Indian Overseas Bank v. The Owners and/or Demise Charterers of the Ship or Vessel "Oriental Lily' and The 12 Ships or Vessels Listed in Schedule Hereto

HCAJ91/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.91 OF 2004

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Admiralty action in rem against the ship or vessel “Oriental Lily”
and the 12 ships or vessels listed in Schedule hereto

BETWEEN

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Before : Hon Waung J in Chambers

Dates of Hearing : 6 and 9 May 2005

Date of Judgment : 9 May 2005

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J U D G M E N T

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1.I have before me the adjourned hearing of an application by the plaintiff who are owners of the cargo and who hold still the original bills of lading against the defendants, owners of some 13 ships.  The Writ was issued in May 2004 in respect of a claim where the cause of the action arose out of a lading of bill dated June 2002 for misdelivery which must have taken place some time around 2002.  There is no question, in my view, that by now the action would be time-barred if the action has to be started anew.  This application is for a renewal of the Writ. 

2.The application was first supported by an affirmation of Mr Krishnan Kollengode, the Chief Manager of the plaintiff.  It was then followed by a succession of affirmations as a result of my not being happy with the paper application then appearing before me supported by the then affirmation.  In total, there were something like, as of today, five affirmations filed.  On the last occasion when Mr Ho appeared before me as a result of my requesting an oral hearing, the matter was adjourned because Mr Ho asked for additional time so that he could put in the 5^th affirmation.  

3.The long and short of what had happened is that the plaintiff had been unable to produce evidence before this court to satisfy the court on a renewal of the Writ that there was no reasonable opportunity for service of the Writ and for arrest of the vessel during the previous period prior to the application for the renewal. 

4.The claim here is against 13 ships (12 sister ships and the offending ship “Oriental Lily”).  The 5^th Affirmation clearly shows that during the period in question, there were at least two or three or four occasions when one of the vessels came into Hong Kong, stayed for a period — anything between 12 hours, and perhaps 25 or 26 hours.  The question is : Would that period of time be reasonably sufficient for effecting service?  In my view, undoubtedly, it would be.  The reason is that it is the duty of the solicitors and the duty of the reasonable plaintiff to track the possible movement of the vessel coming into Hong Kong, and that in fact involves tracking the actual movement of all the vessels.  It may be a somewhat costly exercise but a plaintiff who seeks to rely on a large number of sister ships should pay for the price of having so many targets. 

5.It is incumbent, as I have said in my judgment in The Chong Bong [1997] 3 HKC 579, for a reasonable plaintiff to take all reasonable steps to effect service.  At page 590, I referred to the wise principle set out by Brandon J (as he then was) in The Berny [1979] 1 QB 80, [1978] 1 All ER 1065.  I will not repeat The Berny requirements except perhaps to underline this :

“the duty of solicitors, who have issued a writ on behalf of the plaintiffs, to take all reasonable steps to ensure that it is served during its initial currency.  If the plaintiffs choose to proceed against a large number of ships concurrently (there is nothing which requires or compels them to do so), they must accept the disadvantages, as well as the advantages of doing so.”

That is the context against which I must decide whether there are sufficiently good reason for me to order a renewal. 

6.If the plaintiff bank, for reasons of economy, chose to put such restrictions on the pursuit of the claims against all 13 ships, then the plaintiff only have themselves to blame.  If during the period in question there was no service and they wish to seek a renewal, they must satisfy the court of the The Berny requirement.  Therefore, I feel that I should not or could not exercise my discretion in favour of granting a renewal.    I think there is just simply no material.  In my view, the question of hardship or balance of convenience simply does not come in.  It comes in, as I have said, in The Chong Bong at the second stage.

7.I regret therefore that the application for a renewal must be dismissed.

Mr Keith Ho of Messrs Wilkinson & Grist, for the Plaintiff