XCHRX THONG SOON MARITIME PTE LTD. v. JUTHA MARITIME PLC

AJ Folio 288 of 1997

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

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REASONS FOR JUDGMENT

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1. By Summons dated 5th August 1998, the Plaintiff pursuant to Order 75 Rule 38 of the Rules of the High Court, seeks a decree limiting the liability of the Plaintiff arising out of a collision by the Plaintiff's ship 'EQUATOR CRYSTAL" with the Defendants' vessel "JUTHA SUPHANNIKA". The Summons was returnable before Waung, J. on 8th October 1998. When this hearing in Chambers commenced on the 8th of October 1998, I raised with Mr. Kerr for the Plaintiff the matter of whether the Summons brought under Order 75 rule 38 should be before the Registrar and not before the Admiralty Judge. Order 75 rule 38 provides:-

"(1) Within 7 days after the acknowledgment of issue or service of the writ by one of the defendants named therein by their names, or if none of them acknowledges issue or service, within 7 days after the time limited for acknowledging service, the plaintiff, without serving a statement of claim, must take out a summons returnable in chambers before the Registrar asking for a decree limiting his liability or, in default of such a decree, for directions as to the further proceedings in the action.

(2) The summons must be supported by an affidavit or affidavits proving-

(a) the plaintiff's case in the action, and

(b) if none of the defendants named in the writ by their names has acknowledged service, service of the writ on at least one of the defendants so named.

(3) The affidavit in support of the summons must state-

(a) the names of all the persons who, to the knowledge of the plaintiff, have claims against him in respect of the casualty to which the action relates, not being defendants to the action who are named in the writ by their names, and

(b) the address of each of those persons, if known to the plaintiff.

(4) The summons and every affidavit in support thereof must, at least 7 clear days before the hearing of the summons, be served on any defendant who has acknowledged issue or service of the writ.

(5) On the hearing of the summons the Registrar, if it appears to him that it is not disputed that the plaintiff has a right to limit his liability, shall make a decree limiting the plaintiff's liability and fix the amount to which the liability is to be limited.

(6) On the hearing of the summons the Registrar, if it appears to him that any defendant has not sufficient information to enable him to decide whether or not to dispute that the plaintiff has a right to limit his liability, shall give such directions as appear to him to be appropriate for enabling the defendant to obtain such information and shall adjourn the hearing.

(7) If on the hearing or resumed hearing of the summons the Registrar does not make a decree limiting the plaintiff's liability, he shall give such directions as to the further proceedings in the action as appear to him to be appropriate including, in particular, a direction requiring the taking out of a summons for directions under Order 25 and, if he gives no such direction, a direction fixing the period within which any notice under Order 38, rule 21, must be served.

(8) Any defendant who, after the Registrar has given directions under paragraph (7), ceases to dispute the plaintiff's right to limit his liability must forthwith file a notice to that effect in the Registry, and serve a copy on the plaintiff and on any other defendant who has acknowledged issue or service of the writ.

(9) If every defendant who disputes the plaintiff's right to limit his liability serves a notice on the plaintiff under paragraph (8), the plaintiff must take out a summons returnable in chambers before the Registrar, asking for a decree limiting his liability; and paragraphs (4) and (5) shall apply to a summons under this paragraph as they apply to a summons under paragraph (1)."

2. The Registrar is referred to many times in Order 75 rule 38 (see paragraphs 1, 5, 6, 7, 8 and 9). The plain reading of Order 75 rule 38 suggests that the summons for limitation decree is to be brought before the Registrar and to be heard by the Registrar and not by the Admiralty Judge. This is to be contrasted with the trial of limitation action by the Admiralty Judge and not by the Registrar. The Hong Kong Order 75 is in this respect materially the same as the English Rules of the Supreme Court. Meeson in his Admiralty Jurisdiction and Practice describes at page 239-41 the procedure of the summons for limitation decree before the Admiralty Registrar and the procedure so described confirms the plain reading of Order 75 rule 38 that limitation decree summons are properly heard by the Registrar and not by the Judge. In essence the difference between the roles played by the Admiralty Judge and the Admiralty Registrar in relation to limitation is that the Admiralty Judge only comes in when there is a contested limitation action. A limitation decree is only made by the Judge on the trial of the contested limitation action (see Order 75 Rule 39(2)).

3. Mr. Kerr did not seriously contest that under the Hong Kong Rules and the English procedure, limitation decree summons are properly brought before the Registrar and not before the Judge. However he said that in Hong Kong, a practice had grown up some 12 years ago whereby limitation decree summons under Order 75 rule 38 were automatically marked not for the Registrar but for the Judge. I am doubtful that there was this long established practice, but if there was such a practice then it was contrary to the Rules and should not be allowed to continue.

4. In the Admiralty jurisdiction of the Supreme Court of England, the Registrar and the Admiralty Judge have always played very different roles and according to the Rules of the Supreme Court of England, the Registrar has the statutory function under Order 75 Rule 42 of hearing Reference (namely the assessment of damages in Admiralty). Equally it is the Registrar who hears the limitation decree summons under Order 75 Rule 38. In Hong Kong our Rules of procedure are the same and I can therefore see no reason why we should have a different practice.

5. At the hearing, the question of the jurisdiction of the Judge to hear this limitation decree summons was discussed and in the light of the clear wording of Order 75 Rule 38 it seems to me that the statutory intention is clearly to confer the jurisdiction under Order 75 rule 38 on the Registrar. It is possible that notwithstanding this express statutory conferring of the power on the Registrar, that a Judge has the inherent, ancillary or subsidiary jurisdiction to hear the limitation decree summons under Order 75 Rule 38 but this is clearly highly undesirable. In my view it is not right for the Admiralty Judge as a matter of practice to usurp the function of the Registrar. In future, all applications in Admiralty which under the Rules are to be heard by the Registrar should be listed to be heard by the Registrar. For reasons given above, I therefore ordered that this Summons for limitation decree should be heard by the Registrar.