The Owners of the Ship "Da Qing 236" v. The Owners of the Ships or Vessels "Gunung Klabat" and Others

Case No.HCAJ 333/1983

Court

HCAJ

Date—

Judge—

Case Document

100%Judiciary

HCAJ000333/1983

A.J. 1983, No.333

Admiralty Law. Practice. Application for injunction and inspection pursuant to R.S.C. O.29 r.2 and O.75 r.28. Meaning and effect of words "in connection with any issue in the action" considered.

Following a collision at sea the plaintiffs obtained an order ex parte preventing the execution of repairs on certain parts and machinery in the defendants' vessel until they had had the opportunity of inspecting such parts and machinery. On the hearing of the inter partes summons it was contended that no equivalent order should be made or continued as the plaintiffs had failed to establish that inspection was necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action.

Held: The words "in connection with any issue in the action" were so to be construed as referring to matters which, on materials available to the Court at the time the application was heard, might reasonably be regarded as of relevance to probable issues.

1983, Folio No. 333

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

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BETWEEN

	THE OWNERS OF THE SHIP "DA QING 236"	Plaintiffs
	and
	THE OWNERS OF THE SHIPS OR VESSELS "GUNUNG KLABAT", "GUNUNG KUMAWA" "GUNUNG LOKON" and "GUNUNG SOUTAN"	Defendants

_______

Coram: Hon. Kempster, J.

Date: 31st October, 1983

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JUDGMENT

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1. At about 10:20 a.m. on the 11th October 1983 a collision Occurred between a vessel called "Da Qing 236", owned by the plaintiffs, and the "Gunung Klabat", owned by the defendants, in the South China Sea. It appears that the wireless operator of the "Gunung Klabat", having given his position sent out a signal at or about the time of the collision in these terms:

"Due to steering gear out of Order collided with Da Qing 236 portside sinking. Kindly request tugboat's assistancy. Gunung Klabat damage forward boy".

And then this signal appears to have been repeated by the Hong Kong Marine Department with the rubric

"All vessels in the vicinity keep a look Out and report to the Marine Department Hong Kong".

2. On the 15th October solicitors acting for the owners of the Da Qing 236 obtained from this Court, ex parte, an order restraining the owners of the Gunung Klabat from causing any repairs to be carried out to certain specified parts of the vessel until the hearing of an inter partes summons returnable on the 21st of the same month. By consent that summons stands adjourned. But the defendants, by a separate summons, seek to vary the terms of the ex parte order to which I have just referred. However, sensibly if I may say so, the parties consent to my treating the adjourned inter partes summons as being before the Court as well as the defendants' summons to vary the ex parte order. I therefore approach the matter de novo and my point of departure must be the terms of the two rules pursuant to which the plaintiffs effectively seek a continuance of the injunction restraining the defendants from repairing their vessel. Such restraint is not sought after the evening of the 2nd November 1983 by which time, the plaintiffs say, they will have been able to carry out the inspection, by their two surveyors, which they seek.

3. The first rule is Order 29 rule 2, the material parts of which read:

"(1) On the application of any party to a cause or matter the Courts may make any order for the inspection of any such property (that is property which is the subject matter of a . cause or matter) in the possession of a party to the cause or matter".

The second rule is Order 75 rule 28 which reads:

"without prejudice to its porters under Order 29 rules 2 and 3, the court may, on the application of any party, make any order for the inspection - by any party or witness of any ship - the inspection of which may be necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action".

These rules in no way prescribe a time at which an application must be made. They do not, for example, state that it must be made after close of pleadings.

4. The writ in this action was issued on the 15th October. The issue between the parties at present is expressed in the most general terms by the words of the indorsement:

"The plaintiffs' claim is in respect of damages and less suffered by them arising out of a collision between their vessel Da Qing 236 and the defendants' vessel Gunung Klabat off China on the 11th October 1983 caused solely by the negligence of the defendants their servants or agents".

5. It is contended by Mr. Ribeiro on behalf of the defendants that the words "in connection of any issue in the action" appearing in Order 75 rule 28 must so be construed as to preclude the plaintiffs from seeking an order for a general inspection of the Gunung Klabat. He says that the interlocutory relief sought must be relevant to the issues as defined if not, at this juncture, by pleadings by some other means.

6. By about the 15th December 1983 the plaintiffs will have been required to lodge in the registry a document called a Preliminary Act pursuant to Order 75 rule 18 of the Rules of the Supreme Court. It will contain a great many particulars relating to the collision including the course steered; the speed of the ship through the water when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier; the lights carried by the ship; the bearing of the other ship if and when her echo was first observed by radar; what alterations were made to the course and speed of the ship after the other was perceived; the parts of each ship which first came into contact; what sound signals if any were given and what sound signals if any were heard. All these matters will be relevant to the eventual finding on liability for the collision.

7. But by the 15th December of this year the owners of the Gunung Klabat will, not unnaturally, desire to have their vessel again on charter and repaired and seaworthy. It would not be practicable for the court to order an inspection at that stage and, a-fortiori, it would not be practicable for the court to order an inspection after close of pleadings. In any event any defective parts would have been repaired in order to render the vessel seaworthy. I therefore conclude that the expression "in connection with any issue In the action" must be construed broadly so as to cover matters which, on the materials presently available, in may reasonably be regarded as of relevance to probable issues.

8. The signal which I have already quoted indicates a high likelihood that the state of the steering gear of the Gunung Klabat will be in issue. The defendants by telex have suggested there was nothing wrong with it. Whether or not there was a defect in the steering gear it may well be in issue as to whether or not the, defendants were negligent; as was the case initially in "The Frosta".⁽¹⁾In any event it seems to me there will be a consequential issue as to the ability of the of Gunung Klabat to stop, to reverse, to give a signal by whistle or foghorn or VHF arid, mutatis mutandis, an issue as to the radar signals which it was receiving at the material time.

9. In those circumstances and in order to facilitate a just and, it would be hoped, a reasonably economic solution of the dispute between the parties I take the view that an inspection by surveyors appointed by the plaintiffs to take place tomorrow or the day after is warranted. There will bean order in the following terms on the footing that the plaintiffs give the usual undertaking as to damages:

	"That the defendants their servants or agents contractors or otherwise be restrained and an injunction is hereby granted restraining them until 7:00 p.m. on the 2nd November 1983 from causing or effecting any repairs to those parts of. the vessel Gunung Klabat referred to below unless such parts have by then been inspected as hereinafter provided.
	2. The plaintiffs, by not more than two of , their appointed surveyors accompanied by any appointed surveyors required to be present by , the defendants, be at liberty to inspect the following parts of the ship Gunung Klabat at a time convenient to the, respective surveyors and to observe a demonstration of the operation of the said pmts namely:
	(a)	the steering gear and the auto-pilot on the steering flat and bridge including the electric motors connected thereto."
		I make this order because the vessel may at the material time have been operating under auto-pilot or the steering system may have been changed as between one system and another auto-pilot or the steering system may have been changed as between one system and another.

	"(b)	telegraph and helm equipment to the bridge' engine room and steering flat". I include the telegraph because the communication between bridge and engine room at the time of emergency must be relevant to issues which will arise at the hearing.
	"(c)	Gyro compass and repeater, radar, VHF and bridge rudder repeaters". The gyro compass may well have been governing the steering gear at the material time.
	"(d)	generators, main engines and switchboards in the engine room". I interpolate that the whole electrical system of the vessel was dependent on the effective operation of the generators. "(In the case of generators there should be a demonstration of individual starting and running under sea load and in the case of main engines a demonstration of ahead and astern movements consistent with the safety of the vessel and third-party property at the time). If a berth is rented the plaintiffs are to pay therefor and if a sea-trial is required the plaintiffs are to pay any additional insurance required; both in the first instance. These costs will, in due course, become costs in the cause.
	(e)	whistle signals.
	The defendants are to provide the plaintiffs' surveyors, tomorrow, with a sight of all plans and manuals which are on board the vessel relating to the aforesaid parts".

10. I do not think it is necessary for me to deal with any other. matter this afternoon except the question of costs.

(M. Kempster)

Judge of the High Court

(1) (1973) 2 Lloyds Law Reports 348

Representation:

E.C. Mumford (Crump & Co.) for plaintiff

Robert Ribeiro (Ince & Co.) for defendant