliberate act: later preferring the latter to the former, and indeed, he probably used the word suicide when reporting the matter to the Captain.

18. Mr. Watson Jones was then shown the photographs and admitted at once that they bore no resemblance to the sketch R.S.N. 1.

19. Evidence was also given of the spot in the hold where the body of the deceased was found. Two letters from the deceased to the plaintiff were produced to the court. The deceased had left Hong Kong in February 1966 in order to take a degree in a University, in Sydney, Australia. Apparently his English was not good enough and he decided to return to Hong Kong without completing his studies. He was on his way back when the accident occurred. The first letter was written from Sydney just before he sailed. The second was written from Brisbane where the ship docked en voyage. I am asked to infer that these letters show that the deceased had failed in Australia, was wrapped up in religion, and near to despair.

20. I do not think that those letters can bear any such interpretation. Mr. Wong said the deceased was happy and appeared healthy and had spoken of the two of them becoming friends in Hong Kong at the end of the voyage as is the way of ship's acquaintance. As to the references to religion they are easily explained, if explanation is necessary, the deceased embraced the Roman Catholic Faith only recently, I think in 1964, and it seems had been living in Australia with a devout family of the like persuasion.

21. Finally he expresses a desire to be reunited with his wife and children. I totally reject the suggestion that the letters show any indication that the deceased was contemplating suicide or was in despair.

22. But what of the evidence of Mr. Watson Jones? I am firmly of the opinion that he has read far too much into what he actually saw. At most he saw a man fall into the hold - an unnerving experience admittedly. At first his evidence was just of that but later in cross-examination he gives a most eleborate description of how he thought the deceased stepped up on the coaming. I underline the word 'thought' for he uses it himself. He appears to have been rationalising what he saw. Certainly Mr. Watson Jones was an unreliable witness in other respects. The deceased was not coming from the direction of the forecastle as he indicated when the accident occurred, but from the opposite way; the deck was not clear at that spot as he said: the photographs clearly show that. More extraordinary is his evidence as to the height of the coaming. It is in fact 2" 10' high from the deck to its top. Mr. Watson Jones, a ship's officer, said that he thought it was 'more than 5 feet and less than 6'. If he believed that to be the case his explanations of the deceased stepping on to the coaming appears even more extraordinary. And how did he 'mount' the coaming if mount it he did?

23. Mr. Sanguinetti says that if the defence of suicide fails the evidence of Mr. Watson Jones must be rejected. I do not go as far as that. The witness saw the man fall undoubtedly but I do think that he drew a completely wrong inference from that fact and one not warranted by the evidence of the state of the deck and the time in which he had to see what he did see.

24. I am satisfied beyond a peradventure that the deceased did not commit suicide and that there is no merit in this defence.

25. We now come to the third point which I think is the strongest point in favour of the defence i.e. that the defendants are exempt from liability because of the conditions of the contract of carriage made between the defendants and the deceased.

26. The ticket of the deceased, or rather that part of the ticket which is retained by the passenger was exhibited to the court. On one side are various particulars such as the passenger's name, the date of sailing, the ports of embarkation and disembarkation and the fare etc. On the back the following words appear in English with a Chinese translation underneath:

"This ticket is issued subject to the company's terms and conditions of carriage which may be read in the office of principal agents in each port."

27. There is no reference on the face of the ticket to the words appearing on the back of the ticket.

28. When a passenger purchases a ticket of this class from the defendants he is issued with a document which is in 4 parts one of which he retains which is named the passenger's counterfoil. No where in that document are 'the company's terms and conditions of carriage' set out.

29. However also exhibited was a document headed 'The China Navigation Co. Ltd. Conditions and Terms under which all deck and steerage passengers are carried'. There follow 9 numbered paragraphs. The whole document is in English with a Chinese translation below.

30. The first paragraph reads as follows:-

"The acceptance of a ticket shall be taken as conclusive evidence that neither the passenger nor any other person shall have any right of action whatsoever against the owners, their managers and agents, in respect of any loss, damage, injury, whether fatal or otherwise, inconvenience or delay to the passenger or his baggage or other property howsoever and wheresoever caused."

31. The defendant's case is that these conditions and the condition I have quoted in particular are incorporated as terms of the contract of carriage of the deceased by reason of the clear words appearing on the ticket.

32. The question that the court has to ask itself in cases of this nature is did the defendant take reasonable means to give notice of the conditions to the plaintiff, here, the deceased. This emerges clearly from Watkins v. Rymill⁽²⁾ where those very words are used by the court.

33. In Hood v. Anchor Line⁽³⁾ a case with similar facts to the present case, Lord Haldane had this to say at pages 844 and 845 of this report:-

"My Lords, I agree that the appellant here was entitled to ask that all that was reasonably necessary as matter of ordinary practice should have been done to bring to his notice the fact that the contract tendered to him when he paid his passage money excluded the right which the general law would give him, unless the contract did exclude it, to full damage if he was injured by the negligence of those who contracted to convey him on their steamer. Whether all that was reasonably necessary to give him this notice was done is, however, a question of fact, in answering which the tribunal must look at all the circumstances and the situation of the parties."

Later he added these words:-

"The question is not whether the appellant actually knew of the condition. I have no doubt that he did not. The real question is whether he deliberately took the risk of there being conditions in the face of a warning sufficiently conveyed that some conditions were made and would bind him."

34. My attention has also drawn to Cockerton v. Naviera Aznar⁽⁴⁾ which again was a case with facts very similar to the facts of the present case.

35. Here the defendants discharged the onus of proving that they took reasonable steps to draw the attention of the deceased to the conditions which I have set out above. It is a question of fact.

36. In Cockerton's case⁽⁴⁾ and also in Hood v. Anchor Line⁽³⁾ the passenger received a ticket with the actual conditions printed on it. They did not read them or know of their existence but the court held in each case that they were binding on them. It may well be asked what can the Shipping Company do than hand to an intending passenger the conditions under which the company will carry him. Two specimen tickets were put in evidence in this case of other shipping companies each of which had the conditions printed as part of the ticket. But that was not so so far as the present case is concerned.

37. Is it enough therefore merely to tell an intending passenger that there are conditions and to leave it to him to find out what they are?

38. In Watkins v. Rymill⁽²⁾ the facts were as follows. The plaintiff was the owner of a vehicle and the defendant maintained a repository for the sale on commission of such vehicles. The plaintiff took his vehicle to the repository and left it to be sold receiving in exchange a printed receipt on which it was stated that sales of vehicles deposited were subject to 'the conditions exhibited on the premises'. On the premises were exhibited printed conditions in conspicuous places.

39. It was held that the plaintiff was bound by those conditions despite the fact that he never read the receipt and was ignorant of the conditions.

40. What are the facts of the present case? The deceased had not travelled by sea before. He had left Hong Kong for Australia by air, but this was his first sea voyage. There were no conditions printed on the ticket itself only the warning and that on the back of the ticket, not on the front. Attention was not drawn to what was on the back of the ticket. That his English may not have been very good is not material because the words printed on the back of the ticket were in Chinese as well as in English.

41. There is no evidence of where he purchased the ticket, whether it was from 'the office of the principal agents of the defendants' in Sydney. Nor is there any evidence that the conditions of carriage a copy of which has been exhibited was either posted up or readily available at the place where the ticket was purchased i.e. where the contract was made.

42. The defendant called a witness from a travel agency who said that a copy of the conditions was available at the office where she worked in Hong Kong. She also said that in some offices they were exhibited. However she admitted that she had no knowledge of any ticket office in Sydney.

43. All that is known therefore is that this warning on the back of the ticket was given to the deceased. I do not think that that is enough. In Watkins v. Rymill⁽²⁾ it was proved that the conditions in question were conspicuously displayed for all to see. In the absence of some evidence that the conditions were readily available or conspicuously displayed at the place where the contract was made I do not think that the defendant has discharged the onus of proof placed upon him.

44. Therefore I do not think that the defendant can rely upon the condition and so avoid liability.

45. In view of my finding that the defendant cannot rely upon the condition exempting him from liability it is unnecessary for me to deal with the last point made by the defence. It will be remembered that this was in answer to paragraoh 3 of the Reply. The plaintiff complains that the terms of the relevant condition do not contain the word 'negligence' and hence the defendant cannot rely upon it. He also complains that the relevant condition amounts to exempting the defendants from performing the contract. I do not think that that is so. The clause expressly exempts from liability from fatal injury howsoever and wheresoever caused. Therefore death resulting from the negligence is covered by the condition. Further applying the paragraphs laid down in the leading case of the Suisse Atlantique Societe D'Armement Maritime S.A. v. N.A. Rotterdamsche Kolen Centrale⁽⁵⁾ I do not think that the doctrine of fundamental breach of contract applies in this case. However as I have said all this is academic.

46. To sum up I find that the deceased was passing along the deck as he was entitled to do by the only way left open to him by the defendants who owed him a duty of ease since he, the deceased, was entitled to be there. I also find that the death of the deceased was the result of the negligence of the defendants in allowing the deck of the ship to be in an unsafe condition, unsafe that is for passengers who had a right to use that deck. The deceased met his death as a result of such negligence. And I find in favour of the plaintiff on the issue of liability.

47. The action is brought under the Law Reform (Miscellaneous Provisions) Ordinance and under the Fatal Accidents Ordinance.

48. I will say at once that very little assistance has been forthcoming to guide the court as to the correct sum to award under these enactments.

49. The deceased was instantly killed and in those circumstances I do not think it would be proper to award any sum for his pain and suffering. I consider that the correct sum to reward for loss of expectation of life is $8,000.

50. There is no claim for special damage other than for $6,695 for funeral expenses. This is a very high figure even taking into consideration the reckless sums spent in Hong Kong upon funerals. The only funeral expenses recoverable are those which have been incurred by 'the parties for whose benefit the action is brought'. (See section 3 of Chapter 271). And this action is brought on behalf of the plaintiff, the widow and the children. It is also settled law that funeral expenses must be reasonable in the particular circumstances of the case. Though the sum of $6,695 was not challenged it was stated in evidence that assistance, by which I understood financial assistance, was given by a brother and a sister of the deceased.

51. Because of this and because I consider $6,690 too high a sum I will allow $4,000 for the funeral expenses. This makes a total of $12,000 under the Law Reform (Miscellaneous Provisions) Ordinance. Of course the sum for the loss of expectation of life must be deducted from any sum awarded under the Fatal Accident Ordinance but not the sum awarded for funeral expenses. The reason is that such damages merely reimburse the personal representatives for expenditure already incurred. It is not a benefit which accrues to the plaintiff as a result only of the death of the deceased. (See Joyce v. British Electricity 1955, an unreported case).

52. I now come to damages under the Fatal Accidents Ordinance. The deceased was aged 36 and leaves a widow who is 34 and three sons aged 8, 7 and 3. The deceased was an engineer having graduated in chemical engineering at the Tsing Hua University in June 1952. He came to join his wife (who was already in Hong Kong) in 1963 and became a partner with a brother in the Kowloon Well Digging Company. As such his average income was about $2,000 per month of which he gave his wife for household expenses $1,300 - $1,400 per month.

53. In February 1966 he left for a University in Sydney in order to secure a Master's Degree. He apparently changed his mind and was on his way back to Hong Kong when the accident occurred. Before he left for Australia the partnership was dissolved but I understand that his brother continued the business. The deceased received some money as a result of the dissolution I was not told how much. Presumably the money received made the journey to Australia possible.

54. The plaintiff said that he used to send her certain minor sums of money from Australia from time to time I understood this to mean as presents. He had secured a part time job as a demonstrator in the University but of course he was studying and was not in full regular employment. The plaintiff is supporting the family from her own wages as a manageress of a Hostel. She obtained the post after the deceased had left for Australia and I think as a result of that visit.

55. I know nothing more of the circumstances of the deceased except that Mr. Wong, his travelling companion said that he appeared happy and healthy.

56. The plaintiff made a good witness and did not attempt to exaggerate her claim. My real difficulty in this case is the lack of evidence.

57. The prospects of an engineer must be good in Hong Kong and engineering is a profession in which it is possible to make great advancement. It must also be recognised that the deceased might have continued to work until he was seventy. On the other hand he might have retired from work much earlier on account of ill health or from some other cause.

58. The prospects of an engineer must be good in Hong Kong and engineering is a profession in which it is possible to make great advancement. It a profession in which it is possible to make great have continued to work until he was seventy. On the other hand he might have retired from work much earlier on account of ill health or from some other cause.

59. Normally in cases of this nature one starts with the income or monthly earnings of the deceased. It is impossible to do this here as we are dealing with a man who was only a prospective bread winner he having no income at the time of his death.

60. Counsel for the defendant drew my attention to a brief reference to the case of Webb v. Ford which he suggested was a case with comparable facts. It is referred to in the first supplement to the second edition of volume 2 of Kemp v. Kemp. This case is not reported and I will say at once that as reported the sum awarded appears to have been very low. Awards in other cases though useful are of course not binding upon me.

61. There must also be taken into consideration the natural hazards of existence, which may affect the wife and children and which might have affected the deceased.

62. Again, the widow is earning her living and maintaining the home. I had the impression that this was so because the deceased was not earning at that time but it is always possible that she would have continued to work even though her husband was earning. She is herself a graduate of a University.

63. It is possible that the plaintiff will re-marry. She is, if I may say so, an attrative young woman. She is both well educated and obviously capable. However she has three young sons to look after. Finally I must take into account the fact that the plaintiff will be receiving a lump sum.

64. Taking all these into consideration and doing the best I can in the circumstances and particularly in view of the fact that the deceased was a potential and not an actual bread winner, I assess the dependency at $600 per month. I think that the correct multiplier is 16 years. This will give a figure of $97,920 under the Fatal Accidents Ordinance.

65. From this must be deducted the sum of $8,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance this makes $89,920. There will be judgment for the plaintiff for $12,000 being damages under the Law Reform (Miscellaneous Provisions) Ordinance and in addition for $89,920 being damages under the Fatal Accidents Ordinance namely $101,920 in all. The sum of $12,000 awarded under the Law Reform (Miscellaneous Provisions) Ordinance will be paid to the plaintiff as administratrix of the deceased. The sum of $89,920 awarded under the Fatal Accidents Ordinance will be apportioned as follows:-

Judgment for the plaintiff for $101,920. The plaintiff is to have her costs.

Representation:

H. C. Miu & Wesley Won (K. F. Wong & Co.) for the Plaintiff.

Sanguinetti (J. S. & M.) for the Defendants.

(1) (1952) 2 A.E.R. 1101.

(2) (1883) 10 Q.B.D. 178.

(3) (1918) A.C. 837.

(4) (1960) 2 Lloyds 450.

(5) (1967) 1 A.C. 361.