HONG KONG MACAO HYDROFOIL CO LTD v. NG CHUN WAI AND OTHERS

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JUDGMENT

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Fuad, V.-P.:

1. On 11th July 1982 there was a tragic collision between two hydrofoils which belonged to the Hong Kong Macao Hydrofoil Co. Ltd., about which no person who was then living in Hong Kong will be in ignorance. There was, sadly, some loss of life and many persons suffered personal injuries.

2. This Court was moved by a Notice of Appeal filed on 21st December 1989 on behalf of Madam Luk Siu Chun, the administratrix of the estate of a young lady who died in the collision - her sister Luk Siu Sze. Complaint in the Notice of Appeal was made against that part of the assessment made by Master Perrior on 8th December 1989 where he declined to award, in relation to Miss Luk Siu Sze, anything in respect of what has been called the "lost years" claim, under the Law Amendment and Reform (Consolidation) Ordinance, Cap.23. The order sought was that a reassessment should be directed or that this Court itself should make an appropriate adjustment to the award.

3. When we began to hear' the appeal, Counsel for the administratrix informed us that this had been a reference to the Registrar under the Rules of Court dealing with Admiralty proceedings and had been heard by him in accordance with the provisions of O.75, rr.41 and 42. The rules make it clear that an objection to a decision on a reference of that kind, by virtue of the provisions of O.75, r.43, is made by motion in objection to set aside or vary the decision of the Registrar and not by way of appeal to this Court. The notes in the White Book (paragraph 75/43/1) indicate that the matter first goes to the judge and then there is a route of appeal to the Court of Appeal.

4. Counsel before us were in some difficulty; they wanted the appeal to go ahead if the Court felt it possible to entertain it. Counsel for the respondent took no point on the procedure adopted and was quite willing for the objection to he heard today if the Court felt able to assume jurisdiction.

5. However, there is ample and consistent authority for the proposition that neither the acquiescence nor the express consent of the parties can give a Court jurisdiction that it does not have. The Court of Appeal has very little original jurisdiction. Being a creature of statute, its jurisdiction is to be found in section 13 of 'the Supreme Court Ordinance, Cap.4, which tells us, inter alia, that the civil jurisdiction of the Court of Appeal shall consist of (a) appeals from any judgment or order of the High Court in any civil cause or matter, (b) appeals under section 63 of the District Court Ordinance and (c) any other jurisdiction conferred on it by any law.

6. It seems clear to me that jurisdiction to hear an appeal from this reference is not given to us by any statutory provision or rule of Court; therefore, this appeal is incompetent and must be struck out.

7. Mr. Graham for the intended appellant was right to abandon the appeal in the circumstances. It is very sad that we cannot go on with the hearing today but our hands are tied by the law that we have to apply. We express the hope that the matter can be settled as soon as possible and, if it is not settled, that the controversy will go before the judge at an early date.

Hunter, J.A.:

8. Very reluctantly I am constrained to agree that the appellate route from the Master on an admiralty reference, as made plain by the rules, is via the judge and not direct and we are powerless to assist in bringing this long drawn out litigation to an end.

9. As it is, the limitation fund was $2 million, the total of the three fatal and six personal injuries claims assessed by the Master was $4.1 million and costs of $0.65 million were deducted. This left $1.5 million to be distributed amongst those claimants and on my sums they each got 36%. This is a salutatory warning, I fear, to those who travel from Hong Kong to Macau. It is apparent that the hydrofoil company is perfectly entitled to limit its liability. One wonders how many of the passengers realise the consequences to them and their families when they travel in this way. At the present moment, until this claim is disposed of, part of the distribution of the fund remains held up because all the claims have to come from within this global figure and, therefore, I would fervently echo my Lord's invitation to the parties to settle this case if they possibly can.

Penlington, J.A.:

10. With the greatest reluctance, I also must agree that we have no jurisdiction to hear this appeal. I echo the words of my Lord Hunter, J.A. regarding the fact, unknown, no doubt to the public, that travellers on vessels plying between here and Macau, who are injured or have a claim because a relative has been killed, under the Merchant Shipping Act which is in force in Hong tong, the ship owner's liability can be limited, as it has been here so that they receive only a fraction of the anyway modest sum they would otherwise be entitled to. However that is a matter for the legislature.