THE HERMANN MATERN

HCAJ192/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.192 OF 1998

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Admiralty action in rem against the ship or vessel "Hermann Matern"

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J U D G M E N T

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1. This is an appeal by the plaintiffs from an order of the Registrar ordering discovery against the plaintiffs in favour of the defendants.

2. The claim had been brought by two plaintiffs, being Chevalier (HK) Limited ("Chevalier") of Hong Kong and Beijing Sun Dong An Co., Limited ("Beijing Sun Dong") of Beijing, China. The goods in question were escalators supplied by Chevalier to Beijing Sun Dong. They were loaded on board the vessel "San Jiang" which, unfortunately, had a collision with the defendants' vessel "Hermann Matern". Damages were done to the cargo of the plaintiffs and therefore claim had been brought.

3. So far as the nautical side is concerned, respective liability for the collision had been agreed between the parties, that is to say, it had been the subject of an agreement upon liability and the division of responsibility for the collision was 40% for "Hermann Matern" and 60% for "San Jiang". The liability for the collision having been agreed in the usual way, the question left to be decided would be the assessment of damages and, in this case, the assessment is of course one way because the assessment is what damages have been suffered by the cargo owners as a result of the collision. Of course, after a 100% assessment is made, there would be a proportional reduction because of the proportion of responsibility for the collision.

4. The Claim on Reference to the Registrar of the High Court is a document in the usual form which can be seen at pages 9 to 11 setting out the particulars of the damages suffered by the cargo owners as a result of the collision, and some 11 heads are listed. The total amount of the damages in the prayer can be seen at page 11 in the sum of HK$1.4 million, \2.2 million and US$1.146 million plus some Singapore dollar sum. So it is a fairly large sum, even a percentage of that is still quite a lot of money.

5. The Defence is a short document and it can be seen at pages 13 and 14. Two things are to be noted :

(1) There was no particular defence raised as to each of the 11 items of damage.

(2) There is a specific plea - the plaintiffs are put to proof of their title to sue in negligence in respect of any loss or damage they have suffered, which suggests that there may be a question of dispute as to liability of the plaintiffs' right of action.

6. The claim of the plaintiffs in this case is a straightforward one. The Bill of Lading which can be seen at page 83 shows the shipper of the goods being Chevalier, the 1st plaintiff, and the consignee being Beijing Sun Dong. The Bill is not claused. There is an invoice at page 85 and there is also the agreement between the 1st and 2nd plaintiffs at pages 86 to 130. It is therefore a straightforward case where both the buyer and the seller are suing together and this action is really by way of cargo underwriter's subrogated action. The two plaintiffs together cannot possibly have any lack of title to sue. As I have pointed out to Mr Toms for the defendants in the course of the hearing, this is not a case where only one of the buyer and seller is a plaintiff with the other party being missing in the action. This is where both of them are together suing and therefore there is no question of a lack of title to sue. If there is a general denial by the defendants on title to sue, that will not get them very far, in fact that will not get them anywhere because if it is an Order 14 situation on the question of possible defence of title to sue, then, as I see it, there is no defence.

7. So, the view I have taken is that if the discovery sought by the defendants against the plaintiffs is in relation to the title to sue, then it is not necessary for the fair disposal of action for discovery of documents on title to sue because, as far as I can see, there is no triable issue on this point in the action.

8. On the question, that apart from the title to sue, whether there is an obligation of the plaintiffs to file a list of documents in relation to, for example, the 11 items of the claim, the position seems to be that the parties agreed that on a Reference to the Registrar for assessment of damages, there is no automatic discovery. The plaintiffs had given to the defendants all the documents that they would rely upon but the defendants said that they are not sure that they have got all the relevant documents.

9. I cannot obtain assurance from Mr Lam for the plaintiffs today that they have given all the relevant documents, therefore the discretion I exercise is that I do order the plaintiffs to provide a general list of documents, but the list with the concession of Mr Toms can be in such a form as to set out in Item 1 a general description of all the documents that had already been given, and then in Items 2, 3, 4 additional documents that had not yet been disclosed by the plaintiffs to the defendants. So, that is the Order I make.

10. The Order therefore of the Registrar should be varied in the following way : the plaintiffs do within 14 days provide discovery by way of filing and service of a list of documents which are or have been in their possession, custody or power relating to the matter in issues in paragraph 4 of the Claim on Reference at pages 10 and 11.

11. So far as the costs of the appeal is concerned, having heard the parties on the question of costs, my decision is that the plaintiffs should have half of the costs of the appeal but the costs below shall remain unchanged.

12. Finally, having dealt with this matter today, it seems to me that the proper course I should take in relation to this action is that I should order that all questions relating to this action to be dealt with by me and not by the Registrar, so the Reference, if any, to the Registrar shall be transferred to me. I reserve this case for myself and all the applications should be made to me. I direct that the parties return before me with all outstanding application on 28 August 2003, at 9:30 a.m. I order that the trial originally fixed before Registrar on 9 & 10 October 2003 be vacated and that the trial is fixed to be heard by me on 2 & 3 of October 2003.