CALANDRA SHIPPING CO LTD v. NOOR MARITIME LTD

HCAJ 109/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 109 OF 2011

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D E C I S I O N

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1.  This is a collision action. The collision took place on 18 July 2011 in the East China Sea. It involved 2 ships, viz the Calandra owned by the Plaintiff and the Rainbow owned by the Defendant. The Rainbow sank as a result of the collision and the Calandra suffered damage. The parties have filed preliminary acts in which they blamed each other for the collision.

2.  There is before me an application by the Defendant for an order under Order 75 rule 18(10) of the Rules of the High Court that the Plaintiff do file and serve on the Defendant particulars of the damages claimed and that the damages be assessed prior to the trial on liability.

3.  The rule clearly provides that the application must be made by summons to the Registrar even if it is made after the issue of a case management summons.

4.  This is to be contrasted with Order 75 rule 25(1)(c) which says the Case Management Conference (“CMC”) shall be heard by a judge in person, unless a judge in person otherwise directs.

5.  It seems to me the intention of the rules is reasonably clear: CMC must be heard by a judge, whereas an application for the filing of particulars of damages and for assessment of damages shall be heard by the Registrar.

6.  The reason for this distinction is not difficult to understand: the matters to be dealt with at the CMC are directions for trial of liability which is always heard by a judge. The assessment of damages is normally heard by the Registrar. In fact, Order 75 rule 18(11) provides that where an order is made under paragraph 10, the claim shall be treated as referred to the Registrar for assessment and rules 41 and 42 shall apply unless the Registrar otherwise directs. So it makes sense for the application under Order 75 rule 18(10) to be heard by the Registrar as he would have to follow it up if he decides to make an order.

7.  The practice of this court is to follow the rules as far as possible, with suitable flexibility if the circumstances of the case warrant it.

8.  For that reason alone, the application is defective.

9.  But I would not decide this application simply on such a basis.  There is a more fundamental objection to the application.

10.  It is a long established practice of the English admiralty court, after liability has been determined, to refer to the Registrar the matter of assessment of damages: HK Civil Procedure 2003 para 75/41/2. It is also the norm in collision actions for there to be a trial of liability first before assessment of damages: Marsden Collisions at Sea 13^th Ed para 18-01.

11.  If this order is to be reversed, it would only be reversed if cogent reasons are put forward.

12.  No such reasons exist in the present case. No doubt, because of that, Mr Kim for the Defendant very properly concedes that he is not seeking a reference to the Registrar for assessment of damages in the present case. But if he is not seeking a reference to the Registrar at this stage, there is no other legal basis for the Defendant to seek particulars of damages.  As I said, Order 75 rules 18 (10) and (11) go hand in hand. Rule 18(11) provides that where an order is made under paragraph 10, the claim shall be treated as referred to the Registrar for assessment. If the Defendant is not seeking a reference to the Registrar, there is no legal justification to make an order under rule 18(10) at all.

13.  For these reasons, I would dismiss the application.