The Sansinena Co Ltd v. Power Tankers Inc Ltd

HCAJ001137/1974

Admiralty action - Meat-carrier involved in collision with tanker causing total loss of meat-carrier - Owners of cargo aboard meat-carrier suing owners of tanker for negligence - Service of writ on tanker owners in Hong Kong - Application challenging service under O.12 r.8 - Substantial delay by cargo owner in filing affidavits in that application - Application by tanker owners to strike out action for want of prosecution - Approach set out in Birkett v. James adopted and followed - Court found inordinate and inexcusable delay was established - Court considered: (i) the effect of defendant's halting of the action by challenging service; (ii) whether there was any express or implied agreement so to take any further step without notice; (iii) whether defendant warned or acquiesced in the delay - Court held that no serious prejudice was caused to the defendant and dismissed the action.

BETWEEN

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Coram: Hon. Power, J.

Date: 25 April 1983

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J U D G M E N T

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1. In this matter the plaintiff, the Sansinena Co. Ltd., were the owners of cargo shipped on board the British-flag refrigerator/passenger vessel "Royston Granger " which collided with the Liberian-flag bulk oil carrier "Tien Chee", a vessel owned by the defendant, Power Tankers Inc. Ltd. The collision occurred in the early morning hours of the 11th May 1972 when the "Tien Chee travelling upbound, carrying bulk oil, and the "Royston Grange" travelling downbound, carrying passengers and refrigerated meat, were negotiating the estuary of the River Plate. To describe the collision, and the events immediately thereafter I can do no better than set out the following paragraphs from the report of the Marine Board appointed by the Commissioner of Maritime affairs of the Republic of Liberia and chaired by Sir Gordon Willmer which conducted an enquiry into the collision at New York from 15th January to 22nd January 1973. This Board reported to the Commissioner in March of 1973 and he published their report on 25th April 1973. The report stated, inter alia, as follows:-

"l. About 0520 hours (local time) on the 11th May 1972 the Liberian Motor Tank Vessel TIEN CHEE, inward bound to the port of La Plata, came into collision with the British Steamship ROYSTON GRANGE, outward bound from Buenos Aires, in the Punto Indio Channel of the River Plate in a position between Buoys 15 and 16. The collision was an extremely heavy one causing great damage to both vessels. Immediately following the collision a disastrous fire broke out, no doubt caused by part of her cargo of crude oil escaping from the TIEN CHEE, and this rapidly enveloped the ROYSTON GRANGE and the water surrounding her, causing the death, apparently almost instantaneously, of all persons on board that vessel, 73 all told. Owing to the severity of the fire the TIEN CHEE had to be abandoned very shortly after the collision, and of the 42 persons on board that vessel 34 were saved, but the remaining 8 unhappily lost their lives.

6. Before proceeding to describe the circumstances of the collision and subsequent fire the Board thinks it right to refer to the grave difficulties which it has encountered in ascertaining the relevant facts. The first and most obvious difficulty arose from the fact that there were no survivors from among those on board the ROYSTON GRANGE. There was therefore no first-hand evidence as to the navigation of that vessel or as to the manoeuvres which she sought to execute. Moreover, in consequence of the fire all log books and other documents from both vessels were totally destroyed, so that there is no contemporary written record from either vessel of the manoeuvres adopted prior to the collision. The Board can only proceed on the basis of probabilities and of such inferences as can be drawn from facts which came to light on the subsequent examination of the two vessels, and from the evidence adduced on behalf of the TIEN CHEE in so far as this is considered to be acceptable. As will be seen, hereafter, there are some matters in respect of which the Board has found it difficult, if not impossible, to reach any firm conclusion.

7. The second difficulty under which not only the Board but also the respective parties have been labouring arises from the attitude adopted by the Argentine Government authorities. Some days after the collision the wreck of the TIEN CHEE was towed into La Plata, where she remained', the wreck of the ROYSTON GRANGE having meanwhile been towed into Montevideo. It is understood that during the many months which have elapsed since the collision a judicial Inquiry into the collision has been conducted on behalf of the Argentine Government. No representative of either the Government of Liberia or of the Department of Trade and Industry of the U.K. - who were vitally interested in relation to the ROYSTON GRANGE - was permitted to take part in the Inquiry. It appears to the Board that this withholding of facilities was in direct contravention of I. M.C.O. Resolution A.173 (ES.IV) dated the 28th November 1968. During the whole period of the Inquiry the Master and surviving members of the crew of the TIEN CHEE were held by the Argentine authorities virtually incommunicado.  No facilities were granted to the representatives of the Liberian Bureau of Maritime Affairs, the Department of Trade and Industry of the U.K., or of the respective ship-owners to take proper statements from the survivors, and only very limited facilities for interviewing them were granted. Great difficulty has been encountered throughout in obtaining relevant documents, or even copies thereof, from the respective Argentine authorities. The authenticity of some of the documents which have been obtained, whether officially or unofficially, remains very much under suspicion.  It has throughout been extremely difficult to obtain relevant information from official sources. Superimposed on all the other difficulties is the fact that the pilot of the TIEN CHEE - who could no doubt on many points have given vital information not available to others - was not permitted to come to New York for the purpose of giving evidence before the Board. All these circumstances have combined to render the task of the Board in seeking to ascertain exactly how the collision and fire were caused, and where the responsibility therefor should be placed, a great deal more difficult than it might otherwise have been. It is no part of the duty of the Board, nor is it our wish, to criticise adversely the behaviour of the Government of a Foreign sovereign state. But it is right that those into whose hands this Report may come should understand the difficulties under which it has been prepared, and the reasons for the absence of any firm conclusion on some of the questions that have been in controversy.

EVENTS LEADING TO THE COLLISION

8.     The only oral evidence as to the facts leading to the collision came from the Master and Chief Engineer of the TIEN CHEE. The Board also had before it certain written 'statements made by the Pilot of the TIEN CHEE in the course of the judicial Inquiry in Buenos Aires. These statements generally corroborated the oral testimony of the Master, subject to certain discrepancies of detail which are not considered to be of any great significance.

27. It is not proposed to elaborate on the course which the fire took on board the ROYSTON GRANGE. Much of the evidence which was offered to the Board was of   necessity somewhat speculative. What did appear to be of significance was that the whole superstructure - indeed everything above the water line - was almost totally destroyed by the fire, everything inflammable being consumed, but in the lower parts of the vessel, notably in the lower engine-room and tunnel shaft, the damage was relatively slight. The Board had the advantage of hearing oral evidence from Captain Connor, one time Acting Chief of the Fire Department of the City of New York. A written report was also submitted from Mr. Frank Taylor, Chief Fire Officer of the City of Liverpool Fire Brigade, who conducted an inquiry into the fire aspect of this casualty at the request of the Department of Trade and Industry. It seems to the Board that both these distinguished Fire Officers found some difficulty in accounting for the tremendous intensity of the fire which consumed the ROYSTON GRANGE, and for the extreme rapidity with which it spread. Captain Connor described this as "a completely unique case", bearing in mind that every living person on board the vessel was killed without any attempt at life-saving.

28. After considering the veiws of these two experts, who were largely in agreement, the Board finds that the sequence of events was probably somewhat as follows. The immediate effect of the collision and the gash ripped in the side plating of the TIEN CHEE was to release large quantities of crude oil (estimated by Mr. Taylor at 800 tons) into the sea between the two vessels.  This would give off a claud of volatile and highly inflammable vapour, which would be blown by the northerly wind over the ROYSTON GRANGE as she swung with her head to the northward. The heat generated by the friction of the collision was sufficient to provide the spark which ignited the cloud of vapour. The result would be an almost instantaneous fire which would quickly envelop the ROYSTON GRANGE. This phenomenon was variously described in evidence as a "fire-ball", a "flash fire", or (in the descriptive language of Captain Connor) as a "Whoosh". Its effect would be to generate within seconds an extremely high temperature, at least 1,000°F.  according to Captain Connor, and this would be sufficient to cause immediate death to all persons exposed to it. Such a fire would be completely uncontrollable and would result in time in the destruction of all inflammable material above the water line. The fire burning on the surface of the water in the enclosed space between the two vessels would generate sufficient heat to ignite the insulation of the refrigerating installation and other combustible matter in the holds of the ROYSTON GRANGE, which would account for the complete destruction of the cargo in the holds. Having regard to the direction of the wind the burning vapour would be largely blown away from the TIEN CHEE, which would explain the fact that the fire on board that vessel was mostly confined to the port side, so that the crew were able to escape over the starboard side."

2. On the 8th May 1974 the writ in the present action was issued alleging negligence on the part of the defendant and claiming damages for loss of cargo. Attempts were made to serve it on a Mr. Li Shek tong who was believed by the plaintiff's solicitors to be a director of the defendant and who appeared to be residing at the address given for the defendant in the 1972-73 List of Ship-Owners. These were unsuccessful and on the 8th November 1974 an order for substituted service was made. The terms of this order were carried out by 15th November 1974. On the 20th November 1974 the defendant took out a summons under O.12 r.8 to set aside the writ and service thereof on the ground that the defendant had been dissolved and was at the time of the issue and service of the writ not resident in Hong Kong or carrying on business therein. The application was brought by ''Jeanette Li, Chan Shu-tong, and-Tong Shing-kong who are trustees of Power Tankers Incorporated Limited, a corporation dissolved under the provisions of Liberian Law and/or by Power Tankers Incorporated Limited, the named defendant."

3. On the 27th November 1974 this summons was brought on for hearing and Mr. Registrar Rhind, as he then was, ordered that the matter be "Adjourned for argument - estimated time - one day". At that hearing Mr. Ferguson of Johnson Stokes & Master, appeared for the defendant and Mr. Jolly of Deacons, appeared for the plaintiff.

4. In support of the summons, the defendant's solicitors on the 25th June 1975, some seven months later, filed an affirmation by Mr. Chan Shu-tong and an affidavit, dated 13th March 1975, by a Mr. Richard A. Henries. The latter, which was sworn by a Liberian lawyer, set out the status of the defendant, under Liberian law. From the dates it would appear that it took the defendant about 7 months to obtain this affidavit. In the former affidavit Mr. Chan Shu-tong, who said that he was a trustee and a former director of the company, affirmed that the crew except for the Master and Chief Engineer, were repatriated to Hong Kong on the 17th June 1973, about 6 weeks after the collision, and that the Master and the Chief Engineer who were repatriated on the 16th December 1972, some 7 months after the collision.  Mr. Chan said that the vessel had been the sole asset of the defendant and that, following the repar repatriation of the crew, documents were filed in Liberia pursuant to which the company was dissolved by a Certificate of Dissolution dated the 20th March 1973.  He said that the company had not carried on business in Hong Kong or elsewhere since the 20th March 1973 and that, other than for the repatriation of the crew, had not carried on business elsewhere since the 10th May 1972 and that the company had no place of business in Hong Kong at the date of the writ, the 8th May 1974. He said Mr. Li Shek-tong, upon whom the plaintiff had initially tried to serve the writ, was not a trustee of the company and had never been a director thereof. Mr. Chan did not state, although it seems to be clear from the annexures to his affirmation, that Mr. Li Shek-tong was the President of the defendant corporation and its sole stockholder up until the date when the corporation was said to have been dissolved. Nor was any mention made of the fact, disclosed in a later affirmation of Mr. Chan, that up until the date when the corporation was said to have been dissolved Mr. Li was the person "who took all important decisions relating to the company's affairs".

5. It should be noted that the defendant took seven months to file its material in support of its application to set aside.

6. In a letter dated 30th June 1975 (Ex. RSP-1) Deacons,  the solicitors for the plaintiff, acknowledged having received copies of the affidavit of Mr. Chan and Mr. Henries and stated that their client's affidavit would follow in due course.

7. On the 30th July 1975, before any affidavit had been received from Deacons, Johnson Stokes & Master, the solicitors for the defendant, wrote to Deacons enclosing a copy of a draft amended summons, saying that they intended to apply for leave to amend.

8. On the 18th November 1975, more than 3½months later, the defendant took out an Inter-partes Summons asking for leave to amend the original summons. This was heard on the 26th November 1975 when Mr. Registrar Oliver made an order in terms giving the costs of the summons and all consequential amendments to the plaintiff. Both Mr. Ferguson of Johnson Stokes and Master and Mr. Jolly of Deacons again appeared on that hearing. A note of this appearance, (Ex. AR-2) was made by it would seem,  Mr. Jolly which reads "Adjourned to date to be fixed. Dates to be fixed in consultation with counsel's diary".

9. I note, although nothing may turn upon it, that this is not the order as it appears upon the Court file which reads :-

"Upon hearing the solicitors for the defendant and plaintiff, it is ordered that the defendant shall have leave as sought to amend the summons taken out by the defendant and dated 20th November 1974 and that the cost of the summons and all consequential amendments being to the plaintiff."

The position as it stood on the 26th November 1975 was that the defendant's summons had, on 27th November 1974, been adjourned for argument without directions as to the filing of affidavits having been asked for or given. The defendant had then, after some seven months, served 2 affidavits upon the plaintiff-and had, after a further 3½months, applied to amend his summons. At the hearing of this application, at which both plaintiff and defendant were represented, there were again no directions sought or given as to the either filing of affidavits or the fixing of a date of hearing. The Registrar plainly left these matters to the Rules of Court, in so far as they had application, and to the parties themselves. It certainly could not be suggested, at this stage, that the defendant was pursuing his summons with any degree of real expedition. It seems to me clear, both parties having been represented before the Registrar, that they were content that the matter be left as set out above. While I am not satisfied, as I will make plain later, that there was any "understanding" such as the Court found to exist in Banco Popolare di Novara v. John Livanos & Sons Ltd.^(l) it may well be that, given the delay the defendant had encountered when getting its affidavit from Liberia, it was tacitly acknowledged by both sides that it would not be practical to try to fix times given that the plaintiff would also have to obtain such evidence.

10. It appears that Deacons must have then referred the matter to their principals in London, Messrs.  Clyde & Co., who later became the solicitors for the plaintiff in the action, as, on the 3rd March 1976, Mr. Farthing, of Clyde & Co., telexed the Tubman Law Firm in Monrovia, Liberia, seeking advice on the matters raided in the summons. The reply from the Tubman Law Firm came by letter dated the 12th March to Clyde & Co.

11. Nothing further appears to have been done in 1976 except that Clyde & Co. wrote two letters to Messrs.  Middleton Lewis & Co., who were acting for the owners of the "Royston Grange", asking to inspect papers held by them which related to the matter. It seems that neither of these letters were answered. Mr. Peard, who filed 2 affidavits on behalf of the defendant, said that it appears from his firm's file that Mr. Ferguson who had originally handled the matter for his firm talked to Messrs.   Deacons by telephone on various occasions up until July 1976. Mr. Peard said that the notes upon the file indicate that Mr. Ferguson was told that Leading London Counsel's advice was being sought by the plaintiff. There is no suggestion of any note indicating that Mr. Ferguson was pressing the plaintiff to file its affidavit or suggesting that some time limit be fixed with regard thereto. I think it is important to note that, as at July 1976, Mr. Ferguson was making no complaint to the plaintiff's solicitors as to delay.

12. As to the affidavit which Clyde & Co. intended to obtain from the Liberian Law Firm, nothing seems to have been done, after the receipt of the letter dated the 12th March 1976, up until the 25th September 1978. When Clyde & Co wrote to Tubman enclosing a draft affidavit. There is no explanation advanced by the plaintiff with regard to this delay. The matter seems to have simply "gone to sleep" for a period of more than 2 years.

13. From September 1978 until May of 1980, Clyde & Co. despite letters and cables, received no reply or indeed satisfaction of any sort from the Tubman Law Firm.

14. A series of news clippings, (Ex. AR-10), indicate that in April 1979, there was extensive rioting in Monrovia, the capital of Liberia where the Tubman Law Firm is situated. There seems to have been some degree of civil unrest thereafter which culminated in April 1980 in the overhtrow of the government and the execution of a number of leading political figures including the President and Mr. Henries, the maker of the affidavit previously referred to, who was, at that time, the speaker of the House of Representatives.

15. On April, the 25th, the constitution was suspended and marshal law was imposed. There appears to have been continuing unrest in Liberia and a news report dated the 31st August 1981 speaks of "A climate of fear" which was then prevailing in Monrovia. This report also says that a Liberian interviewed had declined to be identified out of fear of retributive government measures.

16. Mr. Dicks, who appeared for the plaintiff, asked that the Court look at these clippings so that it could put itself in the position of a London solicitor who was trying to assess the best way of dealing with the difficulty which he was experiencing in obtaining information from Liberia. Mr. Ribeiro, for the defendant, made no objection to the Court looking at the clippings for this limited purpose.

17. Eventually, on the 7th May 1980, Clyde & Co. having received no reply from the Tubman Law Firm enlisted the aid of Denco, the Lloyd's agents in Monrovia. Over the next 17 months, there were a number of communications through Denco to the Tubman Law Firm and eventually, under cover of a letter dated the 2nd October 1981, the Tubman Law Firm sent the affidavit required made by a Mr. R.K. Marden.  On the 29th October this affidavit was filed and sent to the solicitors for the defendant. On the 2nd November Mr. Jolly wrote to Mr. Peard asking him to "dig out" the old file. On the 4th November 1981 Mr. Peard replied saying that he had located the file and that he would be in touch again when he had received instructions. Mr. Jolly replied by a letter dated 30th November 1981 saying that he was anxious to fix a date for the hearing of the defendant's summons. On that same date Mr. Peard replied saying that he had still not received any instructions and drawing Mr. Jolly's attention to the provisions of O.3 r.6 of the Rules of the Supreme Court requiring a party to give one month's notice of intention to proceed after a delay of a year or more.

18. On the 15th December 1981 Deacons wrote to Johnson Stokes & Master pressing to have a date fixed for hearing of the summons and on the 16th December, Mr. Peard replied saying that they anticipated receiving instructions to apply to the Court to strike out the proceedings for want of prosecution. One the 16th February 1982, they wrote again saying that they had now received instructions to so apply and on the 13th May 1982 the defendant filed a summons asking that the matter be dismissed for want of prosecution.

19. There was no dispute as to the basic law applicable which is clearly set out in Birkett v. James ⁽²⁾ as follows:-

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

20. As to C(i) Mr. Ribeiro submitted that if the matter proceeds the trial judge could not resolve it with any confidence that he was doing justice and that whether, therefore, there could be a fair trial must be substantially n doubt. As to C(ii) Mr. Ribeiro suggested that the defendant must, besides, the prejudice or possible prejudice which it suffered because of the failing memory of witnesses and the loss of documents, which will be dealt with under C(i), after so long a period of delay, have also suffered what is sometimes characterized as "Sword of Damocles" prejudice.

A. Inordinate Delay

21. I am satisfied that the three periods that must be considered when dealing with delay are as follows:-

22. First Period:

23. Second Period:

24. Third Period:

25. When considering the delay Mr. Ribeiro submitted that it was proper for the Court to bear in mind the delay in the first part of the first period i.e. the delay in not issuing the writ until 8th May 1974, which was only 3 days before the limitation period laid down in Section 8 of the Maritime Conventions Act of 1911.

26. Mr. Ribeiro relies, when making his submission that the Court can take this period of delay into account, upon the words of Lord Diplock in Birkett v. James ⁽³⁾ where his lordship said:-

"It follows a fortiori from what I have already said in relation to the effect of statutes of limitation upon the power of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution the delay relied upon must relate to time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued."

He also cited in this regard the passage from the judgment of Lord Denning in Biss v. Lambeth Health Authority ⁽⁴⁾ as follows:-

"One word more. It is, I believe, accepted on all hands, that if the plaintiff is guilty of inordinate and inexcusable delay before issuing the writ, then it is his duty to proceed with it with expedition after the issue of the writ. He must comply with all the Rules of Court and do everything that is reasonable to bring the case quickly for trial. Even a short delay after the writ may in many circumstances be regarded as inordinate and inexcusable: and give a basis for an application to dismiss for want of prosecution.

27. The law then, as I understand it, is that a late start which is the fault of the plaintiff and which may have occasioned prejudice to the defendant is not a ground, of itself, justifying dismissal of an action for want of prosecution but should, when it has occurred, be taken into account when the Court is considering whether delay by the plaintiff after the issue of the writ is excusable.

28. The first matter which falls for consideration is, therefore, whether there was any such delay before the issue of the writ.

29. Mr. Dicks, in this regard, pointed out that the period of limitation, 2 years, is a relatively short one, and argued that the Court should take into account that it is not an absolute bar as the section imposing the limitation provides that the Court can extend any such period. I appreciate that the period is a relatively short one; it is, however, the period fixed by the legislature. I do not think any weight can be placed upon the fact that the period can be extended. That is a matter of discretion, which is not lightly exercised and until such discretion is exercised, the period must be taken to stand at 2 years.

30. What I must take into account in the present case is that the disaster occasioned the loss of the whole complement of the ship carrying the plaintiff's cargo and of all of the ship's papers. The plaintiff had noone from that ship to interview as to the disaster and could hardly have been expected to have commenced to formulate its claim pending the outcome of the inquiries in the Argentine and, more particularly, in New York. The Argentine Report (Ex. AR-13) bears the date, the 20th July 1973. The report of the Marine Board set up by the Republic of Liberia, which had its hearings in New York, appears to have been published on the 25th April 1973.

31. Two matters which must be borne in mind generally as regards this period are that for the purpose of the New York enquiry the solicitors for the defendant must have collected relevant documents and taken statements from witnesses who could speak of the events which must then have still been relatively fresh in their minds and that, after that enquiry, given the findings of the Board, the defendant must have been aware that there was a distinct likelihood that proceedings would be brought against it.

32. The above facts surely take this matter out of that class of case where it can be said, as it was in Thorpe v. Alexander Fork Lift ⁽⁵⁾, that a defendant has, after a long period of delay, had an action "sprung upon" him. What the Court is really concerned with when a writ is not issued until towards the end of a limitation period is whether the defendant, through having been led to think that the action will not proceed, has been disadvantaged in some way.

33. In the circumstances of the present case even if the plaintiff was guilty of some delay in issuing the writ, and I have some doubt that there was culpable delay, I am quite satisfied that the defendant was not occasioned any prejudice thereby.

34. I now turn to consider whether there was inordinate delay in the second part of the first period i.e. in the service of the writ.

35. I have the benefit in this regard not only of the material that was placed before the Registrar in the application for substituted service but also of the affidavits of which have now been filed by Mr. Chan Shu-tong.

36. The solicitors for the plaintiff tried to serve the writ on Mr. Li Shek-tong who, they believed, was a director of the defendant at the Hong Kong address given for the defendant in the 1972-73 List of Ship-owners. While Mr. Li had not, it seems, been a director of the defendant, he had been its president, a position which one might reasonably think, would automatically involve its holder in being a director.

37. It is true that the defendant had dissolved itself in Liberia in March 1973 however this dissolution had not come to the notice of the plaintiff's solicitors. Were they unreasonable, at that stage of the matter, in acting upon the assumption that the defendant which had given a Hong Kong address, must still be in existence for, at the very least, the purpose of answering claims against it arising out of the operation of its vessel.

38. It may be established in other proceedings that the service was bad. I am not here concerned with that question but only with the determination as to whether they acted unreasonably in attempting to serve as they did and were thereby guilty of inordinate delay.

39. I do not consider that they were. They attempted service upon a person who, they thought, not unreasonably in my view, would be a proper person to serve at an address which the defendant itself had provided and finding that they were unable to locate him obtained and executed an order for substituted service.

40. This was all done within period of 6 months. I do not consider that there was any inordinate delay.

41. I now turn to the second period from mid November 1974 to the 26th November 1975 when the defendant sought and obtained an amendment to their summons which had been issued on 20th November 1974. Clearly any summons to set aside, if unsuccessful, will cause delay in an action. The delay, depending upon the extent to which the appellate jurisdiction is invoked, may be very substantial.

42. Although the summons was filed on the 20th November 1974, the defendant was not in a position to file affidavits in support thereof until the 25th June 1975. On the 30th June 1975 the defendant's solicitors wrote saying that they would be seeking to amend their summons and giving notice of the proposed amendments. The application to amend was, in fact, not dealt with until the 26th November 1975. It is suggested by Mr. Ribeiro that by 30th June the plaintiff had full knowledge of the case that was to be presented against it and of the affidavits upon which the defendant was relying and that from that date on it was incumbent upon the plaintiff to busy itself with the preparation of its own affidavits.

43. I don't think very much weight can be given to this submission. Given that no time had been fixed for the filing of affidavits surely the plaintiff was entitled to wait until the amendment to the summons had been allowed before proceedings to formulate their answer thereto.

44. I turn now to the third period. The delay in this period can be divided into 2 parts. The first part was from 26th November 1975 to 25th September 1978. As I have already indicated the plaintiff's solicitors did nothing material from about March 1976, when they received a letter from the Tubman Law Firm, to 25th September 1978 when they wrote to Tubman Law Firm enclosing an affidavit.

45. The second part was from September 1978 to November 1981 when the plaintiff filed a Notice of Intention to  Proceed. During the first part of the period, i.e. prior to the 25th September 1978, the plaintiff 's solicitor do not appear to have done anything and Mr. Dicks had to concede that they really could not offer any explanation for that delay. I have no hesitation in holding that the plaintiff was guilty of inordinate delay during that period.

46. As to the balance of that period, the plaintiff seeks to explain that there was no inordinate delay by referring to the conditions of civil unrest which its solicitors believed existed in Liberia. If such conditions existed they would to some extent explain the delay but what I must ask myself is whether the delay on the part of the plaintiff's solicitor was, given that he believed such conditions to exist, nonetheless inordinate. To deal properly with this question I must look in a detailed way at the sequence of event after 25th September 1978.

47. On the 25th September 1978 the plaintiff's solicitors sent a letter to the Tubman Law Firm enclosing a draft affidavit to be sworn by Mr. Nelson Broderick of Tubman. This letter stated "May we suggest that when you have made inquiries, which we should like you to do as quickly as possible, you return to us the draft affidavit with the blanks completed, plus your opinion on the position of the President and we will consider a further draft so that the affidavit can be sworn."

48. There was no reply to this letter and the next communication was again from Clyde & Co to Mr. Broderick of the Tubman Law Firm on the 30th February 1979, some 3½months later in that letter Clyde & Co. said that they would be "grateful to hear from you on the points raised as quickly as possible". There was no reply to this letter and in consequence on the 10th May 1979, some 3?months later, Clyde & Co. cabled the Tubman Law Firm seeking an explanation as to why there had been no reply. The London solicitors might well have been apprehensive about the matter at this stage as in April 1979, the press clippings reveal that there had extensive rioting in Monrovia. There was no reply to the cable and on the 14th September 1979, another cable was sent again seeking an explanation as to the failure to reply.

49. A cable reply was forthcoming on the same date in which Mr. Broderick said that he had never received letters or documents and asked that copies be sent.

50. On the 18th September, some 4 days later, a copy of the letter of 25th September 1978 and its enclosure was sent to Mr. Broderick. There was no reply to this letter and in consequence on the 28th December 1979, just over 3 months later, a cable was sent asking for confirmation of the receipt of the letter and stating "Please may we hear from you soonest as on the points raised therein. This matter is now urgent."

51. On the 3rd January 1980, some 6 days later, Clyde & Co. again cabled the Tubman Law Firm asking for confirmation of receipt of the letter of the 18th September 1979 and saying "Please may we hear from you soonest in the points raised therein. This matter is now urgent." It appears that there was no reply to this cable and on the 17th January, Clyde & Co. again cabled  Mr. Broderick in similar terms concluding with the words "This matter is now urgent."

52. On the 5th March, some 1½months later, Clyde & Co. again cabled Mr. Broderick in similar terms. On the 7th May, some two months later, still not having heard from Mr. Broderick, Clyde & Co. enlisted the aid of Denco, the Lloyd's agent in Monrovia, asking them to contact Mr. Broderick. It is to be noted that just prior to this in April 1980, the Government had been overthrown and a number of leading political figures, including Mr. Henries, had been executed.

53. Thereafter there were a series of cables to Denco and replies from the Tubman Law Firm which at first came through Denco and then finally came directly from Tubmans. The Tubman Law Firm appeared not only to have either not received or lost the papers but also to have been confusing this matter with another matter with which they had been dealing on reference from Clyde & Co.

54. In consequence the affidavit sought was not finally sent to Clyde & Co. until the 2nd October 1981, some 3 years after the draft affidavit had first been sent to the Tubman Law Firm.

55. Mr. Dicks suggested that, given the knowledge which the plaintiff's solicitors had that there was civil unrest in Liberia, they had been doing all they possibly could to try to obtain the affidavit.

56. Mr. Ribeiro submitted that the Court must be satisfied that, at some stage long before the 2nd October 1981, the plaintiff's solicitors were quite unreasonable in persisting with the Tubman Law Firm and that they should, given the delay that had already occurred have made attempts to obtain the affidavit from some other source.

57. I must say that I find it difficult to understand why the plaintiff's solicitors persisted in relying solely upon cable communications. The Tubman Law Firm has a telephone number and members of Clyde & Co. were personally acquainted with members of the Tubman Law Firm. I would have thought that the sensible course would, at some time during 1980, have been to attempt to contact that firm by telephone. There was no suggestion that any such attempt was ever made. I appreciate that the political situation in Liberia seems to have been unsettled but it does not appear that Mr. Broderick was in a situation of personal danger after the overthrow of the former Government as, according to the press clippings, by the 9th May 1980, he was the Deputy Minister for Justice in the new Government. I appreciate that Clyde & Co. did encounter difficulties; but I am, nonetheless, when I bear in mind the overall length of time which it took them to get the affidavit, satisfied that they were guilty of inordinate delay in the second part of the third period.

B.    Inexcusable Delay

58. I must now look to see whether the delay in the third period was inexcusable as well as inordinate. Was any satisfactory excuse forthcoming from the plaintiff as to this delay?   If not was it excused by some other circumstance of the case?

59. I turn then to the first question. It has already been canvassed to some extent. For the first part of the third period there was no excuse advanced. As to the second part an excuse was advanced which showed that the plaintiff's solicitors did make continued endeavours to get the affidavit however I am satisfied that they were not reasonable in persisting, as they did, in their attempts to stir the Tubman Law Firm into life by cabled communications. There was I am satisfied no satisfactory excuse forthcoming to explain the delay overall in the second part of the third period.

60. Mr. Dicks submits that the delay is anyway, excusable because -

61. As to (a) Mr. Ribeiro submits that throughout the third period the onus lay upon the plaintiff to get on with the action. He cites the statement in the White Practice under Order 25 rule 1 at p.473 where it is said:-

"The principle is that it is the duty of the plaintiff's advisers to get on with the case, since public policy demands that the business of the courts should be conducted with expedition. This is a general principle; it applies to all the stages of an action before trial, and is not limited only to actions for damages for personal injuries, although it applies with greater force to such actions."

He submitted that although the summons to set aside was the defendant's summons, the carriage of it could only be said to be upon the defendant to the extent that it was for it to place the material upon which it relied before the Court. He said that having done so, it had done all that it needed to do and that thereafter the carriage of the summons, and of the action generally, remained upon the plaintiff and the defendant in no way prejudiced its position by remaining inactive. He suggested that the defendant having placed its material before the Court was in the position of the defendant referred to in Allen v. Sir Alfred McAlpine & Sons Ltd. ⁽⁶⁾ of whom Lord Diplock said, at 258:-

"It is thus inherent in an adversary system which relies exclusively upon the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiff's action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible."

62. Can the defendant be so regarded? Mr. Dicks submitted that it could not. He referred in this regard firstly to O.32 r.4(2). This rule deals with applications and proceedings in chambers. It states that:-

"If a hearing is adjourned generally, the party by whom the summous was taken out may restore it to the list on two clear days notice to all the other parties on whom the summons was served."

63. There was considerable argument before me as to the meaning and effect of that sub-rule. I do not think it necessary to canvass that argument suffice to say that I am satisfied that the sub-rule does not place a duty upon a defendant to bring on his summons and cannot, therefore, of itself, provide an excuse for the plaintiff's delay.

64. Can the Court then give no weight to the fact that:-

65. It might well be argued that, in such circumstances, it would be proper to adopt the approach of Lord Denning M.R. in City General Insurance Co. v. Bradford & Co. ⁽⁷⁾. It would be open for the Court, being satisfied that the defendant had proved serious prejudice, but, in so doing, had done no more than just tip the balance of proof in his favour, to hold, bearing in mind the existence of facts similar to those outlined above, that the circumstances overall did not call for the exercise of the power of dismissal.

66. However that may be I am not, as will shortly become apparent, called upon to make a determination in this regard in the present case.

67. As to (b) Mr. Dicks submits that there was an express or implied agreement between the solicitors that nothing would be done, after the adjournment of the summons to set aside, without further notice and that the matter was, therefore on all fours with Banco Popolare di Novara v. John Livanos & Sons Ltd. ⁽⁸⁾ There was on the facts no express agreement in this regard and I am quite unpersuaded that any such agreement could properly be implied. Quite simply what happened was that the parties agreed that the matter should be adjourned to allow affidavits to be filed and did not, whether deliberately or by oversight is not clear, apply to the Registrar to fix times for the filing thereof. The facts do not establish any "understanding" such as the Court found to exist in the Banco Popolare case.

68. As to (c) Mr. Dicks suggested that if plaintiff had been guilty of any delay the defendant had waived or acquiesced in it. He suggested that the defendant's solicitors had done so by accepting service of the affidavit of Roger K. Martin on 29th October 1981 and by suggesting to the plaintiff's solicitors that they take out a Notice of Intention to Proceed.

69. Having read the correspondence, I am not satisfied that there was any real "acceptance" of service at all. The affidavit was simply left at the office of the defendant's solicitors and Mr. Peard having become aware of its existence made it clear that he was seeking instructions as to the attitude he should adopt thereto.

70. Further I find no merit in the suggestion that the defendant waived or acquiesced in the delay by suggesting that the plaintiff take out a Notice of Intention to Proceed. " Indeed Mr. Peard never made any such suggestion. All he did was "draw your attention to the provisions of O.3 r.6 of the Rules of the Supreme Court".

71. The position is quite different from that in Spriggs v. Norrard Trawlers Ltd. ⁽⁹⁾, the case relied on by Mr. Dicks, where the defendants solicitors wrote to the plaintiff's solicitors "asking them to put the irregularity right by serving a Notice of Intention to Proceed".

72. I am for the above reasons satisfied that in the third period there was both inordinate and inexcusable delay.

73. C(i) Will this delay give rise to a substantial risk that it is not possible to have a fair trial of the issues? The grounds urged by Mr. Ribeiro in this regard were concerned with the prejudice occasioned the defendant by reason:-

74. As to (a) Mr. Riberiro relied generally upon the fact that the memories of all witnesses must inevitably be blurred and misshapen by the passing of time. In this regard Mr. Dicks submitted, and I am satisfied that great weight must be given to this submission, that at the time of the New York enquiry full statements must have been taken from all witnesses and that they would, if required to give evidence, be able to refresh their memories from those statements. Mr. Ribeiro submitted that this could have no application to Mr. Li Shek-tong, who died on 1st July 1980 and who, according to the affidavit of Mr. Chan Shu-tong, was in charge of the overall supervision of the company and took all important decisions relating to the company's affairs.

75. At the hearing before the Marine Board set up by the Republic of Liberia, the defendant and the Master of the vessel were designated as directly affected parties and were represented. The defendant was represented at the inquiry by counsel and the solicitors for the defendant were Ince & Co. of London. Mr. Li was not called to give evidence at that inquiry. The suggestion of Mr. Ribeiro is that Mr. Li might have had knowledge which would bear directly and materially upon the issues raised at the trial of this action. If this be so surely it would have been investigated by Ince & Co. or their Hong Kong agents at the time of the New York inquiry. There has, however, been no evidence, as opposed to speculation, of any sort from any source stating either that Mr. Li had any such knowledge or that he would have been called as a witness.

76. In litigation where there have been no preliminary enquiries and matters are being raised for the first time at the trial one might well be persuaded by commonsense that some weight should be given to suggestions such as those made by Mr. Ribeiro. This is not so in the present litigation. If Mr. Li had been in a position where he could have given evidence material to the matters likely to be in issue in the present proceedings, I am quite satisfied that someone among his legal advisers would, given the extensive inquiries that must have had to be made prior to the Marine Board, have been in a position to tell us the nature of such evidence. Suggestions such as those made by Mr. Ribeiro may, in the circumstances of certain cases, be quite properly given some degree of weight. I am satisfied, however, that in the circumstances of this case, they should be accorded none. They are mere conjecture made in circumstances where, I am satisfied, had they any foundation of fact, some evidence in support must have existed and would have been forthcoming.

77. The material placed before the Court by the defendant regarding the possibility that witnesses might be missing or might, because of the lapse of time, be unable to recall events was, in my view, far from impressive.

78. Mr. Yue Way Mand, the Master of the "Tien Chee" stated in an affidavit filed on the 5th June 1982, that "The passage up the channel at this time was normal and after the passage of 10 years, I am quite unable to remember any details of the passage what ever."  He said that his memory was "now extremely vague" and that he "would only be able to refer back to" the evidence he gave to the Argentine authorities and to the Liberian inquiry in New York. He seemed to be suggesting that the reference back would have the effect, not of refreshing his memory as to what had occurred, but of putting him in the position where all he would be able to do would be to read back his former evidence without any recollection of the events themselves. Mr. Yue seemed to be at pains to give the impression that he had no memory of the events of the collision and that he would, even if he referred to his previous evidence, not be able to recall them.

79. Mr. Yue went on in his affidavit to say that he had attempted to contact four other crew members but had only been successful in locating one of them Because of this statement the plaintiff obtained a report from Fact Finders (AR-14) who were able, after having made fairly simple inquiries, to obtain a considerable amount of information about all of the crew members referred to by Mr. Yue.

80. Mr. Chan Shu-tong, who still works with the group of shipping companies controlled by Mr. Li Shek-tong's family, said in an affidavit filed on 5th June 1982 that he was the person "generally in charge of the operation and chartering of 'Tien Chee' ".  He went on to say that he was "subject to the overall supervision of Mr. Li Shek-tong who took all important decisions relating to the defendant's affairs."

81. Mr. Chan makes no suggestion that he will have any difficulty recalling matters. He, rather than Mr. Li would, it seems to me, given that he was in charge of the operation and chartering of the "Tien Chee", be the material witness as regards the operation of the vessel. Mr. Chan also stated that his fellow director in the defendant company, Mr. Tong Shing-kong, who had been in charge of insurance and claims, had left the employment of the group since 1980. There was, however no suggestion either that Mr. Tong Shing-kong would be required to give evidence or that he would, if so required, be unavailable or unable to do so.

82. Given all of the facts I am not satisfied that the delay has given rise to a substantial risk that it is not possible to have a fair trial because of the failing memory or unavailability of witnesses. When so holding I bear in mind that even if the trial had been held in 1978 or 1979, as it might have been if both parties had pursued the matter with reasonable expedition, the witnesses would have had to rely very much upon documents and former statements to refresh their memory.

83. As to (b) Mr. Ribeiro suggested that there was a substantial risk that because of the delay documents which would otherwise have been available, were now missing. In this regard he relied upon para. 4 of the affidavit of Mr. Chan which reads as follows:-

"4.    I have caused a thorough search to be made amongst the papers still held by the group and in particular I have attempted to find the following documents:

84. Mr. Chan goes on to say that since the casualty the defendant has twice moved office once in 1972 and once in 1973 and that old records and papers were destroyed in 1981 and that the "missing document" may have been lost as a result of such moves or such destruction. If it is being suggested that documents were lost during the moves in 1972 and 1973 this cannot, be held to be the responsibility of the plaintiff.

85. Before turning to consider the suggestion that the documents may have been destroyed in 1981 I think it fair to ask whether the defendant, in a situation such as this, can be said to have satisfied the onus resting upon him by pointing to two possibilities one of which cannot be said to have been caused by the plaintiff. In my view he cannot.

86. Even if this be not so has the defendant placed material before the Court to which real weight should be given when considering the possibility that documents might be missing because they were destroyed in 1981.

87. On the evidence before me it does not appear that either Mr. Chan or the solicitors for the defendant have approached either Ince & Co. or the Liberian authorities, who have custody of the records of the New York enquiry, to see whether the relevant documents are with them. Given the failure to make such enquiries and bearing in mind the nature and extent of the enquiry in New York, I do not consider that any weight should be given to the suggestion that the documents might have been destroyed in 1981.

88. I am not satisfied that the delay occasioned by the plaintiff has given rise to a substantial risk that it is not possible to have a fair trial because documents have been destroyed or are missing.

89. C(ii) "Sword of Damocles" Prejudice

90. I turn now to consider "Sword of Damocles" prejudice. This can best be described in the words of Lord Denning in Biss v. Lambeth Health Authority ⁽¹⁰⁾ where he said:-

"The one solution that I see is that the prejudice to a defendant by delay is not to be found solely in the death or disappearance of witnesses or their fading memories or in the loss or destruction of records. There is much prejudice to a defendant in having an action hanging over his head indefinitely, not knowing when it is going to be brought to trial. Like the prejudice to Damocles when the sword was suspended over his head at the banquet. It was suspended by a single hair and the banquet was a tantalising torment to him."

91. It is true that the litigation has now been pending for more than 8 years. It must, however, be borne in mind that, in the present case, the defendant counterattacked by issuing his summons to set aside in which he contends that the threat is an empty one which will be removed when his summons, which he has been in a position to bring on on 2 days notice, comes on for hearing. I do not consider that such a defendant can be said to be in the same position as a defendant who, not having brought any such summons, has been the passive victim of delay wholly attributable to the plaintiff. I also bear in mind in this regard that this defendant has not continued to operate and trade under the threat of litigation but has ceased to carry on business of any sort and has, as far as the laws of Liberia allow, dissolved itself. Mr. Dicks suggested that the only persons who would have been occasioned any unease by the thought of pending litigation would be the defendant's P. & I. Club. Mr. Ribeiro submitted that they will have been prejudiced by having been forced to put money aside against the possibility that they will be called on to meet a judgment. That may be so but their business is, afterall, as Mr. Dicks pointed out, to take such risks. I do not in the present case, see any serious "Sword of Damocles" prejudice such as existed in Biss v. Lambeth Health Authority.

92. I am not satisfied that the defendant has established that the delay of the plaintiff has given rise to a substantial risk that it is not possible to have a fair trial or that the delay is such as is likely to cause or to have caused serious prejudice to the defendant. This application must, therefore, be dismissed.

93. I make an order nisi that the defendant pay the plaintiff's costs to be taxed.

(1)    (1973) 117 Sol. 50509

(2)    (1978) A.C. 297 at 318.

(3)    (1978) A. C. 279 at 322.

(4)    (1978) 1 W.L.R. 382 at 390.

(5)    (1975) 1 W.L.R. 1459 at 1464.

(6)    (1968) 2 Q.B. 229

(7)    (1970) 1 L.L.R. at 523.

(8)    (1973) 117 Sol. Jo. 509.

(9)    (1973) 117 Sol. Jo. 509.

(10)    (1978) 1 W.L.R. 382 at p.389

Representation:

Mr. Ribeiro (Johnson Stokes & Master) for Applicant/Defendant.

Mr. Dicks (Clyde & Co.) for Respondent/Plaintiff.