Bold Dragon Services Ltd and Another v. Neway Shipping Ltd t/a Shing Ge Fat Shipyard and Others
Read the full judgment text of HCAJ 67/2004 on BabelCite. This HCAJ judgment was delivered on 3 October 2006.
1. The application before me by the 2 nd defendant is to strike out the Action by the plaintiffs against the 2 nd defendant. The basis of the strike out is that an issue that had been raised by the 2 nd defendant on time limitation based on the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (“Ordinance”) must succeed and there can be no arguable dispute.
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HCAJ67/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ADMIRALTY ACTION NO. 67 OF 2004 --------------------- BETWEEN
---------------------- Before : Hon Waung J in Chambers Date of Hearing : 3 October 2006 Date of Judgment : 3 October 2006 ------------------------- JUDGMENT ------------------------- 1.The application before me by the 2nd defendant is to strike out the Action by the plaintiffs against the 2nd defendant. The basis of the strike out is that an issue that had been raised by the 2nd defendant on time limitation based on the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (“Ordinance”) must succeed and there can be no arguable dispute. 2.It seems to me that the matter is not so simple. The way that the case has come about is that the Action is brought against the 2nd defendant not under contract. The claim by the plaintiffs against the 1st defendant is under contract for breach of contract in having caused the loss of the plaintiffs’ vessel. 3.The 2nd defendant was not the owner of the barge but was engaged by the 1st defendant to do what is alleged to be “salvage” work — if I may call it generally that. Although the 2nd defendant alleged that they are the charterer of the barge, there is certainly no admission of this by the plaintiffs and the matter is at issue. There cannot be a certainty that the barge was at fault, which is a requirement of the Ordinance. The allegation is that the 2nd defendant had failed in his duty towards the plaintiffs, not that the barge was at fault. 4.The Merchant Shipping (Collision Damage Liability and Salvage) Ordinance is a very peculiar nautical ordinance with a very old pedigree based on the 1911 Maritime Convention Act of UK. The whole premise of that Act or Ordinance is that there were two vessels engaged in maritime interaction, if I may call it that, and as a result of the fault of one vessel, the other vessel suffered damage and therefore a special two-year period, a very short period, was given for the protection of that kind of maritime misadventure. 5.Now the case here is a little bit special. In order for the 2nd defendant to succeed on its time limitation defence, one will have to do considerable investigation both of fact, as well as law. And there is quite a bit of old law involved in the investigation. I have certainly not come across any situation such as this. It is not stated in the books anywhere. It is not clear cut in any way. It seems to me that this is a wholly unsuitable case for summary disposition by the court on a strike out. It seems to me that this matter should and must go to trial and therefore I do not accede to the application under the summons. 6.The summons must be dismissed. I will hear the parties on the matter of costs.
Mr R. White of Messrs Stephenson Harwood & Lo, for the 1st & 2nd Plaintiffs Mr Gary Chu, instructed by Messrs C.L. Chow & Macksion Chan, for the 2nd Defendant |