YIU HON MING v. COASTAL SHIPPING CO PTY LTD

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JUDGMENT

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Sir Derek Cons, V.P. delivered the judgment of the Court:

1. This is an appeal from the decision of Judge C.B. Chan striking out an application brought by a Mr. Yiu Hon Ming under the Employees' Compensation Ordinance, Cap. 282. On the 19th October, 1984 Mr. Yiu entered into an Employment Contract as a marine engineer with Coastal Shipping Company Pty., Ltd. ("the Company") of Rabaul in Papua New Guinea. The Company was represented in the transaction by its agent then here. Within one month of that agreement, on the 16th November, Mr. Yiu suffered injury on the Company's M.V. "Cosmaris". He fell from the mast as a result of an electric shock, suffering serious damage to both hips. It is common ground that the "Cosmaris" was neither registered nor licensed in Hong Kong, and that she was in Papua New Guinea territorial waters at the time of the accident.

2. It is not necessary, for the purposes of this appeal, to go into what took place between then and the 3rd March, 1988 when Mr. Yiu lodged his application under the Ordinance. Those matters may be relevant to other aspects of the application, but not to the initial objection taken by the Company, which is simply that, having regard to the facts set out above, the application did not lie here.

3. By agreement between the parties the question of jurisdiction was dealt with as a preliminary issue. The parties further agreed, we think correctly, that the sole consideration was whether or not the Company had submitted or had agreed to submit to the jurisdiction. Section 30(1) of the Ordinance provides:

Subsections (2) and (3) and Section 30A do not affect the position in the present instance.

4. The contention before the judge was that the Company had agreed, by the terms of the Employment Contract, to submit to the jurisdiction. Reliance was placed on Clause 7:

The regulation is in these terms:

The judge accepted a submission on behalf of the Company that the law was correctly stated by Ashworth, J. in Vogel v R and A Kohnstamm Ltd 1973 1 Q.B. 133 at 145, where, having reviewed earlier authorities he said:

It is self-evident that the two clauses contain no express submission or agreement to submit. Naturally the judge struck out the application.

5. We have been taken by counsel through Vogel v R and A Kohnstamm Ltd and other relevant authorities, in particular Blohn v Desser and Others [1962] 2 Q.B. 116 and Sfeir & Co v National Insurance Company of New Zealand [1964] 1 Lloyd's L.L.R. 330. We note that in contrast to Vogel v R and A Kohnstamm Ltd, it was accepted in those two authorities that the submission could be implied, at least if the implication was a necessary one.

6. We prefer to express no view on this dichotomy of judicial opinion, for in our judgment there is no submission to be implied in the present instance, whether by necessity or otherwise.

7. The stumbling block in the way of implication is that there can be no partial submission to the jurisdiction, that is submission for the purposes of only part of the Ordinance. It is all or nothing. If there is submission, or an agreement to submit, then "this Ordinance shall apply", including Part III which deals with occupational diseases. These are defined by reference to the Second Schedule and all listed there would appear to fall within the description of "illness arising from the employment on the ship". That, as we can see, is expressly dealt with in paragraph (2) of the Far East Crew Clause, the terms of which contain no reference to the Employee's Compensation Ordinance and would fall to be applied in their own right. We find ourselves unable to impute a submission to the Company when there is clear expression that it definitely did not intend to be bound by part of tire Ordinance.

8. Mr. Sarony, for Mr. Yiu, puts forward an ingenious argument to persuade us otherwise. He suggests that if we accept his contention that paragraph (1) of the Far East Crew Clause necessarily imports a submission, to which we shall turn in a moment, the "offending" paragraph (2) will in effect be removed from the Clause for paragraph (2) would immediately become a contract or agreement purporting to reduce the liability of an employer under the Ordinance and be rendered null and void by Section 31. It is sufficient to say that we cannot bring ourselves to attribute to the Company such a convoluted and internally inconsistent intention.

9. The argument that the words of paragraph (1) of the Clause import a necessary submission to the jurisdiction depends upon restricting the word "court", so far as it is incorporated in the Clause by reference to the Ordinance, to the meaning given to it by Section 3 of the Ordinance, i.e. the District Court, to which must be added in the context, "of Hong Kong"; and supporting the argument with the suggestion that without the machinery embodied in various sections of the Ordinance the words "in accordance with the Hong Kong Workman's Compensation Ordinance" can have no useful meaning. In regard to the latter aspect our intention is drawn to the various references in the Ordinance to medical examination and to Ordinary and Special Assessment Boards, periodical payments, medical expenses, distribution of compensation in the case of death and the encouragement given to the reaching of settlements. However we do not see these provisions, in particular those relating to the Assessment Boards, as a sine qua non to the making of an award by the District Court in accordance with that part of the Ordinance which deals with quantum, namely Sections 6 to 10 and the First Schedule. In our view it is these parts of the Ordinance that are incorporated by the reference to it in the Far East Crew Clause and should be applied, where appropriate, in whatever court action is taken.

10. For these reasons we dismiss the appeal with costs to be taxed in accordance with the Legal Aid Regulations.