PUSAN NEWPORT CO., LTD. v. THE owners and/or demise charterers of the ships or vessels “MILANO BRIDGE” and “CMA CGM MUSCA” and “CMA CGM HYDRA”

HCAJ 31/2020

[2021] HKCFI 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 31 OF 2020

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DECISION

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1.  This is the Plaintiff’s application for leave to appeal against the Decision of this court dated 11 May 2021, [2021] HKCFI 1283.

2.  First of all, I agree with Mr Smith SC, who appears for the Defendants with Mr Alder, that the Plaintiff has shifted its position on whether the juridical disadvantage in terms of the lower tonnage limit if it is to sue in South Korea is decisive for purposes of the Defendants’ stay application on the ground of FNC[1].

3.  On the other hand, having considered with care the submissions of Mr Sussex SC, who appears for the Plaintiff, there is no escape that the juridical disadvantage is the only material consideration in favour of the Plaintiff. 

4.  The law does not support the contention that the juridical disadvantage is decisive or outweighs other legitimate considerations which the court has to consider in a FNC stay application.  If it were so, there would be no need for stay application, and litigants would choose the forum applying the highest limit.

5.  In the Decision, the court carried out a balancing exercising under the guidance of the established principles.  The Decision is supported by authorities cited therein.  It is accepted that the court’s exercise of discretion would only be interfered with by the appellate court on limited grounds: Bright Shipping v Changhong Group, CA,[2019] 5 HKLRD 30, §§4-5.

6.  I am unable to agree that the intended appeal has a reasonable prospect of success. 

7.  As regards Mr Sussex’s reliance on s.14AA(4)(b) of the High Court Ordinance, Cap 4, it is premised upon the proposition that the Hong Kong court may like to revisit its approach to the treatment of juridical disadvantage represented by a lower tonnage limit.  For my part, I do not see force in the contention that such juridical disadvantage should be decisive in a FNC stay application.  Further, there are merits in Mr Smith’s submission that the fact that the Plaintiff was (and is) a land based operator which carried on its business under the legal regime of South Korea would render this a special case which may not be apt for purpose of a general development or redevelopment of the law.

8.  For these reasons, I decline to grant leave.  I shall hear the parties on costs.