CHEUNG SIU TAK ANTHONY v. SHUN TAK – CHINA TRAVEL SHIP MANAGEMENT LTD

HCMP 2101/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2101 OF 2009

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D E C I S I O N

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1.  The Plaintiff is appealing the decision of the Master in refusing pre-action discovery of documents against the Defendant.

2.  The Plaintiff was injured on board a jetfoil owned by the Defendant on 11 January 2008 and became a tetraplegic.

3.  Proceedings for pre-action discovery was commenced in October 2009, and heard by the Master in November 2009 with decision reserved.

4.  In December 2009, the Plaintiff commenced action for personal injuries against the Defendant in HCPI 846/2009 (“PI Action”) before the decision of the Master was handed down.

5.  In January 2010, the Master handed down the decision partly allowing the application.  Amongst the refused documents, the following are the subject of the present appeal:

(1)    statements of the Chief Engineer and the Night Vision Officer;

(2)    training/operation manuals for the crew members.

6.  Documents under (1) have since been disclosed by the Defendant under discovery in the PI Action.

7.  I summoned a Case Management Conference in the PI Action returnable at the same time of the appeal, and by consent, the hearing proceeded on the basis of whether discovery should nevertheless be refused as not relevant under the PI Action as opposed to not directly relevant under pre-action discovery.

8.  The accident involved 2 Boeing jetfoils, “Santa Maria” and “Funchal”.  Santa Maria was Macau-Hong Kong bound, and Funchal was Hong Kong-Macau bound.  The Plaintiff was a passenger on board the Santa Maria.

9.  At the material time, there were 4 officers on the bridge of Santa Maria: the Master, Chief Officer, Chief Engineer, and Night Vision Officer.

10.  The collision occurred in the waters of the Qingzhou Shuidao (or Tsing Chau Waterway) Traffic Separation Scheme (“TSS”) near the Pearl River Delta.  Under TSS, Macau bound vessels should take the northern waterway, and Hong Kong bound vessels should take the southern waterway, and supposedly never the twain shall meet.

11.  At 8:23 pm, Santa Maria was foil-borne (i.e. hull raised up above water).  At 8:25:31, Santa Maria was approaching the southern waterway of TSS.  The Master of Santa Maria claimed he saw an unknown vessel coming from its portside towards the starboard.  He decided to veer north (port) to avoid the unknown vessel, eventually passing the unknown vessel’s stern to the north of the northern waterway of TSS.

12.  At 20:28:31 pm, Santa Maria turned starboard, entering the northern waterway of TSS and collided with Funchal.

13.  According to the Marine Department Investigation Report, Santa Maria was 0.4 nautical mile (i.e. half a mile or 15 seconds at the given speed) away from Funchal before it crossed Funchal’s course.

14.  The Master said he saw the approach of Funchal, appreciated the risk of collision, but decided to take avoiding action in making the turn.

15.  The Investigation Report apparently doubted the Master’s claim of the sighting of Funchal, and stated that the main cause of the accident was:

(1)    The Master and Chief Officer of Santa Maria failed to maintain a proper lookout;

(2)    The Master of Funchal failed to reduce speed to allow more time to assess the situation.

16.  Negligence is not in issue in this case, but recklessness is.

17.  Under the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, negligence is presumed but liability of the carrier will be limited to 466,666 units of account (about HK$0.5 million) unless there were proof of:

(1)    intent to cause damage; or

(2)    acts or omissions done recklessly and with knowledge that such damage would probably result.

18.  In order to prove knowledge and recklessness, Mr Kwok, for the Plaintiff, sought the training/operation manuals on the following procedures:

(1)    radar surveillance;

(2)    night navigation;

(3)    duties amongst the officers on the bridge;

(4)    auto-pilot.

19.  Ms Ho, for the Defendant, submitted that training/operation manuals are irrelevant as:

(1)    recklessness is to be judged on the applicable international standards as adopted in the Merchant Shipping (Safety) (Signals Of Distress And Prevention Of Collisions) Regulations (Cap. 369N) and proof by expert evidence;

(2)    the night service procedures were considered by the Marine Department investigators and there was no mention of any breach in the Investigation Report.

20.  Ms Ho referred to Kwok Kam Ming v China Airlines Ltd [2009] 3 HKC 11.  There the defendant’s aircraft crashed on landing at Chek Lap Kok Airport during No. 8 typhoon signal, and the Plaintiff passenger suffered whiplash and psychological injuries.  There is similar limitation on damages under the Warsaw Convention.  The plaintiff pleaded intent and/or recklessness and sought specific discovery of pilot training manuals, log books etc.  The defendant sought to strike out the claim.  Saunders J ruled that the case of recklessness of the pilot (as to which the defendant would be vicariously liable) is not unarguably bad, and allowed discovery.  The appeal was allowed and the order for discovery set aside.  Rogers VP said that there was nothing in the accident investigation report or the witness statements suggesting recklessness on the part of the pilot or the flight crew, and it was clearly impossible to say the pilot or any of the crew were acting recklessly.

21.  Ms Ho submitted that as in the China Airlines case, the Marine Department must have considered the night service procedures of the Defendant, and found no relevance to recklessness.

22.  The China Airlines case was a case of hazardous weather and the present case is one of human error.  It is obvious in that case, discovery has risen and fallen with recklessness.  Ms Ho conceded she had no instruction to strike out the plea of recklessness in this case.

23.  If the Master of Santa Maria did notice Funchal 15 seconds away and decided to cross its path, there must be prima facie evidence of recklessness.  There is nothing fishing on the part of the Plaintiff to pursue recklessness.  The question is whether more is needed by the Plaintiff given there is already the Investigation Report.

24.  The Investigation Report stated at the outset that its purpose was to determine the circumstances and causes of the accident and not it did not intend to apportion blame or liability.

25.  The Investigation Report stated pre-flight checking was done according to the Defendant’s night navigation procedures, but there is nothing to indicate the entire procedures were reviewed and no recklessness was found.

26.  While the Investigation Reportconcluded that the Master and the Chief Officer failed to take a proper look out of Funchal, Mr Kwok’s thrust seems rather to be that the Master had noticed Funchal but was reckless at the helm.  Mr Kwok submitted that the Master could not have missed Funchal given there was radar for observing fast approaching objects, and 3 other officers to alert him. He wanted to look at theteamwork as delineated in the manuals.  I think Mr Kwok has got a point.

27.  No doubt the piece of navigation will have to be judged according to the accepted international standards and best practice, but the standard of care must be seen in the context of the factual circumstances.  The Regulations in Cap. 369N hardly cover the point or in any details.

28.  Given that the Defendant is relying on an exception to liability, it is only fair that the Plaintiff be allowed to look at the cooperation between the different officers on the bridge to establish that the Master did notice the approach of Funchal but nevertheless took a reckless turn.

29.  In the event, I order the discovery of the operating/training manualsin the PI Actionand dismiss the appeal accordingly.

Costs

30.  There are 3 matters here and below:

(1)    costs below;

(2)    costs of the dismissed appeal;

(3)    costs of the hearing itself.

31.  I made it clear at the outset that since the appeal was converted into a CMC, I am not hearing any submissions on whatever differencebetween the tests of relevance and direct relevance, whether in the context of discovery and/or costs.

32.  The costs of the hearing itself must be to the Plaintiff as it was a CMC and the objection of the Defendant was overruled.  I invite submission of skeleton bills on both sides for summary assessment of costs for the Plaintiff.

33.  Mr Kwok submitted the appeal was maintained in order that the Plaintiff’s future application for discovery not be bound by the Master, and asked for costs of the appeal be in the PI action.  However, Mr Kwok could have kept the appeal dormant and requested discovery under the PI Action, and the skeleton argument on direct relevance could have been saved.  Hence, I made no order as to costs on the dismissed appeal.

34.  The Master ordered the costs below be against the Plaintiff.  Mr Kwok asked for those costs be in the PI action as the Plaintiff was partly successful before the Master, and wholly successful before me.

35.  Ms Ho submitted that subject to the discretion of the Court, the Plaintiff should normally bear the costs of pre-action discovery (see Hong Kong Civil Procedure para. 24/7A/8).

36.  Mr Kwok submitted now that the Defendant is sued, it is not a mere innocent third partyagainst whom documents were sought.

37.  The Plaintiff got 2 out of 9 items before the Master, and had appealed on 2 items.  It could not be said that he was substantially successful overall.  Hence, I shall not disturb the costs order of the Master.

38.  I understand there are more claims by other passengers of Santa Maria and/or Funchal in the High Court.  I think some concerted case management should be in order.  Cases in the District Court should, so far as possible and subject to proper order as to the scale of costs, be transferred to the High Court in order to avoid multiplicity of suits and/or disparate findings.

39.  I direct that the parties herein do write within 14 days to Master Ng, PI Master, for directions as to further management of the case.

40.  I thank counsel for their submissions.