BOLD DRAGON SERVICES LTD AND ANOTHER v. NEWAY SHIPPING LTD t/a SHING GE FAT SHIPYARD AND OTHERS

HCAJ67/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 67 OF 2004

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JUDGMENT

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1. The application before me by the 2^nd defendant is to strike out the Action by the plaintiffs against the 2^nd defendant.  The basis of the strike out is that an issue that had been raised by the 2^nd defendant on time limitation based on the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (“Ordinance”) must succeed and there can be no arguable dispute.

2. It seems to me that the matter is not so simple.  The way that the case has come about is that the Action is brought against the 2^nd defendant not under contract.  The claim by the plaintiffs against the 1^st defendant is under contract for breach of contract in having caused the loss of the plaintiffs’ vessel. 

3. The 2^nd defendant was not the owner of the barge but was engaged by the 1^st defendant to do what is alleged to be “salvage” work — if I may call it generally that.  Although the 2^nd defendant alleged that they are the charterer of the barge, there is certainly no admission of this by the plaintiffs and the matter is at issue.  There cannot be a certainty that the barge was at fault, which is a requirement of the Ordinance.  The allegation is that the 2^nd defendant had failed in his duty towards the plaintiffs, not that the barge was at fault.

4. The Merchant Shipping (Collision Damage Liability and Salvage) Ordinance is a very peculiar nautical ordinance with a very old pedigree based on the 1911 Maritime Convention Act of UK.  The whole premise of that Act or Ordinance is that there were two vessels engaged in maritime interaction, if I may call it that, and as a result of the fault of one vessel, the other vessel suffered damage and therefore a special two-year period, a very short period, was given for the protection of that kind of maritime misadventure.

5. Now the case here is a little bit special.  In order for the 2^nd defendant to succeed on its time limitation defence, one will have to do considerable investigation both of fact, as well as law.  And there is quite a bit of old law involved in the investigation.  I have certainly not come across any situation such as this.  It is not stated in the books anywhere.  It is not clear cut in any way.  It seems to me that this is a wholly unsuitable case for summary disposition by the court on a strike out.  It seems to me that this matter should and must go to trial and therefore I do not accede to the application under the summons. 

6. The summons must be dismissed.  I will hear the parties on the matter of costs.