CHAU MEI KIU AND ANOTHER v. THE OWNERS OF THE SAID VESSEL FEN HE ("THE SAID VESSEL") AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

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Admiralty Action in Rem Against the Ships FEN HE ("the said vessel") and AN BAO JIANG, AN DA JIANG, AN GUANG JIANG, AN HUA JIANG, AN BAN JI JIANG, AN KANG JIANG, AN LONG JIANG, AN LU JIANG, AN NING JIANG, AN QING JIANG, AN SAI JIANG, AN SHUN JIANG, AN TAI JIANG, AN TAO JIANG, AN WU JIANG, AN XIN JIANG, AN YANG JIANG, AN YUE JIANG, AN ZHE JIANG, BAO SHAN HAI, BI JIANG, CHI FENG KOU, CHUN LIN, DAI JIANG, DE RONG HAI, FU PING, GAN JIANG, GAO CHENG, GAO LING, GU CHENG, GUAN HE KOU, GUANG HE, GUI JIANG, GUI YANG, HAI NING, HAN JIANG, HAN ZHONG HE, HE JIANG, HONG JIANG, HU LIN, HUA TONG HIA, HUAI YANG, HUAN JIANG, HUI JIANG, HUN JIANG, JI NING, JIA HAI, JIN JIANG, JING CHENG JIANG, JU HAI, KANG AN KOU, KANG SU HAI, LE CHANG LING, LE PING LING, LI SHAN HAI, LIANG JIANG, LIAO YANG, LING CHANG HE, LING QUAN HE, LONG CHUAN JIANG, LONG HAI, LU FENG, MA GUAN HAI, MA LONG HAI, MEI JIANG, MIN JIANG, MING CHENG, MING XI HAI, NAN JIANG, NEI JIANG, NEN JIANG, PING HAI, PING JIANG, PING QUAN, QIAN TANG JIANG, QING HE, QING JIANG, QU JIANG, RONG JIANG, SAN JIANG KOU, SHA HE KOU, SONG LIN, TANG HE, TANG QUAN, TAO JIANG, TAO LIN, TIAN LIN, TIAN LING, WAN LING, WAN QUAN HE, WANG JIANG, WU CHANG, WU JIANG, XIANG JIANG, XIN AN JIANG, XIN FENG, XIN HE, XIN YANG, YA JIANG, YANG LIN, YIN SHAN HAI, YING HE, YONG JIANG, YONG NING, YU JIANG, YU LING, YUAN JIANG, YU LING, ZHENG YANG ("collectively referred to as "the said sisterships")

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JUDGMENT

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1. On the 26th December 1991, Cheung Kwai Shing a stevedore was working on board the Defendant's ship Fen He ("the Vessel") when he was injured in an accident, as result of which he died on 27th December 1991. Legal Aid was granted to the Plaintiffs to pursue this Action on 4th June 1992 and this was some 6 months after the accident. However, Legal Aid Department did not issue the Writ in Rem in this Admiralty Action for the Plaintiffs until the 24th December 1994, almost 3 years after the accident and just 3 days before the cause of action against the Defendants would be time barred. The Writ in Rem was valid for service on the vessels named in the Writ for a period of 12 months.

2. The ships named in the Writ in Rem consisted of the Vessel, namely the ship Fen He and some 100 odd ships said to be sisterships of the Vessel. Unfortunately the Legal Aid Department got it all wrong, and none of the so called sisterships named in the Writ was sistership of the Vessel. What was unfortunate for the Plaintiffs was that not only did the Legal Aid Department get the identities of the sisterships all wrong, but that the Department took a long time after the issue of the Writ to serve the Writ in Rem and this was not done until the 17th of November 1995, just about 40 days before the expiry of the Writ and almost 4 years after the accident. Even more unfortunate is that instead of the Legal Aid Department serving the Writ in Rem on the Vessel which had been coming into Hong Kong regularly on its liner service after the accident and for some 13 times since the Writ was issued, the Department served the Writ on Xiang Jiang which was not a sistership of the Vessel and was never owned by the Defendants, the owners of the Vessel. On 14th December 1995, an application to be heard on the 31st January 1996 was issued by the owners of Xiang Jiang to set aside the service of the Writ. Realising the mistake which had been made and that by the time such service might be ordered to be set aside, the Writ would have expired, Legal Aid Department applied ex parte on 18th December 1995 for a renewal of the Writ. The paper application was granted on the 19th December 1995 and the validity of the Writ was extended for 6 months as from 24th December 1995. On the 8th of January 1996, the Vessel was served with the renewed Writ. On the 30th January 1996, by consent Mr. Justice Cheung set aside the service of the Writ on Xiang Jiang.

3. The Owners of the Vessel, the Defendants applied by Motion to set aside the renewal of the Writ and at the hearing before me, two grounds were advanced by the Defendants. Firstly, it was said that the ex parte order should not be made because no good reason for such renewal had been shown. Secondly it was said that the renewal ought to be set aside because the ex parte order was made with material non-disclosures by the Plaintiffs.

4. Mr. Wong on behalf of the Plaintiffs accepted that the authorities are very clear that good reason had to be shown for the Court to allow renewal of the Writ and the debate was whether good reason for renewal had been shown. On behalf of the Defendants, Mr. Fok contended that:-

5. In The Berny [1978] 1 A.E.R. 1065, Brandon, J. (as he then was) said at page 1084:-

".... I think it is, in general, the duty of solicitors who have issued a writ on behalf of 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. Where, as in the present case, solicitors have issued two writs concurrently against a large number of ships in respect of the same cause of action, all reasonable steps to effect service of one or other writ include, in my view, asking LID to keep a watch on each and every ship proceeded against despite the fact that dong so will involve the incurring of substantial costs. Alternatively, if I am wrong about that, I think that all reasonable steps include, at the least, a close day by day study of the information contained in Lloyd's List."

6. The Admiralty Jurisdiction in rem of the Hong Kong Court has been effectively employed by many claimants as attested by the large number of in rem writs issued every year and by the arrests made pursuant to such in rem writs. In my view, the real problem in this case was caused by the lack of knowledge and by the inexperience of those in the Legal Aid Department of how to go about prosecuting an action in rem. It is not in dispute that Fen He belonged to Cosco Tianjin and not to Cosco Guanzhou or that the Vessel together with its many true sisterships regularly came to Hong Kong from the time of the accident up to the end of 1995. Any of the solicitors who regularly practised before the Admiralty Court would have no difficulty in correctly effecting service of the Writ in Rem or obtaining security for the Plaintiffs' claim. The simple, direct, inexpensive and most effective way would be to proceed against the Vessel (which was the offending ship) rather than any sistership. This is not a case where the offending ship had sunk or no longer available for arrest so that resort had to be made directed to the arrest of a sistership. The arrival of the Vessel (or for that matter her sisterships) could easily have been ascertained by keeping a regular watch with the relevant channels or even through the daily newspapers so that the appropriate arrest action can be taken. If the Legal Aid Department did not have such capability in-house, it could easily farm out the work to a competent outside solicitors firm or alternatively obtain the assistance of either an experienced shipping consultant or even a reasonably competent admiralty barrister. Unfortunately for the Plaintiffs, none of these simple steps were taken and the Legal Aid Department found itself floundering with its amateurish chase after the identities of Defendants' agents, treating the action in rem almost as an action in personam. The necessity for seeking a renewal of the Writ was caused by the sheer bungling of the Legal Aid Department and I regret to say that ignorance and incompetence do not provide a good reason for renewal.

7. My Meyrick Wong for the Plaintiffs submitted that the Legal Aid Department was of the view that it was not necessary to serve the Writ quickly and could safely leave it to almost the last minute since many of the Defendants' ships came into Hong Kong regularly. I do not accept that submission as it is the duty of all plaintiffs, following what was said in The Berny, to serve proceedings as soon as possible and certainly during its initial currency and not when it was about to expire. Even in the case of an ordinary in personam writ, it would be incumbent on a plaintiff to effect service as quickly as possible and this would be true even in the case of a defendant who is a regular resident of Hong Kong not likely to be travelling abroad. But in the case of in rem writs, the necessity becomes paramount as ships are known to meet with casualties or subject to sales or arrests in other jurisdictions.

8. Mr. Wong also submitted that it was reasonable for the Plaintiffs not to serve the Writ in rem because the Legal Aid Department was waiting for the expert's report on the merits of the claim. Again with great respect to Mr. Wong, this submission shows a wholly erroneous appreciation of what is required in an in rem proceedings. First of all, the Legal Aid Department ought to have the expert's report ready long before it even commenced its Writ in rem. It had no business starting proceedings when it was not even clear as to the merits of the claim. Secondly, there is simply no adequate or satisfactory explanation as to why such expert's report could not have been obtained long before the end of 1994. As it was, the Department did not instruct an expert until May 1995 and the Department therefore only had itself to blame for not having the expert report at an early stage so that it could effect service soon after the issue of the Writ. Thirdly, as admitted by Mr. Wong, the Statement of Claim settled by him, was already endorsed on the Writ in December 1994 so the claim was ready to proceed and the Writ to be served. It was a lame excuse, as far as I could judge, for the Plaintiffs' lawyers to advance an explanation that the Department was waiting for the expert's report before proceeding with effecting service. The events showed that the Department went ahead with service without having obtained the expert's report and there is no reason why the Department could not have effected service shortly after the Writ was issued, namely in January 1995 and if that had been done and service was effected on the Vessel (17th to 18th January 1995 or alternatively 28th to 29th January 1995 as per paragraph 3 of 3rd Affidavit of Gloria Jones), there would never be the necessity in December 1995 to seek a renewal of the Writ.

9. In the course of the argument of Mr. Wong, much reliance was placed on the mistake made by the Legal Aid Department as result of the Marine Department giving the wrong information to the Legal Aid Department and it was said that the Legal Aid Department acted prudently and reasonably as it had acted diligently and prudently all along. I regret that I must hold a very different view of the matter. In my judgment, the cause of the present difficulty of the Legal Aid Department was due to, as I said before, the sheer long inaction and lack of capability of the Legal Aid Department to properly prosecute a claim in rem. The Legal Aid Department should be in no different position from any outside solicitors firm in prosecuting an action in rem and it is not the duty of the Marine Department to act as an investigation arm of the Government in helping the Legal Aid Department.

10. This is not the first time that the Legal Aid Department got itself into difficulties pursing marine claims and it is time that the Legal Aid Department must realise that without the necessary expertise and capability, the Department in attempting to prosecute marine claims with very often disastrous results, is not serving the community or the legally aided claimants or their families. The duty of the Legal Aid Department is to bring these proceedings as quickly as possible to court to enable proper damages to be recovered and received by the victims and their families. When the Department, with its in-house limited ability, is unable to achieve such objective or to discharge such duty, then the Legal Aid Department ought to institute some other system to enable these in rem proceedings to be properly prosecuted. I regret to say that the material put before me has convinced me that in this case, the Legal Aid Department could only have itself to blame for the present state of affairs. In my judgment, no good reason had been shown by the Plaintiffs for the Writ to be renewed and it follows that the Order of Renewal of 19th of December 1995 must be set aside.

11. This has effectively therefore disposed of the application to set aside but if it is necessary, I will also like to record that I am clearly of the view that on the ex parte application for renewal, there had been material non-disclosures of at least the following matters:-

These non-disclosures were not only material but serious and weighty and had these disclosures been properly, they would most probably have led to the refusal of the paper application to renew the Writ. For this additional reason, the renewal order should be set aside.

12. In the circumstances, I make an order that the Order of the Court dated 19th December 1995 renewing the validity of the Writ be set aside and that the Defendants are to have the costs of this application.