The Owners of Pilot Boat "Harbour 23' v. The Owners and/or Demise Charterers of the Ship "Peng Yun 211"

HCAJ000192/1997

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

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Admiralty Action in Rem against the Ship "PENG YUN 211" (PRC Flag)

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 15 March 1999

Date of Handing Down of Judgment: 7 April 1999

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JUDGMENT

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1. This is the application by the Plaintiffs, the Owners of "Harbour 23" ("the Boat"), namely Joint Queen Ltd. ("JQ") to add to the Action, a new plaintiff the Hong Kong Pilots Association ("HKPA") alleged to be a possible bare-boat charterer of the Boat and also for a consequential order dispensing with service of the Amended Writ on the Boat. The application is opposed strongly by the Defendants.

2. As result of a collision involving the Boat and the Defendants' vessel "Peng Yun 211" ("Vessel"), the Plaintiffs as owner of the Boat issued the Writ in rem and served it on the Vessel. Security was put up by the Defendants and the Vessel was released. This happened in July 1997. No further step in the Action was taken after July 1997 and then suddenly in February 1999, there was this application by the Plaintiffs to add a second plaintiff and to amend the Writ accordingly.

3. It is not in dispute at the hearing that the application of JQ to add a new plaintiff requires the leave of the Court. Mr. Hirst on behalf of the Defendants urged the Court to exercise its discretion by refusing the application. He submitted that there is not even an arguable case put forward that HKPA was the bare-boat charterer and therefore has the necessary interest to sue. He said that this is not a case where leave to amend ought to be given and that even if leave to amend is given, the new Plaintiff should not be granted a special favour of not having to serve in rem.

4. It is convenient to start with the last point on service because it is the most controversial point in the case and it is of fundamental importance. The contention of Mr. Amos for JQ is that the proposed new plaintiff, HKPA should be relieved of the burden of serving an amended Writ of the new plaintiff on the Vessel. It is of course a burden but it is precisely because it is a burden on HKPA that it is also correspondingly a right of the Defendants to be served in rem. What is proposed is to deprive the Defendants of a valuable right, namely to have proper service of the Amended Writ on the Vessel. The basic rule in Admiralty action in rem is that service on the ship is the foundation of establishing in rem jurisdiction and the court has no right to even order substituted service. No precedent had been cited to me where an Admiralty Court has seen fit not to require service in rem. In the circumstances, I therefore must decline the most unusual application that service in rem be dispensed with.

5. Once this decision is reached, it seems to me that as limitation period has not expired, that the proper course is for the proposed new plaintiff to issue its new Writ and hope that it will be able to effect service on the Vessel. There is no good reason why in the circumstances, the Writ should be amended adding the additional new plaintiff but with the curious result of not knowing when the Amended Writ would be served on the Vessel if ever. In the circumstances of this case, taking into account also the serious doubt I have that HKPA could be said to be a bare-boat charterer, I do exercise my discretion and refuse leave to add the new party and to amend the Writ. It seems to me that the proper procedure is for this present Action to proceed, independently of the proposed new action by HKPA against the Vessel. The application of JQ is therefore dismissed with costs.

Representation:

Mr. Amos of Messrs Johnson Stokes & Master for the Plaintiffs

Mr. Hirst of Messrs Richards Butler for the Defendants