PERUSAHAAN PERSEROAN (PERSERO) PT PERTAMINA v. TREVASKIS LTD AND OTHERS

CACV 102/2021

[2022] HKCA 1672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 102 OF 2021

(ON APPEAL FROM HCAJ NO 98 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 22 July 2022, we handed down our judgment (“CA Judgment”)[1] dismissing the plaintiff’s appeal against the decision of Anthony Chan J on 22 February 2021 (“Decision”)[2]. The plaintiff seeks leave to appeal to the Court of Final Appeal on the ground that the intended appeal raises questions of great general or public importance. Reliance is also placed on the “or otherwise” limb.

2.  The CA Judgment upholds the Decision on a question of construction that on the ordinary meaning of the relevant provisions of the Merchant Shipping (Limitation of Shipowners Liability) Ordinance, Cap 434 (“the Ordinance”) and the Convention on Limitation of Liability for Maritime Claims 1976 (“1976 Convention”), and applying the maxim of generalia specialibus non derogant, the subject wreck removal claim fell exclusively within article 2(1)(d) of the 1976 Convention. Hence, notwithstanding the linguistic overlap with other heads of claim subject to limitation of liability under the more general terms in articles 2(1)(a) and (c), the subject claim was excluded from the limitation regime through a reservation made under article 18(1) to exclude the application of article 2(1)(d).

3.  The reasons for our judgment will not be repeated here. Suffice to say the contrary arguments of the plaintiff have been addressed at length in the CA Judgment and it is apparent from the papers lodged by the plaintiff in this application that the arguments are sought to be repeated in the intended appeal.

4.  We are not inclined to grant leave to appeal on this question of construction and will endeavour to give reasons for refusing leave succinctly.

5.  Five questions were set out in §7 of the Notice of Motion as questions of great general or public importance. They are as follows:

“Question 1

Is a shipowner entitled in Hong Kong law to limit its liability to a claimant for a Private Recourse Claim[3] under LLMC Article 2 head (a)?”

The plaintiff contends that the answer to Question 1 is “yes, always”. It is apparent that this question is a general question as the issues which give rise to this question are dealt with in Questions 2 to 4[4].

“Question 2

Where a Contracting State has enacted LLMC Article 2 in full into local law but, by provision of local law, has disapplied (permanently or temporarily) Article 2 head (d), is a shipowner entitled to limit its liability to a claimant for a Private Recourse Claim under LLMC Article 2 head (a), or does the existence of Article 2 head (d) exclude the shipowner’s reliance upon head (a) for such claims by virtue of the doctrine generalia specialibus non derogant?”

The plaintiff contends that the answer is “the former” and in support of its contention refers to a number of authorities which have been considered in the CA Judgment with the exception of one case which was not cited to this court[5].

“Question 3

Whether and, if so, to what extent, the court may have regard to previous case law on earlier Conventions or enactments as an aid to construction of the LLMC (see CA Judgment [39])?”

The plaintiff contends the answer is “yes, especially where a particular construction of the Convention advanced by a party would remove an established right under such case law”. The previous case law relates to the authorities canvassed in Question 2.

Insofar as this question is based on the premise that this court did not have regard to previous case law on the earlier Conventions or enactments as an aid to construction of the 1976 Convention, that premise is incorrect. The cases cited by the plaintiff were all considered in the CA Judgment and it was explained why they are distinguishable and could only provide limited assistance on the question of construction in light of considerable differences in the legislation.

“Question 4

Whether the fact that a particular type of legal right does not exist at the time a statutory provision is enacted is a relevant consideration when determining the proper construction of that statutory provision where the statutory provision appears on its natural reading to contemplate the existence and/or suspension or de-suspension of such legal right (see CA Judgment [73])?”

The plaintiff contends the answer is “no” or “no where it is reasonable to infer that such right was or could have been in the contemplation of the legislature”.

The paragraph reference of the CA Judgment should be §74, not §73. The “particular type of legal right” said not to exist at the time of enactment of the Ordinance is a statutory claim for wreck removal expenses by harbour authorities. This is hardly a consideration crucial to the construction exercise in the CA Judgment.

“Question 5

Where an international Convention has been enacted into Hong Kong law by a local Ordinance in its entirety, but the legal force of a part or parts of the Convention have been modified by the Ordinance, may the Hong Kong Courts apply the doctrine generalia specialibus non derogant to the Convention as a legal instrument in isolation or should the Courts have regard to and apply the doctrine to (if and how applicable) the overall resulting legislative scheme comprising the Convention and the local enacting Ordinance?”

The plaintiff contends the answer is “the latter”.

This question would appear to have been addressed in the foregoing questions.

6.  With no disrespect to the drafters of the Questions, it seems there is really only one question here, and that is the question of construction identified at the outset of this judgment.

7.  In deciding whether to grant leave to appeal, it is not necessary to enter into the debate how common or uncommon Private Recourse Claims are. The most important consideration in this instance is whether the plaintiff’s contrary arguments to the question of construction are reasonably arguable. It is for the plaintiff to identify with specificity where the CA Judgment might have gone wrong and the grounds for any errors that are said to exist in that judgment. It is no good to repeat arguments that were raised on appeal and rejected by the court without any attempt in engaging the reasons of the court for rejecting those arguments. we cannot be persuaded in the circumstances that the intended appeal is reasonably arguable.

8.  For the above reasons, we refuse to give leave to appeal on any of the five Questions.

9.  As for the “or otherwise” limb, it is accepted by all that this aspect is to be considered by the Appeal Committee if the plaintiff should renew its leave application before it.

10.  The last paragraph of the Notice of Motion seeks a stay of execution of this action until the determination of the leave application by the Court of Appeal or the Appeal Committee upon the plaintiff’s undertaking that such leave application to the Appeal Committee will be filed within 28 days upon the determination of the present application by this court. The plaintiff’s submissions and reply submissions did not address the application for stay of execution. No evidence in support of a stay has been filed. As no proper basis for granting stay of execution has been made out, we decline to exercise our discretion to order a stay.

11.  Costs of this application should follow the event. We order the plaintiff to pay the defendants’ costs of this application. Having considered the statement of costs lodged by the defendants for summary assessment, reasonable costs are allowed in the amount of $289,080.