Yiu Hon Ming v. Coastal Shipping Co Pty Ltd

Case No.CACV 160/1989

Court

Court of Appeal

Date29 Mar 1990

Judge—

Case Document

100%

CACV000160/1989

IN THE COURT OF APPEAL

1989, No. 160
(Civil)

BETWEEN
	YIU HON MING, otherwise known as IU HON MING	Appellant
	AND
	COASTAL SHIPPING COMPANY PTY. LTD.	Respondent

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Coram: Sir Derek Cons, V.P., Kempster & Clough, JJ.A.

Date of hearing: 20 March 1990

Date of delivery of judgment: 29 March 1990

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JUDGMENT

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Sir Derek Cons, V.P. delivered the judgment of the Court:

1. This is an appeal from the decision of Judge C.B. Chan striking out an application brought by a Mr. Yiu Hon Ming under the Employees' Compensation Ordinance, Cap. 282. On the 19th October, 1984 Mr. Yiu entered into an Employment Contract as a marine engineer with Coastal Shipping Company Pty., Ltd. ("the Company") of Rabaul in Papua New Guinea. The Company was represented in the transaction by its agent then here. Within one month of that agreement, on the 16th November, Mr. Yiu suffered injury on the Company's M.V. "Cosmaris". He fell from the mast as a result of an electric shock, suffering serious damage to both hips. It is common ground that the "Cosmaris" was neither registered nor licensed in Hong Kong, and that she was in Papua New Guinea territorial waters at the time of the accident.

2. It is not necessary, for the purposes of this appeal, to go into what took place between then and the 3rd March, 1988 when Mr. Yiu lodged his application under the Ordinance. Those matters may be relevant to other aspects of the application, but not to the initial objection taken by the Company, which is simply that, having regard to the facts set out above, the application did not lie here.

3. By agreement between the parties the question of jurisdiction was dealt with as a preliminary issue. The parties further agreed, we think correctly, that the sole consideration was whether or not the Company had submitted or had agreed to submit to the jurisdiction. Section 30(1) of the Ordinance provides:

"If the employer submits or has agreed to submit to the jurisdiction of the Court, then, notwithstanding that the accident causing the personal injury occurred outside Hong Kong, this Ordinance shall apply, subject to the modifications in subsections (2) and (3) and section 30A, to seamen and apprentices to the sea service who are employees within the meaning of this Ordinance and, having been recruited or engaged in Hong Kong, are members of the crew of a foreign ship."

Subsections (2) and (3) and Section 30A do not affect the position in the present instance.

4. The contention before the judge was that the Company had agreed, by the terms of the Employment Contract, to submit to the jurisdiction. Reliance was placed on Clause 7:

"RECOVERY OF INJURY & SICKNESS CLAIMS ETC. - All the Employee's claims in respect of Injury, illness, etc., while serving on board the Owner's vessels, shall be dealt with and recoverable in accordance with the P. & I. Club Far East Crew Clause dated the 20th February, 1980, stipulated thereof.

For details, a copy of such regulation is attached herewith for reference."

The regulation is in these terms:

	" Warranted that the Member's liability in respect of officers and crew shall be in accordance with and recovery from the Association be limited to the following terms and conditions:- (1) Injury during service

		(a) Full basic wages allowed for the period after discharge from the ship until rejoining the ship or until the date of return to the Home Port. Medical expenses shall be payable until declared fit or until the degree of permanent disability is established. If still disabled after return to the Home Port compensation for temporary or permanent disability or death shall be payable in accordance with the Hong Kong Workmen's Compensation Ordinance, or any other similar Statute of the country of the Officer's or Seaman's domicile. Where the Officer or Seaman is excluded from the provisions of any compensation Act by reason of his level of earnings, compensation shall nevertheless be paid according to the Act as if no such exclusion existed.
	(2)	Illness arising from the employment on the ship
		Full basic wages allowed for the period after discharge from the ship until rejoining the ship or until the date of return to the Home Port. Thereafter if still disabled half wages are payable for a further period of not exceeding six months. Medical expenses are allowed for the same period as wages in the previous paragraph. Compensation for death or permanent disability resulting from illness shall be paid according to the record of service with the same Owners the minimum payment being three months wages and the maximum six months wages. Burial Expenses resulting from injury or illness in the service of the ship shall, unless there is an additional liability according to the Statutes of the country of the Officer's or Seaman's domicile, be limited to the normal cost of the burial at the place of death in accordance with the status and religion of the deceased and this place includes the Home Port if death occurs after repatriation and is a consequence of injury or illness in the service of the ship.




	Irrespective of the above limits for wages, medical expenses and compensation, as regards officers and crewmembers other than those engaged on Hong Kong Articles the liabilities according to the Statutes of the Officer's or Seaman's country of domicile shall so far as they are applicable be covered in full."

The judge accepted a submission on behalf of the Company that the law was correctly stated by Ashworth, J. in Vogel v R and A Kohnstamm Ltd 1973 1 Q.B. 133 at 145, where, having reviewed earlier authorities he said:

"Those two cases in my view establish the principle that an implied agreement to assent to the jurisdiction of a foreign tribunal is not something which courts of this country have entertained as a legal possibility. Recognising that such an agreement may be made expressly they have in terms decided that implication is not to be relied upon.''

It is self-evident that the two clauses contain no express submission or agreement to submit. Naturally the judge struck out the application.

5. We have been taken by counsel through Vogel v R and A Kohnstamm Ltd and other relevant authorities, in particular Blohn v Desser and Others [1962] 2 Q.B. 116 and Sfeir & Co v National Insurance Company of New Zealand [1964] 1 Lloyd's L.L.R. 330. We note that in contrast to Vogel v R and A Kohnstamm Ltd, it was accepted in those two authorities that the submission could be implied, at least if the implication was a necessary one.

6. We prefer to express no view on this dichotomy of judicial opinion, for in our judgment there is no submission to be implied in the present instance, whether by necessity or otherwise.

7. The stumbling block in the way of implication is that there can be no partial submission to the jurisdiction, that is submission for the purposes of only part of the Ordinance. It is all or nothing. If there is submission, or an agreement to submit, then "this Ordinance shall apply", including Part III which deals with occupational diseases. These are defined by reference to the Second Schedule and all listed there would appear to fall within the description of "illness arising from the employment on the ship". That, as we can see, is expressly dealt with in paragraph (2) of the Far East Crew Clause, the terms of which contain no reference to the Employee's Compensation Ordinance and would fall to be applied in their own right. We find ourselves unable to impute a submission to the Company when there is clear expression that it definitely did not intend to be bound by part of tire Ordinance.

8. Mr. Sarony, for Mr. Yiu, puts forward an ingenious argument to persuade us otherwise. He suggests that if we accept his contention that paragraph (1) of the Far East Crew Clause necessarily imports a submission, to which we shall turn in a moment, the "offending" paragraph (2) will in effect be removed from the Clause for paragraph (2) would immediately become a contract or agreement purporting to reduce the liability of an employer under the Ordinance and be rendered null and void by Section 31. It is sufficient to say that we cannot bring ourselves to attribute to the Company such a convoluted and internally inconsistent intention.

9. The argument that the words of paragraph (1) of the Clause import a necessary submission to the jurisdiction depends upon restricting the word "court", so far as it is incorporated in the Clause by reference to the Ordinance, to the meaning given to it by Section 3 of the Ordinance, i.e. the District Court, to which must be added in the context, "of Hong Kong"; and supporting the argument with the suggestion that without the machinery embodied in various sections of the Ordinance the words "in accordance with the Hong Kong Workman's Compensation Ordinance" can have no useful meaning. In regard to the latter aspect our intention is drawn to the various references in the Ordinance to medical examination and to Ordinary and Special Assessment Boards, periodical payments, medical expenses, distribution of compensation in the case of death and the encouragement given to the reaching of settlements. However we do not see these provisions, in particular those relating to the Assessment Boards, as a sine qua non to the making of an award by the District Court in accordance with that part of the Ordinance which deals with quantum, namely Sections 6 to 10 and the First Schedule. In our view it is these parts of the Ordinance that are incorporated by the reference to it in the Far East Crew Clause and should be applied, where appropriate, in whatever court action is taken.

10. For these reasons we dismiss the appeal with costs to be taxed in accordance with the Legal Aid Regulations.

(Sir Derek Cons)
Vice President

(M.E.I. Kempster)
Justice of Appeal

(P.G. Clough)
Justice of Appeal

Representation:

Neville Sarony, D.L.A. for the Appellant

John M.Y. Yan (M/s Winston Chu & Co.) for the Respondent