THE "WEN ZHOU HAI"

HCAJ407/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.407 OF 1998

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Admiralty action in rem against : the ship or vessel "WEN ZHOU HAI"
and her sisterships named in the Schedule "A" annexed hereto

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J U D G M E N T

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1. I have before me a somewhat unusual application by the plaintiffs whereby in respect of the summons which had recently been issued by the defendants to strike out the action for want of prosecution, that the plaintiffs seek direction for an order that the trial judge should be the admiralty judge and that the judge hearing the interlocutory application for the strike out for want of prosecution should not be the admiralty judge.

2. The basis of this application to exclude the admiralty judge is that in the contested strike out application, there would be without prejudice material which would be referred to and that or once there is reference to that material, the same judge who has heard the application for strike out could not hear the trial on the basis that his mind would have been affected and he would have knowledge of matters such as admission of liability, etc.

3. This is an action by the plaintiffs for loss resulting from a voyage to Japan where there was cargo damage. The cargo damage was suffered, I believed, some time in early 1998. The writ was issued also in 1998. It has obviously taken a long time for the plaintiffs to get on with the action. That is why the defendants recently issued the application to strike out for want of prosecution. In any strike out for want of prosecution, of course, the three essential elements are whether :

(1) there had been undue delay;

(2) such delay is justified; and

(3) the unjustified delay has caused prejudice.

4. It is not necessary at this stage to go into the details of the case, and suffice to say that many of the matters where the admiralty judge would have some expertise through his long exposure to that type of work would be of great deal of assistance to the parties on a strike out application, especially when it comes to dealing with the matter of prejudice, to weigh the kind of relevant material and its relationship with the prejudice. I have also no doubt that on a trial such as this action, which of course is in the admiralty list, the expertise of the admiralty judge would be highly desirable.

5. What is unusual in this case is the desire of the plaintiffs to exclude the admiralty judge for the strike out application on the basis that that admiralty judge should be preserved for the trial. I am not persuaded that that is the right approach. In my view, an interlocutory application that has come before the admiralty judge of a matter in the admiralty list (whether strike out application of not) where the materials required to be investigated at the interlocutory stage was admiralty material, it would be wrong for the admiralty judge to be excluded. I think the fair way of looking at this matter is that I should hear the interlocutory application and if the action is struck out, then that would be the end of the matter. But if the action survives and the plaintiffs proceed to trial, then if necessary, with the benefit of knowledge of the without prejudice material canvassed at the strike out application, the parties can invite the admiralty judge to look at all the material required for the trial and the court can then decide whether the admiralty judge should continue to be the trial judge or if not, then whether another appropriate trial judge with the necessary maritime experience can be identified. I have no doubt as matter stands and also in the likely future there would be a number of judges in the High Court who would have the requisite exposure to maritime matters who will be able to preside over this trial if it is decided that I should not be the trial judge. My conclusion is that the application of the plaintiffs fails.