RE INQUEST INTO THE DEATHS OF 39 PERSONS ARISING OUT OF THE COLLISION BETWEEN LAMMA IV AND SEA SMOOTH ON 1 OCTOBER 2012

Press Summary (English)

Press Summary (Chinese)

CCDI 1075-1113/2012

[2026] HKCrC 1

IN THE CORONER’S COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CASE NO. 1075 to 1113 OF 2012

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VERDICT

A.  Introduction

1.  This Inquest is held pursuant to the Order of the Court of Appeal dated 26 July 2023, following an appeal brought by the next of kin of two of the deceased, which arose from the maritime collision between the passenger vessels Lamma IV and Sea Smooth on the evening of 1 October 2012 off Lamma Island.[1]

B.  Background

2.  On 1 October 2012, The Hongkong Electric Company Limited (“Hongkong Electric”) organised an outing for its employees, their families and friends. The itinerary included a visit to Hongkong Electric’s Power Station on Lamma Island, followed by dinner. The final part of the programme was a trip to Victoria Harbour to view the National Day fireworks display, during which the participants boarded two company-operated vessels, Lamma II and Lamma IV.

3.  At approximately 8:20pm, shortly after Lamma IV departed from the Power Station pier en route to Victoria Harbour, it collided with Sea Smooth, a high-speed passenger ferry owned by Islands Ferry Company Limited, a wholly owned subsidiary of Hong Kong & Kowloon Ferry Holdings Limited (“HKKF”). Sea Smooth was on its schedule voyage from Central to Yung Shue Wan, Lamma Island. The collision occurred in the waters off Shek Kok Tsui light beacon, northwest of Lamma Island, when the port side bow of Sea Smooth struck the port aft quarter of Lamma IV. As a result of the impact, Sea Smooth sustained damage to its port hull. It remained afloat and continued its journey to Yung Shue Wan Ferry Pier.

4.  The collision caused a substantial breach to the aft port side of Lamma IV’s hull at the stern, specifically the Engine Room and the Tank Room. As a result, both compartments flooded rapidly. Due to an opening in the bulkhead between the Tank Room and the Steering Gear Compartment, water also entered and flooded the latter.

5.  The uncontrolled ingress of seawater caused the vessel to list heavily to port and settle by the stern. Within 118 seconds of impact, Lamma IV assumed an almost vertical position, with its stern resting on the seabed and its bow protruding above the waterline. Many passengers were thrown overboard; others, trapped within the aft compartments, were unable to escape before the vessel submerged. As a result of the collision and ensuing flooding, 39 passengers on board Lamma IV, including eight children, lost their lives, 97 others were injured.

6.  A Commission of Inquiry (“COI”) was appointed on 22 October 2012 by the Chief Executive-in-Council to investigate the facts and circumstances leading to and surrounding the collision between Lamma IV and Sea Smooth, to ascertain the causes of the incident and to make appropriate findings. The COI was further tasked with evaluating the adequacy of maritime safety arrangements and the regulatory system governing passenger vessels in Hong Kong, and to make recommendations to prevent the recurrence of similar incidents. On 19 April 2013, the COI submitted to the Chief Executive a detailed report running to 186 pages and over 100 pages of annexes, with 13 recommendations (“COI Report”).

7.  In its findings relating to the rapid sinking of Lamma IV, the COI concluded that a principal cause was the absence of a watertight door at the bulkhead separating the Steering Gear Compartment from the Tank Room. It found that water entering through the breach in the port side hull was able to flood successively the Steering Gear Compartment, the Tank Room and the Engine Room because the opening in the Steering Gear Compartment bulkhead was not fitted with a watertight closure.

8.  Following the COI Report, criminal proceedings were brought against the coxswains of both vessels and two Marine Department officers.[2] The Transport and Housing Bureau also conducted an internal investigation into the practices of the Marine Department.

9.  In view of the findings of the COI and the subsequent criminal proceedings, the then Coroner declined to hold an inquest on the basis that the circumstances of the deaths had already been sufficiently examined, and that the recommendations made by the COI adequately addressed the matters of public safety arising from the incident.

10.  Following that decision, the next of kin of ten of the deceased wrote to the then Secretary for Justice seeking to invoke section 16 of the Coroners Ordinance[3] (“the Ordinance”) for an order that an inquest be held. Their application was declined.

11.  The next of kin of four of the deceased then applied to the High Court under section 20(1)(a) of the Ordinance for an order that a death inquest be held. By a judgment handed down on 24 November 2022, Coleman J refused the application on the basis that he was not satisfied that the public interest required an inquest to be held.[4]

12.  Upon appeal, the Court of Appeal allowed the application and directed that an inquest be held. The Court held that it was in the public interest to do so in order to promote transparency, enhance public confidence in the regulation of maritime safety, and address matters that had not been fully examined in either the COI or the criminal proceedings. Six issues were identified by the Court of Appeal for determination at this Inquest, namely:

(1)  whether from the outset Cheoy Lee knew that the Bulkhead was to be built watertight (“Issue 1”);

(2)  whether Mr. Cheung who was responsible for making the Damage Stability Calculations shifted the blame for the mistakes to Mr. Leizaola (“Issue 2”);

(3)  whether the Port Hull Bow Plating was attached to the Sea Smooth at the time of the collision (“Issue 3”);

(4)  whether the coaming of the Lamma IV was lower than required (“Issue 4”);

(5)  whether the Bulkhead was inspected annually or bi-annually (“Issue 5”); and

(6)  the long working hours of seafarers in the passenger ferry industry (“Issue 6”).

C.  The Inquest

13.  The purpose of a death inquest is prescribed by section 27 of the Ordinance namely, to inquire into the cause of death and the circumstances connected with the death. For that purpose, the proceedings and evidence are directed to ascertaining the identity of the deceased; determining when, where and by what means they came by their deaths; recording such particulars as are required under the Births and Deaths Registration Ordinance[5] (“Registration Ordinance”); and returning a conclusion as to the death. It is not the function of an inquest to apportion blame or to determine civil or criminal liability.

14.  Pursuant to section 44(2) of the Ordinance, the Court is also empowered, where appropriate, to make recommendations aimed at preventing the recurrence of similar fatalities.

15.  However, this Inquest was not conducted in the ordinary way. Its scope and focus were directed by the six issues identified by the Court of Appeal, which defined the parameters of this Inquest.

16.  A total of 84 witnesses gave viva voce evidence at the Inquest and 364 exhibits were produced. Several key witnesses were unable to attend owing to age or infirmity, and others could not be traced despite reasonable efforts. Those who did give evidence were required to recall events that had taken place many years ago, in some instances nearly three decades earlier. Inevitably, this resulted in faded memories, gaps in recollection, and at times inconsistencies.

17.  The expert witnesses before the COI whose reports and evidence are relevant to the issues in this Inquest include Dr Neville Anthony Armstrong (“Dr Armstrong”), Dr Peter Cheng Jui Shan, M.B.E. (“Dr Peter Cheng”), and Dr Cheng Yuk Ki. Dr Armstrong and Dr Cheng Yuk Ki both gave evidence and submitted reports at the COI. Dr Peter Cheng did not given evidence, but his reports[6] were provided to the COI at the request of the Marine Department. The transcript of Dr Armstrong’s evidence given over eight days at the COI was admitted in this Inquest.[7]  Other experts who appeared before the COI dealt with matters outside the scope of this Inquest.

18.  Expert witnesses who gave evidence at the Inquest included Dr Cheng Yuk Ki, who had also given expert evidence at the COI; Dr Martin Renilson (“Dr Renilson”), instructed on behalf of the Next of Kin; Mr Simon Burthem and Captain Jeremy Ayling (“Captain Ayling”), instructed by the Marine Department; and Mr Robert Vart, Mr Anthony York, and Captain Dominic Bell (“Captain Bell”), all instructed by the Hong Kong Marine Police.

19.  Of these experts, Dr Armstrong, Dr Peter Cheng, Dr Renilson and Mr Simon Burthem are naval architects; Mr Vart is a marine engineer; Captain Bell and Captain Ayling are master mariners; and Dr Cheng Yuk Ki is a forensic scientist. Mr William Boyd, also a naval architect, was instructed by the Marine Department and prepared a report addressing Issue 3 (the port hull bow plating of Sea Smooth) and Issue 4 (the coaming height of Lamma IV).[8] Although Mr Boyd did not attend this Inquest, the contents of his report were adopted and produced by Mr Burthem.

20.  The parties’ written submissions on the six issues identified by the Court of Appeal are extensive and detailed. I will not summarise every point put forward but will, under separate headings for each Issue, set out those submissions relevant to my analysis and determination. Submissions not specifically summarised will be considered as and when appropriate in the course of analysing the relevant evidence, to the extent that they are relevant to the issues to be determined.

21.  All findings are made on the civil standard of proof, namely the balance of probabilities.

C1.  Form 12

22.  The next of kin of seven of the deceased, including the appellants in the proceedings before the Court of Appeal (“Next of Kin”), participated in the Inquest. In accordance with the Coroner’s duty to inquire into all deaths arising from the same incident, and to ensure consistency and completeness, this Inquest was conducted in respect of all 39 deceased. Separate findings for each of the deceased are entered in Form 12 pursuant to the Ordinance.

23.  Form 12 is the prescribed form under section 43 of the Ordinance by which a Coroner records the findings made at the conclusion of an inquest. It sets out the particulars required to be registered concerning the death. Pursuant to the Registration Ordinance, the Coroner is required, after the conclusion of the inquest, to forward Form 12 to the Registrar of Births and Deaths together with the time and place at which the inquest was held for the purpose of registering the death.

C2.  Personal Particulars of the Deceased

24.  For reasons of privacy, the personal particulars of the deceased recorded in Form 12 are not reproduced in this written Verdict. These particulars will be read into the record. The names and sexes of the 39 deceased, excluding personal particulars such as date of birth, place of birth, occupation and address, are set out in “Annex A” which forms part of this Verdict but will not be read out. I will now read the personal particulars of each deceased.

C3.  Date and Cause of Death

25.  Autopsy examinations were carried out in respect of each of the deceased. The autopsy reports and toxicology reports of all 39 deceased were admitted into evidence during the Inquest by consent. [9]

26.  Although several of the deceased were certified dead when their bodies were recovered on 2 October 2012, I am satisfied on the evidence that their deaths occurred on 1 October 2012 at the time of the collision and the subsequent sinking of Lamma IV.

27.  Of the 39 deceased, 38 lost their lives on 1 October 2012 in the sea off Shek Kok Tsui, Yung Shue Wan, Lamma Island. This includes Wong Lai Chun[10] and Lai Chui Yuk[11] whose deaths were certified at Queen Mary Hospital; Li Wing Mui[12], at Ruttonjee and Tang Shiu Kin Hospitals and Yan Tsz Ki[13], at Queen Elizabeth Hospital.  I am satisfied that these four individuals had already died at sea, as they presented with no spontaneous breathing or cardiac activity upon rescue and did not respond to resuscitation. The remaining person, Tsui Hoi Ying,[14] died on 5 October 2012 at Pamela Youde Nethersole Eastern Hospital.

28.  As to the medical cause of death, 36 of the deceased died from drowning.[15] Of the remaining three: Au Hiu Lam died from traumatic asphyxia and drowning;[16] Hui Ka Wai Edwin died from multiple injuries;[17] and Tsui Hoi Ying died from drowning and multiple injuries, including subluxation of cervical vertebra.[18]

C4.  Time, Place and Circumstances in which Injury was Sustained

29.  At about 8:20pm on 1 October 2012, the high-speed ferry Sea Smooth collided with the passenger ferry Lamma IV in the sea off Shek Kok Tsui, Yung Shue Wan, Lamma Island. Lamma IV sank within 118 seconds of the collision. The deceased was on board Lamma IV at the time of the collision and sinking.

C5.  Conclusion as to the Death

30.  The undisputed evidence, together with the findings in the criminal proceedings, established that the collision was caused by the negligent navigation of the coxswains of the two vessels. The coxswain of Sea Smooth bore the greater culpability, having been convicted of 39 counts of manslaughter in addition to an offence of endangering the safety of others at sea, while the coxswain of Lamma IV was convicted of endangering the lives of others at sea. [19]  These failings were not mere errors of judgment but constituted a gross departure from the standard of care that was reasonably expected and imposed by law, thereby rendering their conduct criminally culpable.

31.  Where death results from conduct amounting to manslaughter by gross negligence, the proper conclusion is unlawful killing. In reaching this conclusion, the civil standard of proof namely, the balance of probabilities, has been applied in accordance with R (Maughan) v HM Senior Coroner for Oxfordshire,[20]  in which the majority held that all short form conclusions in an inquest, including unlawful killing, are to be determined by the civil standard. This marks a departure from the previous position where unlawful killing required proof to the criminal standard. The rationale in Maughan is compelling in that the inquest is a fact-finding inquiry, not a criminal trial, and the civil standard should apply to all conclusions, including unlawful killing.

32.  In the present case, the criminal convictions of the two coxswains, particularly of Sea Smooth, provide evidence that not only satisfies the civil standard but would satisfy the higher criminal standard previously applied. The balance of probabilities test is therefore amply met. I find each of the 39 deceased was killed unlawfully.

D.  Construction, Hull Compartmentation and Regulatory Requirements

33.  Before turning to the issues identified by the Court of Appeal, it is necessary to first set out the construction history of Lamma IV, the internal arrangement of its hull compartments and the safety standards applicable to it at the material time.

D1.  Tender Process

34.  On 13 July 1994, Hongkong Electric invited Cheoy Lee Shipyards Ltd (“Cheoy Lee”) and other shipbuilders to tender for the construction of a passenger launch to ferry its employees to and from Lamma Power Station. The Tender Documents comprised the Form of Tender, the General Conditions of Contract and Hongkong Electric’s Specifications for the vessel. Under the General Conditions of Contract, Cheoy Lee was required to submit drawings for approval, and Hongkong Electric was to signify its approval or otherwise within a reasonable time. Hongkong Electric’s Specifications required the launch to comply with all Marine Department requirements in force at the time of delivery and to be suitable for its intended operational use, including achieving a minimum service speed of 21 knots.

35.  Hongkong Electric’s Specifications did not stipulate any requirement as to the number, design, subdivision, or watertight integrity of bulkheads. Instead, they provided that aspects of the vessel’s design and construction not expressly enumerated were to be of a standard at least comparable to existing Hongkong Electric ferries. The Specifications further required that construction was not to commence until the relevant plans for each part had been submitted to, and approved by, Hongkong Electric.

36.  On 12 August 1994, Cheoy Lee submitted its tender to Hongkong Electric. Cheoy Lee’s tender documents comprised an Addendum to the Form of Tender (“Addendum”), a General Arrangement drawing (“Tender GA”) and a tender specification (“Tender Specification”).

D1.1  Addendum

37.  The Addendum specified the contract price and required completion of the vessel within sixty-two calendar weeks from the date of signing and receipt by Cheoy Lee of instructions to proceed. The construction timetable was expressly conditional upon drawings submitted for approval being returned by Hongkong Electric within a reasonable time. The Addendum further stipulated that the vessel was to be built closely in accordance with the Tender Specification and Tender GA.

D1.2  Tender GA

38.  The Tender GA was prepared by Cheoy Lee and appears to be dated 8 August 1994. The precise date is immaterial as it is not in dispute that the drawing was produced prior to the submission of the tender on 12 August 1994. The drawing comprised four plans: the Lower Deck plan, the Main Deck plan, the Profile view and the Upper Deck plan. The Lower Deck plan showed the watertight subdivision of the hull by transverse bulkheads. Starting from the stern, the compartments were: the Steering Gear Compartment, the Tank Room, the Engine Room, the Crew Space, the Void Space and the Fore Peak. Each was delineated by a solid vertical line, indicating a bulkhead dividing the hull into watertight sections.

39.  Mr Ken Lo Ngok Yang (“Ken Lo”), a director of Cheoy Lee, explained that at the tender stage Cheoy Lee had identified the vessel Eastern District No. 1 as the blueprint for the vessel that would become Lamma IV. In other words, it was the reference vessel on which the proposed design for Lamma IV was modelled.

40.  The copyright in Eastern District No. 1 was held by Naval-Consult Pte Ltd (“Naval-Consult”), a Singapore-based firm of naval architects. Ken Lo stated that his primary role was in the sales of commercial vessels and that technical design matters were ordinarily the responsibility of the shipyard’s Engineering Manager, Mr Cheung Chuen Yau. However, between 1994 and 1997, Mr Cheung had left Cheoy Lee, and during this period the shipyard’s business in Singapore was expanding. As he was spending considerable time in Singapore and Naval-Consult was based there, Ken Lo naturally assumed responsibility for liaising with Naval-Consult on the design of Lamma IV.

41.  To determine costs prior to submitting its tender, Ken Lo approached Naval-Consult on behalf of Cheoy Lee to obtain a quotation. The quotation covered both the right to use the General Arrangement drawing of Eastern District No. 1 as the blueprint for Lamma IV, and Naval-Consult’s professional fees for adapting that design to meet Hongkong Electric’s operational specifications and the applicable regulatory requirements in Hong Kong.

42.  Ken Lo’s evidence, both at the COI and at the Inquest, was that the Tender GA was based on the design of Eastern District No. 1, which comprised six compartments separated by five watertight bulkheads. Cheoy Lee adopted the layout of Eastern District No. 1 as the template for the Tender GA. The Tender GA therefore reflected the same watertight subdivision arrangement as Eastern District No. 1. All experts at the Inquest accepted that Eastern District No. 1 was the basis ship on which the design of Lamma IV was based.

D1.3  Tender Specification

43.  The Tender Specification required that all critical working drawings, including those relating to vessel stability and floodable length calculations, be submitted to the Marine Department for approval where necessary. It further required that any deviation from the drawings or specifications, and any resulting variation in cost, be mutually agreed before the relevant work commenced.

44.  Under Clause 17 of the Tender Specification, the hull shell, bulkheads, main deck plating and extrusions for frames and beams were to be constructed of marine-quality aluminium. The hull and superstructure were to be welded and built in conformity with the Marine Department’s requirements for vessels operating in Class III waters.[21] The hull was required to be robustly built and of hard-chine hull form with transom stern. To be subdivided by five watertight bulkheads into six compartments comprising forepeak/chain locker, void space, crew accommodation, engine room, storeroom and aft peak/steering flat.[22]

45.  Ken Lo explained that the reference in the Tender Specification to the hull being divided into six compartments by five watertight bulkheads corresponded with the Tender GA, which showed five such bulkheads.

46.  On 10 November 1994, Cheoy Lee was awarded the contract by Hongkong Electric to construct a passenger launch. On 8 December 1994, Cheoy Lee entered into an agreement with Naval-Consult for the design of a 28-metre fast passenger launch, being the vessel ultimately built and commissioned as Lamma IV. The vessel was to be constructed in accordance with the Specification annexed to the agreement and General Arrangement Drawing No. NC-391-1 Rev-A (“Revised GA”). Under the agreement, Naval-Consult was required to prepare a complete design and engineering package, including drawings, specifications, calculations and detailed construction documentation, such as the Inclining Experiment Report and the Intact and Damaged Stability Report Booklet. Naval-Consult was also required to submit the specified drawings to Cheoy Lee for onward submission to the Marine Department to obtain stamped copies for regulatory approval and for use in the construction of the vessel.

47.  Having been awarded the tender by Hongkong Electric, Cheoy Lee notified the Marine Department on 24 November 1994 of its plan to construct Lamma IV and submitted the Revised GA.

48.  By letter dated 3 January 1995, the Marine Department informed Cheoy Lee that it had no objection to the construction of the proposed passenger launch and confirmed that the vessel would be surveyed as a passenger launch under the Merchant Shipping (Launches and Ferry Vessels) Regulations[23] (“Cap 313E”). The Marine Department further requested that Cheoy Lee submit drawings, including the Profile Plan, Deck Plans, Bulkhead Plans and the Sections and Bulkheads Plan, together with the vessel’s stability information, prior to the commencement of construction.

D2.  Drawings of Lamma IV

49.  The drawings relevant to the design and construction of Lamma IV consisted of the Revised GA and a series of structural drawings, including the Profile and Deck, the Sections and Bulkheads and the Shell Expansion.

50.  The Profile and Deck and the Shell Expansion drawings showed the subdivision of the hull of Lamma IV into compartments by reference to frames and bulkheads. The bulkhead between the Steering Gear Compartment and the Tank Room was located at Frame ½, positioned midway between Frames 0 and 1 (“the Frame ½ Bulkhead” [24]). The Steering Gear Compartment and the Tank Room were the two aftmost compartments on the vessel. The Steering Gear Compartment was situated at the extreme rear, immediately adjacent to the transom with the Tank Room directly forward of it. The Tank Room was bounded by the Frame ½ Bulkhead aft and by the bulkhead at Frame 4 forward (“the Frame 4 Bulkhead”), which separated it from the Engine Room.

D3.  Construction

51.  The construction of the hull of Lamma IV was subcontracted by Cheoy Lee to Wuzhou Shipyard in Guangxi, China (“Wuzhou”). Vanzon (Sino-Hong Kong) Co, Ltd (“Vanzon”) acted as Cheoy Lee’s agent and intermediary in its dealings with Wuzhou. Mr Fung Kai Ming of Cheoy Lee was the Engineering Manager responsible for overseeing the construction of the hull at Wuzhou. Upon completion of the hull, the China Classification Society, pursuant to an arrangement with the Marine Department, conducted the hull survey in China. The hull was then returned to Cheoy Lee to enable the remaining construction works to be carried out, including the fitting out of compartments, installation of equipment and the creation of an Access Opening in the Frame ½ Bulkhead.

D4.  Safety and Survey Requirements

52.  At the time when Lamma IV was designed and built, there were no legislations regulating its construction. The requirements applicable to its construction were those contained in the Instructions for the Survey of Launches and Ferry Vessels (1989), commonly referred to as the “Blue Book”. The Blue Book was issued by the Director of Marine for the guidance of surveyors, builders and owners, and compliance with its requirements was necessary if a vessel was to obtain certification. The Blue Book therefore set out the regulatory requirements for the construction of Lamma IV.

53.  Paragraph 12(iv) of the Blue Book required peak bulkheads at both ends of all double-ended launches and all launches over 70 feet long.[25] Paragraph 12(v) required that any opening in a watertight bulkhead be fitted with an efficient closing appliance.

54.  The Blue Book also incorporated the safety standards set out in the Merchant Shipping (Safety) (Passenger Ship Construction and Survey) (Ships Built on or After 1 September 1984) Regulations[26] (“Cap. 369AM”). Paragraph 15 of the Blue Book stipulated that all new launches designed to carry more than 100 passengers were required to comply with the watertight subdivision requirements. The instruction referred to Regulation 5 of Cap. 369AM as the applicable provision. It is accepted that this was a drafting error and that the correct provision governing watertight subdivision was Regulation 6 of.

55.  Regulation 6 of Cap 369AM entitled “Watertight Subdivision”, required passenger ships built on or after 1 September 1984 to be subdivided by transverse watertight bulkheads. The detailed rules for the calculation of the length of watertight compartments were set out in Schedule 1 “Calculation of Maximum Length of Watertight Compartments”, under paragraph 6(6) of Schedule 1, if two adjacent main transverse bulkheads are spaced closer than the minimum permitted distance, defined as 3.00 metres, 11.00 metres, or 0.1L (whichever is the least), then only one of them is treated as part of the ship’s watertight subdivision. For Lamma IV, the relevant limit was 0.1L, this was referred to as the 0.1L Rule during the Inquest, with “L” denoting the length of the ship.[27]

56.  In his report,[28] Dr Armstrong explained that the stability requirements applicable to Lamma IV were set out in Schedules 1 and 3 of Cap 369AM. Whilst both Schedules refer to the margin line, they do so for different purposes, and compliance with one did not remove the need to comply with the other.

57.  Although the Blue Book did not expressly refer to Schedule 3 of Cap 369AM, Dr Armstrong explained in his report[29]  and in his evidence before the COI[30] that the damage stability standard applicable to vessels such as Lamma IV was derived from Schedule 3 (“Stability in Damaged Condition”) of Cap 369AM. Paragraph 1(3)(a) of Schedule 3 originally defined the assumed longitudinal extent of damage by reference to a formula, but the Marine Department removed that formula and replaced it with the requirement of “one-compartment flooding”.[31]  Under that standard, a vessel like Lamma IV was required to remain afloat, with its margin line[32]  above the water, following the complete flooding of any single watertight compartment. By contrast, a two-compartment flooding standard would require survivability following the simultaneous flooding of two adjacent watertight compartments; Eastern District No. 1, as an ocean-going vessel, was designed to that higher standard.

58.  Schedule 3 also imposed transverse stability requirements in the damaged condition. In particular, it required that, following the assumed damage, the vessel maintain a minimum metacentric height of 0.05 metres and that the margin line not be immersed as a result of heel. The metacentric height requirement was intended to ensure that the vessel retained sufficient transverse stability when damaged so as to avoid capsizing.[33]

59.  The Blue Book remained in force until 19 January 1996, when it was replaced by the Instructions for the Survey of Launches and Ferry Vessels (1995) (“1995 Instructions”). There was no substantive difference between the two sets of Instructions so far as the construction and survey requirements for Lamma IV were concerned. As Lamma IV had already been built by the time the 1995 Instructions came into effect, they were not relevant to its construction but only to its subsequent survey and certification by the Marine Department. The 1995 Instructions were superseded on 29 December 2006 by the Code of Practice – Safety Standards for Class I, II and III Vessels (“2006 Code of Practice”).

E.  Cheoy Lee’s Knowledge of the Frame ½ Bulkhead Being Watertight (Issue 1)

60.  The question whether Cheoy Lee knew at the outset that the bulkhead at Frame ½ was to be built watertight is ultimately one of design intent, whether the omission of the watertight door reflected a deliberate design choice or an inadvertent departure from the contractual specifications and approved drawings.

61.  The matters bearing on this issue include the contractual specifications, the design drawings, the stability calculations, the Wuzhou fax and Vanzon’s reply, as well as the evidence of those involved in the design process, and the opinions of the expert witnesses.

62.  These matters will be examined under three broad categories: (i) direct evidence from those involved in the design process; (ii) documentary evidence; and (iii) expert opinions.

E1.  Direct Evidence of Design Intent

63.  Of those directly involved in the design process, only Ken Lo gave evidence at the Inquest. Mr John Lim, director of Naval-Consult (“John Lim”), with whom Ken Lo said he had discussed the watertightness of the Frame ½ Bulkhead, did not attend the Inquest.

64.  Although not involved in the design decisions, Mr Tan Kian Choon (“KC Tan”), the draughtsman responsible for preparing the Sections and Bulkheads and Profile and Deck drawings, may shed some light on the instructions he received from John Lim, which in turn reflect the discussions between John Lim and Ken Lo concerning the watertightness of the Frame ½ Bulkhead.

E1.1  Evidence of Ken Lo

65.  At the COI, Ken Lo explained that, despite the “W.T. BHD.”[34] markings appearing on some drawings, the Frame ½ Bulkhead was always intended to be fitted with an opening rather than a watertight door. He said this was because the aft peak compartment[35] measured less than 0.1L and therefore fell outside the statutory requirement for subdivision by a watertight bulkhead, and because the vessel was required to comply only with the one-compartment flooding standard. He maintained that this design decision was made deliberately during discussions with John Lim and was subsequently approved by the Marine Department.

66.  Ken Lo also explained that the Frame 4 Bulkhead, being the aft boundary of the Engine Room, satisfied the requirement for an aft peak bulkhead under paragraph12(iv) of the Blue Book. Since the Frame ½ Bulkhead was not watertight, paragraph 12(v) which governed efficient closing appliance in watertight bulkheads, did not apply.

67.  Ken Lo attributed the presence of watertight markings in some drawings to a drafting carry-over from the Eastern District No. 1 drawings. He pointed out that neither Hongkong Electric nor the Marine Department raised any query about the missing watertight door until after the collision.

68.  As to the Tender Specification which required five watertight bulkheads, Ken Lo said those provisions were preliminary and could be modified during detailed design, provided the completed vessel complied with regulatory requirements. He asserted that, had his advice been sought at the time, he would have recommended omitting the watertight door at the Frame ½ Bulkhead as it was unnecessary under the prevailing standards for passenger ferries in Hong Kong.

69.  Ken Lo further described the long and established relationship between Cheoy Lee and Hongkong Electric. Lamma IV was the eighth vessel built by Cheoy Lee for Hongkong Electric, at the time of the collision two further vessels were under construction. Over the years, it had become established practice for Cheoy Lee to submit design drawings to Hongkong Electric as a matter of routine, without receiving any feedback from the latter. Hongkong Electric consistently left Cheoy Lee to design and construct the vessels as it saw fit, subject only to approval by the Marine Department.

70.  In accordance with that established practice, the drawings for Lamma IV were sent to Hongkong Electric in July 1995, and no response was received. This was regarded by Cheoy Lee as consistent with the long-standing pattern of non-interference between the two companies. Although the Specifications of Hongkong Electric stipulated that work was not to commence until plans for each part had been approved, Ken Lo said this requirement was never implemented in practice. Drawings were routinely submitted, no comments were made and such silence was treated as tacit approval, a practice which have been followed since the 1980s when Cheoy Lee first began constructing launches for Hongkong Electric.

71.  During the Inquest, Ken Lo elaborated on how the design decision had been reached. Although unable to recall the precise sequence of the discussions he had with John Lim, he believed they occurred intermittently in Singapore, both during tendering and after award of the construction contract. The design decision for the Frame ½ Bulkhead was twofold: (i) Lamma IV only needed to meet a one-compartment flooding standard, whereas Eastern District No. 1 was designed for two-compartment flooding; and (ii) under the 0.1L Rule, the Frame ½ Bulkhead could not qualify as an effective watertight subdivision or an aft peak bulkhead.

72.  Ken Lo consistently maintained that the Revised GA prepared by John Lim in October 1994 reflected their discussions during the tender stage concerning the application of the one-compartment flooding standard in Hong Kong. He explained that the drawing provided a visual benchmark that the combined volume of the Steering Gear Compartment and the Tank Room was clearly smaller than that of the Engine Room, and if the Engine Room could satisfy the one-compartment flooding standard, then, on the same reasoning, the combined aft space would also meet that requirement. Although he did not expressly say so, the proper inference is that he was referring to the drawings of Eastern District No. 1 as the visual benchmark. Ken Lo was adamant that John Lim would not have altered the watertight door of Eastern District No. 1 to an Access Opening in the Revised GA had it not been for their discussions.

73.  Ken Lo accepted that he only started to consider the Hong Kong regulatory requirements, including the 0.1L Rule, after Cheoy Lee was awarded the tender in November 1994. He said he discussed the 0.1L Rule with John Lim in around December 1994 and they agreed paragraph 6(6) of Schedule 1, Cap. 369AM as requiring a watertight aft peak bulkhead to extend for at least 10 per cent of the vessel’s length. On that basis, they considered the Frame ½ Bulkhead, being located within 0.1L of the stern, incapable of serving as an aft peak bulkhead for regulatory purposes. He and John Lim therefore decided to omit the watertight door from the Frame ½ Bulkhead, leaving that bulkhead non-watertight so that the Frame 4 Bulkhead could serve as the aft peak bulkhead.

74.  Although the aft peak bulkhead was located at Frame 4 and not at the Frame ½ Bulkhead, Ken Lo said that the latter remained necessary as it provided structural support. Its removal would have required a recalculation of the hull strength. When it was put to him that a lighter web frame could have been used instead, he maintained that Cheoy Lee did not interfere with Naval-Consult’s structural design decisions, which were left entirely to the naval architect. The only deliberate design change in which he was personally involved, he said, was the decision to remove the watertight door at the Frame ½ Bulkhead from the Eastern District No. 1 design for application to Lamma IV.

75.  As to the Wuzhou fax, Ken Lo explained that it reflected Wuzhou’s mistaken assumption that a watertight door would be fitted in Hong Kong. In his view, Cheoy Lee was not bound by that assumption. He said that because the drawings were inconsistent, with some depicting the Frame ½ Bulkhead as watertight, Wuzhou had wrongly inferred that a watertight door would be installed. In any event, Wuzhou required a temporary opening for welding access within the Steering Gear Compartment and the decision whether to install a door was a matter for Cheoy Lee to determine during outfitting in Hong Kong.

76.  Ken Lo acknowledged that the survey carried out by the China Classification Society was conducted on the assumption that the bulkhead at Frame ½ was watertight and that Wuzhou sealed the manhole accordingly. He described the China Classification Society certificate as a quality assurance document for Wuzhou’s workmanship, not a certification required for completion of outfitting in Hong Kong.

77.  When asked why Cheoy Lee did not correct Wuzhou’s or Vanzon’s references to a watertight door at the Frame ½ Bulkhead, Ken Lo said that no correction was necessary because the final decision on whether to fit such a door rested with Cheoy Lee in Hong Kong. He accepted that he was copied in the correspondence but explained that he was often overseas at the time and believed he only became aware of its contents after the relevant actions had already been taken. He said the Wuzhou contract did not include the supply or installation of a watertight door. His earlier evidence at the COI was that, if a watertight door had been required, Cheoy Lee would have instructed Wuzhou to install it and to prepare the plating accordingly.[36] After the hull was returned to Hong Kong, Cheoy Lee opened the Access Opening at the Frame ½ Bulkhead.

78.  Ken Lo explained that the finish of the Access Opening at the Frame ½ Bulkhead was consistent with an ordinary opening rather than one intended for a watertight door. The opening was completed with flat bars suitable for a hole, not for fitting a door. Ken Lo noted that the congregated area was already so close to the end, leaving no clearance for attaching a door. He further pointed out that the absence of reinforcing, flanges, hinges, or other preparatory work confirmed that no watertight door had ever been intended. To fit such a door, the adjoining plating must be prepared to provide sufficient flat surface for bolting, but in this case, the plating terminated too close to the stiffened areas, leaving no space for installation. The structure, as completed, thus indicated that no watertight door was ever intended.[37]

79.  In summary, Ken Lo’s evidence was that the omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision, reached after discussions with John Lim and made to comply with the applicable regulatory requirements, namely the one-compartment flooding standard and the 0.1L Rule. He maintained that the Frame ½ Bulkhead was never intended to be watertight, that any contrary markings on the drawings were drafting mistakes carried over from Eastern District No. 1, and that both the construction details and the absence of preparatory work confirmed this intent. Throughout his evidence, Ken Lo’s position was that the design satisfied the one-compartment flooding standard, as evidenced by the Preliminary Trim and Stability Booklet and that the watertight door at the Frame ½ Bulkhead had been intentionally omitted in order to comply with the 0.1L Rule, this omission also being consistent with the one-compartment flooding standard.

E1.2  Evidence of John Lim

80.  John Lim, who retired from Naval-Consult in 2014, did not give evidence at this Inquest. His evidence before this Court comprises his emails in January 2013; his oral evidence given via video link to the COI in April 2013;[38] and his witness statement given after the COI. At the COI he produced the agreement between Naval-Consult and Cheoy Lee dated 8 December 1994 as well as the Preliminary Trim & Stability Booklet.

81.  John Lim’s emails are the earliest record of his position on the matters in issue. On 31 December 2012, the Marine Department wrote to John Lim informing him of the collision on 1 October 2012, stating that it was examining the design, construction and maintenance of Lamma IV. The Department referred to the Tender Specification which required the hull to be subdivided by five watertight bulkheads into six compartments. John Lim was asked to confirm whether the design he prepared followed that requirement, particularly the watertight subdivisions. The Marine Department also enclosed the Profile and Deck and Shell Expansion drawings, which depicted Frame ½ as corrugated watertight bulkheads, as well as the Sections and Bulkheads drawing that showed an access opening at the Frame ½ Bulkhead. John Lim was also told that the Damage Stability Calculations submitted by Cheoy Lee treated the bulkhead at Frame ½ as watertight. He was asked to clarify: (i) whether Frame ½ was designed as a watertight bulkhead; (ii) if not, why the structural drawings indicated it was watertight; and (iii) why, the watertight door at the corresponding frame on Eastern District No. 1 was changed to “Access Opening” on Lamma IV.

82.  In his reply dated 2 January 2013, John Lim stated that Lamma IV was designed with five watertight bulkheads creating six compartments, and that the Access Opening in the Frame ½ Bulkhead was intended to have a watertight door. He added that although the draughtsman had changed the marking from “WT door” to “Access Opening,” it should still have been fitted with a watertight door. He further noted that there was no record of the Specification referred to in the agreement with Cheoy Lee.

83.  In another email on 18 January 2013, John Lim referred to his telephone conversation with Ken Lo where it was confirmed that Lamma IV had been designed to a one-compartment flooding standard. He stated that his draughtsman had not treated the Frame ½ Bulkhead as watertight. John Lim noted that the design work for Lamma IV took place many years ago and owing to several relocations of Naval-Consult, documents relating to Lamma IV had been discarded. He clarified that Naval-Consult had supplied to Cheoy Lee a basic design package comprising, amongst others, the Revised GA, the Sections and Bulkheads drawing, the Shell Expansion drawing and the Intact and Damaged Stability Report booklet.

84.  At the COI, John Lim explained that the apparent inconsistency arose because, when he wrote the first email on 2 January 2013, he did not have the Preliminary Trim and Stability Booklet and had assumed the Frame ½ Bulkhead was watertight. After speaking with Ken Lo, who reminded him that Lamma IV was a one-compartment flooding vessel, he located the Preliminary Trim and Stability Booklet and realised his earlier assumption was mistaken. He maintained that his change of view resulted from his own review of the booklet, not from influence by Ken Lo.

85.  John Lim confirmed that KC Tan was the draughtsman who prepared the Lamma IV drawings. He said KC Tan left Naval-Consult around 1995, shortly after completion of the project. Regarding the adaptation of Eastern District No. 1’s design, he stated that a decision was made during the design process to remove the watertight door at the Frame ½ Bulkhead and replace it with an Access Opening, primarily to reflect Lamma IV’s operational requirements under Hong Kong regulations. He said the one-compartment flooding standard was satisfied because the combined Tank Room and Steering Gear Compartment was smaller than the Engine Room; if the latter met the flooding requirement so would the combined aft space.

86.  As for the Access Opening shown on the Revised GA, John Lim explained that the Frame ½ Bulkhead was not watertight because of the one-compartment flooding standard he had discussed with Ken Lo. He agreed that treating the Steering Gear Compartment and the Tank Room as a single compartment for the purpose of that standard was also consistent with the application of the 0.1L Rule.[39]

87.  At the COI, it was put to John Lim that, under Naval-Consult’s contract with Cheoy Lee, the firm was required to design the vessel in accordance with the Tender Specification, which provided for five watertight bulkheads, and that the omission of a watertight door at the Frame ½ Bulkhead might amount to a breach of that contract. John Lim replied that there was no issue so long as the vessel met the relevant stability requirements and that Cheoy Lee had never suggested that the omission constituted a contractual breach.[40]

88.  In his witness statement given after the COI,[41]  John Lim confirmed that he was responsible for the design of Lamma IV and that the design discussions were conducted between himself and Ken Lo. He said Cheoy Lee provided an initial general arrangement drawing and a verbal brief but did not participate in detailed design decisions. Naval-Consult adapted Eastern District No. 1’s design to meet a one-compartment flooding standard for Lamma IV, whereas Eastern District No. 1 had been built to a two-compartment standard under the High-Speed Craft Code.

89.  John Lim accepted that his draughtsman had mistakenly labelled the Frame ½ Bulkhead as “W.T. BHD.” in several drawings, including the top-right annotation Section B-B on the Sections and Bulkheads drawing. He said the lower left depiction showing an “Access Opening” without reference to a watertight door correctly reflected the intended arrangement. He maintained that the design intent was for the Frame ½ Bulkhead to be non-watertight, consistent with the one-compartment flooding standard.

90.  He relied on the Preliminary Trim and Stability Booklet to support this view, noting that one of the loading conditions modelled flooding of the Steering Gear Compartment while treating the Frame ½ Bulkhead as non-watertight, and that the vessel nonetheless passed the one-compartment flooding criterion. He said the erroneous labelling in the drawings only came to light when the Marine Department contacted him in December 2012.

91.  John Lim said that both he and KC Tan were responsible for the draughting and the preparation of the Intact and Damage Stability Calculations for Lamma IV, while he was also involved in the design and checking of the drawings. He said he was not involved in the decisions concerning the addition or relocation of lead ballast and said that Naval-Consult’s role ended with the delivery of the approved design package to Cheoy Lee.

92.  In summary, John Lim’s evidence was that the omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision made when adapting the Eastern District No. 1 design to meet Hong Kong’s one-compartment flooding standard. The inconsistent “W.T. BHD.” markings on the drawings were drafting errors by his draughtsman. He relied on the Preliminary Trim and Stability Booklet, which he and KC Tan had prepared, to confirm that the design complied with the one-compartment flooding requirement.

E1.3  Evidence of KC Tan

93.  KC Tan was the draughtsman who prepared the Profile and Deck and the Sections and Bulkheads drawings for Lamma IV. He is not a witness at the Inquest; his evidence consists of a witness statement.[42]

94.  KC Tan worked as a freelance naval draughtsman and was engaged part time by Naval-Consult. The Lamma IV assignment, he explained, was sent to him by email and he returned the drawings to John Lim by email.

95.  KC Tan said that the overall concept of the drawings originated from John Lim. He was aware of only one vessel, Lamma IV, being constructed in accordance with those drawings. He confirmed that he was not familiar with the safety standards or regulatory requirements applicable to shipbuilding in Hong Kong. When asked who had inserted the annotations “W.T. BHD”, “watertight bulkhead” or “W.T. Door” at the Frame ½ Bulkhead on the Lamma IV drawings, he said he did not know who had written them. The suggestion that a “W.T. Door” notation appeared at the Frame ½ Bulkhead is not supported by the drawings produced at this Inquest, which contain no such annotation.

E2.  Indirect Evidence of Design Intent

96.  In addition to the direct evidence of those involved in the design of Lamma IV, the issue of design intent must also be examined through the documentary evidence. This encompasses three principal categories: first, the design and structural drawings of Lamma IV approved by the Marine Department; secondly, the damage stability calculations; and thirdly, the correspondence exchanged between Wuzhou and Vanzon during hull construction.

E2.1  Drawings

97.  Naval-Consult prepared a series of drawings for Lamma IV. These included the Revised GA, the Sections and Bulkheads (Sheet 1 of 2 and Sheet 2 of 2) drawings, the Profile and Deck drawing and the Shell Expansion drawing. These drawings formed part of the design package supplied by Naval-Consult to Cheoy Lee. It is not clear which of these drawings were provided to, or relied upon by, Wuzhou during the hull construction.

Revised GA

98.  The Revised GA, prepared by John Lim on 12 October 1994, was the same drawing referred to in the agreement between Cheoy Lee and Naval-Consult.

99.  The drawing consisted of four plans: the Profile, the Upper Deck Plan, the Main Deck Plan and the Underdeck Plan. The Underdeck Plan showed the hull subdivided by transverse bulkheads into six compartments. In the same sequence as set out in the Tender Specifications, it depicted the Forepeak, the Void Space, the Crew’s Space, the Engine Room, the Tank Room, and, at the stern, the Steering Gear Compartment. These compartments were delineated by solid vertical lines indicating the watertight bulkheads. At the Frame ½ Bulkhead, between the Steering Gear Compartment and the Tank Room, the vertical line was marked by two shaded triangles with their apexes facing each other.[43] According to the evidence, these triangles are the recognised symbol on general arrangement drawings for an access opening.

Profile and Deck

100.  The Profile and Deck drawing prepared by KC Tan on 20 December 1994, depicted four views of the vessel. In the Side Shell profile, the bulkhead located at Frame ½ was marked “W.T. BHD”. In the Centreline profile, the same bulkhead was described as “CORRUGATED W.T. BHD”. In the Bottom Plan, it was again labelled “W.T. BHD”.

101.  The drawing was approved on 3 May 1995 by Mr Wong Chi Kin, then a Principal Surveyor of Ships in the Local Vessels Safety Section of the Marine Department. Mr Wong confirmed that the handwritten annotation he had made “See Section B-B of drawing ‘Sections and Bulkheads’” on the Centreline Profile plan referred to the installation of a bracket at the relevant location. The Profile and Deck drawing also bore a typed Marine Department note stating “This drawing is to be read in conjunction with the following drawings: Midship Section, Sections and Bulkheads Drawing, Engine Girder.”

Sections and Bulkheads

102.  The Sections and Bulkheads drawing consisted of two sheets. Of these, only Sheet 1 of 2 is relevant to this Inquest. The draughtsman of the drawing was KC Tan, and it was dated 22 December 1994. Sheet 1 includes a detailed depiction of the bulkhead at Frame ½, showing its corrugated construction, plate thickness and stiffener arrangements. An opening is shown on the port side of the bulkhead, annotated “ACCESS OPENING 1200 x 600 W/50R AT CORNER (PORT ONLY)”. Dr Armstrong explained that this annotation indicated an opening on the port side of the otherwise watertight bulkhead, measuring 1200mm in height and 600mm in width, with the corners rounded to a radius of 50mm. The drawing also specified the precise horizontal and vertical positioning of the opening within the bulkhead. [44]

103.  Located at the top right-hand corner in the same sheet, is the Section B-B drawing depicting a cross-section of the same bulkhead at Frame ½ as ‘WT BHD’. This inconsistency within a single drawing, one view showing an opening with reinforcement in the Frame ½ Bulkhead, the other labelling the same bulkhead as watertight, lies at the heart of the dispute as to whether the Frame ½ Bulkhead was intended to be watertight or to have an access opening.

104.  The Sections and Bulkheads drawing (Sheet 1 of 2) was approved by Mr Wong Chi Kin on 3 May 1995. Mr Wong’s evidence was that, when approving the drawing, he read the notation “ACCESS OPENING 1,200 x 600 W/50R AT CORNER (PORT ONLY)” in the context of the other drawings, which indicated the bulkhead to be “WT,” meaning watertight. At the Inquest, Mr Wong stated that his approval had been given on the understanding that a watertight door would be fitted to the Access Opening in accordance with paragraph 12(v) of the Blue Book. He said he had assumed that the Frame ½ Bulkhead was watertight and that his approval had been granted on that basis.

Shell Expansion

105.  The Shell Expansion drawing, prepared by the draughtsman identified as “LEX” and dated 19 January 1995, showed the bulkhead at Frame ½ with the marking “W.T. BHD”, indicating it as a watertight bulkhead. It is noted that John Lim made no mention of any draughtsman named LEX and said the draughtsman for Lamma IV was KC Tan.

106.  At the Inquest, Mr Wong Chi Kin said the Shell Expansion drawing was approved by a ship inspector though signed by him on 17 May 1995.

E2.2  Damage Stability Calculations

107.  The Damaged Stability Calculations provide another source from which inferences may be drawn as to whether the Frame ½ Bulkhead was intended to be watertight. Two sets of calculations are material: first, the Preliminary Trim and Stability Booklet prepared by Naval-Consult and second, the Damage Stability Calculations prepared by Mr Cheung Fook Chor of Cheoy Lee in 1996.

Preliminary Trim and Stability Booklet

108.  Ken Lo stated that the preparation of preliminary stability calculations was a standard requirement in the vessel design process. Their purpose was to provide an initial check on whether the proposed design could satisfy the applicable stability requirements; if the vessel failed to meet those requirements, the design would have to be modified.

109.  John Lim told the COI that the Preliminary Trim and Stability Booklet was prepared by Naval-Consult between December 1994 and early May 1995, prior to 9 May 1995.[45] He explained that the calculations were carried out on the basis of a one-compartment flooding assumption. For the purposes of the damage assessment, the Steering Gear Compartment and the Tank Room were treated as a single combined compartment. John Lim also agreed that this approach was consistent with the fact that the Steering Gear Compartment measured less than 10 per cent of the vessel’s length and therefore met the 0.1L Rule. He further confirmed that, apart from the Steering Gear Compartment and the Tank Room, the other damage conditions in the booklet were likewise assessed on a one-compartment flooding basis, so that the vessel’s overall damage stability was evaluated against that same standard.[46]

1996 Damage Stability Calculations

110.  Following the Preliminary Trim and Stability Booklet prepared by Naval-Consult, in which compliance with the one-compartment flooding standard was established, the next set of Damage Stability Calculations for Lamma IV was prepared in 1996 by Mr Cheung Fook Chor, a naval draughtsman of Cheoy Lee.

111.  Mr Cheung Fook Chor did not appear at this Inquest owing to age and ill health. His evidence at the COI,[47] together with his three witness statements,[48] have been admitted in evidence before this Inquest.

112.  Mr Cheung Fook Chor, who gave evidence at the COI as a retired naval draughtsman, had served in Cheoy Lee from 1972 until 2007. He held a Higher Certificate in Naval Architecture and was responsible for vessel design drawings, damage stability calculations and the preparation of inclining experiment and stability booklets.

113.  Mr Cheung stated that in January 1996 he was instructed by his supervisor, Mr Jon Leizaola, to prepare the Inclining Experiment and Stability Calculation Booklet for the newly constructed Lamma IV. The Inclining Experiment was conducted on 31 January 1996 in the presence of a Marine Department Ship Inspector, using only the Revised GA as his reference document. Mr Cheung subsequently prepared the stability calculations, which were submitted to the Marine Department and approved on 26 July 1996.

114.  Mr Cheung explained that he found the drawings concerning the watertightness of the Frame ½ Bulkhead confusing and therefore proceeded on the assumption that it was watertight, leaving it to Mr Leizaola or the Marine Department to determine otherwise. In preparing the 1996 Damage Stability Calculations, he did not have before him the Sections and Bulkheads drawing, relying instead on the Revised GA, the Profile and Deck drawing and the Lines Plan. He noted that while the Revised GA contained no notation of watertightness, the Profile and Deck drawing marked the Frame ½ Bulkhead as watertight, therefore he treated it as such. Although he had earlier made amendments to the Sections and Bulkheads drawings in March 1995 at Mr Leizaola’s request, his attention had been confined to the specific dimensions he was instructed to alter, and he did not notice the Access Opening at the Frame ½ Bulkhead. He accepted that if the bulkhead were watertight and contained an access opening, a watertight door would have been required.

115.  At the COI, Mr Cheung Fook Chor frankly admitted that in preparing the 1996 Damage Stability Information Booklet, he had omitted to apply the 0.1L Rule. He said that he knew at a glance that the Steering Gear Compartment was short but had forgotten about the 0.1L Rule at the time. He accepted that it was an omission not to have applied the rule and described this omission as “negligent” on his part.[49]

116.  In his witness statements, Mr Cheung further recounted that he attended all three inclining and stability experiments conducted for Lamma IV in 1996, in 1998 after the addition of 8.25 tonnes of lead ballast, and in 2005 after the ballast was raised. On each occasion, he was responsible for recording the test results on deck and used the Revised GA as reference but did not enter the under-deck compartments.

117.  Mr Cheung also described Cheoy Lee’s internal organisation, explaining that the Engineering Department, headed by Mr Leizaola, had overall supervisory responsibility for the Design Department, in which he worked. The Design Department had no separate supervisor and its work on vessel drawings and stability calculations was carried out under the direction of the Engineering Department.

E2.3  Wuzhou Fax and Vanzon’s Reply

118.  The final category of indirect evidence relevant to design intent concerns the correspondence between Wuzhou and Vanzon.[50]

119.  On 21 June 1995, Mr Lee Hang Shing of Wuzhou sent a fax to Mr Fung Kai Ming of Cheoy Lee, copied to Mr Cheng Tak Ming of Vanzon, seeking clarification of the transverse measurement of an opening shown on the construction plan. Wuzhou also proposed cutting a small manhole in the Frame ½ Bulkhead to permit access for welding, to be sealed thereafter for a watertight test, and referred to the later installation of a watertight door at that bulkhead together with associated T65×65×6 stiffeners. On the same day, Vanzon replied to Wuzhou, stating that it had discussed the matter with Mr Fung Kai Ming. The reply confirmed agreement on the transverse measurement, accepted the proposal to cut and later seal the temporary manhole, requesting Wuzhou to suggest the appropriate air-pressure for the test, and agreed that the stiffener work should proceed. The reply also recorded that the work was two to three days behind schedule and asked Wuzhou to expedite the next phase. Copies of both communications were circulated between Wuzhou, Vanzon and Cheoy Lee.

120.  Mr Fung Kai Ming did not attend the Inquest, his witness statements were admitted into evidence.[51] Mr Fung  explained that the Wuzhou fax had been sent to inform Cheoy Lee that Wuzhou intended to cut a small manhole in the aft peak bulkhead of Lamma IV to allow workers to enter the stern compartment for welding, and that the opening would be sealed afterwards for a pressure test. He stated that he was unsure whether he had seen Vanzon’s reply at the time.

121.  In his witness statements dated 30 May 2014, Mr Fung stated that the hull constructed at Wuzhou comprised the decks, the hull and five watertight bulkheads, and that it did not include watertight covers, access openings or watertight doors, which were to be dealt with by Cheoy Lee in Hong Kong. However, in his later witness statements dated 31 July 2014, Mr Fung stated that he could not remember how many watertight bulkheads Lamma IV had.

122.  Mr Fung confirmed that, after completion of the hull at Wuzhou, it was transported to Cheoy Lee in Hong Kong for further work, including the formation of the Access Opening at the Frame ½ Bulkhead. He likewise could not recall who undertook the work relating to Access Opening on the vessel.

123.  Mr Cheng Tak Ming, the sole proprietor of Vanzon, explained at the Inquest that although the fax had been addressed to Mr Fung Kai Ming but as it was copied to him, he took the initiative to reply because time was of the essence, and Vanzon was responsible for ensuring the construction was on schedule. At that time, the work was already two to three days behind. He telephoned Mr Fung Kai Ming to seek confirmation that Wuzhou’s proposals were acceptable, upon receiving that confirmation he immediately relayed the response to Wuzhou to avoid further delay.

124.  Mr Cheng Tak Ming said his focus was on the three specific technical queries raised by Wuzhou: (i) a clarification of transverse dimensions, (ii) approval to open and later seal a manhole for welding and to conduct a pressure test, and (iii) matters of material shortage and schedule recovery. He said he copied the headings from Wuzhou’s fax so that his reply followed the subjects raised by Wuzhou, though the substance of Vanzon’s response dealt only with Wuzhou’s specific proposals. Mr Cheng Tak Ming emphasised that he had no knowledge of any watertight door at the Frame ½ Bulkhead, the reference to a watertight door in Vanzon’s fax was merely an adoption of the subject heading from Wuzhou’s fax for the purpose of structuring the reply.

E3.  Expert Opinions on the Frame ½ Bulkhead

125.  Dr Armstrong, Dr Renilson, Mr Simon Burthem, Mr Robert Vart and Mr Anthony York each provided opinions on the design intent of the Frame ½ Bulkhead. While their views were based on their respective professional expertise, they were necessarily derived from an interpretation of the available drawings and documents rather than on any direct involvement in the original design or construction of Lamma IV.

E3.1  Dr. Armstrong

126.  In his report,[52] Dr Armstrong considered that the bulkhead at Frame ½, which he regarded as the aft peak bulkhead, ought to have been watertight in accordance with the drawings, the applicable regulations and the relevant Instructions. He observed that the term “Access Opening” was unhelpful, as it did not indicate whether a watertight door was intended and noted that there was no evidence that a watertight door had ever been fitted at the Frame ½ Bulkhead. Dr Armstrong further stated that, under both the Blue Book and the 1995 Instructions, any access opening in a watertight bulkhead was required to be fitted with an efficient watertight closing appliance. On that basis, he considered that the use of the term “Access Opening” on a structural drawing of a watertight bulkhead could be regarded as acceptable terminology, provided that a watertight door was intended.

127.  When John Lim’s evidence was brought to Dr Armstrong’s attention namely, that his draughtsman had mistakenly marked the Frame ½ Bulkhead as “WT BHD” in the Sections and Bulkheads drawing (Section B-B), had annotated the Centreline Profile on the Profile and Deck drawing with “Corrugated WT BHD,” and had done likewise on the Shell Expansion drawing, Dr Armstrong accepted that this explanation was consistent with the manner in which the Preliminary Trim and Stability Booklet treated the Tank Room and the Steering Gear Compartment as a single damaged space, and with the deliberate change in wording from “WT Door” on Eastern District No. 1 to “Access Opening” on Lamma IV. Nevertheless, he described it as “an astonishing trail” that a draughtsman would leave such a fundamental inconsistency between drawings, observing that “it is a very basic understanding of drawing that if you change something in one view, you change it in all views.”[53]

E3.2  Dr Martin Renilson[54]

128.  Dr Martin Renilson relied on the Tender Specification, which stated that there were to be five watertight bulkheads, and noted there was no agreement to vary that specification. He considered it contrary to industry practice and inherently unlikely that a shipyard would unilaterally convert a bulkhead initially intended to be watertight into a non-watertight bulkhead without informing either the shipowner or the Marine Department.

129.  In his evidence at the Inquest, given via video link, Dr Renilson stated that six watertight compartments would improve the vessel’s safety and reiterated that this was consistent with what the owner was seeking. When asked whether the 0.1L Rule related to design or calculation, he said that in his view the 0.1L Rule was concerned with damage stability calculation and that at the preliminary design stage the draughtsman was unlikely to have calculated floodable length curves or known whether the bulkhead at Frame ½ was necessary to meet the one-compartment requirement.

130.  As to the drawings, Dr Renilson rejected John Lim’s assertion that the marking of Frame ½ Bulkhead as ‘WT BHD’ was a drafting mistake. He considered it highly unlikely that multiple drawings, including the Profile and Deck, the Sections and Bulkheads and the Shell Expansion, would all contain the same error.[55]  He said that even if John Lim asserted that the notation was incorrect, the structural depiction of the Frame ½ Bulkhead still indicated a watertight intent.

131.  Dr. Renilson further relied on the Wuzhou and Vanzon fax correspondence, both referring to a watertight door at the Frame ½ Bulkhead, as evidence that it was understood by all parties that the bulkhead at Frame ½ was to be watertight. Lastly, he noted that all three Damage Stability Booklets prepared by Cheoy Lee treated the Frame ½ Bulkhead as watertight, reinforcing his view that it was so intended.

E3.3  Mr Simon Burthem [56]

132.  Mr Simon Burthem concluded that, on balance, the design intent was for the Frame ½ Bulkhead to be watertight and fitted with a watertight door. He relied principally on the Tender Specification, which required five watertight bulkheads, and on the stability booklets, which treated the Tank Room and Steering Gear Compartment as separate watertight spaces. He considered the Tender Specification to be the key contractual and technical document defining the vessel’s safety features, including the number and disposition of watertight bulkheads and openings.

133.  Mr Burthem accepted that inconsistencies in documentation could occur within a complex design process but regarded it as unlikely that Cheoy Lee would have departed from the Tender Specification without consultation with Hongkong Electric. He thought it improbable that the omission of a watertight door resulted from oversight alone, considering it more likely that one of the parties namely, designer, builder, regulator, or owner, had decided the door was unnecessary without ensuring the change was consistently reflected in all drawings.

134.  Mr Burthem further noted that while the Tender Specification and stability booklets supported a watertight interpretation, the Sections and Bulkheads drawing described the same location as an “Access Opening.” He also observed that the physical inspection of Lamma IV revealed no evidence that a watertight door had ever been fitted or later removed. He therefore described the evidence as “mixed,” concluding on balance that a watertight door was intended but that the intention might have changed later.

135.  Mr Burthem also examined the fax correspondence between Wuzhou and Vanzon. He observed that while the fax from Wuzhou referred to a watertight door at the Frame ½ Bulkhead, Vanzon’s reply did not expressly confirm that one would be fitted, nor did it rule out the possibility of a subsequent change of intention by Cheoy Lee. In his view, the correspondence was consistent with the uncertainty and inconsistency seen in the drawings and did not conclusively prove that a watertight door was intended or installed.

136.  At the Inquest, Mr Burthem reiterated that the weight of drawings prepared by different draughtsmen suggested watertightness at the Frame ½ Bulkhead. He regarded it as inconceivable that a competent shipbuilder could simply overlook a watertight door specified in the contract and therefore inferred that the design intent must have changed at a later stage.

137.  When informed of John Lim’s evidence that the “WT BHD” markings were draughtsman errors and that the “Access Opening” notation reflected the true intent, Mr Burthem accepted that this would alter his view. If the “WT BHD” notations were indeed mistaken, he agreed that the bulkhead at Frame ½ should be regarded as non-watertight and said he would have no reason to doubt that explanation.

E3.4  Mr Robert Vart [57]

138.  Mr Robert Vart concluded that the evidence strongly suggests that the design intent was for a watertight door to be fitted in the bulkhead at Frame ½, preferring Dr Renilson’s unequivocal finding that there was no doubt as to such intent over the more cautious opinion of Mr Simon Burthem that regarded the evidence as not entirely conclusive. Mr Vart attributed the contradictory notations in the drawings to poor drafting practice within Naval-Consult and/or Cheoy Lee, coupled with miscommunication between Wuzhou and Cheoy Lee. He characterised the omission of the watertight door as an accidental omission rather than any deliberate change of design intent. He further emphasised that the omission should have been detected by both the shipyard’s quality assurance processes and the Marine Department’s surveyors, since procuring and fitting a watertight door was straightforward, inexpensive and standard practice.

139.  At the Inquest, Mr Vart reiterated that the Access Opening at the Frame ½ Bulkhead was intended to be fitted with a watertight door. He explained that, although the Sections and Bulkheads drawing referred only to an “Access Opening”, this was not inconsistent with Section B-B, which described the same bulkhead as a “WT BHD”. In his evidence, established marine practice is that any access opening in a watertight bulkhead must be fitted with an efficient watertight closing appliance.

140.  Mr Vart further stressed that, had the bulkhead not been intended to be watertight, Cheoy Lee would have avoided the additional cost by omitting the bulkhead altogether and installing a deep frame instead. He also relied on the Wuzhou fax, which expressly referred to watertight testing under air pressure, testing which, in his view, could only have been contemplated if the Access Opening were to be fitted with a watertight door.

141.  He further pointed to the installation of stiffeners around the Access Opening as evidence that the opening was not intended to be temporary, explaining that stiffeners would not ordinarily be fitted to a temporary opening. He accepted, however, that because of the dimensions and configuration of the opening, any watertight door would likely have had to be custom-made rather than an off-the-shelf unit.

142.  Mr Vart agreed that, if the Frame ½ Bulkhead were intended to be watertight with an Access Opening, he would ordinarily expect a watertight door to be shown on the drawings, in accordance with normal naval architectural practice. He nevertheless maintained that the absence of such depiction did not necessarily mean that the bulkhead was non-watertight, as the drawings had to be read as a whole.

143.  When informed of John Lim’s evidence at the COI that the drawings depicting the Frame ½ Bulkhead as watertight were mistakes, Mr Vart maintained that his view remained unchanged. According to Mr Vart, the primary document was the Tender Specification, which he regarded as the shipbuilding contract, which clearly required the vessel to be constructed with five watertight bulkheads.

E3.5  Mr Anthony York [58]

144.  Following his inspection of Lamma IV between 13 and 17 November 2012, Mr Anothony York confirmed that the Frame ½ Bulkhead was not watertight in its as-built condition. The bulkhead contained an access opening without a watertight door. He identified a clear discrepancy among the drawings with some depicting the Frame ½ Bulkhead as watertight others, particularly the Sections and Bulkheads drawing, showed only an Access Opening without any indication of a watertight closure.

145.  At the Inquest, Mr York considered the question of what the Frame ½ Bulkhead of Lamma IV should have been by reference to both design intent and regulatory requirements. He accepted that the contractual specifications called for five watertight bulkheads and that, when the drawings were read together, they appeared to indicate that the Frame ½ Bulkhead was intended to be watertight. He stated that under the Blue Book, any access opening in a watertight bulkhead must be fitted with an efficient closing appliance, namely a watertight door. On that basis, he concluded that, in principle, the Frame ½ Bulkhead should have been watertight and fitted with a watertight door.

146.  Mr York also addressed the ambiguity in the drawings and the proper procedure to follow when such uncertainty arose. He described the representation of the Frame ½ Bulkhead as ambiguous and observed that good design practice would have required the drawing to specify a watertight door explicitly if that was the intention. He emphasised that any intended deviation from the regulatory requirement should have been formally referred to the Marine Department for approval through the submission of amended plans. He regarded the failure to do so, and the absence of any record of such approval, as a procedural and regulatory deficiency.

147.  Mr York said he could not think of any reason why, if a watertight door had been intended, the drawings referred only to an “Access Opening” rather than a “watertight door”. He also agreed that, from a safety perspective, it made no sense to remove a watertight door at the Frame ½ Bulkhead.

E4.  Submissions of the Parties

148.  Both the Next of Kin and the Marine Department took essentially the same position on this issue, namely, Cheoy Lee knew from the outset that the bulkhead at Frame ½ was to be constructed watertight. Cheoy Lee, however, submitted that it did not have such knowledge or intention. Hongkong Electric maintained that Cheoy Lee knew from the outset that the Frame ½ Bulkhead was intended to be watertight but qualified its position by suggesting that the design intention might have changed at a later stage. HKKF made no submissions on this point.

E4.1  Next of Kin and the Marine Department

149.  The Next of Kin and the Marine Department submitted that the Tender Specification expressly required the vessel to be constructed with five watertight bulkheads. They argued that if any deliberate design change had been intended to depart from this requirement, such as treating the Frame ½ Bulkhead as non-watertight, such a change would have been clearly recorded across all relevant drawings, including the Profile and Deck, Sections and Bulkheads and Shell Expansion, and would have been formally communicated to Hongkong Electric and the Marine Department. The absence of any such revision or notification was said to demonstrate that no change was made.

150.  They noted that Ken Lo has given two incompatible explanations for the removal of the watertight door at the Frame ½ Bulkhead. At the COI he said the change was justified by the one-compartment flooding standard; at the Inquest he claimed it was required to comply with the 0.1L Rule. The Marine Department argued there was no logical connection between either rationale and the removal of a watertight subdivision. Both parties described the shift as a recent fabrication.

151.  The Next of Kin additionally stressed that removing a watertight subdivision without notifying Hongkong Electric or the Marine Department was contrary to normal shipbuilding practice and could not reasonably have been done informally.

152.  Reliance was placed on the fax from Wuzhou and Vanzon’s reply, both of which referred to a watertight door at the Frame ½ Bulkhead. It was submitted that this correspondence is inconsistent with any suggestion that the bulkhead was intended to be non-watertight. The China Classification Society survey and certification were said to reinforce this position, as they were conducted on the basis that the bulkhead at Frame ½ was watertight.

153.  Relying on the evidence of Dr Renilson, Mr Robert Vart and Mr Simon Burthem, it was submitted that any unilateral removal of a watertight door would have required notification to the approving authorities. The experts further opined that the Frame ½ Bulkhead was constructed with corrugated plating and stiffeners consistent with watertight construction, rather than as a simple web frame, which would have been expected had it not been intended to be watertight.

154.  Both the Marine Department and the Next of Kin submitted that the apparent difference between the drawings depicting the Frame ½ Bulkhead as having an “Access Opening” and others showing the same bulkhead as watertight was the result of a difference in drafting style rather than any change in design intent. They argued that the drawings must be read collectively in order to ascertain the designer’s true intention regarding the watertight integrity of the bulkhead at Frame ½.

155.  In addition, the Marine Department produced the drawings of two vessels constructed by Cheoy Lee[59]  and a Damage Stability Information prepared by the shipyard[60] in which the aft peak bulkheads of the vessels were located at less than 10% of the vessel’s length. This was relied upon to challenge the credibility of Ken Lo’s evidence that he had believed, under the 0.1L Rule, the aft peak compartment could not be less than 0.1L in length. The Department argued that such belief was inconsistent with Cheoy Lee’s established design practice and that Ken Lo’s assertion to that effect was not credible.

156.  The Marine Department also submitted that the Blue Book did not stipulate that an aft peak bulkhead must be watertight or located at any prescribed position within the vessel. It argued that functionally, on Lamma IV, the bulkhead at Frame 4 performed the structural and watertight functions ordinarily associated with an aft peak bulkhead.

157.  Reliance was placed on John Lim’s email of 2 January 2013, in which he stated that Lamma IV was designed with five watertight bulkheads and that a watertight door was to be fitted at the Frame ½ Bulkhead. It was submitted by both the Next of Kin and the Marine Department that this early unprompted statement was more reliable than his later revised position.

158.  A central theme of the submissions from the Next of Kin and the Marine Department was that Ken Lo and John Lim, particularly Ken Lo, should not be believed on the circumstances surrounding the omission of the watertight door at the Frame ½ Bulkhead. They argued that Ken Lo’s account namely, that the door was omitted after discussions with John Lim because it was unnecessary under the one-compartment flooding standard and the 0.1L Rule, was inherently improbable and therefore unreliable. They further submitted that his reliance on the 0.1L Rule was a late invention, pointing out that he made no reference at the COI to any such discussion with John Lim in December 1994, and that this explanation only first surfaced at this Inquest.

159.  The Next of Kin submitted that Ken Lo had a clear motive to be untruthful in order to conceal the fact that Cheoy Lee had, through inadvertence, failed to install the watertight door as required by the approved drawings. They argued that his shifting explanations were designed to cover up this omission, notwithstanding that all related civil claims had since been settled.

160.  The Next of Kin further submitted that John Lim’s clarification that the draughtsman of Naval-Consult had mistakenly labelled the Frame ½ Bulkhead as watertight was not a genuine admission of error but an attempt to shield Cheoy Lee from criticism. They argued that, although it may on its face appear unusual for someone to admit to a mistake he did not commit, such an admission would have had minimal adverse implications for Naval-Consult while serving to divert responsibility away from Cheoy Lee, who created an Access Opening at the Frame ½ Bulkhead.

161.  The Marine Department, while expressly stating that it did not speculate as to Ken Lo’s motive, whether personal or to protect the shipyard’s reputation, maintained that the number of inconsistent versions given by him as to the reason for the removal of the watertight door rendered his evidence wholly unreliable.

E4.2  Cheoy Lee

162.  Cheoy Lee did not dispute that the Tender Specification expressly required the vessel to be constructed with five watertight bulkheads. However, it submitted that a design change was subsequently made at the design stage based on the application of the one-compartment flooding standard and the 0.1L Rule under Schedule 1 of Cap. 369AM. Cheoy Lee submitted that the preliminary stability calculations demonstrated that the aft peak compartment at the Frame ½ Bulkhead did not require watertight integrity in order to comply with the regulatory requirements and it was therefore entitled to omit the watertight door as part of a rational and deliberate design decision.

163.  Cheoy Lee maintained that Lamma IV, as constructed and delivered in 1996, satisfied all statutory stability and safety requirements without a watertight door at the Frame ½ Bulkhead. It relied on calculations accepted by Dr Armstrong and corroborated by Dr Peter Cheng, which demonstrated compliance with both the margin line and metacentric height criteria under Schedules 1 and 3 of Cap 369AM.

164.  Cheoy Lee further submitted that any margin line submersion occurred only following subsequent alterations made after delivery namely, the addition of 8.25 tonnes of lead ballast in 1998 and changes made in 2005, which were not relevant to the design or condition of the vessel at the time of construction.

165.  Cheoy Lee pointed to the fact that Hongkong Electric accepted the vessel upon delivery without any objection concerning the absence of a watertight door at the Frame ½ Bulkhead. It submitted that Hongkong Electric was provided with the approved drawings in July 1995 and raised no issue, which demonstrated acceptance and understanding of the design.

166.  Cheoy Lee also submitted that the omission of the watertight door reflected the professional naval architectural judgment of Ken Lo, who believed the regulatory requirements were met. Counsel for Cheoy Lee argued that Ken Lo’s explanation was credible and consistent with his expertise and longstanding role as director of Cheoy Lee.

167.  Further, Cheoy Lee said expert evidence supported the proposition that the Preliminary Trim and Stability Booklet’s damage stability calculations treated the Frame ½ Bulkhead as non-watertight and the vessel remained compliant. This confirmed the omission of the watertight door was an intentional design feature rather than an oversight.

168.  Finally, Cheoy Lee submitted that the sinking of Lamma IV resulted from an extraordinary two-compartment flooding event beyond the one-compartment flooding standard applicable to such vessels. The omission of the watertight door was not causative of the sinking and was permissible within the regulatory framework at the time of design.

E4.3  Hongkong Electric

169.  Hongkong Electric adopted a limited and neutral stance on Issue 1. It submitted that, on the face of the contractual specifications and the Wuzhou fax, there was clear evidence that Cheoy Lee knew or intended from the outset that the Frame ½ Bulkhead was to be constructed watertight. The separate question was whether the shipyard later made a deliberate decision not to build it watertight, as opposed to the omission being inadvertent. Hongkong Electric submitted that this depended on the credibility of Ken Lo and John Lim, on which it expressed no view.

170.  Hongkong Electric emphasised its position as a lay purchaser and end-user, rather than a technical or regulatory participant in the design process. Its involvement with the Frame ½ Bulkhead was entirely secondary. Hongkong Electric maintained that it discharged its contractual obligations as purchaser and operator and had no part in the design decisions relating to watertight subdivision.

171.  Clause 17 of the Tender Specification drafted and signed by Cheoy Lee required the hull to be subdivided by five watertight bulkheads into six compartments. Hongkong Electric pointed out that this clause was introduced by Cheoy Lee and did not appear in its Specifications, which were confined to operational parameters such as speed, capacity and dimensions. Accordingly, Hongkong Electric was entitled to rely on Cheoy Lee’s professional expertise for all naval-architectural matters, including watertight subdivision.

172.  Under Clause 9 of the Tender Specification, any variation required mutual agreement before work commenced. Hongkong Electric stated that it was never informed of any variation or decision to depart from the watertight specification, and it gave no consent to any such change.

173.  Hongkong Electric also highlighted the regulatory environment in which Lamma IV was constructed. Prior to 2007, the construction and survey of local vessels were governed only by the Blue Book, an internal Marine Department guideline rather than legislation. In practice, approval and certification rested largely on the professional judgment of the Marine Department officers. Vessel owners, including Hongkong Electric, relied on the Marine Department’s approval and licensing processes to ensure compliance. As an electricity supply company without in-house naval architectural expertise, Hongkong Electric deferred to Cheoy Lee and the Marine Department on all technical matters and did not engage independent consultants, in line with industry practice at the time.

174.  Lamma IV was certified by the Marine Department in 1996 and thereafter received annual Certificates of Survey for 17 consecutive years without comment on the Frame ½ Bulkhead. The Intact and Damage Stability Calculations were approved by the Department in 1996, 1998 and 2005 as conditions of certification. Hongkong Electric therefore had no reason to question the vessel’s structural integrity or the watertight status of the Frame ½ Bulkhead until the issue was first raised by Dr Armstrong at the COI.

175.  Expert analyses at the COI indicated that Lamma IV, even without a watertight door at the Frame ½ Bulkhead, would have satisfied the damage stability requirements applicable in 1996. Hongkong Electric relied on this as confirmation that the vessel was safe in its certified configuration.

176.  Hongkong Electric stressed that it played no role in preparing or verifying the Damage Stability Calculations, which was within the professional domain of Cheoy Lee and Naval-Consult, subject to the Marine Department’s scrutiny. As a purchaser, it was both reasonable and necessary for Hongkong Electric to rely on the professional and regulatory expertise of others.

E5.  Analysis of Evidence

177.  In assessing the evidence on Issue 1, it is necessary to consider not only the regulations in force at the time, but also how those regulations were understood and applied during the design stage. Ship design involves forward planning, and designers must make decisions based on how they expected the rules and regulations to be interpreted and applied by the Marine Department at the time of approval. The question is therefore not whether those interpretations were later shown to be correct, but whether the design decisions were genuinely and reasonably made on that basis, rather than arising from mistake or oversight.

178.  Issue 1 is therefore concerned with whether the explanations given for omitting a watertight door at the Frame ½ Bulkhead were credible and reasonable when assessed by reference to the regulatory requirements in force at the time of design and construction in 1994 and 1995. These included the one-compartment flooding standard and the 0.1L Rule, as they were then understood and applied. Subsequent events, including the collision and sinking of Lamma IV in 2012, should not be conflated with the question whether the design decision taken in 1994 complied with the regulations then in force.

E5.1  Ken Lo’s Credibility and Understanding of the 0.1L Rule

179.  In assessing Ken Lo’s evidence across the COI and this Inquest, it is essential to recognise the different purposes of the two proceedings. The COI was directed to the cause and circumstances of the collision on 1 October 2012. Watertight subdivision and design rationale arose as background and Ken Lo’s understanding of the 0.1L Rule was not examined in any depth.

180.  By contrast, this Inquest was expressly ordered by the Court of Appeal to determine six specific issues, one of which concerns the design intent behind the absence of a watertight door at the Frame ½ Bulkhead. That required a detailed examination of the one-compartment flooding standard, the 0.1L Rule, the design drawings and the Preliminary Trim and Stability Booklet. Ken Lo’s evidence on these matters was therefore the subject of detailed examination for the first time at the Inquest.

181.  Counsel for the Marine Department relied on paragraph 17 of Ken Lo’s witness statement at the COI[61] as demonstrating a correct understanding of the 0.1L Rule, namely that the Tank Room and the aft peak[62] could be treated as a single compartment for damage stability purposes because the length of the aft peak was less than 0.1 of the vessel’s length. However, paragraph 17 should not be read in isolation. When the statement is read as a whole, in particular together with paragraph 32, it is apparent that Ken Lo treated the 0.1L Rule as determining the design decision as to whether the bulkhead at Frame ½ was required to be watertight.

182.  In paragraph 32, Ken Lo explained that he did not consider the bulkhead at Frame ½ would need to be made watertight because the length of the Steering Gear Compartment was less than 0.1L, which he described as a statutory requirement. That explanation was consistent with the view that the 0.1L Rule was considered in the design of the placement and watertightness of bulkheads, and not merely in the subsequent assessment of damage stability. Read as a whole, Ken Lo’s evidence showed a consistent understanding that the 0.1L Rule was relevant to design considerations, including the treatment of the aft peak bulkhead.

183.  At the COI,[63] when asked what was “not workable” about fitting a watertight door to the Access Opening at the Frame ½ Bulkhead, Ken Lo’s answers made it clear that the 0.1L Rule was a design constraint in his mind at the material time. He explained that installing a watertight door at the Frame ½ Bulkhead would “break the 0.1L requirement”, as that bulkhead lay within 0.1L of the stern. He went on to say the door could of course be left in place, but in that event, it served no real purpose; he repeated that a watertight door was unnecessary unless the flooding standard required it. Although he did not specifically mention the December 1994 discussion with John Lim, the substance of his COI answers showed that he regarded the 0.1L Rule as a relevant consideration at the design stage and that this was not an explanation invented for the present Inquest.

184.  At the Inquest, Ken Lo’s evidence concerning the decision on the watertightness of the Frame ½ Bulkhead was given in greater detail. He described the 0.1L Rule as exerting a “location restraint” on where watertight bulkheads could be placed, if a bulkhead lay within 0.1L of the stern, the Marine Department would treat it as the aft peak bulkhead and would expect it to meet the survivability standard. Because the Steering Gear Compartment aft of the Frame ½ Bulkhead was shorter than 0.1L, making that bulkhead watertight would create a compliance problem. After discussion with John Lim, the simpler solution was to omit the watertight door so that the Frame ½ Bulkhead would not be treated as a subdivision boundary, making the Frame 4 Bulkhead as the effective aft peak bulkhead.

185.  Expert evidence supports the substance of this reasoning. Dr Armstrong explained that the aft peak bulkhead is ordinarily the final barrier against flooding from propeller or rudder-shaft seal failure and is invariably watertight and located close to the stern. He had never encountered a design where this was otherwise.[64]

186.  Dr. Renilson agreed that the aft peak bulkhead, while not prescribed at a precise location by regulation, is generally watertight and situated near the stern. He regarded it as odd to treat the Frame 4 Bulkhead as the aft peak bulkhead because of its distance from the transom and observed that the Marine Department would naturally have assumed the Frame ½ Bulkhead to be the aft peak bulkhead.

187.  Mr Simon Burthem accepted that the aft most watertight bulkhead is typically viewed as the aft peak bulkhead, though he considered that the Frame 4 Bulkhead could perform the function. His evidence was consistent with Ken Lo’s explanation that the purpose of such a bulkhead is to prevent progressive flooding.

188.  I find that Ken Lo’s reasoning made practical sense in the regulatory and design context at the time. According to the COI Report,[65] Mr Wong Chi Kin, stated that if the bulkhead at Frame ½ had a watertight door fitted to the Access Opening, it could be considered an aft peak bulkhead as required by paragraph 12(iv) of the Blue Book; if not, it could not be so considered.

189.  Given that the Steering Gear Compartment aft of Frame ½ was shorter than 0.1L, Ken Lo and John Lim understood that such a bulkhead would not meet the minimum subdivision length under the 0.1L Rule. They therefore decided not to fit a watertight door at Frame ½, so that the Frame 4 Bulkhead would instead be treated as the aft peak bulkhead for regulatory assessment. The Preliminary Trim and Stability booklet prepared by Naval-Consult showed that, with the Frame ½ Bulkhead left non-watertight, Lamma IV nevertheless satisfied the damage stability calculations. Seen in its proper context, this was a rational design decision, not an ex-post facto justification as alleged.

190.  Although Ken Lo’s description of the 0.1L Rule as a “location restraint” was not technically accurate, it nevertheless reflected his understanding of the practical consequence of the 0.1L Rule in the design context in which he was working, namely that a watertight bulkhead located very close to the stern would not, for regulatory and damage stability purposes, be treated as an effective subdivision boundary. Ken Lo’s choice of words, although not technically correct, and strictly inaccurate insofar as the 0.1L Rule is applied for calculation purposes, was not misleading as to the substance of the design rationale he was putting forward.

191.  The fact that Ken Lo did not mention his December 1994 discussion with John Lim at the COI does not mean it did not take place, it simply reflects the narrower scope of that inquiry. His evidence at this Inquest is more detailed as the questioning was directed specifically towards understanding the design rationale of the Frame ½ Bulkhead. I do not find any real inconsistency between his evidence at the COI and at this Inquest, there is simply more detail now because of the focus of this Inquest, the difference lies in emphasis, not reliability. His evidence at the Inquest was therefore not a departure from, but a clearer articulation of an explanation he had already put forward.

192.  Therefore, I reject the submission that Ken Lo’s explanation that the removal of the watertight door at the Frame ½ Bulkhead, by reference to the 0.1L Rule, is a recent fabrication. The suggestion that Ken Lo lied to protect Cheoy Lee from the alleged failure to install the watertight door at the Frame ½ Bulkhead defies common sense and is unsupported by the evidence. All related civil proceedings have long concluded, Cheoy Lee’s reputation had already been publicly affected by the COI Report and, in any event, will remain associated with one of Hong Kong’s worst maritime tragedies.

193.  Quite apart from that, having regard to Ken Lo’s professional qualifications[66]  and experience, it is implausible that he would have fabricated reliance on the 0.1L Rule as a justification for the design decision only at the Inquest. The COI took place shortly after the accident, when the events were still recent and issues of responsibility and potential civil liability were at their height. By contrast, at the time of the Inquest, all civil proceedings had long since concluded, as accepted by counsel for the Next of Kin. If reliance on the 0.1L Rule had been manufactured by Ken Lo to conceal an omission by Cheoy Lee, it would be inherently more likely for such an alleged fabrication to have been put forward at that earlier stage, rather than more than a decade later at the Inquest. The suggestion that the 0.1L Rule was only relied upon for the first time at the Inquest is therefore illogical.

194.  Against that background, I find that Ken Lo gave his evidence in a straightforward manner. He did not attempt to embellish his account; his imperfect recollection was consistent with the passage of time rather than with invention. When it was initially put to him that he had not mentioned the 0.1L Rule at the COI, Ken Lo did not protest but simply said he could not recall, even though he had in fact done so.[67] Likewise, when his understanding of the 0.1L Rule was questioned, he did not become defensive or attempt to justify himself while a dishonest witness might be expected to be more insistent or defensive in such circumstances, Ken Lo was neither. His demeanour and evidence were consistent with a witness recounting event as he remembered them, rather than promoting an invented account. I find him to be a truthful and credible witness.

E5.2  Scope of Application of the 0.1L Rule

195.  A key issue in this Inquest was whether the 0.1L Rule applied solely to calculation, as asserted by the Next of Kin and the Marine Department, or whether it also had relevant consideration at the design stage, including the positioning of watertight bulkheads. Their case was that the 0.1L Rule was only relevant to calculation with no role in design or construction. They further submitted that Ken Lo’s understanding that the 0.1L Rule was relevant to determining the location of the aft peak bulkhead at the design stage was wrong, and that for someone of his professional qualifications, such a mistake undermined his credibility and reliability.

196.  The evidence showed that Ken Lo was not alone in considering the 0.1L Rule to be relevant to the design and construction of the vessel. Mr Cheung Chuen Yau, Engineering Manager of Cheoy Lee, stated at the Inquest that the 0.1L Rule governed both the construction of the vessel and the stability calculations. Senior Surveyors of Ship of the Marine Department also expressed the same view in their witness statements at the COI. Mr Leung Wai Hok, himself a naval architect, stated that a vessel should be designed such that the spacing between watertight bulkheads was not less than 10% of the vessel’s length; if the spacing was less, only one of the bulkheads would be treated as watertight for the purpose of the damage stability calculation.[68] Mr Liu Chiu Fai also confirmed that the design must ensure that if the distance between two adjacent watertight bulkheads was less than 0.1L, only one of them would be regarded as forming part of the watertight subdivision.[69] Mr Choi Chi Chuen stated that the 0.1L Rule required a vessel to be designed so that the minimum distance between any two watertight bulkheads was not less than 10% of the vessel’s length. If the spacing between two bulkheads was less than 0.1L, the watertightness of one of those bulkheads is not to be regarded as effective for the purposes of determining the vessel’s watertight subdivision.[70] It follows that Ken Lo’s understanding of the 0.1L Rule was shared by other witnesses, including Senior Surveyors of Ships of the Marine Department.

197.  Dr Renilson, however, regarded the 0.1L Rule as confined to damage stability calculations. Mr Robert Vart took a similar view, describing it as a safety criterion used in stability calculation, not as a designer’s tool and unconnected with construction or bulkhead arrangement.

198.  At the Inquest, Dr Renilson accepted that floodable length is determined during the design process and that bulkheads are to be positioned within the permissible limits. That acceptance necessarily means that the designer must have regard to the applicable stability criteria when deciding where bulkheads are to be placed. Although Dr Renilson characterised the 0.1L Rule as a calculation criterion, his evidence on floodable length indicates that a stability criterion which governs the permissible location of a watertight bulkhead is, in practice, a matter that the designer must have regard to at the design stage.

199.  Mr Simon Burthem agreed that paragraph 6(6) of Schedule 1 of Cap 369AM, entitled “Minimum Spacing of Bulkheads”, was derived from paragraph 10.2.4 of United Kingdom Merchant Shipping Notice MSN 1823. That provision prescribes minimum longitudinal spacing requirement between effective watertight bulkheads for the purposes of damage stability assessment, one of which is the 0.1L Rule.

200.  In explaining that provision, Mr Burthem said that it is concerned with the assumed maximum extent of damage to a vessel. Although the heading refers to “Minimum Spacing of Bulkheads”, what the rule addresses is the extent of damage to be assumed in a damage stability assessment, and the consequence that any bulkhead lying within that assumed extent of damage would be included in the damaged length. He explained that, in that context, “if you were designing the ship and you have compartments, you don’t want your bulkheads to be closer than this, because then you would inevitably get extended damage into the adjacent compartments”.

201.  When asked whether there was any rule requiring the physical distance between two bulkheads to be not less than 0.1L, Mr Burthem explained that there was no such physical prohibition, and that a shipbuilder could, in principle, place a bulkhead within that distance. However, he made clear that such a bulkhead would be ineffective from a damage stability perspective, stating that “you could put a bulkhead in the middle of this, but it would be ineffective from the point of damage stability”. He emphasised that additional bulkheads could always be installed, but that doing so would add weight, cost and operational difficulty without conferring any damage stability benefit where the bulkhead lay within the assumed extent of damage and was therefore disregarded in the calculations.

202.  Although Mr Burthem agreed with counsel for the Marine Department that the 0.1L Rule is applied as part of the damage stability assessment, his evidence makes clear that the practical effect of the 0.1L Rule is to determine which bulkheads can operate as effective watertight subdivision for damage stability purposes. Where two bulkheads are spaced at less than 0.1L, only one can be treated as effective in the calculations. In the case of Lamma IV, the Frame ½ Bulkhead lay within 0.1L and, on Mr Burthem’s evidence, could not be treated as an effective watertight subdivision or as the aft peak bulkhead for damage stability purposes in accordance with paragraph 6(6) of Schedule 1 of Cap 369AM.

203.  At the Inquest, Mr Anthony York described the 0.1L Rule as a rule used for calculation and assessment, forming part of the floodable length and damage stability process. He accepted that, procedurally, the 0.1L Rule determined how bulkheads were treated for subdivision and survivability, but he added that its implications extended beyond mere calculation. He explained that the 0.1L Rule existed to prevent designers from producing vessels that appeared compliant on paper but would not in practice survive flooding, and that it therefore constrained how bulkheads were arranged during the design process. Taken as a whole, Mr York’s evidence was that while the 0.1L Rule was expressed as a calculative criterion, its purpose and practical effect were integral to the design stage. It operated as a design constraint, guiding the placement of watertight bulkheads to ensure the arrangement would satisfy statutory damage stability requirements.

204.  Dr Armstrong stated that “the 0.1L Rule should apply equally to watertight subdivision or floodable length and to damage stability.”[71] This must necessarily mean that the 0.1L Rule governs both the physical arrangement of the vessel and the assessment of its survivability. Watertight subdivision and floodable length concern the layout of bulkheads and the length of compartments, matters determined during the design stage, whereas damage stability relates to the subsequent verification that the vessel, as designed, can remain afloat when any one compartment is flooded.

205.  Dr Armstrong also described the practical process of positioning bulkheads, beginning with the collision bulkhead and progressively checking each compartment against the flooding standard.[72] His explanation showed that determining the position of bulkheads was a design consideration inseparable from compliance with the flooding and stability requirements on which the 0.1L Rule is founded.

206.  In his report,[73] Dr Armstrong emphasised that watertight subdivision was a defining feature of ship design, determined at the outset of the design process and often dictating the vessel’s main structural features. This confirms that the application of floodable length and the 0.1L Rule arose as a matter of design, not merely at the later calculation stage.

207.  The Blue Book did not prescribe the distance between the aft peak bulkhead and the stern. Rather, it established the minimum distance that must separate watertight bulkheads for both to be treated as effective subdivision. If the spacing was less than 0.1L, the bulkheads were treated as forming a single compartment for damage stability calculations purposes. In effect, the 0.1L Rule defined the framework within which watertight subdivision had to be arranged, while the one-compartment flooding standard then tested whether that arrangement would keep the vessel afloat.

208.  Regulation 6 of Cap. 369AM requires a ship to be subdivided into watertight compartments, the maximum length of which must be calculated in accordance with the applicable provisions of Schedule 1. That wording links the vessel’s physical watertight subdivision directly to the maximum permissible compartment length derived from Schedule 1, which incorporates the 0.1L Rule. As the Regulation requires the actual arrangement of watertight bulkheads to comply with that calculated maximum, the Schedule 1 criteria must be applied at the design stage, when the subdivision is first determined. A vessel cannot be approved or certified unless its proposed subdivision satisfies those requirements. The operation of the Regulation therefore proceeds on the basis that the designer applies the 0.1L Rule when fixing the position of watertight bulkheads.

209.  This interpretation of Regulation 6 is reinforced by the expert evidence. I find that Dr Armstrong’s evidence provides a clear analysis of the operation of the 0.1L Rule, namely that it is integral to the vessel’s design process and not merely a calculation tool. Mr Anthony York’s explanation that the 0.1L Rule operates as a constraint guiding the designer in the placement of watertight bulkheads is consistent with Ken Lo’s understanding and supports the conclusion that the rule was applied, in practice, both as a design consideration and as a damage stability criterion. Although Mr Burthem did not describe the 0.1L Rule as a formal location constraint, his evidence explains why, in practical terms, the rule necessarily bears upon where an effective watertight bulkhead can be placed. Ken Lo’s description of the 0.1L Rule as a “location constraint” was therefore not a statement of a physical prohibition, but a recognition of its practical effect in determining the location of effective watertight subdivision for damage stability purposes.

210.  In the circumstances, I find that while the 0.1L Rule is a calculation standard, it is not confined to damage stability calculations but is necessarily relevant at the design stage when watertight subdivision is determined. A competent designer would take it into account when determining the subdivision arrangement; otherwise, watertight bulkheads may be arranged in a manner incapable of passing the later calculations. In practice, design and calculation is a continuous process: the calculations confirm regulatory compliance, while the design is determined with that compliance in mind.

211.  Accordingly, irrespective of the terminology used by Ken Lo in describing the 0.1L Rule, I find that Ken Lo and John Lim were entitled, and acted reasonably, to take the 0.1L Rule into account when determining the watertight subdivision of Lamma IV in 1994.

E5.3  Application of the 0.1L Rule in the Design of Lamma IV

212.  The Next of Kin and the Marine Department further argued that the 0.1L Rule did not prohibit the installation of a watertight door at the Frame ½ Bulkhead and that there was no valid reason to remove it. These submissions overlook the essential question in 1994 and 1995 namely, not whether a watertight door was prohibited, but whether it served any functional or regulatory purpose. The Preliminary Trim and Stability Booklet prepared between late 1994 and early 1995, demonstrated compliance with the one-compartment flooding standard without a watertight door at the Frame ½ Bulkhead.

213.  At the COI,[74] Dr Armstrong explained that paragraph 6(6) of Cap. 369AM does not give the designer a choice as to which bulkhead to treat as watertight but directs that the bulkhead corresponding to the longest floodable length must be used. He said that where the aftmost bulkhead is located less than 0.1L from the stern, that bulkhead cannot be treated as part of the watertight subdivision. Referring to the Steering Gear Compartment of Lamma IV, he agreed with the Marine Department’s Mr Wong Chi Kin that the principle of the 0.1L Rule is to disregard any bulkhead which would otherwise form a compartment shorter than 0.1L. Ken Lo confirmed at the Inquest that Dr Armstrong’s interpretation aligned with his own understanding of the 0.1L Rule.

214.  The Frame ½ Bulkhead of Lamma IV was located less than 0.1L from the stern. On the evidence, a watertight bulkhead in that position was not, in practice, treated as forming the effective watertight subdivision for the purposes of damage stability assessment under the 0.1L Rule. Whether a watertight door was fitted at the Frame ½ Bulkhead did not, of itself, alter how the damage stability was assessed or which bulkhead was regarded as the relevant watertight boundary.

215.  In his report,[75] Dr Armstrong stated that, prior to the addition of ballast in 1998, the permissible floodable length was not exceeded and that the watertight door at the Frame ½ Bulkhead could have been omitted without breaching the requirements relating to floodable length or damage stability. At the COI,[76] he further observed that, for damage stability purposes, the Steering Gear Compartment and the Tank Room would in any event be treated as a single compartment, rendering the presence of a watertight door at the Frame ½ Bulkhead immaterial for those calculations.

216.  Against that background, the decision to allocate the watertight subdivision at the Frame 4 Bulkhead, and to provide an Access Opening rather than a watertight door at the Frame ½ Bulkhead, was consistent with the understanding of how the 0.1L Rule would be applied in regulatory and stability assessments.

217.  Dr Renilson said there was “no reason whatsoever for not exceeding the minimum one-compartment standard” and described it as “an odd thing to deliberately make a bulkhead, initially intended to be watertight, non-watertight.”.[77] Mr Robert Vart agreed, telling counsel for the Next of Kin that he had never come across a situation where a ship has been “deliberately downgraded”, as he put it, “from being extra safe to being just meeting the requirements”, adding that there would be “no point in doing so”. However, neither expert, nor the Next of Kin or the Marine Department, identified any regulatory or technical requirement in 1994 and 1995 that required a vessel designed to a one-compartment flooding standard to retain watertight subdivision intended to provide protection beyond that standard.

218.  While a watertight door at the Frame ½ Bulkhead would have increased safety in a two-compartment flooding scenario, that fact alone did not give rise to any regulatory requirement. Lamma IV was designed to a one-compartment flooding standard, and no rule, guidance, or established practice in force at the material time required additional safety measures beyond that standard.

219.  The criticism made by the Next of Kin, the Marine Department, Dr Renilson and Mr Vart in relation to the removal of the watertight door at the Frame ½ Bulkhead is circular. It proceeded from the premise that the removal was itself wrong and then relied on that premise to criticise the design decision.

220.  In my view, the criticism is founded on two assumptions: first, that a safety feature providing protection beyond the applicable regulatory standard ought to have been retained; and second, the removal of such a feature is inherently unsafe. Neither assumption is supported by any identified regulations, standard or shipbuilding practice in force in 1994 and 1995.

221.  The first assumption that Lamma IV was required to retain the watertight door at the Frame ½ Bulkhead necessarily implies an obligation to follow the design of its basis ship, Eastern District No. 1. This assumption was evident from the questioning of Mr Robert Vart by counsel for the Next of Kin, which proceeded on the premise that reducing a safety feature from a level exceeding regulatory requirements to the minimum standard was inherently improper.

222.  It was evident in the questioning that, because Eastern District No. 1, as the basis ship of Lamma IV, was fitted with a watertight door at the corresponding bulkhead, Lamma IV should likewise have retained such a door. In the case of the Marine Department, although the assumption was not articulated expressly in the same way, it was implicit in its criticisms directed at the decision to remove the watertight door.

223.  As explained by Dr Renilson in his evidence, a “basis ship” is not a mandatory template but a reference design used as a starting point for a new vessel. Designers do not begin from scratch but commonly adapt an existing vessel to meet different operational, regulatory and design requirements. A vessel derived from a basis ship need not replicate all of its features, and departures from the basis ship’s design is normal.

224.  The assumption that Lamma IV was required to follow the design of Eastern District No. 1, including its watertight sub-division, is wrong for two reasons. First, Eastern District No. 1 was an ocean-going vessel designed to withstand two-compartment flooding and built in accordance with the High-Speed Craft Code, which did not apply to Lamma IV. Second, a basis ship is not a mandatory template and a departure from its design does not of itself constitute error. The weakness of the assumption is illustrated by the obvious point that, had Eastern District No. 1 itself been designed only to a one-compartment flooding standard and not fitted with a watertight door at the corresponding Frame ½ Bulkhead, the criticism made on this basis would fall away.

225.  The second assumption underlying this criticism is that the omission of the watertight door at the Frame ½ Bulkhead rendered Lamma IV less safe. That was submitted by the Next of Kin, relying on the evidence of Dr Renilson and Mr Robert Vart. However, neither the Next of Kin nor the experts explained why, or in what respect, Lamma IV was less safe at the time of its construction in 1995. A vessel can only be regarded as less safe if it fails to meet the survivability standard prescribed by the applicable regulations. In the case of Lamma IV, that standard was one-compartment flooding, and the expert evidence confirmed that Lamma IV, as built, met that requirement. The argument that the vessel was nevertheless less safe can only be supported by judging the 1994 design decision retrospectively by reference to the 2012 collision, and an extreme two-compartment flooding scenario, that Lamma IV was never required to survive. That is an erroneous approach founded on hindsight.

226.  Together, these two assumptions lead to a standard that was not required of Lamma IV, a sheltered water vessel. They overlook the proper design issue which was, whether a watertight door was required to meet the one-compartment flooding standard and the applicable regulatory requirements, including the 0.1L Rule. 

227.  Dr Renilson further questioned whether Naval-Consult could have known, at the design stage, that floodable length calculations justified the removal of the door, suggesting that such calculations were unlikely to have been completed.

228.  Ken Lo explained that, at the design stage, it was understood that the combined length of the Steering Gear Compartment and the Tank Room was shorter than that of the Engine Room, which was known to satisfy the one-compartment flooding standard. On that basis, it was concluded that the combined space would likewise comply, even though formal floodable length calculations for Lamma IV had not yet been completed at the design stage. Those calculations were subsequently verified in the Preliminary Trim and Stability Booklet prepared by Naval-Consult before construction, and any non-conformity would have required design modification.

229.  Commenting on the Preliminary Trim and Stability Booklet prepared by Naval-Consult, Dr Armstrong expressed the view that its preparation prior to construction demonstrated due diligence by Cheoy Lee and that the necessary floodable length calculations had been properly undertaken.[78]

230.  Dr Armstrong stated in his report that Lamma IV was designed in accordance with the stability regulations in force at the time and was intended to remain afloat in a stable condition with any one watertight compartment flooded below decks.[79] He confirmed in another report that, as built in 1995, Lamma IV complied fully with the one-compartment flooding standard.[80]

231.  Following the collision, the Marine Department sought clarification from the United Kingdom Maritime and Coastguard Agency on the interpretation of minimum bulkhead spacing and the treatment of small aft compartments. In its email,[81] the Marine Department noted that the 0.1L Rule was inherited from the Maritime and Coastguard Agency.

232.  In its reply, the Maritime and Coastguard Agency explained that, in the United Kingdom, passenger ships would ordinarily be expected to have an aft peak bulkhead. However, on smaller passenger ships, this requirement could be satisfied by the Engine Room bulkhead rather than by a separate aft peak bulkhead. The Maritime and Coastguard Agency further stated that, although the provision of a distinct aft peak compartment was good practice, it would not be regarded as essential where the aft peak space and the next compartment forward, taken together, met the applicable damage stability requirements.

233.  In that context, the Maritime and Coastguard Agency indicated that it would regard the subdivision arrangement adopted on Lamma IV as acceptable, given that the Steering Gear Compartment and the Tank Room together satisfied the subdivision requirements. This clarification is consistent with the design approach adopted by Ken Lo and John Lim, who removed the watertight door at the Frame ½ Bulkhead so that the aft spaces would be treated as a single compartment and ensured that the Frame 4 Bulkhead constituted the first effective aft watertight subdivision. The Maritime and Coastguard Agency’s response therefore supports the conclusion that the subdivision arrangement of Lamma IV as built was compliant and not deficient.

234.  When asked by counsel for the Marine Department whether a designer could remove a watertight door under the 0.1L Rule, Mr Anthony York accepted that this was permissible, provided the modification was supported by a subsequent stability assessment. He added that the 0.1L Rule must be read together with the wider regulatory requirements, and that any competent naval architect would either review the existing stability data or obtain fresh calculations.

235.  Mr Chan See Yin, Assistant Director of Marine of the Marine Department, confirmed that if Lamma IV met the damage stability requirements, the presence or absence of a watertight door at the Frame ½ Bulkhead made no material difference. Mr Chick King Fai, who held the same post at the material time, agreed. He stated that fitting a door at the Frame ½ Bulkhead was a matter of discretion, provided the vessel complied with the required flooding standard. Mr Wong Chi Kin likewise explained that, because the Steering Gear Compartment aft of Frame ½ Bulkhead was shorter than 0.1L, the latter could not be treated as an effective watertight subdivision regardless of whether a door was fitted, and that the presence of such a door was therefore irrelevant for regulatory purposes.

236.  I accept Dr Armstrong’s opinion that the Preliminary Trim and Stability Booklet reflected a deliberate and informed design process by Cheoy Lee and Naval-Consult. On the evidence, I find that the omission of the watertight door at the Frame ½ Bulkhead cannot be regarded as non-compliant with the regulations in force at the time of design and construction.

237.  Accordingly, I find that the omission of a watertight door at the Frame ½ Bulkhead reflected a rational design decision, taken in accordance with the understanding and application of the one-compartment flooding standard and the 0.1L Rule at the time. The fact that the 2012 collision resulted in flooding of more than one compartment does not justify a retrospective reassessment of that decision by reference to a standard that was not required at the relevant time. A design choice made in 1994 in compliance with the regulatory requirements is not undermined by a later casualty resulting in damage of a kind which the regulations did not require the vessel to withstand.

E5.4  Corroborative Evidence Supporting the Design Decision on the Frame ½ Bulkhead

238.  The Revised GA, dated 12 October 1994, is the earliest record of Lamma IV’s intended configuration. It was prepared before Cheoy Lee knew whether it would be awarded the Hongkong Electric contract and, at that stage, stood as the sole representation of the proposed vessel arrangement. On its face, it depicts an Access Opening at the Frame ½ Bulkhead in place of the watertight door shown at the corresponding position of Eastern District No.1.

239.  The configuration shown on the Revised GA is consistent with Ken Lo’s evidence that, at the tender stage, he discussed the one-compartment flooding requirement with John Lim. At that time, it was apparent to both that the combined space of the Steering Gear Compartment and the Tank Room would be smaller than the Engine Room. Since the Engine Room satisfied the one-compartment flooding standard, the combined space would likewise do so. On that reasoning, it was considered unnecessary to make the Frame ½ Bulkhead watertight.

240.  The submission made on behalf of the Next of Kin and the Marine Department that the Revised GA must be interpreted together with the Comments added seven months later, in May 1995, overlooks the chronological fact that those Comments did not exist when the Revised GA was produced. They could not have been contemplated by Naval-Consult or Cheoy Lee, who had not yet secured the contract with Hongkong Electric. It is illogical to interpret an October 1994 drawing by reference to requirements which were not in existence at the time.

241.  Comment 2 on the requiring Blue Book compliance, inserted later by the Marine Department, cannot be read as converting an access opening into a watertight door. The Blue Book requirement that any access opening in a watertight bulkhead be fitted with an efficient closing appliance applies only where watertightness was already intended. It does not, by implication or inference, create such an intention where none existed on the face of the drawing.

242.  The further submission that all the drawings must be read collectively to determine watertightness intention is likewise without merit. At the date of the Revised GA, no other detailed or structural drawings had been prepared or could reasonably have been anticipated since Cheoy Lee had yet to be awarded the tender. There was therefore no “jigsaw” of drawings to assemble, the Revised GA stood alone as the definitive representation of Lamma IV’s proposed bulkhead configuration in October 1994.

243.  John Lim’s position as director of Naval-Consult, the firm that designed Eastern District No. 1 with a watertight door at the corresponding location, gives particular significance to the substitution shown on Lamma IV’s Revised GA. Had there been no discussion with Ken Lo concerning the removal of the watertight door, there would have been no rational basis for departing from the basis ship design which incorporated such a door. The deliberate change of symbol therefore evidenced a design change reflecting the agreement reached between John Lim and Ken Lo. Unlike the subsequent drawings which contain admitted copying errors from Eastern District No. 1, the Revised GA represents the unmediated record of their design agreement without the contamination of miscommunication or inadvertence.

244.  I find the Revised GA to be the clearest and most reliable evidence of Lamma IV’s design intent. Prepared before the contract award and in the absence of other drawings capable of qualifying its meaning, it unequivocally shows an Access Opening, not a watertight door, at the Frame ½ Bulkhead. It therefore stands as the earliest and most reliable record of the intended configuration of the Frame ½ Bulkhead.

245.  On the balance of probabilities, I further find that the Revised GA corroborates the evidence of Ken Lo that at the tender stage, a deliberate decision was made to omit a watertight door at the Frame ½ Bulkhead in light of the one-compartment flooding requirement. The depiction of an Access Opening at that location was not accidental or provisional but represented the design as first conceived in 1994.

246.  The Preliminary Trim and Stability Booklet prepared by Naval-Consult before the construction of Lamma IV further reinforces this conclusion. John Lim, one of the vessel’s designers, confirmed that he participated in the damage stability calculations with KC Tan and that, in accordance with the one-compartment flooding standard, the Steering Gear Compartment and the Tank Room were intentionally treated as a single combined space for damage stability purposes. This approach placed the watertight subdivision forward at the Frame 4 Bulkhead rather than at the Frame ½ Bulkhead. The calculation basis reflected in the Preliminary Trim and Stability Booklet further corroborates Ken Lo’s account of his discussion with John Lim and further supports the conclusion that the omission of the watertight door at the Frame ½ Bulkhead was an intentional and justified design decision, consistent with the vessel’s one-compartment flooding standard.

247.  It has been suggested that Naval-Consult’s treatment of the Steering Gear Compartment and the Tank Room as a single compartment in the Preliminary Trim and Stability Booklet reflected the correct application of the 0.1L Rule. However, at the COI,[82] when asked why these two aft spaces were combined in the preliminary calculations, John Lim made it plain that the purpose was to demonstrate compliance with the one-compartment flooding standard. He made no reference to the 0.1L Rule. His explanation was consistent throughout his evidence, whether in his January 2013 emails or his witness statement, showing that the approach adopted was based on the one-compartment flooding requirement rather than any application of the 0.1L Rule.

248.  Although both approaches would produce the same outcome of treating the two aft compartments as a single damaged space, John Lim’s evidence supports the conclusion that the designers were adapting Eastern District No. 1’s two-compartment flooding arrangement to meet Lamma IV’s less stringent one-compartment flooding requirement.

249.  Taken together, the Revised GA and the Preliminary Trim and Stability Booklet corroborate Ken Lo’s evidence and undermine the argument that his explanation for the removal of the watertight door at the Frame ½ Bulkhead was an afterthought fabricated to deflect from Cheoy Lee’s omission to install the watertight door.

E5.5  Documentary Evidence Indicating or Suggesting that the Frame ½ Bulkhead Was to be Built Watertight

250.  The Next of Kin and the Marine Department relied on the Tender Specification, the drawings marking the Frame ½ Bulkhead as watertight, the Wuzhou fax and Vanzon’s reply and John Lim’s email as evidence that Cheoy Lee knew from the outset that the bulkhead at Frame ½ was to be constructed as watertight. Hongkong Electric likewise relied on the Tender Specification and the Wuzhou fax, maintaining that the reference to five watertight bulkheads, together with the fax treating the Frame ½ Bulkhead as watertight, showed that Cheoy Lee knew from the outset that the Frame ½ Bulkhead should be watertight.

Tender Specification

251.  The Next of Kin, the Marine Department, Hongkong Electric and the experts at the Inquest relied on the Tender Specification as evidence that Cheoy Lee had, at the tender stage, already formed an intention that the Frame ½ Bulkhead would be watertight. However, Ken Lo said the tender documents, including the Tender Specification, were prepared solely for tender purposes. They were preliminary materials used to set out the commercial and conceptual basis of the bid; they were not documents intended to fix the technical characteristics of the vessel. The detailed design process, during which regulatory requirements and stability criteria would be worked through and finalised, will only commence after Cheoy Lee secured the contract.

252.  Ken Lo further explained that Hongkong Electric consistently left all naval architectural and regulatory matters to Cheoy Lee. Their concern was with operational issues such as speed, carriage capacity and general layout, not with watertight subdivision. On his evidence, this has been the long-standing practice between the parties.

253.  Ken Lo also made clear that the Tender GA depicted only the layout and functional division of the vessel, not the watertight or structural characteristics in their final form. He explained that no vessel is built precisely in accordance with every element of a tender drawing, as departures are often required to satisfy regulatory requirements during detailed design. This is consistent with the wording of the Addendum, which stated that the vessel would be built “closely in accordance with” the Tender Specification and Tender GA, which anticipated that modifications would inevitably be made.

254.  Although the Tender Specification required that any amendments be agreed in writing before construction commenced, and Hongkong Electric’s Specifications further stated that no work was to begin until plans for the relevant parts had been approved, the evidence showed that neither requirement was followed in practice.

255.  Ken Lo’s unchallenged evidence was that, for all seven earlier vessels built for Hongkong Electric, Cheoy Lee routinely submitted drawings, but no comments, queries or approvals were ever returned. Hongkong Electric did not scrutinise, discuss, or formally approve any drawings, notwithstanding the contractual clauses requiring written approval before commencement of work.

256.  Cheoy Lee therefore adopted the established practice of waiting roughly two weeks for any response and, if none was received, proceeding on the basis that silence amounted to tacit acceptance. This consistent pattern of dealing, involving both the approval of drawings and the approval of amendments, reinforced the long-standing working relationship between the parties, under which Hongkong Electric left all technical and naval-architectural matters entirely to Cheoy Lee.

257.  Mr Francis Cheng, Managing Director of Hongkong Electric, gave evidence that the company’s focus was on functional and operational requirements, such as passenger capacity, speed, engine power and safety appliances. He said that responsibility for detailed technical compliance and design matters was left to Cheoy Lee and its naval architects, and that Hongkong Electric relied on the vessel being licensed by the Marine Department. This long-standing practice showed that the contractual clause requiring agreement to amendments was not invoked in practice. It also supports the conclusion that Hongkong Electric did not involve itself in the detailed design of the watertight subdivision at the Frame ½ Bulkhead.

258.  Viewed against this long-standing practice, the Tender Specification, Tender GA and Addendum cannot be taken as reflecting any concluded technical intention on the part of Cheoy Lee concerning the watertight status of the Frame ½ Bulkhead. The requirement of written approval of amendments or approval of drawings before work commenced was never implemented. Hongkong Electric did not review or approve drawings, did not intervene in technical matters and did not involve itself in questions of watertight subdivision at any stage. The fact that regulatory considerations were only addressed during detailed design stage confirmed that the tender materials did not govern Lamma IV’s final subdivision arrangement.

Drawings Showing the Frame ½ Bulkhead as Watertight

259.  Reliance was also placed on those drawings showing the bulkhead at Frame ½ as watertight. It was submitted by the Next of Kin and the Marine Department that these drawings demonstrated Cheoy Lee’s knowledge and intention that the Frame ½ Bulkhead should be constructed as a watertight bulkhead.

260.  In light of my finding that Ken Lo had discussed with John Lim to make the Frame ½ Bulkhead non-watertight with an Access Opening, initially to meet the one-compartment flooding requirement and later to satisfy the 0.1L Rule, I accept that the references in the Sections and Bulkheads, Profile and Deck and Shell Expansion drawings describing the Frame ½ Bulkhead as watertight were drafting errors. John Lim’s evidence at the COI was that these notations were mistakes made by his draughtsman which went unnoticed and were therefore left uncorrected.[83] Having accepted Ken Lo’s evidence and found him to be a credible witness, weight should likewise be given to John Lim’s explanation of those inaccuracies, notwithstanding his absence from the Inquest.

261.  Despite finding that the notations describing the Frame ½ Bulkhead as watertight were drafting errors, I will address the submissions of the Next of Kin and the Marine Department that the use of the term “Access Opening” on the Lamma IV drawings, in place of the “WT Door” shown on Eastern District No. 1, can be explained by a difference in drafting style.

262.  In support of this submission, the Next of Kin and the Marine Department relied on the absence of any international standard or guideline requiring a watertight door to be expressly identified.

263.  That reliance, while it may at first sight appear logical, overlooks the practical reality established by the expert evidence. The experts were clear that naval architects would unlikely introduce uncertainty or ambiguity into an element as fundamental as watertightness, particularly when working from an established template in which the presence of a watertight door had been clearly and deliberately identified.

264.  In my view, it is implausible that a competent draughtsman would elect to replace an explicit “WT Door” notation with the less precise term “Access Opening” merely as a matter of personal drafting preference, if the watertight integrity of that bulkhead were intended to remain unchanged.

265.  The draughtsman responsible for the Lamma IV drawings was not preparing an original design from scratch but adapting an established template in which a watertight door at that location was clearly identified. In those circumstances, there would have been no rational basis for discarding a specific and well-understood notation and substituting it with a more ambiguous term, while expecting the shipbuilder to infer the continued presence of a watertight door by cross-referencing other drawings and the regulatory material like the Blue Book.

266.  The argument that the change in terminology can be attributed merely to drafting style would carry greater weight if the drawing had been prepared from scratch, rather than adapted from a template in which the presence of a watertight door was clearly marked.

267.  This is particularly so given that Naval-Consult was a Singapore firm, and that the naval architects involved were based in Singapore rather than Hong Kong. It is unlikely that a draughtsman operating in that context would assume familiarity on the part of the shipbuilder with Hong Kong-specific regulations such as the Blue Book or expect the shipbuilder to piece together the intended watertight status of a bulkhead by putting together multiple drawings and regulatory requirements. Such an approach would add unnecessary and uncertainty to the construction process.

268.  The far more straightforward course, had a watertight door been intended at the Frame ½ Bulkhead, would have been simply to replicate the existing “WT Door” annotation carried over from the basis ship. This is consistent with the expert evidence. Dr Armstrong, Dr Renilson, Mr Anthony York and Mr Simon Burthem were unanimous that it would make no sense to remove the “WT Door” designation at the Frame ½ Bulkhead and replace it with an “Access Opening” if the bulkhead were intended to be watertight, and that, where watertightness was intended, the presence of a watertight door would ordinarily be explicitly specified.

269.  The reliance placed on paragraph 12(v) of the Blue Book, which requires an access opening in a watertight bulkhead to be fitted with an efficient closing appliance, overlooks the evidence of KC Tan, who said he was unfamiliar with Hong Kong’s regulatory requirements, including the Blue Book and that he did not know who had inserted the “W.T. BHD” notations on the drawings.

270.  In the circumstances, and independently of my finding that the drawings showing the Frame ½ Bulkhead as watertight were mistaken, I do not accept that the marking of an “Access Opening” at the Frame ½ Bulkhead in the Sections and Bulkheads drawing was merely a different drafting style. Nor do I accept that the draughtsman intended the watertight status of the Frame ½ Bulkhead to be inferred by reading all the drawings together with the Blue Book.

Wuzhou Fax and Vanzon’s Reply

271.  The Next of Kin and the Marine Department placed considerable reliance on the fax exchange between Wuzhou and Vanzon as evidence that a watertight door was intended at the Frame ½ Bulkhead. Hongkong Electric  likewise relied on the fax exchange to demonstrate Cheoy Lee’s intention at the outset was to fit a watertight door at the Frame ½ Bulkhead.

272.  During the Inquest, Mr Cheng Tak Ming, Vanzon’s proprietor, emphasised that Vanzon’s response was focused on the three questions raised by Wuzhou and was directed to the construction schedule, which was already behind time. He stated that he did not examine, or intend to confirm, the necessity for a watertight door as such matters lay outside his knowledge or expertise. This is consistent with Mr Simon Burthem’s analysis where he observed in his report that, read carefully, Vanzon’s response does not expressly confirm any intent to fit a watertight door, nor does the exchange as a whole preclude the possibility of a later change in Cheoy Lee’s intention.[84]I am satisfied that the reply from Vanzon cannot be construed as confirming or endorsing any requirement for a watertight door at the Frame ½ Bulkhead.

273.  Having accepted John Lim’s evidence that the structural drawings were incorrectly annotated as a result of drafting errors made by Naval-Consult’s draughtsman, it follows that Wuzhou’s understanding that the Frame ½ Bulkhead was watertight arose from that mistake. I am satisfied that the reference in Wuzhou’s fax to a watertight door at the Frame ½ Bulkhead was an extension of the erroneous annotation.

274.  That Wuzhou’s understanding of the watertightness of the Frame ½ Bulkhead was not shared by Cheoy Lee, nor did it represent Cheoy Lee’s intent or knowledge, is supported by the drawings prepared by Cheoy Lee’s draughtsman, Mr Kwong Kai Kee (“KK Kwong”). The Hydraulic Steering Gear Piping System drawing (“Hydraulic drawing”), dated 10 October 1995, showed an Access Opening at the Frame ½ Bulkhead. Similarly, the Safety Plan, produced on 31 October 1996, similarly showed an opening rather than a watertight door. Both drawings were prepared after the hull had been returned to Hong Kong and they reflected how Cheoy Lee understood and presented the vessel’s configuration to the Marine Department.

275.  Henry Lo Yen Yang, a director of Cheoy Lee who oversaw hull construction and fitting out in Hong Kong, confirmed at the Inquest that no preparatory work for a watertight door was undertaken and no door of the correct specification was ever supplied or ordered for the access opening at the Frame ½ Bulkhead.

276.  When considered alongside the Revised GA, the Preliminary Trim and Stability Booklet and the two drawings prepared by KK Kwong after the hull had been returned to Cheoy Lee, the Wuzhou fax and Vanzon’s reply carry little weight as evidence of watertight intent. Instead, the Revised GA, the Preliminary Trim and Stability Booklet, the Hydraulic drawing and the Safety Plan are far more reliable indicators of Cheoy Lee’s actual understanding of the watertight status of the Frame ½ Bulkhead than a brief construction-stage exchange between Wuzhou and Vanzon.

Damage Stability Calculations

277.  The Next of Kin submitted that Mr Cheung Fook Chor was right to treat the Frame ½ Bulkhead as watertight in his 1996 Damage Stability Calculations, and that his only error was failing to apply the 0.1L Rule. That submission is contrary to the findings of the COI which held that Mr Cheung made two errors: first, in treating the Frame ½ Bulkhead as watertight, and second, failing to apply the 0.1L Rule. Mr Cheung accepted at the COI that he did not apply the 0.1L Rule, that he had treated the Steering Gear Compartment as separate from the Tank Room and that he found the drawings unclear on the watertight boundary at the Frame ½ Bulkhead.[85]

278.  The 1998 and 2005 Damage Stability Calculations were derived from the 1996 version and therefore carried forward the same mistaken assumptions. The COI described the 1996 calculations as a “template” of error, and the later calculations replicated those errors. Mr Cheung’s evidence shows that he treated the Frame ½ Bulkhead as watertight because that is how it appeared from the drawings. It did not reflect any instruction or design intention. He accepted that he relied on Mr Leizaola or the Marine Department to correct him if he had misinterpreted the drawings.

279.  In these circumstances, neither the 1996 Calculations nor the later versions derived from it can be relied upon as evidence of design intent. They were based on a misreading of drawings that Mr Cheung himself found confusing.

John Lim’s emails

280.  Considerable emphasis was placed by the Next of Kin and the Marine Department on John Lim’s first email reply, in which he stated that Lamma IV was designed to have five watertight bulkheads and that any access opening was required to be fitted with a watertight door. That assertion necessarily implied that the Frame ½ Bulkhead was intended to be watertight, in the same manner as the corresponding bulkhead on Eastern District No. 1. If that were correct, there would have been no reason for John Lim, on 12 October 1994, to replace the watertight door shown on the Eastern District No. 1 drawing with an Access Opening at the Frame ½ Bulkhead on the Revised GA of Lamma IV. The replacement of a watertight door with a non-watertight access opening is inconsistent with an intention to treat the Frame ½ Bulkhead as watertight. On the contrary, it supports the conclusion that Lamma IV was not designed with five watertight bulkheads, and that the Frame ½ Bulkhead was never intended to form part of the vessel’s watertight subdivision.

281.  In assessing the apparent inconsistency between John Lim’s two emails of January 2013, I accept the explanation that his initial response was the result of incomplete recollection. At that time, more than 18 years had elapsed since the design discussions in 1994, John Lim did not have before him the Revised GA or the Preliminary Trim and Stability Booklet, which treated the Steering Gear Compartment and the Tank Room as a single compartment for the purpose of damage stability calculations. The email enquiry from the Marine Department referred to the Tender Specification and to drawings depicting the Frame ½ Bulkhead as watertight, without drawing attention to the Preliminary Trim and Stability Booklet or the Revised GA of 12 October 1994, although it appears that the Department did not have the Preliminary Trim and Stability Booklet at that stage. Framed in that manner, the question may have unintentionally led John Lim to respond on the basis of general assumptions derived from the Tender Specification rather than on the specific modifications that had been adopted.

282.  By contrast, his subsequent email of 18 January 2013 reflected the position set out in the Preliminary Trim and Stability Booklet namely, Lamma IV was designed as a one-compartment flooding vessel and that the Frame ½ Bulkhead was not a watertight subdivision. This is consistent with his evidence at the COI, where he denied that his clarification was prompted by any external influence and maintained that it was based on the documentation available to him.[86]In these circumstances, the inconsistency in his two emails can be understood because of lapse of time and the absence of reference to the relevant design documents in the initial enquiry. It does not undermine his credibility; rather, the clarification supports the conclusion that his later position more accurately reflects the design intent in 1994.

283.  Accordingly, I find that John Lim’s initial email does not represent the true design intention for Lamma IV but was more likely a generalised or assumed statement made without reference to the specific design modifications being implemented at that time.

E5.6  Expert Opinions

284.  The experts who concluded that the Frame ½ Bulkhead was intended to be watertight did not dispute that Lamma IV, as built, satisfied the one-compartment flooding standard. Their views were directed instead to whether that bulkhead was intended to be watertight at the design stage. Those views were, however, reached without access to several pieces of information which are material to that question. With the exception of Mr Robert Vart, none of the experts had sight of the Hydraulic drawing or the Safety Plan, which show an access opening at the Frame ½ Bulkhead without any watertight door. Nor did they have the Preliminary Trim and Stability Booklet prepared between late 1994 and early May 1995, or John Lim’s evidence explaining the rationale on which that booklet was based, namely that Lamma IV was designed as a one-compartment flooding vessel. These matters may, or may not, have influenced their assessment of the intended watertightness of the bulkhead at Frame ½, but they were not available to them.

285.  The expert opinions were also formed without appreciation of the circumstances in which the Revised GA drawing came to be produced in October 1994, before Cheoy Lee had been awarded the contract by Hongkong Electric. That context explains why the Revised GA holds significant weight as it reflects the designers‘ preliminary intent before later refinement for regulatory approval. Nor did the experts take into account the established commercial relationship and practice between Cheoy Lee and Hongkong Electric in the 1990s, under which the latter’s concern was confined to operational matters while all technical and structural issues, including watertight subdivision, were left to Cheoy Lee, provided that the Marine Department’s requirements were met. In those circumstances, departures from the Tender Specification were common and formed part of the normal design development process rather than exceptional deviations.

286.  Furthermore, experts such as Mr Simon Burthem, Mr Robert Vart and Mr Anthony York were unaware that John Lim had admitted at the COI that his draughtsman had mistakenly marked the Frame ½ Bulkhead as “W.T. BHD” on the Profile and Deck, the Section B-B of the Sections and Bulkheads and the Shell Expansion drawings. Although Dr Renilson was aware of John Lim’s explanation, he rejected it as unlikely. None of the experts, however, were aware of the reasoning of Ken Lo and John Lim at the time for omitting the watertight door, the correctness of which was subsequently confirmed by the Preliminary Trim and Stability Booklet. Their conclusions were therefore reached without the benefit of the key documentary and other evidence that directly explained the designers’ intentions.

287.  While Mr Burthem was of the opinion that, on balance, the Frame ½ Bulkhead was intended to be watertight at the drawing stage, he acknowledged the ambiguity created by conflicting drawings.

288.  In the case of Dr Renilson and Mr Robert Vart, I find their opinions were influenced by hindsight. Both assessed the question of design intent through the lens of the accident’s outcome namely, two-compartment flooding and retrospectively criticised the removal of the watertight door as having made Lamma IV less safe. Such reasoning, while understandable from a safety perspective, does not fairly reflect the regulatory requirement or the design standards that existed in 1994 and 1995, when the one-compartment flooding standard governed Hong Kong’s passenger vessels in sheltered water.

289.  No expert has suggested that the watertight subdivision on Lamma IV was wrongly located or that the vessel, as built, failed to meet the one-compartment flooding standard. Although Dr Renilson and Mr Robert Vart considered Lamma IV to be less safe, neither they nor any other expert, including Dr Armstrong and Dr Peter Cheng, indicated that the vessel fell short of that requirement. Their evidence was in fact to the contrary, that Lamma IV, in its constructed form, complied with the one-compartment flooding standard.

290.  Accordingly, I attach limited weight to the experts’ conclusions on the design intent of the bulkhead at Frame ½.

E5.7  Findings on Issue 1

291.  On the balance of probabilities, I find the provenance of the Revised GA, the Preliminary Trim and Stability Booklet, the Safety Plan, the Hydraulic drawing and the evidence of Ken Lo and John Lim, provide the clearest and most reliable account of the intended configuration of the Frame ½ Bulkhead.

292.  I further find that the design intent of Lamma IV was for the aft peak watertight subdivision to be located at the Frame 4 Bulkhead. The omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision taken to give effect to that intent, having regard to the understanding and application of the one-compartment flooding standard and the 0.1L Rule.

293.  On Issue 1, I find that the evidence establishes, on the balance of probabilities, that Cheoy Lee did not know from the outset that the Frame ½ Bulkhead was to be built watertight. The decision that this bulkhead would be non-watertight and that no watertight door would be fitted, was a conscious design choice rather than an omission or oversight.

F.  Responsibility for Damage Stability Calculations (Issue 2)

294.  The second issue concerns the responsibility for the Damage Stability Calculations, specifically whether Mr Cheung Fook Chor who was responsible for making the 1996 and 1998 Damage Stability Booklets shifted the blame for the mistakes to Mr Jon Leizaola.

F1.  Evidence of Mr Cheung Fook Chor

295.  The preparation of the 1996 Damage Stability Calculations by Mr Cheung Fook Chor has already been dealt with when addressing the issue of design intent above. The evidence shows that the approach adopted in 1996, specifically, the treatment of the bulkhead between the Steering Gear Compartment and the Tank Room as watertight, and the failure to apply the 0.1L Rule, was perpetuated unchanged in subsequent years. The 1998 and 2005 Damage Stability Calculations prepared for Lamma IV essentially replicated the methodology, input data, and key assumptions of the 1996 calculations.

296.  In his witness statements, [87] Mr Cheung Fook Chor stated that he acted under instructions from his supervisor, Mr Leizaola, to whom he handed all Damage Stability Booklets for checking and onward submission to the Marine Department. Mr Cheung Fook Chor did not undertake site visits or independently consult all the relevant drawings, instead working from drawings given to him by Mr Leizaola and left it to the latter to detect any errors or ambiguities.

297.  During the COI, [88] Mr Cheung Fook Chor accepted that the Sections and Bulkheads drawing was confusing. However, he stated that he would in any event have interpreted the drawing as showing a watertight bulkhead at Frame ½ and would have proceeded with his calculations on that basis, pending any further direction from his superior or the Marine Department. He further acknowledged that the Steering Gear Compartment was clearly a short compartment and that it was his own omission and negligence not to apply the 0.1L Rule, as he had forgotten the requirement when performing the calculation.

F2.  Evidence concerning Mr Jon Leizaola

298.  Mr Jon Leizaola, a naval engineer employed by Cheoy Lee from 1993 to 1996, provided a witness statement[89] outlining his limited role in the Lamma IV project. Mr Leizaola confirmed that he was not an accredited vessel designer and had no design, supervisory or inspection responsibilities for Lamma IV’s construction or design drawings. His responsibilities at Cheoy Lee were largely clerical, preparing draft letters and compiling documents for submission to the Marine Department, with prior approvals from Ken Lo or another director and calculating ship costs. Mr Leizaola said he did not participate in inspection or approval of the delivered hull of Lamma IV. He stated that decisions on the submission of plans, preparation of Damage Stability Booklets and related technical matters were handled by Mr Cheung Fook Chor and the directors. Mr Leizaola claimed he had no knowledge of the installation of any watertight door at the Frame ½ Bulkhead, or which drawings were consulted during construction. He described Cheoy Lee as a family business controlled by seven brothers, with Ken Lo being chiefly responsible for technical and engineering decisions, contract negotiation, and the approval of outgoing correspondence.

299.  Ken Lo gave evidence that he personally hired Mr Leizaola as Assistant Engineering Manager, approximately six months before Mr Cheung Chuen Yau left Cheoy Lee. Mr Leizaola held a degree in naval architecture from England. He assumed Mr Cheung Chuen Yau’s responsibilities when the latter left Cheoy Lee. Ken Lo stated that Mr Leizaola understood naval architectural drawings and had the professional knowledge necessary to review stability calculations. He disagreed that Mr Leizaola’s role at Cheoy Lee was purely administrative, pointing to the fact that Mr Leizaola had taken over the responsibilities of Mr Cheung Chuen Yau, and that Mr Leizaola later became the general manager of a reputable shipyard in Spain after leaving Cheoy Lee.

F3.  Cheoy Lee’s System of Vetting and Reviewing Damage Stability Calculations

300.  Mr Cheung Chuen Yau stated that Cheoy Lee’s Engineering Department was responsible for work on new vessels, including the review of drawings and stability calculations. He confirmed that damage stability calculations were undertaken by Mr Cheung Fook Chor, who worked in the Design Section, and said that the colleagues working with him did not have professional training. Mr Cheung Chuen Yau returned to Cheoy Lee in about 1997 and Mr Leizaola left in 1998. He relied on Mr Cheung Fook Chor to carry out the calculations and regarded his own role as limited to checking whether the results showed any submersion of the margin line before forwarding them to the Marine Department.

301.  In relation to the 1998 Damage Stability Calculations necessitated by the addition of lead ballast, Mr Cheung Chuen Yau confirmed that he instructed Mr Cheung Fook Chor to prepare the calculation and that the latter simply adopted the basis of the 1996 calculations. He admitted that he did not verify whether the underlying assumptions of the earlier calculations were correct. He did not notice that the Steering Gear Compartment and the Tank Room had been treated as separate spaces, nor that the 0.1L Rule had not been applied. He said that because the calculations were first sent to Hongkong Electric and no amendments were requested, he assumed it was correct and forwarded that information to the Marine Department. He said that Mr Cheung Fook Chor had been negligent in classifying the compartments incorrectly and acknowledged that he himself did not detect the error, despite being responsible for ensuring that the stability calculations were correct before submission.

302.  The 2005 Damage Stability Booklet was prepared by Cheoy Lee’s Mr Kwok Hing Yin using the AutoHydro software programme to generate damage stability calculations. Although the booklet stated that it had been checked by Mr Cheung Fook Chor, Mr Cheung Chuen Yau said that no such review in fact took place, as neither he nor Mr Cheung Fook Chor knew how to use the software. He trusted the AutoHydro software even though he did not know how to use it. The 2005 calculation was therefore not independently verified before submission to the Marine Department.

F4.  Submissions of the Parties

303.  HKKF did not make any submissions on this issue. Hongkong Electric maintained a neutral position, noting that neither Mr Cheung Fook Chor nor Mr Leizaola attended the Inquest, making it difficult to formulate any views on the matter.

F4.1   Next of Kin

304.  The Next of Kin emphasised that Mr Cheung Fook Chor indicated to the COI that even if he had access to the drawings during the calculations, he would have continued to treat the bulkhead at Frame ½ as watertight, albeit he would have sought a decision from his superior or from the Marine Department. Next of Kin say this is evidence that Mr Cheung Fook Chor put the responsibility for the calculations with Mr Leizaola.

305.  The Next of Kin further said it would have been unreasonable for Mr Cheung Fook Chor to expect Mr Leizaola to review his calculations, given the then practice at Cheoy Lee where superiors did not routinely vet the calculations but only reviewed the results. They also highlighted the fact that Mr Leizaola lacked the technical expertise to perform the necessary calculations or to operate the hydrostatic software and that his role was administrative. In contrast, Mr Cheung Fook Chor possessed direct familiarity with the vessel, having conducted the inclining experiment, while Mr Leizaola had never boarded Lamma IV. Therefore, the Next of Kin submitted that Mr Cheung Fook Chor shifted responsibility for his mistakes onto Mr Leizaola.

F4.2  Cheoy Lee

306.  Cheoy Lee submitted that Mr Leizaola’s claim that he carried out purely administrative work, and that responsibility for checking plans rested with Mr Cheung Fook Chor, was not credible. It was said that Mr Leizaola took over the position and duties of Mr Cheung Cheun Yau after the latter left and that, given his experience and his role as head of the Engineering Department, he was expected to check the calculations and work produced by Mr Cheung Fook Chor.

307.  Cheoy Lee accepted the COI’s finding that the calculation errors made by Mr Cheung Fook Chor in 1996 created a template of error, which led to the same mistakes being repeated in the 1998 and 2005 calculations. Cheoy Lee also drew attention to the fact that the Marine Department approved those calculations without realising the errors made in the 1996 calculations.

308.  In light of the findings in the COI report, Cheoy Lee said that it had since implemented internal controls to improve the checking of stability calculations. These measures included ensuring that the employee responsible for preparing stability calculations had access to the full set of plans for review and cross-checking, requiring the head of the Design Department to cross-check stability calculations against the underlying plans, and carrying out further cross-checks against the actual construction of the vessel through site visits.

F4.3  Marine Department

309.  The Marine Department submitted that Mr Leizaola downplayed his role at Cheoy Lee by characterising his position as purely administrative, thereby distancing himself from responsibility. It argued that it is unlikely Cheoy Lee would have appointed someone without relevant qualifications to its Engineering Department or to assume duties previously held by an experienced employee such as Mr Cheung Chuen Yau.

310.  Counsel for the Marine Department noted that neither Mr Cheung Fook Chor nor Mr Leizaola gave evidence at the Inquest, resulting in conflicting accounts of their respective responsibilities. In these circumstances, they submitted that it cannot be definitively concluded that Mr Cheung Fook Chor shifted blame to Mr Leizaola. Rather, any uncertainty may be due to the lack of clear job responsibilities within Cheoy Lee at the time.

F5.  Analysis of Evidence

311.  For the purposes of Issue 2, it is not necessary for this Court to determine whether Mr Cheung Fook Chor treating the Steering Gear Compartment and the Tank Room as watertight was ultimately correct or incorrect. What is relevant is Mr Cheung Fook Chor’s evidence that he was uncertain as to the watertight status of the Frame ½ Bulkhead, that he found the drawings confusing, and that he left the matter to Mr Leizaola or the Marine Department to resolve if he was wrong. Whether he was in fact right or mistaken technically does not alter his state of mind at the time. It was this uncertainty, and his reliance on others to determine the matter rather than forming his own view, which gave rise to Issue 2.

312.  Given Mr Leizaola’s qualifications, his position within Cheoy Lee, and the evidence of Mr Cheung Chuen Yau, who was both his predecessor and, upon his return to Cheoy Lee, his successor, as to the responsibilities ordinarily undertaken by an Engineering Manager, I do not accept that Mr Leizaola’s duties were confined to administrative work. I agree with the Marine Department that Mr Leizaola sought to minimise his involvement in order to distance himself from responsibility for matters arising in this Inquest. That conclusion is reinforced by the evidence of Mr Cheung Fook Chor that, in 1995, Mr Leizaola instructed him to prepare the Damage Stability Booklet for Lamma IV and once prepared, Mr Cheung handed the booklet to Mr Leizaola for submission to the Marine Department.

313.  The Design Department at Cheoy Lee was under the Engineering Department without its own supervisor, and Mr Leizaola was the Engineering Manager. Mr Cheung Fook Chor indicated at the COI that it was Mr Leizaola who provided him with the drawings required for the preparation of the damage stability calculations. Taken together, this evidence shows that Mr Leizaola’s role went well beyond administration and was consistent with a position of authority involving the giving of instructions, the delegation of work and oversight of technical matters.

314.  The assumption that the Frame ½ Bulkhead was watertight was first introduced in the 1996 Damage Stability Calculations and remained uncorrected in later submissions. This assumption went undetected by Mr Leizaola in 1996, Mr Cheung Chuen Yau in 1998 and 2005 and the Marine Department across all those years.

F6.  Findings on Issue 2

315.  On the balance of probabilities, I find that Mr Cheung Fook Chor did not consciously or deliberately seek to shift responsibility to Mr Leizaola. Rather, his conduct is consistent with the absence of clear supervisory structures and defined responsibility within Cheoy Lee at the material time.

316.  The evidence shows that there was no established system for technical verification or cross-checking of calculations. In those circumstances, it appears that Mr Cheung Fook Chor proceeded on the assumption that his responsibility ended once he had completed the work he was instructed to do, and that any error would be identified by a supervisor or by the Marine Department. Having worked for many years within an environment where responsibility boundaries were not clearly defined, he did not turn his mind to whether those assumptions were well-founded or whether any checking would in fact take place.

317.  Any apparent shifting of responsibility was therefore only superficial and did not arise from an intention to deflect responsibility or avoid accountability, but from a systemic lack of oversight and an ingrained reliance on unverified external review.

G.  Port Hull Plating of Sea Smooth (Issue 3)

318.  The third issue identified by the Court of Appeal was whether Sea Smooth had its port bow plating in place at the time of the collision and, if so, what impact this had on the circumstances of the collision. This plating was an L-shaped stainless-steel plate (“Bow Plate”) fitted externally to the port bow of Sea Smooth (“Port Bow Plate”). The Court of Appeal observed that there was credible evidence suggesting that the Port Bow Plate may have remained attached to Sea Smooth at the time of the collision which could explain its ability to penetrate the aluminium hull of Lamma IV causing the extensive breach that followed. The issues to be determined are whether the Port Bow Plate was in fact present, if so, whether it had any material effect on the collision and sinking of Lamma IV.

319.  In addition, the Court of Appeal considered this issue also raises regulatory questions about its design and installation. Specifically, whether Cheoy Lee had obtained the requisite approval from the Marine Department for the installation of the Bow Plates, what standards were applicable at the time, whether compliance with those standards was achieved, and what approval or certification processes were in place. It is also necessary to consider whether the Marine Department inspected or surveyed this aspect of Sea Smooth prior to the collision and, if the Bow Plates had been fitted without approval, whether this was detected and what steps, if any, were taken in consequence.

G2.  Factual and Expert Evidence concerning the Port Bow Plate

320.  Sea Smooth is a twin-hulled catamaran built by Cheoy Lee between 2002 and 2003. The 1995 Instructions were the applicable instructions. The general arrangement drawing of Sea Smooth, approved by the Marine Department on 2 November 2002, did not show the Bow Plates. These plates, made of 2 mm thick stainless steel and fastened externally to each bow by screws, appeared in the “as fitted” general arrangement drawing prepared for the Inclining Experiment and Stability Calculations. Cheoy Lee did not at any stage inform the Marine Department of their addition.

321.  Martin Lo King Ying (“Martin Lo”), director of Cheoy Lee in charge of repair and maintenance of HKKF vessels, gave evidence that the Bow Plates of Sea Smooth were non-structural, decorative items intended for aesthetics and protection from minor impacts, with no bearing on the vessel's navigational safety. He confirmed that the Port Bow Plate was found to be missing during maintenance and hull cleaning of Sea Smooth on 25 September 2012, a discovery he stated was reported to him by both his subordinate Mr Law Ping Sang and a HKKF engineer.

322.  Martin Lo explained that as the Port Bow Plate's absence posed no urgent safety issue, it was decided to defer its replacement until the vessel's next scheduled annual maintenance. The invoice issued by Cheoy Lee to Islands Ferry Company Ltd [90] made no reference to the replacement of the Port Bow Plate and a work order would only have been created upon its installation.

323.  Dr. Armstrong’s evidence at the COI was that the presence of the Bow Plates on the stem of Sea Smooth did not materially affect the outcome of the collision with Lamma IV. Dr. Armstrong provided detailed analysis showing that, due to Sea Smooth’s trim and the angle of impact, the initial collision forces acted above the level of the Bow Plates. Most of the destructive energy was therefore transmitted through the vessel’s robust stem structure, not the 2mm plates. Dr. Armstrong concluded that the Port Bow Plate, if it contacted Lamma IV at all, did so only after the principal hull gash had already been inflicted and was likely sheared off or destroyed during the early moments of the impact. He considered the Port Bow Plate played little or no part in the collision or sinking of Lamma IV.

324.  Dr. Cheng Yuk Ki produced a forensic report following his examination of both Sea Smooth and Lamma IV after the collision.[91] That report also dealt with other matters, including the seating arrangements on Lamma IV, the drafts of Sea Smooth and the collection of forensic trace evidence. The part that is relevant to this Inquest is his finding that a large fragment of fibreboard, with deep blue paint at the top and brown paint at the bottom, was recovered from the gash in the hull of Lamma IV. This fragment originated from the bow of the port hull of Sea Smooth. Close examination of the fibreboard fragments revealed an imprint whose size and shape partially matched the Bow Plate on the starboard hull of Sea Smooth, but no metal plate was recovered from within the hull of Lamma IV.

325.  At the inquest, Dr. Cheng confirmed that the Port Bow Plate was not present at the time of the collision. His opinion was based on the absence of the plate at the damaged breach, the fact that only fibreboard fragments were found embedded in the hull of Lamma IV and a police note recording that the Port Bow Plate had been dismantled for maintenance before the accident. Dr. Cheng further explained that the catastrophic damage to Lamma IV was caused not by any Bow Plates but by the structural elements of Sea Smooth’s port hull itself, first, the bow piercing the hull, and then the broken keel acting like a can-opener tearing open the Tank Room. In his opinion, the absence of the Port Bow Plate meant it played no role in the collision, and the fatal flooding of Lamma IV was directly attributable to the impact and raking action of the bow and keel of Sea Smooth’s port hull below the waterline. He added that even if the Port Bow Plate had been in place at the time of the collision, its effect on the impact would have been negligible.

326.  Dr. Renilson and Mr Simon Burthem agreed that the principal cause of the extensive hull breach was the structural raking action of Sea Smooth’s port bow and broken keel. They considered that the Port Bow Plate, even if fitted, would not have materially changed the mechanics of the collision or the outcome.

327.  Mr Robert Vart similarly emphasised that the decisive damage to Lamma IV was inflicted by the bow and keel of Sea Smooth. He noted that the thin stainless steel plate, fastened externally by screws, was designed only as a guard against floating debris and would have provided negligible resistance when compared with the forces of the collision. He agreed that the presence or absence of the Port Bow Plate had no significant effect on the penetration of Sea Smooth’s bow into Lamma IV or the subsequent rapid flooding.

G2.  Submissions of the Parties

328.  All parties accepted that the Port Bow Plate was not fitted on Sea Smooth at the time of the collision and its presence or absence played no part in the collision or the subsequent sinking of Lamma IV. The only point of divergence was whether the installation of the Bow Plates ought to have been reported to and approved by the Marine Department. HKKF left the question of approval to Cheoy Lee and Hongkong Electric adopted a neutral position.

G2.1  Next of Kin

329.  The Next of Kin submitted that Cheoy Lee breached the regulatory requirements by installing the Bow Plates without obtaining the Marine Department’s prior approval. Relying on paragraph 4.6 of the 1995 Instructions, they argued that any alteration, however minor, required the Director’s consent, and that Cheoy Lee had no discretion to decide otherwise. They cited Mr Simon Burthem’s evidence that screwing the Bow Plates into the fibreglass hull could compromise watertight integrity and should therefore have been reported.

330.  They rejected Cheoy Lee’s claim that the alteration was non-structural and the opinion of Mr Robert Vart that it was “almost cosmetic,” arguing that the obligation to notify lay with Cheoy Lee.

G2.2  Cheoy Lee

331.  Cheoy Lee’s position was that the installation of the Bow Plates did not require prior approval from the Marine Department. The plate, being only 2mm thick and intended as protective shield against debris, was neither structural nor part of the vessel’s “equipment” within the meaning of the 1995 Instructions.

G2.3  Marine Department

332.  The Marine Department submitted that Cheoy Lee ought to have reported the installation of the Bow Plates although its omission did not amount to a breach of any specific regulatory provision, because the Department, not the builder, was the proper authority to determine whether a modification might affect safety or seaworthiness. While the omission was a procedural oversight, it was mitigated by the fact that the Bow Plates appeared to have been in place for a long period and would not reasonably have been considered by a surveyor as an unauthorised addition.

G3.  Analysis of Evidence

333.  That the Port Bow Plate was not present at the time of the collision is supported by Dr. Cheng Yuk Ki’s examination of the recovered fibreboard fragments from the gash in Lamma IV where no plate was recovered, and by the police note that the plate had been dismantled for maintenance before the accident. It is also consistent with the expert opinions of Dr. Armstrong, Dr. Renilson, Mr Simon Burthem and Mr Robert Vart, all of whom agreed that, even if the plate had been in place, it would have had no material impact on how the collision occurred or the damage inflicted. The fatal breach to Lamma IV was caused by the penetration of Sea Smooth’s port bow and the raking action of the broken keel, rather than by any bow plate. I further find that the Bow Plates were non-structural addition, designed to guard against floating debris. On the evidence, I am satisfied that the presence or absence of the Port Bow Plate had no bearing on the rapid sinking of Lamma IV.

334.  Turning to the regulatory question of notification and approval, while the Bow Plates were thin, cosmetic and installed as debris protection, they were nonetheless attached to the bow with screws. Mr Simon Burthem’s view was that, whilst the Marine Department would likely have approved their addition, the process of consultation itself was essential. On the other hand, Mr Robert Vart considered the plates to be cosmetic addition, and would not fault Cheoy Lee for not reporting them, but nonetheless conceded that, even if the risk to watertightness was slight, this was ultimately for the Marine Department to judge.

335.  Paragraph 4.6 of the 1995 Instructions requires that after any initial or periodic survey, both the vessel and its equipment must be maintained in accordance with the Instructions, ensuring that the vessel remains fully fit for its intended services. It further states that no alteration to the vessel is permitted without the Director’s prior approval. In the present case, Mr Chan See Yin, agreed that the addition of the Bow Plates did not alter the condition of Sea Smooth nor did it constitute equipment as contemplated by the Instructions. Therefore, the prohibition on unauthorised changes in paragraph 4.6 did not apply to the installation of the Bow Plates.

336.  Although the 2mm Bow Plate in question was cosmetic in function and unlikely to affect the vessel’s structural or operational safety, its installation involved drilling screws into the hull and therefore carried a potential, albeit small, risk to the vessel’s watertight integrity, as noted by Mr Simon Burthem. While experts differed in their assessment of the significance of that risk and the need for notification, the existence of any safety risk places the responsibility for determining whether an alteration is material, and thus requires approval, with the Marine Department rather than the shipbuilder. On that basis, the prudent and correct course would have been for Cheoy Lee to notify the Marine Department so that the matter could be assessed and any approval formally recorded. Although it is virtually certain that approval would have been granted, Cheoy Lee should have erred on the side of caution by reporting the installation and allowing the Marine Department to confirm that the risk was of no material significance.

G4.  Findings on Issue 3

337.  I find that the Port Bow Plate was not fitted on Sea Smooth at the time of the collision. Had it been in place, its minimal thickness and limited role as a protective shield means that it would have had no causal effect on either the collision or the subsequent sinking of Lamma IV. Although the Bow Plates had no safety significance, Cheoy Lee should, as a matter of prudence and proper practice, have informed the Marine Department of its addition.

H.  Coaming Height (Issue 4)

338.  The fourth issue identified by the Court of Appeal is whether the height of the coaming on Lamma IV was lower than that required under the applicable regulations, and, if so, what effect this had on the safety of the vessel and the circumstances of its sinking. The Court of Appeal observed that this question gives rise not only to the matter of compliance in the individual case, but also to systemic questions including how such non-compliance could have gone undetected by the Marine Department during the regular surveys of Lamma IV.

H1.  Background and Applicable Regulations

339.  The height of the coaming in question was fitted at the internal doorway leading from the Passenger Saloon into the underdeck Crew Space on Lamma IV (“the Internal Door”). Access to the Passenger Saloon from the main deck was through external doors leading from the weather deck (“the External Doors”). The Internal Door, situated forward within the Passenger Saloon, provided access to the underdeck Crew Space located forward of the Engine Room. The Internal Door was fitted with a coaming of 190 mm within a fully enclosed superstructure, the entrances to which were protected by the External Doors having coaming height in excess of 300 mm.

340.  Paragraph 11(i) of the Blue Book provided that:

“For a “deck launch” all deck openings are to be protected by weather-tight coamings, of the following heights unless as otherwise provided in (ii)

Class 1 – 9”

Class II – 12”

Class III & IV – 15”

Lamma IV being a Class 1 vessel, the prescribed height of 9 inches (approximately 230–300 mm) was applicable.

341.  The Revised GA was reviewed by Mr Leung Kwong Chow, ship inspector of the Marine Department, who inserted fifteen comments before approval. These comments were acknowledged by Mr Wong Chi Kin when he approved the drawing on 8 May 1995. Comment 4 stated: “All air pipes and access hatches that lead down from main deck to be of 300 mm coaming height.” Mr Leung also marked “W.T.” and “See Note 4” at the location of the Internal Door. Mr Leung explained that Comment 4 was intended as a general and preliminary note at a stage when it was not yet settled whether the External Doors alone would provide compliance. The undisputed evidence is that “W.T.” on the upper deck drawing denoted weathertight, not watertight.

342.  The Marine Department approved the arrangement whereby the Internal Door was fitted with a coaming of 190 mm, and the External Doors were fitted with coamings of 300mm during both the initial and final surveys, raising no objection to the coaming height of the Internal Door. Taken together with the inspection records, this indicates that the Marine Department regarded the protection afforded by the External Doors as satisfying the requirements of Paragraph 11(i) of the Blue Book.

H2.  Submissions of the Parties

343.  HKKF made no submissions on this issue. Hongkong Electric, while adopting a neutral stance, submitted that the coaming height did not play a causal role to the collision or sinking speed of Lamma IV, pointing out the lack of evidence as to whether the Marine Department made a conscious decision to approve the coaming height of the Internal Door.

344.  Counsel for the Next of Kin, relying primarily on the expert opinion of Dr Renilson and, to a lesser extent, Mr Robert Vart, submitted that the term “deck openings” in paragraph 11(i) of the Blue Book included the Internal Door. They argued that Comment 4 expressly required a 300 mm coaming for all such access points and that strict compliance with the Blue Book was mandatory. Had a 300 mm coaming been fitted, the risk of water entering the Crew Space would have been reduced in the event that the Passenger Saloon became flooded following breach of the superstructure. As the coaming height was only 190 mm, they submitted it was non-compliant.

345.  Cheoy Lee and the Marine Department, citing expert evidence from Mr Simon Burthem and Mr Anthony York, submitted that the coaming height requirement applied only to external deck openings exposed to weather or sea water, not to internal doors within an enclosed superstructure. The protective purpose of the rule, to prevent water on the open deck from entering the hull, was satisfied because all External Doors with coamings exceeded 300 mm and were weather-tight. Therefore, the 190 mm coaming of the Internal Door complied with both the 1995 Instructions and the Marine Department’s regulatory practice.

H3.  Analysis of Evidence and Regulatory Interpretation

346.  The annotations and Comment 4 on the Revised GA were made at an early and preliminary stage, before the final configuration of the superstructure of Lamma IV had been decided. Mr Leung Kwong Chow confirmed that Comment 4 was intended as a general note at a stage when it had not yet been determined whether compliance with paragraph 11(i) of the Blue Book would be achieved by external or internal coamings. He further confirmed that the comment related to deck openings leading down from the main deck and was not directed at internal openings enclosed within the Passenger Saloon. The expert evidence of Mr Simon Burthem and Mr Anthony York was consistent in describing the 300 mm notation as a preliminary draft note rather than a binding specification.

347.  Mr Simon Burthem explained that, although Lamma IV, as a ferry operating within Hong Kong waters, was not required to comply with the International Load Line Convention 1966 (as amended in 1988) or the Lloyd’s Register of Shipping Rules (which were not in force when Lamma IV was constructed), those international conventions and classification rules were nevertheless relevant in understanding the underlying purpose of requiring weathertight closures on board a vessel. He said that the essential objective was to protect the vessel’s watertight envelope, namely the hull up to the bulkhead deck, by preventing the passage of water into spaces that provided access down into the hull, thereby avoiding loss of buoyancy and flooding. This objective was achieved by ensuring that openings at points of entry, such as doors, hatches, windows and ventilators, were fitted with effective weathertight closures.

348.  Mr Burthem agreed with Mr Robert Vart that the reference to “deck openings” in paragraph 11(i) of the Blue Book was directed to exposed deck openings, namely openings subject to weather or wave action, and not to internal doors located within an enclosed superstructure. He disagreed with Dr Renilson’s interpretation that the phrase “all deck openings” referred to openings on the bulkhead deck irrespective of exposure. Mr Burthem explained that, while Dr Renilson’s evidence concerning the treatment of enclosed superstructures for stability calculations was “not incorrect”, it addressed a different issue. The present question concerned downflooding protection, which was a separate regulatory consideration. From that perspective, Marine regulations consistently focused on exposure to sea or weather.

349.  Applying that approach to Lamma IV, Mr Burthem explained that the required protection against downflooding could be achieved in one of two ways: either by fitting the three External Doors[92] to the Passenger Saloon with weathertight closures and coamings of 300 mm, or by making the Internal Door weathertight with a 300 mm coaming, in which case additional protection at the External Doors would not be required. On that basis, Mr Burthem agreed with Mr Vart’s interpretation and rejected Dr Renilson’s construction of paragraph 11(i) of the Blue Book.

350.  Paragraph 11(i) of the Blue Book required Class I vessels to have deck openings protected by coamings not less than nine inches (approximately 230–300 mm) in height in order to prevent seawater washing over external decks from entering internal spaces. The requirement was directed at openings exposed to weather and wave action and did not extend to internal doors situated within an enclosed superstructure where such doors were not exposed to external conditions.

351.  The Revised GA contained an early annotation stating that “all air pipes and access hatches that lead down from the main deck” were to have 300 mm coamings. That note was general in nature and was made before the Marine Department confirmed which openings would be treated as external deck openings for the purposes of paragraph 11(i). Mr Leung Kwong Chow confirmed that compliance could be achieved either by external or internal coamings, depending on the arrangement ultimately approved by the Marine Department.

352.  The Marine Department subsequently approved the arrangement under which the External Doors were fitted with weathertight closures and coamings of 300 mm and accepted this as satisfying the requirement under paragraph 11(i) of the Blue Book. The Internal Door, being located within an enclosed superstructure and not exposed to weather, was not subject to the same requirement. This approach was consistent with long-standing Marine Department regulatory practice and with the international conventions from which the Blue Book provisions were derived.

353.  I accept the evidence of Mr Simon Burthem and Mr Anthony York that the functional purpose of weathertight coamings is to prevent direct ingress of seawater from the external environment, and that this purpose was fully met on Lamma IV by the coamings fitted at the External Doors. I further accept the evidence of all experts that the internal coaming height of 190 mm was not a causal factor in the loss of Lamma IV.

354.  Bearing in mind that the function of coamings is to prevent ingress arising from periodic or accidental weather exposure, and not to guard against flooding caused by major hull breaches resulting from collision, the Internal Door leading from the Passenger Saloon to the Crew Space was not required to be fitted with a coaming of 300 mm. That requirement had been satisfied by the External Doors, which were fitted with weathertight closures and coamings of 300 mm.

H4.  Findings on Issue 4

355.  On Issue 4, I find that the 190mm coaming height of the Internal Door did not constitute a breach of any applicable regulatory requirement. The purpose of paragraph 11(i) of the Blue Book was fulfilled by the 300 mm coamings provided at the External Doors. Even if the Internal Door’s coaming height were technically below 300 mm, it neither contributed to the sinking nor had any material connection with the loss of life.

I.  Inspection of the Frame ½ Bulkhead (Issue 5)

356.  The fifth issue identified by the Court of Appeal concerns whether the bulkhead at Frame ½ was subject to inspection on an annual or biennial basis, and whether the Marine Department’s survey was adequate to ensure the continued watertight integrity of the vessel. The Court of Appeal referred to the inspection frequency as “bi-annually”. For consistency with the terminology used in the 1995 Instructions and 2006 Code of Practice, I shall refer to the same interval as “biennially”, both expressions being understood to mean every two years.

I1.  1995 Instructions

357.  Paragraph 4.1of the 1995 Instructions provides that:

“In order to be licensed to operate, launches and ferry vessels shall be built and surveyed in accordance with these Instructions for the issue of a Certificate of Survey.”

358.  Chapter IX of the 1995 Instructions, which deals with Periodic Surveys, states that such surveys “shall be carried out in accordance with the following stipulated programme.” Under this programme, vessels were subject to annual, biennial and quadrennial inspections depending on the age and class of the vessel and the particular items to be examined. There is no dispute that Lamma IV was a Category A vessel within the meaning of the Instructions.

Under the Survey Intervals table in Chapter IX:

Item 2 – Watertight/Weathertight Closing Appliances were to be inspected annually;

Item 14 – Hull (External Inspection on Slip) was also to be carried out annually;

Item 16 – Hull (Internal Examination of Hull, including Void Spaces and Built-in Tanks) was to be undertaken biennially; and

Item 17 – Hull (Internal – Gauging Thickness of Deck, Shell and Bulkhead Plating) was likewise a biennial item, but applicable only to vessels aged eight years or more

359.  The relevant internal examination of the hull, including void spaces such as those containing the Frame ½ Bulkhead, would thus have fallen under Item 16, requiring inspection biennially.

360.  Lamma IV’s surveys after 2 January 2007 were conducted under the 2006 Code of Practice. Although the 2006 Code is more detailed and structured than the earlier 1995 Instructions, the substantive requirements relevant to this Inquest, particularly the scope and intervals of periodic surveys, remain materially the same.

361.  The documentation associated with these surveys included a series of forms used by ship inspectors to record their findings and certify compliance. These included Marine Office Forms, MO 242 (Periodic Survey Form), MO 539 (Final Survey Form), and MO 540 (Result of Survey). The Forms did not require surveyors to cross-check the vessel’s structure against the approved design drawings but were intended to record that inspections had been carried out, deficiencies rectified, and the vessel found fit for service.

362.  In practice, Marine Department surveyors appear to have relied on these Marine Office Forms to guide the scope of work for each inspection cycle. The evidence suggests that internal inspection of structural compartments, such as the Frame ½ Bulkhead, occurred only during the biennial or quadrennial surveys, and not during every annual inspection. It is within this procedural context that the question arises, whether the Frame ½ Bulkhead was inspected annually or biennially, and whether surveyors had an ongoing duty to check that it complied with the approved drawings.

I2.  Submissions of the Parties

363.  The parties have different interpretations as to the nature and scope of the Marine Department’s duties during periodical surveys, and whether those duties required the ship inspectors to verify the watertight integrity of internal bulkheads against the approved drawings. HKKF took a neutral position and deferred to the Marine Department as the regulatory authority.

I2.1  Next of Kin

364.  The Next of Kin submitted that the Marine Department failed to conduct proper periodical surveys of the bulkhead at Frame ½ and that this failure was systemic rather than incidental. They argued that, had the surveys been carried out properly with reference to the vessel’s approved structural drawings, the absence of the watertight door at the Frame ½ Bulkhead would have been detected and rectified before the collision.

365.  It was further argued by the Next of Kin that the biennial periodic survey required internal hull inspection, which necessarily included examining watertight bulkheads. A watertight bulkhead cannot be meaningfully inspected without confirming the presence and condition of its watertight door, as the door was integral to its watertight integrity. They submitted that, between 1997 and 2012, there were eight missed opportunities during biennial surveys to detect the discrepancy, any inspector who had consulted the Profile and Deck drawing would have seen that an Access Opening existed where a watertight door should have been fitted.

366.  The Next of Kin criticised the failure by the ship inspectors to consult the vessel’s structural drawings before conducting internal hull inspections. They argued that it was good practice for surveyors to review such drawings to identify which bulkheads were designated as watertight. However, the ship inspectors relied on visual observation and did not routinely bring or consult the drawings. The Next of Kin submitted that this fell below acceptable standards and was contrary to international guidance which emphasised the need to review drawings prior to survey.

367.  The Next of Kin said that the omission was particularly serious during the quadrennial surveys, which incorporated both thickness gauging and the biennial inspection requirements. They referred to the evidence of Mr Louk Hon Ying, ship inspector for the 2005 and 2009 quadrennial surveys, who confirmed that he had the Shell Expansion drawing available during thickness gauging. That plan identified the Frame ½ Bulkhead as watertight. The Next of Kin argued that Mr Louk’s explanation, that he consulted the drawing only for specific measurements and did not consider its wider implications, was unacceptable. As the officer responsible for the hull internal inspection, he had a duty to identify and verify the location of all watertight bulkheads, which he failed to do.

368.  The Next of Kin noted the confusion among Marine Department officers as to whether the inspection of “watertight/weathertight closing appliances” during the Final Survey extended to below-deck fittings. They argued that it must do so as the term “watertight/weathertight” applied logically to all such appliances irrespective of location and there was no justification for subjecting below-deck watertight doors to a lesser standard. Logistical matters, such as obtaining a confined space certificate, cannot excuse the failure to inspect. In their submission, the fundamental problem was that the Marine Department officers did not appreciate that below-deck watertight appliances existed and therefore did not ask or check. This was said to be an omission caused by lack of awareness, rather than by any limitation in the survey process.

369.  In summary, the Next of Kin submitted that a properly conducted biennial periodical survey conducted by reference to approved structural drawings as required, would have revealed that the Frame ½ Bulkhead was not built watertight as specified. They submitted that the Marine Department’s systemic failure to carry out periodical inspections with the necessary diligence, documentation and cross-referencing allowed this critical safety defect to go undetected throughout Lamma IV’s operational life.

I2.2  Cheoy Lee

370.  Cheoy Lee submitted that, after delivery of the vessel, their role in inspections was limited to assisting the Marine Department when requested. It emphasised that inspection items were determined by Hongkong Electric and that internal hull inspections, including any bulkhead inspection, were conducted only at the biennial or quadrennial intervals specified. It maintained that verification against drawings was not part of their post-delivery responsibility.

I2.3  Marine Department

371.  The Marine Department submitted that the absence of a watertight door at the Frame ½ Bulkhead was a matter that fell within the initial survey, not a matter that periodical surveys were required to detect.

372.  The Department emphasised the distinction between the initial survey and the periodical survey. The initial survey verifies that a vessel has been built in accordance with its approved plans. Periodical surveys, by contrast, examine the vessel’s condition as it exists in service, focusing on wear, deterioration, damage or unauthorised alterations. This distinction, they submitted, reflects universal industry practice and was supported by expert evidence. Both Mr Simon Burthem and Mr Robert Vart stated that a periodical surveyor’s task is to look for signs of alteration and that it would be “harsh” to expect a surveyor to revisit or question the vessel’s original construction.

373.  The Department submitted that ship inspectors were not required to bring or consult vessel plans during periodical surveys. Where drawings were referred to, it was to check for possible unauthorised modifications, not to re-verify compliance with the original design. The international guidelines cited by the Next of Kin do not impose a broader obligation. The Maritime and Coastguard Agency Guidance[93] was directed at confirming the condition and operability of existing fittings, and recommended consultation of the ship’s file in more complex cases. The International Association of Classification Societies guideline cited was a recommendation intended for large, complex vessels, and did not apply to a small ferry such as Lamma IV.

374.  The Marine Department noted that the internal examination of the hull, including bulkheads, was expressly required during the biennial survey under both the 1995 Instructions and the 2006 Code of Practice. The evidence from eighteen Marine Department ship inspectors was consistent: the internal structure of the vessel was inspected every two years in accordance with those requirements.

375.  The Department submitted that any uncertainty among the ship inspectors as to whether the annual Final Survey of “watertight/weathertight closing appliances” included below-deck fittings is immaterial. No watertight door was ever fitted at the Frame ½ Bulkhead. There was therefore no appliance capable of inspection. Visual inspection of the bulkhead showed smooth edges without hinges, bolt holes or any indication that a door had previously existed.

376.  The Department further argued that the suggestion that the Access Opening should have aroused suspicion is based on hindsight. No one, neither the Marine Department inspectors, the shipyard, nor the operator, identified the opening as suspicious at any stage. However, counsel for the Marine Department acknowledged that the general awareness of inspectors at the time could have been higher, and noted that subsequent reforms have enhanced training, the use of onboard technology and the structure of inspection forms.

377.  In summary, the Marine Department submitted that the bulkhead at Frame ½ was inspected as required during the biennial surveys. The failure to identify the missing watertight door did not represent a failure of the periodical survey system. It was a mistake originating at the vessel’s original construction and not something that ordinary periodical inspections, which focused on the vessel’s condition, could reasonably have been expected to pick up.

I2.3  Hongkong Electric

378.  Hongkong Electric adopted a largely neutral position on the Marine Department’s internal policies and practices concerning periodical surveys, stating that these procedures were not known to Hongkong Electric at the material times.

379.  Hongkong Electric submitted that it possessed no naval architectural expertise and therefore depended wholly on the Marine Department’s professional judgment. Between 1997 and 2012, the Department issued seventeen Certificates of Survey, each confirming that the vessel had passed the required periodical inspections. Hongkong Electric argued it had no reason to doubt the vessel’s seaworthiness or the adequacy of the survey regime in light of these annual certifications.

380.  Based on the evidence of Marine Department officers, Hongkong Electric noted that the inspection of the Frame ½ Bulkhead during periodical surveys was confined to assessing its condition and detecting any post-construction alterations. Inspectors were not required to check below-deck watertight closing appliances during the annual Final Survey nor were they required to bring structural drawings to periodical surveys. The Department’s focus, as presented in the evidence, was on wear, damage and unauthorised changes, rather than verification of the vessel’s original construction.

381.  Hongkong Electric relied on the evidence of Mr Robert Vart, who observed that it would be “harsh” to expect Marine Department inspectors to question the vessel’s internal structure during a periodical survey. This supported the proposition that periodical surveys were directed to condition, not design verification.

382.  Hongkong Electric further submitted that evidence regarding the operator’s routine maintenance had limited value to the Inquest. Such maintenance focused on wear and tear and not on identifying structural issues originating from construction. Hongkong Electric maintained that Lamma IV was well-maintained throughout its operational life.

I3.  Analysis of Evidence and Parties’ submissions

383.  The difficulty with the Next of Kin’s submissions is that they proceeded from a premise that was not based on the regulatory requirement. Their argument depended on the proposition that a watertight door should have been fitted at the Frame ½ Bulkhead, and that the Marine Department ship inspectors, had they conducted their periodical surveys properly, would have detected its absence and ensured that it was rectified. Their position presupposed that Lamma IV, a vessel operating in the sheltered waters of Hong Kong, ought to have been constructed as a two-compartment flooding vessel with a watertight door at the Frame ½ Bulkhead, when that was not the requirement.

384.  Further, even if a ship inspector had appreciated that the Access Opening at the Frame ½ Bulkhead was not fitted with a watertight door and that certain structural drawings depicted that bulkhead as watertight, it does not follow that the appropriate solution would have been the installation of such a door. Dr Armstrong confirmed at the COI that fixing a watertight door at that location was not the solution, and that compliance with the one-compartment flooding standard would instead have required either a reduction in ballast weight or the provision of additional buoyancy, such as by fitting a buoyancy tank at the transom.[94] In those circumstances, the premise underlying the Next of Kin’s criticism of the periodical surveys, that proper inspection would have led to the installation of a watertight door and thereby addressed the underlying deficiency, is unsound.

385.  I accept the submissions of the Marine Department and Hongkong Electric. The expectation of the Next of Kin that ship inspectors conducting periodical surveys should routinely consult the approved structural drawings in order to re-verify compliance with the vessel’s original construction is, in my view, impractical, unrealistic, and inconsistent with the purpose of a periodical survey.

386.  It is essential to maintain a clear distinction between the initial survey and periodical surveys. The former ensures a vessel's initial compliance with its design and regulatory standards. The latter, by contrast, are concerned solely with the vessel's ongoing condition, verifying that it has not been compromised by wear, deterioration or unauthorized alterations. They are not a re-approval of the original design.

387.  To impose on periodical surveyors a duty to revisit questions of design compliance at every inspection would be to conflate these two distinct types of surveys. It would also divert the time and attention of the ship inspectors from the tasks the periodical survey has to address. The suggestion by the Next of Kin effectively demands near-perfect scrutiny, carried out with the benefit of hindsight and without appreciation of the practical realities faced by ship inspectors conducting multiple inspections in a day.

I4.  Findings on Issue 5

388.  I therefore find that the Frame ½ Bulkhead was inspected at the prescribed biennial intervals. The purpose of the biennial survey was to assess the vessel’s condition, not re-verifying the correctness of its original construction. The absence of the watertight door was inherent to the Lamma IV's approved design; it was not something that a ship inspector would have been required to identify or report during periodical survey.

J.  Working Hours of Seafarers (Issue 6)

389.  The sixth issue directed by the Court of Appeal concerns the long working hours of seafarers in Hong Kong’s passenger ferry industry and whether such practices posed a systemic risk to maritime safety.

J1.  Evidence concerning HKKF Seafarers’ Working Hours

390.  Mr Cheung Tai Kei, Director of HKKF since 1998, gave evidence concerning the duty arrangements of HKKF’s seafarers. He explained that crew shifts were organised in accordance with the schedules stipulated under government service contracts and operated under two main systems: the 24-hour on, 24-hour off arrangement (“Double-Shift”) and the Single-Shift system.

391.  Under the Double-Shift system, seafarers commenced duty at approximately 7 or 8 a.m. and remained on board until the same time the following day. They were rostered to work around 13 days per month, generally three days per week, and were off duty for the remaining 17 days. During their 24-hour shift, they were required to remain on the vessel but not continuously at work. The sailing between Yung Shue Wan and Central took about 25 minutes, with intervals of 15 to 45 minutes between trips depending on traffic and passenger demand. The vessels were equipped with bunks, air-conditioning, washrooms, refrigerators and microwaves, allowing crew to rest and sleep between sailings. Mr Cheung stated that no staff had ever complained of inadequate rest or excessive fatigue.

392.  The Single-Shift arrangement was typically applied to substitute crew members covering for absent colleagues. Such shifts lasted about 12 hours, beginning at 6 or 7 a.m. Mr Cheung acknowledged that seafarers on Single-Shifts generally accumulated more total working hours per month than those on the Double-Shift. However, he said that crew members preferred the Double-Shift arrangement as it provided longer consolidated periods of time off and reduced the need for daily commuting, particularly for those serving outlying island routes.

393.  Following the 2012 collision, the Marine Department issued a consultation paper to the Local Vessels Advisory Committee on 28 December 2012 proposing guidelines to regulate crew working hours. The proposals included capping continuous navigation time, limiting total accumulated duty hours and ensuring minimum meal breaks. These proposals were refined at the fifth Local Vessels Advisory Committee meeting on 11 April 2013.

394.  The Local Vessels Advisory Committee is a statutory body, comprising representatives from the Marine Department, the Transport Department, major ferry operators, and seafarer unions including the Harbour Transportation Workers General Union, the Small Craft Workers Union, and the First Ferry/Hong Kong Seamen’s Union.

395.  Mr Lee Kwok Keung, Chairman of the Hong Kong & Kowloon Trade Union Council, was not a member of the Local Vessels Advisory Committee. His organisation represents seafarers employed on ocean-going vessels rather than local ferries. Mr Lee advocated extending international conventions applicable to ocean-going vessels to local operations, asserting that there was no material difference between local and international waters. However, Mr Chan See Yin explained that ocean-going seafarers might spend 15 to 30 days continuously at sea, whereas local ferry crews, even under the Double-Shift arrangement, returned home after each shift. Mr Lee admitted that he had never worked as a seafarer, nor received any complaints from local ferry crews about the Double-Shift arrangement, though he drew analogies with land-based occupations such as bus and taxi drivers where duty hours are capped.

396.  Mr Chan See Yin gave evidence that the Marine Department had received consistent feedback from ferry crews indicating a general preference for Double-Shift. He confirmed that there was resistance within the industry to altering the arrangement, which many crew members considered practical and beneficial. No evidence was presented at the Inquest of crew fatigue or complaints concerning the adequacy of rest under the existing Double-Shift system.

397.  At the time of the collision, there was no specific statutory regulation governing the working hours of crew employed in the local passenger ferry trade. The Merchant Shipping (Seafarers) (Hours of Work) Regulation[95] (“Cap. 478D”), subsidiary legislation under the Merchant Shipping (Seafarers) Ordinance[96] , only applied to sea-going Hong Kong ships and not to local ferries operating within Hong Kong waters. In practice, the working hours and rest arrangements of masters, coxswains, engineers, and crew of local passenger vessels were managed through company policies

398.  Evidence before this Inquest indicated that in practice, ferry operations in Hong Kong were subject to commercial and logistical pressures which may result in extended working hours. Both the HKKF and Hongkong Electric, maintained internal guidelines on crew duty hours, but these were not subject to external audit or verification by the Marine Department.

J3.  Submissions of the Parties

399.  Cheoy Lee & Hongkong Electric took a neutral stance on this issue and did not make submissions.

J3.1  Next of Kin

400.  The Next of Kin submitted that excessive working hours and fatigue among seafarers in the local passenger ferry industry posed a serious and long-standing safety risk. They identified the Double-Shift system, commonly adopted by ferry operators, as the root cause of seafarer fatigue. The engineer of the Sea Smooth had himself admitted to being “a little bit tired” and paying “not much attention” at the time of the collision,[97] and an earlier collision involving First Ferry VIII on 3 April 2012 had been officially attributed to crew fatigue under the same roster pattern.[98]

401.  It was submitted by the Next of Kin that Hong Kong lacked any statutory regulation or prescribed duty-roster requirements for local ferries, in contrast to other jurisdictions such as the United Kingdom and Sydney, where minimum rest periods were required by law. Although the Marine Department proposed working hour guidelines in 2013, intended to cap duty hours and require minimum rest breaks, the Department had since adopted a “laid-back attitude”, leaving the proposal dormant for nearly a decade.

402.  The Next of Kin further submitted that the industry’s present claim of an average 10 to 13.5-hour working day was misleading, as such figures accounted only for navigation hours and excluded other on-board duties. When all tasks were taken into account, total working hours could extend to as much as 16 hours. They emphasised that crew members were required to undertake the first morning sailing at the twenty-third hour of their shift, when fatigue was at its most acute.

403.  The Next of Kin relied on section 4 of Cap 478D which mandates, subject to Regulation 6, that seafarers be provided with a minimum of 10 hours of rest in any 24-hour period, which shall not be counted as on-duty time. Although the Regulation applies exclusively to ocean-going vessels, the Next of Kin submitted that there were compelling justifications for extending the same requirement to seafarers working on local vessels.

404.  They pointed out that local ferries carry numbers of passengers comparable to those on ocean-going vessels, thereby necessitating the same level of vigilance during navigation, as noted by Mr Lee Kwok Keung. Moreover, seafarers on both ocean-going and local vessels are required to comply with the same navigational standards, including the duty to maintain a proper lookout under Rule 5 of the International Regulations for Preventing Collisions at Sea (“COLREGs”). Given these similarities, the Next of Kin submitted that it was only logical to ensure that seafarers on local vessels are afforded equivalent rest periods in order to uphold safety standards and to prevent fatigue-related incidents.

405.  Counsel for the Next of Kin further argued that working hour caps similar to those applied to other forms of public transport, such as buses and MTR train operators, should be introduced. They argued that intervals between sailings and overnight stays on vessels do not constitute genuine rest, as noise, standby duties, and operational interruptions limit sleep to only a few hours.

406.  Counsel for the Next of Kin also argued that passenger safety must take precedence over operational convenience and that long working hours undermined both safety and the attractiveness of the profession, contributing to the industry’s manpower shortage. The need for reform was said to be particularly urgent during peak hours, when compressed turn-around times reduced the already limited rest intervals between late-night and early-morning sailings. In conclusion, the Next of Kin argued that both the Lamma IV and First Ferry VIII collisions illustrated the real and foreseeable risk of fatigue within the existing Double-Shift system, and they urged the Marine Department to review and reform the practice and to impose a statutory cap on maximum working hours in the interest of passenger safety.

J3.2  Marine Department

407.  The Marine Department submitted that the employment arrangements and working hours of crew serving on local vessels fall primarily within the purview of the Employment Ordinance[99] and the Labour Department, rather than under the direct control of the Marine Department. It stated that while the Department has made efforts to facilitate improvement in industry practices, any change to the existing duty systems would require cooperation among all stakeholders, including ferry operators and crew unions, and could not be implemented unilaterally by the regulatory authority.

408.  The Marine Department noted that HKKF had received no complaints from its crew concerning inadequate rest and that its vessels were fitted with facilities intended to provide a reasonable level of comfort during non-working periods. It further acknowledged that fatigue had been identified as a contributory factor in at least one previous marine accident involving another ferry but maintained that this did not justify regulatory intervention directed at a single operator.

409.  In 2013, the Marine Department proposed a set of voluntary guidelines to address the Double-Shift system. These included:

(i)  a 30-minute rest period after 6 hours of continuous navigation;

(ii)  a cap of 13 hours of cumulative duty time in any 24-hour period; and

(iii)  a minimum 40-minute meal break.

410.  The Marine Department explained that implementation of these voluntary guidelines required the cooperation of all industry stakeholders, including ferry operators, crew unions, and passenger representatives. Owing to manpower shortages and the absence of industry consensus, the proposals were not formally adopted. The Marine Department’s current stance is that no regulatory change will be pursued at this stage, although the Department remains prepared to revisit the issue should industry circumstances permit.

J3.3  HKKF

411.  HKKF submitted that the Double-Shift system was neither relevant to the Lamma IV collision nor causative of it. The company maintained that this system is accepted by crew, and the call for its investigation stemmed from a misunderstanding of local ferry operations.

412.  HKKF argued that there was no evidence, either before the COI or in the subsequent criminal proceedings, to suggest that crew fatigue or working hours played any role in the 2012 collision. The concern was said to have originated from Mr Lee Kwok Keung whom HKKF described as an unrepresentative source, noting that his union represented ocean-going seafarers rather than local ferry crews, that he had never served at sea, and that he had received no direct complaints from local ferry staff.

413.  HKKF explained that the Double-Shift system did not involve continuous 24-hour work. Instead, two crews alternated in 24-hour duty cycles, during which they had multiple breaks between short voyages, meal periods, and overnight rest on board ranging from 4.5 to 6.75 hours. The system is said to balance operational efficiency with crew welfare, accommodating early and late sailings when commuting was impracticable.

414.  HKKF further submitted that the system complied with the Employment Ordinance, and that the Marine Department had never received any complaints about it from crew or unions. On the contrary, evidence from both HKKF and the Marine Department indicated that crew generally preferred the arrangement as it afforded longer rest periods between shifts and reduced commuting time.

415.  HKKF emphasised that international standards concerning hours of rest were devised for ocean-going vessels operating at sea for extended periods and were not applicable to short-haul ferry services within Hong Kong waters. The working arrangements of local ferry crews, they said, should be understood within that context.

416.  Finally, HKKF pointed out that the issue of working hours had already been reviewed by the Local Vessels Advisory Committee. Following post-collision discussions, the Committee found existing working practices broadly consistent with proposed guidelines, and employee representatives expressed concern that more rigid regulation might reduce income and rest days. HKKF therefore submitted that the matter was an industry-wide policy issue that had been adequately addressed through existing channels and was not relevant to the causes of the Lamma IV disaster.

J2.  Consideration of the Working Hours of Seafarers

417.  The evidence concerning the working hours of ferry crews presents a complex picture. On the one hand, the Double-Shift system appears, at first sight, to be an arduous arrangement. It is intuitively associated with fatigue, particularly where crew members are responsible for the safe navigation of passenger vessels. On the other hand, the evidence before the Inquest does not demonstrate that fatigue played any part in the circumstances of the Lamma IV collision. There is also no evidence of any complaint from the seafarers of HKKF, or from other ferry operators, concerning excessive hours or inadequate rest, although one of the crew of Sea Smooth told the COI that he was “a little tired” before the collision.

418.  The Court’s concern, therefore, lies not in identifying a causal link to the 2012 collision, but in examining whether the system presents a latent risk to maritime safety. In this respect, I accept that the working hour system for local ferries is influenced by several competing considerations: the need to maintain continuous public transport to the outlying islands, the shortage of manpower, and the practical limits of crew rotation logistics. These matters extend beyond the remit of this Inquest and cannot be resolved by judicial recommendations alone.

419.  While the Next of Kin have criticised the Marine Department’s perceived passivity, the Court acknowledges the Department’s predicament as realistically, it can only act as a mediator to bring stakeholders together rather than unilaterally impose change. The Court further acknowledges the broader societal challenge that the seafaring profession which, like many other traditional occupations, struggles to attract new entrants in a changing social and economic climate.

420.  The proposals made by the Marine Department in 2013 were reasonable in principle and would, if implemented, have provided a balanced improvement. However, progress has been impeded by the absence of statutory backing, a continuing manpower shortage, and, as established in evidence, the requirement for HKKF to maintain the minimum service frequency stipulated in its licence. [100]

J3.  Findings on Issue 6

421.  I find that the difficulties identified in Issue 6 arise principally from the manpower shortage within the ferry operators. Any meaningful reform of working hours cannot be achieved by the Marine Department acting alone as it requires the cooperation of multiple stakeholders across the industry, including operators and unions. In these circumstances, the Marine Department’s role is better carried out through engagement, consultation supported by evidence, rather than by imposing requirements unilaterally. Given the staffing constraints and the need for agreement, formal recommendations would not realistically resolve this issue. The more appropriate course is for the Marine Department to continue working collaboratively with the industry to identify measures that are both practical and capable of implementation.

K.  Navigation Speed

422.  The 2012 collision occurred in an area of Hong Kong waters that was not subject to statutory speed limits. Although navigational speed was not one of the six issues remitted by the Court of Appeal, the question was examined at the Inquest because Dr Armstrong’s report highlighted the contribution of Sea Smooth’s speed to the severity of the collision.[101]  Dr Armstrong identified the high kinetic energy generated at the moment of impact as the principal physical cause of the catastrophic damage to Lamma IV. He observed that, had Sea Smooth been travelling more slowly, it might not have penetrated the hull a second time or caused such extensive structural damage to the Tank Room.

423.  In light of these observations, Captain Dominic Bell was instructed by the Hong Kong Marine Police to review the system for granting Speed Restriction Exemption Permit to passenger ferries, and Captain Jeremy Ayling was instructed by the Marine Department to address the same matters.

K1.  Law and Regulations Governing Navigational Speed

424.  At the time of the collision in 2012, navigational speed for local vessels in Hong Kong was governed by two sources. The Merchant Shipping (Local Vessels) (General) Regulation[102] (“Cap. 548F”), a subsidiary regulation under the Merchant Shipping (Local Vessels) Ordinance[103] (“Cap 548”), the statute regulating local vessels in Hong Kong waters, set maximum permitted speeds for different classes of vessel and locations, with high-speed craft limited to 15 knots between half an hour after sunset and half an hour before sunrise, unless exempted by the Director of Marine under a Miscellaneous Permit issued pursuant to section 70 of Cap. 548. More importantly, COLREGs applied to all vessels at all times. Rule 6 imposes a continuing duty to proceed at a safe speed having regard to visibility, traffic density, manoeuvring characteristics, and prevailing navigational hazards. That duty is paramount and is not displaced by any local speed limit or exemption.

425.  The Miscellaneous Permit system in force at the time required, amongst other matters, that the vessel be radar-equipped to Marine Department specifications, that the coxswain possess at least two years’ relevant experience or a Type Rating Certificate, and that a certified radar observer be on board. The grant of a speed restriction exemption did not relieve the master or coxswain of the obligation to comply with the COLREGs or to exercise prudent seamanship in determining a safe speed.

K2.  Captain Dominic Bell [104]

426.  Captain Dominic Bell emphasised that COLREGs govern all vessels at all times. Rule 6 (safe speed) and Rule 5 (proper lookout) impose overriding duties that cannot be displaced by local legislation or permits.

427.  He considered that the Speed Restriction Exemption Permit system in force in 2012 placed undue weight on administrative compliance and insufficient emphasis on real-time judgment and seamanship. He regarded the Permit’s crew-qualification requirements as inadequate, noting that two years’ experience could not properly substitute for structured accreditation such as a Type Rating Certificate.

428.  He further criticised the drafting of the radar-certificate condition, which required only one crew member to hold the qualification. In his view, the coxswain, being the person in charge of navigation, should have been expressly required to hold the certificate, and a dedicated lookout should have been required at night or at high speed.

429.  Referencing the High-Speed Craft Code and practices at the Port of Southampton, he noted that other jurisdictions exercise closer and more dynamic control, often involving real-time authorisation. He observed that the Hong Kong system, although procedurally sound, did not adequately ensure that the operational requirements of safe speed were met.

430.  Captain Bell accepted that some of Captain Ayling’s additional radar considerations were correct but stated they were immaterial to the circumstances of the night in question. He maintained that Sea Smooth was not a high-speed craft under the international code and therefore rejected the relevance of Captain Ayling’s lighting observations.

431.  Captain Bell also rejected Captain Ayling’s concerns about the Southampton comparison, stating that he had been instructed to identify “equivalencies” and that the Red Jet ferries met that criterion.

K3.  Captain Jeremy Ayling[105]

432.  Captain Jeremy Ayling broadly agreed with Captain Bell’s analysis of COLREGs. He emphasised that COLREGs remain paramount and that the duties of safe speed and proper lookout cannot be displaced by any local exemption.

433.  He explained the limitations of radar fitted to vessels such as Sea Smooth, noting that the low scanner height reduced effectiveness, thereby increasing the importance of continuous visual lookout. He corrected certain matters in Captain Bell’s report, including the latter’s reference to Cap. 313E, which had been repealed by the time of the collision. Captain Bell defended his reference to Cap. 313E, explaining that it was in force when Sea Smooth was built.

434.  Captain Ayling regarded Marine Department Notice 124/1998 requiring applicants for a Speed Restriction Exemption Permit to submit records confirming two years’ operating experience as a sufficient local requirement for coxswains on domestic routes.

435.  Although he accepted that the wording of the radar-certificate condition could have been clearer, he considered the system operationally sound, as coxswains generally remained on the bridge throughout the voyage and were typically the certified radar operators.

436.  Captain Ayling disagreed with Captain Bell’s comparison with the Port of Southampton, stating that Hong Kong waters are far busier, more open, and subject to different topographical constraints, making a case-by-case system impracticable.

437.  In conclusion, Captain Ayling regarded the Speed Restriction Exemption Permit system as proportionate to Hong Kong’s operating environment and consistent with the overarching duty of safe speed under the COLREGs.

K4.  Consideration of Expert Opinions on Navigational Speed

438.  The opinions of Captain Bell and Captain Ayling are best understood as complementary: one approaching the matter from the standpoint of international best practice, the other from the operational realities of Hong Kong’s busy and constrained waterways. Together, their evidence provides a clear basis for assessing the regulation of navigational speed and the adequacy of the then-existing permit system.

439.  COLREGs, and in particular Rule 6, impose an overriding duty to proceed at a safe speed at all times. That obligation cannot be displaced by any local exemption and remains a personal responsibility of the master or coxswain. It is the ultimate safeguard against excessive speed.

440.  Experience alone may not ensure navigational competence. Structured training, such as the Type Rating Certificate or the Fast-Speed Passenger Vessel Endorsement, affords a higher level of assurance that those operating high-speed ferries have the professional skills required to make safe-speed judgements.

441.  Electronic aids, including radar, do not displace the primary duty to maintain an effective visual lookout. Vigilance, situational awareness, and sound seamanship remain essential elements of safe navigation.

442.  The Speed Restriction Exemption Permit system in force in 2012 was not inherently unsafe, but it placed insufficient emphasis on continuing training, radar proficiency, and lookout discipline, matters central to the effective discharge of the safe-speed obligation.

443.  The measures introduced by the Marine Department since the 2012 collision, most notably the Fast-Speed Passenger Vessel Endorsement Scheme, mandatory radar training, and strengthened lookout requirements, have substantially addressed the shortcomings identified by the experts.

K5.  Findings on Navigational Speed

444.  Although navigational speed was a critical factor in the severity of this tragedy, the underlying regulatory system was not in itself defective. The collision resulted from a failure to comply with the overriding obligations under COLREGs, rather than from any deficiency in the Speed Restriction Exemption Permit system. The reforms subsequently implemented by the Marine Department have materially strengthened the system which is now consistent with international standards while remaining suited to the practical realities of Hong Kong waters. Ultimately, no exemption, permit condition or training requirement can relieve a coxswain of the absolute duty to proceed at a safe speed and to always maintain a proper lookout.

L.  Integration of Findings: Broad Circumstances and Systemic Deficiencies

445.  Having dealt with the issue of navigation speed, I now look at how the six issues identified by the Court of Appeal fit into the regulatory design basis that applied at the time of the deaths. This section does not revisit the findings of the COI. Instead, it focuses on the watertight subdivision of Lamma IV and the design standards required by the regulations at the time, as this is central to understanding the broad circumstances of the deaths. The other issues identified by the Court of Appeal were considered elsewhere in this Verdict but did not materially change the overall circumstances in which the deaths occurred.

L1.  Watertight Subdivision and the Broad Circumstances of the Deaths

446.  Considerable attention at this Inquest was directed to the absence of a watertight door in the bulkhead at Frame ½, an issue originally highlighted in the COI Report, which found that the rapid sinking of Lamma IV was materially attributable to that omission. This Court does not depart from, or seek to revisit, that finding, which was made in the context of identifying the factors contributing to the speed of Lamma IV’s sinking.

447.  The focus of this Inquest, however, extends beyond the cause of the rapid sinking to include the broader and more complete context of the vessel’s design intent, the regulatory requirements in force at the time and the rationale for the absence of a watertight door in the construction of Lamma IV. When viewed within that broader context, it becomes evident that the omission of a watertight door at the Frame ½ Bulkhead did not constitute a design error nor amount to a breach of the regulatory requirements in force at the time.

448.  At the material time, Lamma IV was required to meet the one-compartment flooding standard following the assumed extent of damage. Dr Armstrong observed that this was a standard commonly applied internationally to local vessels.[106] There was no regulation requiring a watertight door at any particular bulkhead, including the Frame ½ Bulkhead. The requirement under the Blue Book and Cap. 369AM permitted flexibility in subdivision arrangements, provided the damage stability calculations demonstrated compliance. It was on this basis that both Mr Chan See Yin and Mr Chick King Fai confirmed that the fitting of a watertight door at the Frame ½ Bulkhead was optional and that its absence did not affect Lamma IV’s compliance with the regulatory requirements in force at the material time.

449.  Neither the Next of Kin nor the Marine Department identified any regulation requiring the Frame ½ Bulkhead to be watertight, nor any rule breached by its removal in 1994 and 1995. Their criticism focused instead on the consequence of the collision namely, that flooding extended across two compartments, and on the argument that the 0.1L Rule was merely a calculation tool. They further suggested that the decision to replace the watertight door fitted on the basis ship Eastern District No. 1 with an Access Opening on Lamma IV was improper. However, this post-event reasoning does not establish that any regulatory requirement was contravened at the time of design and construction.

450.  Dr Armstrong confirmed that Lamma IV, as built in 1995, satisfied the one-compartment flooding standard. That position changed after 8.25 tonnes of lead ballast were added in 1998, resulting in an increase of around 30 per cent of the vessel’s lightship weight. The additional ballast increased displacement and reduced residual buoyancy. Had the 0.1L Rule been correctly applied in the 1998 or 2005 Damage Stability Calculations, it would have shown that Lamma IV no longer met the one-compartment flooding standard, as the margin line would have become immersed. Accordingly, by the time of the collision in 2012, Lamma IV, though designed and approved for one-compartment flooding, was no longer compliant with that standard.

451.  Dr Armstrong explained that, once non-compliance arose after 1998, the proper way to restore compliance with the one-compartment flooding standard would have been either to reduce the ballast or to fit buoyancy boxes aft of the transom. [107]   Mr Wong Wing Cheun, Senior Surveyor of Ships confirmed that such measures could have been adopted and that the Marine Department would have accepted them. He also confirmed that, had any such measure been taken so that the margin line would not be immersed, the revised ballast arrangement would have been approved by the Department.[108]

452.  Dr Armstrong further stated that installing a watertight door at the Frame ½ Bulkhead was not an appropriate solution.[109] Mr Anthony York likewise accepted that, since the 0.1L Rule required the Steering Gear Compartment and the Tank Room to be treated as a single space for calculation purposes, installing a watertight door would not have corrected the underlying deficiency. Accordingly, even if the Damage Stability Calculations in 1998 or 2005 had been identified as erroneous, any remedial measure would have been directed towards re-establishing compliance with the one-compartment flooding standard rather than converting Lamma IV into a two-compartment flooding vessel by installing a watertight door at the Frame ½ Bulkhead. Put simply, even if the errors had been detected and rectified, Lamma IV would still have remained a vessel designed, and approved, to withstand flooding of only one compartment.

453.  Dr Renilson[110] and Mr Simon Burthem confirmed that, had Lamma IV remained in her original 1996 lightship weight, without the addition of lead ballast, the Damage Stability Calculations showed that her margin line would not have been submerged in a one-compartment flooding scenario. Nonetheless, they agreed that the vessel would still have sunk following the 2012 collision, albeit between 20 and 60 seconds later, a delay that would still have been insufficient to permit safe evacuation. This evidence is consistent with the assessment that the decisive factor was that Lamma IV, a one-compartment flooding vessel, was subjected to a two-compartment damage, an extent of damage more characteristic of an ocean-going vessel than one operating within Hong Kong sheltered waters.

454.  In his report, [111] Dr Armstrong observed that a vessel’s survivability depended upon compliance with the watertight subdivision standards prescribed by regulation. He confirmed that the regulations required Lamma IV to withstand flooding of one compartment only. The collision between Lamma IV and Sea Smooth caused two-compartment flooding, an extent of damage beyond the standard Lamma IV was required, or expected, to survive.

455.  Dr Armstrong also observed that the effect of the missing watertight door “would not have been catastrophic if only one compartment on Lamma IV had been damaged, as postulated by the regulation.” [112] Dr Armstrong’s evidence underscores that the rapid sinking, while accelerated by the absence of the watertight door, ultimately occurred because a vessel designed to survive flooding of a single compartment sustained damage across two. The watertight door’s absence thus became consequential only within that extraordinary damage scenario, one that exceeded both the vessel’s design basis and the regulatory assumptions then applicable. Within that context, the COI’s finding that the lack of a watertight door contributed to the rapid sinking can be understood as reflecting that extraordinary damage scenario.

456.  During the Inquest, Mr Chick King Fai said that Lamma IV “never had a chance” in reference to the fact that it was built to a one-compartment flooding standard but suffered a collision involving two compartments. Counsel for the Next of Kin relied on this to argue that the Marine Department still fails to acknowledge past shortcomings. I do not agree with that interpretation. Mr Chick’s remark was a factual description of the reality that the damage sustained by Lamma IV exceeded the vessel’s design standard.

457.  On the evidence, Lamma IV, as a vessel designed to the one-compartment flooding standard, could not have survived the damage sustained in the 2012 collision. Evidence at this Inquest showed that, under the regulatory requirement applicable at the time of design, the aft spaces were required to be assessed together for damage stability purposes. Even if the watertight door at the Frame ½ Bulkhead had been retained, it would not have been taken into account for regulatory assessment and would have had no practical utility except in a casualty scenario beyond that contemplated by the applicable standard.

458.  Mr Chan See Yin confirmed that Lamma IV was only required to comply with that standard and was not obliged to meet the higher standard applicable to vessels designed for two-compartment flooding.

459.  Accordingly, although the absence of a watertight door at the Frame ½ Bulkhead contributed to the rapid sinking of Lamma IV, it neither constituted a design error nor contravened the applicable regulatory requirements, including the one-compartment flooding standard and the 0.1L Rule.

L2.  Systemic Deficiencies

460.  The significance of the watertight door issue therefore lies not in the absence of the door itself, but in what its absence reveals about the Marine Department’s shortcomings as the regulatory gatekeeper prior to 2012.

461.  The approval of the Revised GA in 1995 shows a reliance on assumption rather than verification. Mr Leung Kwong Chow, Ship Inspector, inserted 15 printed comments, including Comment 2 referring to Blue Book compliance. He explained that these were general remarks relating to routine penetrations for cables and pipes; he did not regard himself as having the authority to approve drawings. Mr Leung had only reviewed Sheet 2 of the Sections and Bulkheads drawing and had not seen Sheet 1, where the Access Opening at the Frame ½ Bulkhead was shown. Therefore, he had no reason to be aware of any inconsistency in the drawings with regard to the watertightness of the Frame ½ Bulkhead. The COI accepted that, having regard only to the material then available to Mr Leung, there was nothing to alert him to the conflict that arose from the drawings.[113]

462.  Mr Wong Chi Kin, who approved the Revised GA, dealt with the comments on that drawing in a manner that shows a shortcoming in the approval process. He approved both the handwritten and the 15 printed comments inserted by Mr Leung Kwong Chow on the Revised GA.

463.  At the Inquest, Mr Wong accepted that the Revised GA did not show a watertight door at the Access Opening in the Frame ½ Bulkhead. Nevertheless, he explained that he understood such a door would be fitted. That understanding was based on the printed Comment 2 inserted by Mr Leung Kwong Chow, which required compliance with the Blue Book. Mr Wong considered that such compliance required any access opening fitted in a watertight bulkhead to be provided with an efficient closing appliance.

464.  In reaching that view, Mr Wong relied on other drawings which showed the Frame ½ Bulkhead to be watertight. Taken together with the requirement in paragraph 12(v) of the Blue Book, he therefore assumed that the Access Opening at the Frame ½ Bulkhead would be fitted with a watertight door, notwithstanding that no such door was shown on the Revised GA.

465.  Although both Mr Leung and Mr Wong were concerned with ensuring watertight integrity, the purpose for which Comment 2 was inserted by Mr Leung differed from the purpose for which Mr Wong later relied upon it. Mr Leung’s concern was directed to hull penetrations, whereas Mr Wong understood the same comment as addressing the Access Opening in the Frame ½ Bulkhead. As a result, Comment 2 was capable of having different meanings to different officers within the approval chain.

466.  This shows a systemic deficiency in which broad, generalised references to Blue Book compliance, including numerous and disparate requirements, were treated as a substitute for clear, drawing-specific identification of critical watertight features. Where the fitting of a watertight door was intended, it should have been explicitly shown on the approved drawing, rather than left to assumption and expectation.

467.  The Safety Plan, approved by Mr Wong on 4 March 1996, showed in detail Lamma IV’s internal arrangements, including the seating layout, the location of the engines in the Engine Room, the bench table and berth in the Crew Space, and the locations of tanks in the Tank Room. The Underdeck Plan also identified the locations of safety equipment within the hull, including dry powder and foam fire extinguishers, smoke detectors and fire hydrants. Taken together, this demonstrated that the layout of the underdeck spaces was being presented on an “as fitted” basis.

468.  The same plan clearly showed an Access Opening between the Steering Gear Compartment and the Tank Room without any watertight door. Given the level of detail shown, the absence of a watertight door at that location should reasonably have been apparent. Nevertheless, despite his expectation at the time of approving the Revised GA in May 1998, that a watertight door would be fitted at the Access Opening, Mr Wong approved the Safety Plan without raising any query, making any annotation, or requiring that such a door be fitted.

469.  In these circumstances, the depiction of an Access Opening between the Steering Gear Compartment and the Tank Room was inconsistent with any earlier expectation that a watertight door would be installed. The omission of such a door on a Safety Plan that otherwise recorded detailed safety arrangements should have prompted inquiry or clarification as to whether a watertight door had in fact been intended.

470.  At the Inquest, Mr Wong stated that he nonetheless expected the Access Opening shown on the Safety Plan to comply with the Blue Book and to be fitted with a watertight door. In matters of safety, however, an expectation that is neither recorded nor raised on the approved Safety Plan cannot be relied upon.

471.  A similar pattern of approval based on assumptions rather than verification is also seen in the Marine Department’s handling of the 1996 Damage Stability Calculations. Those calculations, prepared by Mr Cheung Fook Chor, incorrectly treated the Steering Gear Compartment and the Tank Room as separate watertight spaces and omitted application of the 0.1L Rule. These errors were not identified at the time of approval, although Lamma IV nonetheless met the one-compartment flooding standard then applicable.

472.  Mr Ho Kai Tak, a ship inspector of the Marine Department who witnessed the Inclining Experiment of Lamma IV on 31 January 1996 and examined the 1996 Damage Stability Information Booklet submitted by Cheoy Lee, proceeded on the assumption that there was a watertight bulkhead between the Steering Gear Compartment and the Tank Room. That assumption was derived from the Revised GA and from the understanding that any access opening in a watertight bulkhead would be required to be sealed by a watertight door. On that basis, Mr Ho marked the 1996 Damage Stability Information Booklet “Seen” on 26 July 1996.

473.  Mr Ho did not attend the Inquest and declined to provide any information to the Police.[114] His evidence was therefore derived from what he said at the COI.[115] Mr Ho said he was not aware of the 0.1L Rule. In line with that, he did not apply the 0.1L Rule, nor did he notice that it had not been applied in the submitted calculations. He also did not notice that the 1996 Damage Stability Information Booklet incorrectly stated the length of the Steering Gear Compartment as 0.87 metres, when in fact it was 1.625 metres.

474.  The endorsement of the 1996 Damage Stability Information Booklet by Mr Leung Wai Hok, Surveyor of Ship of the Marine Department, likewise proceeded on the assumption that the Steering Gear Compartment and the Tank Room were separated by a watertight bulkhead. No step was taken at that stage to verify whether that assumption accorded with the vessel’s actual configuration. Like Mr Ho, Mr Leung was not alerted to the fact that the calculations did not apply the 0.1L Rule nor did Mr Leung consider applying it when endorsing the 1996 Damage Stability Information Booklet.

475.  When 8.25 tonnes of lead ballast were added in 1998, the 1996 Damage Stability Calculations were reused as a template, thereby repeating the same underlying errors. Mr Mak Yat Wai, the ship inspector who witnessed the Inclining Experiment on 2 April 1998, proceeded on the assumption that, as Lamma IV was not a new vessel, it had been constructed in accordance with the approved drawings. He accepted the 1998 Damage Stability Information Booklet, which treated the vessel as having six watertight compartments, and entered the data into the Marine Department’s stability software, producing a printout for onward submission. At the Inquest, Mr Mak accepted that he did not know of the 0.1L Rule in 1998 and only became aware of it after the 2012 collision.

476.  The calculations and printout prepared by Mr Mak were subsequently endorsed by Mr Choi Chi Chuen, Surveyor of Ships. Although Mr Choi was aware of the 0.1L Rule, he did not identify any issue arising from its application to Lamma IV, being satisfied that the calculations showed a positive metacentric height value in excess of 0.05 metres and that the margin line was met for each compartment. He assumed that compliance with the applicable stability requirements had been addressed by the ship inspector and, on that basis, endorsed the Damage Stability Information Booklet with the “Seen” chop on 13 January 1999. He also did not notice that the length of the steering gear compartment was stated as 0.87 metres, when it should have been 1.625 metres.

477.  The recorded lightship weight after the 1998 ballast addition was illogically lower than the 1996 figure. No follow-up occurred. This illustrated a reliance on previous documents as authoritative without checking whether they remained accurate.

478.  The approval of the 1998 Damage Stability Calculations therefore repeated the same pattern of approval based on assumptions rather than verification, with reliance placed on prior approvals, without identification of the continued non-application of the 0.1L Rule or reconsideration of the compartmental assumptions underlying the calculations.

479.  The same pattern is evident in the approval of the 2005 Stability Booklet following the raising of lead ballast. Mr Chau To Yui, ship inspector, attended the Inclining Experiment on 19 July 2005. The Stability Booklet dated 21 July 2005 was prepared by Mr Kwong Hing Yin of Cheoy Lee on the basis of information provided by Mr Cheung Fook Chor and proceeded on the assumption that all six compartments were watertight. On that basis, the calculations produced a satisfactory residual metacentric height and showed that the margin line was not submerged. Mr Kwong stated that he was not aware of the 0.1L Rule, and the COI accepted that it was reasonable for him to rely on information provided by Mr Cheung Fook Chor.[116]

480.  Mr Chau To Yui checked the 2005 calculations against the 1998 Stability Booklet and identified no issue of significance other than changes to the lightship weight and vertical centre of gravity, which he drew to the attention of his superior, Mr Barry Liu Chiu Fai, then Senior Surveyor of Ships. Mr Liu vetted and approved the 2005 Stability Booklet, being satisfied that the residual metacentric height exceeded 0.05 metres and that the margin line requirement was met, and noting no inconsistency with the earlier calculations. Although Mr Liu was aware of the 0.1L Rule, he was not alerted by the contents of the 2005 Stability Booklet to any issue arising from its application, accepting that he relied on what had gone before.

481.  The approval of the 2005 Stability Booklet therefore proceeded on the same underlying assumptions as the earlier approvals, with reliance placed on prior calculations and acceptance of satisfactory metacentric height and margin line values, rather than verification of whether the compartmental assumptions on which the calculations were based remained valid or whether the 0.1L Rule required reconsideration.

482.  As a result, assumptions replaced confirmation. There was no effective internal safeguard to prevent technical errors from being repeated. From 1996 to 2005, the same fundamental error of treating the Steering Gear Compartment and the Tank Room as separate watertight compartments was repeated in every set of calculations without detection. The mandatory 0.1L Rule was never applied. The approval process failed to operate as an effective check against those errors.

483.  In 1996, both the mistaken assumption that the Steering Gear Compartment and the Tank Room were separated by a watertight bulkhead, and the failure to apply the 0.1L Rule, had no practical effect on Lamma IV’s compliance with the one-compartment flooding standard. At that stage, Lamma IV satisfied the damage stability requirements then in force. However, after the addition of lead ballast in 1998, those same errors became material. As a result, Lamma IV, which had been compliant upon construction, became non-compliant following modification in 1998, yet continued in passenger service under a false assurance of safety.

484.  However, the systemic deficiency of the Marine Department did not lie in its failure to convert Lamma IV into a two-compartment flooding vessel. The expert evidence, including that of Dr Armstrong and Mr Anthony York, was clear that, having regard to the 0.1L Rule, such a course was neither required by the applicable regulatory standards nor achievable by the simple addition of a watertight door at the Frame ½ Bulkhead.

485.  Even if the contradictions in the drawings and the errors in the Damage Stability Calculations had been identified at the time, whether arising from Mr Cheung Fook Chor’s work or otherwise, the appropriate regulatory response would not have been to seek to confer two-compartment survivability on Lamma IV. The corrective steps would instead have been directed to restoring and ensuring compliance with the one-compartment flooding standard applicable to the vessel.

486.  Accordingly, the real systemic deficiency of the Marine Department was not its failure to ensure that Lamma IV was a two-compartment flooding vessel capable of surviving a two-compartment damage scenario, but the mistaken assurance it gave, namely that Lamma IV continued to comply with the one-compartment flooding standard after 1998.

L3.  Measures and Reforms since the COI

487.  Mr Chan See Yin, provided a comprehensive account of the reforms implemented by the Marine Department following the Lamma IV tragedy. These included reforms to its training, licensing, survey and safety practices.

488.  The Fast Speed Passenger Vessel Scheme, effective from January 2023, replaced the former experience requirement for high-speed vessels with a competency-based system. Coxswains and engine operators on vessels above 20 knots must now complete crisis-management training, in-house assessments, a navigation attitude course, and hold a Fast Speed Passenger Vessel endorsement.

489.  Licensing and manning requirements have also been tightened. High-speed vessels must carry a certificated coxswain with the Fast Speed Passenger Vessel endorsement, and a radar-trained operator must be on board whenever the vessel is underway. Vessels carrying more than 100 passengers, and all high-speed craft, must carry an additional lookout in accordance with the revised Code of Practice issued in November 2014.

490.  To improve construction oversight, an Inspection Testing Plan was introduced in August 2025 for Class I passenger vessels and certain Class II cargo vessels, requiring all inspections and tests during construction to be planned and documented before the initial survey. The Certificate of Survey has also been updated to record clearly the date and nature of periodic surveys within the cycle.

491.  Between 2012 and 2016, the Department reviewed and implemented recommendations from the COI, the Secretary for Transport and Housing, external experts, and independent reviewers. These measures led to improvements in plan approval, survey standards, navigation practices, crew training, manning and equipment requirements.

492.  Mr Chan described a comprehensive enhancement of the Department’s training and competency regime. A multi-layered system has been implemented to ensure technical proficiency and professional accountability among ship inspectors. This includes a structured induction programme, competency schemes specific to new construction and existing vessel surveys, and a Naval Architecture Mentorship Programme introduced in 2022 to strengthen specialist expertise. He further noted that surveyors and inspectors are now subject to defined entry requirements, mandatory assessments, and confirmatory training before assuming approval responsibilities.

493.  Mr Chan also reported on three major initiatives demonstrating the Department’s ongoing commitment to marine safety:

1.  The establishment of a Local Safety Management (LSM) regime for local vessels, implemented on a voluntary basis from the third quarter of 2024.

2.  The revalidation of Local Certificates of Competency (LCOC) with mandatory medical fitness assessments for coxswains from June 2025.

3.  The enactment of the Marine Safety (Alcohol and Drugs) Ordinance, effective from 1 January 2025, following extensive public consultation and legislative work.

494.  Following the findings of the COI, Cheoy Lee also implemented a series of internal reforms to strengthen design control, quality assurance, and accountability in the vessel construction process. First, Cheoy Lee introduced a mandatory written communication protocol for all design changes. Any alteration to the approved design of a vessel, however minor, must be conveyed to the vessel owner in writing. This ensures that no modification proceeds on verbal instruction and that all parties remain informed of any change in design intent. Secondly, Cheoy Lee instituted a system of verification, requiring both the Head of the Design Department and the Head of the Engineering Department to confirm that each vessel is constructed in accordance with contractual specifications and the plans approved by the Marine Department. Thirdly, Cheoy Lee and its associated shipyard have obtained ISO 9001:2015 and ISO 45001:2018 certification for management system standards, confirming that they have established and maintained effective systems for the design, construction, and servicing of steel, aluminium, and fibreglass composite vessels and their associated components. These certifications demonstrate the adoption of recognised international benchmarks for quality and occupational safety management.

495.  In addition, Cheoy Lee has established an internal control system for verifying stability calculations. Under this process, the employee responsible for preparing stability data is provided with a full set of approved drawings for cross-referencing. The Head of the Design Department conducts independent checks of the stability calculations against those drawings, and further verification is carried out through site inspections to ensure that the calculations correspond to the vessel’s as-built configuration.

496.  Hongkong Electric has since introduced several measures to strengthen the safety of its new launches. For vessels launched after Lamma IV, Hongkong Electric has introduced several safeguards: the positions of bulkheads separating each watertight compartment are now marked externally on the hull, with additional rubber fenders fitted to reduce the risk of simultaneous damage to adjacent compartments; and an independent naval architect is engaged to review and cross-check the static, dynamic and damage stability of every new vessel, providing an added layer of technical assurance at the design stage.

M.  Recommendations

497.  It is acknowledged that many of the deficiencies exposed by the Inquest related to practices that occurred between ten and thirty years ago. It is also recognised that substantial progress has since been made by Hong Kong Electric, Cheoy Lee and notably, the Marine Department.

M1.  Marine Department

498.  In light of the extensive reforms carried out by the Marine Department following the reports of the COI, the Transport and Housing Bureau,[117] and various experts and professionals in the field, the recommendations that follow do not call for major new changes. They are intended to fine-tune what is already in place, so that the improvements made over the past years continue to operate effectively in day-to-day practice.

499.  The following recommendations are made to the Marine Department:

(1)  The Marine Department to continue regular engagement with shipbuilders, operators and professional bodies to ensure that the practical application of rules and regulations is clearly understood. This may include issuing simple guidance notes or clarification where recurring areas of misunderstanding are identified.

(2)  The Marine Department to implement a declaration system requiring vessel owners, before each periodical survey, to confirm whether any alterations have been made since the previous survey, so that modifications are properly recorded and regulated.

(3)  The Marine Department, in consultation with major ferry operators, continue to review the working hours and rest arrangements of seafarers. This review should concentrate on identifying fatigue risks observed in day-to-day operations instead of introducing new fixed rules.

(4)  The Marine Department should continue to use the Local Vessels Advisory Committee as the forum for ongoing discussion of seafarers’ working hours and rest arrangements. In doing so, the Marine Department should ensure that the Committee’s discussions remain focused on fatigue risks observed in day-to-day ferry operations, the practical effectiveness of existing working arrangements, and the experience of operators and seafarers.

M2.  Cheoy Lee and Other Shipyards Constructing Class 1 vessels

500.  Any recommendations for Cheoy Lee would have limited value if they were confined to a single shipyard. Other than Cheoy Lee, there are other shipyards that also design and construct Class I vessels in Hong Kong. The matters identified in this Inquest would not be unique to Cheoy Lee. While the other shipyards were not parties to this Inquest, the following recommendations can be brought to their attention through the Marine Department, as the regulatory body responsible for plan approval, surveys and oversight of new vessel construction. Circulating these recommendations through the Marine Department would allow these recommendations to be applied to all shipyards engaged in the construction of Class I vessels.

501.  The following are recommendation to Cheoy Lee and all shipyards constructing Class 1 vessels:

(1)  The shipyard to notify the Marine Department of any alteration made to a vessel after construction approval, irrespective of whether the change affects the vessel’s structure or stability.

(2)  The shipyard to adopt a formal “Inspection and Test Plan” (“ITP”) for every vessel under construction. The ITP should provide a comprehensive list of all items requiring inspection and testing, specifying the method, timing and responsible personnel for each stage.

(3)  The shipyard to maintain a clear and up-to-date organisational chart that defines the duties and reporting lines of staff involved in vessel design, stability calculations and construction supervision, so that staff understand their respective responsibilities.

(4)  The shipyard to implement and maintain a Document Control System to ensure that all design and construction drawings are properly updated and cross-checked.

(5)  The shipyard to maintain a central archive of all design drawings, stability data, approval correspondence and inspection records for the full-service life of each vessel and ensure that these records are readily accessible to staff responsible for stability calculations.

M3.  Hongkong Electric 

502.  Hongkong Electric was the owner and end-user of Lamma IV at the time of the accident. The Court makes the following recommendation for Hongkong Electric, notwithstanding it has since engaged its own independent marine consultant:

(1)  Hongkong Electric to establish a formal Vessel Acceptance and Handover Procedure to ensure that every new vessel is independently verified for compliance with contractual specifications and Marine Department-approved drawings. The verification should confirm that the as-built condition matches the approved plans, with particular attention to watertight integrity and stability features.

M4.  HKKF and Other Licensed Ferry Operators Providing Scheduled Passenger Services of Comparable Capacity

503.  The Court recognises that shortage of manpower is a genuine and persistent problem, compounded by HKKF’s duty to meet the scheduled services required under its Transport Department licence to serve the outlying-island communities. There was evidence that manpower shortage has been an industry-wide issue affecting the local passenger ferry sector. The Court therefore accepts that this is a complex issue involving multiple stakeholders and regulatory, operational and socio-economic considerations, many of which fall outside the scope of this Inquest.

504.  The following recommendations to HKKF and other licensed ferry operators providing scheduled passenger services of comparable capacity (“the Relevant Operators”) are directed at promoting vigilance, continuing dialogue and the development of measures to manage fatigue proactively within the constraints of operational reality:

(1)  The Relevant Operators to reinforce fatigue-awareness among its seafarers through periodic briefings, ensuring that coxswains and crew are fully aware of the risks of working while fatigued and of their responsibility to declare unfitness for duty when necessary.

(2)  The Relevant Operators to maintain open channels for seafarers to raise fatigue-related concerns without fear of penalty, ensuring concerns can be reported at any time.

(3)  The Relevant Operators to implement a routine process for gathering feedback from its seafarers on working hours and fatigue, so that the issue remains actively monitored.

(4)  The Relevant Operators to continue to provide regular navigation and radar training for its coxswains and crew, reinforcing safe operating practices appropriate for high-speed passenger vessels.

N.  Referral to the Department of Justice

505.  During the Inquest, a significant inconsistency arose between the evidence given by Mr Leung Wai Hok, Senior Surveyor of Ships of the Marine Department, and the account he had provided in his 2013 witness statement[118] and oral evidence before the COI. [119] At the Inquest, Mr Leung said he had no knowledge of the 0.1L Rule in 1996, had never applied it, had not taken part in drawing approval, and only learnt about the 0.1L Rule after the 2012 collision. He also said that, at the time, he was new to the Marine Department, did not understand the system and that the Damage Stability Booklet had simply been placed in his tray. This is very different from the evidence he gave in 2013. In his COI witness statement and oral evidence, Mr Leung described his duties as a Surveyor of Ships, including supervising ship inspectors, vetting plans and stability calculations, and carrying out certification work. He said he had checked and vetted the Inclining Experiment and Stability Calculation Booklet and the Damage Stability Information Booklet for Lamma IV in 1996 and accepted that the signatures dated 26 July 1996 were his. He also gave a clear explanation of the 0.1L Rule, cited paragraph 15 of the Blue Book and accepted that the 0.1L Rule applied to Lamma IV.

506.  He further explained to the COI that although the Damage Stability Booklet treated the Steering Gear Compartment and Tank Room as separate spaces, he had considered three possible courses of action and chose to assess whether the vessel would still meet the stability requirement if the two spaces were treated as a single compartment. He said he believed it would, based on the metacentric height figures, the compartment volumes, and the large reserve margin in freeboard. When this earlier evidence was put to him at the Inquest, he could not explain why he had said he was unaware of the 0.1L Rule and claimed he could not recall whether he had known of it or not.

507.  Given Mr Leung’s qualifications as a naval architect, his previous work as a Ship Surveyor with Lloyd’s Register of Shipping and the clarity of his earlier statement and evidence on the 0.1L Rule, the Court considers that this inconsistency cannot reasonably be explained as a lapse of memory or a misunderstanding. The contradiction raises a serious question as to whether the evidence he gave under affirmation at the Inquest was truthful. In these circumstances, I consider it appropriate to refer the matter to the Department of Justice for such consideration and action as it may think fit.

O.  Epilogue

508.  The Court acknowledges the profound loss suffered by the families and loved ones of the 39 persons who perished in this disaster. No verdict or recommendations can erase that loss, but it is hoped that the findings of this Inquest will provide some measure of understanding and assurance that lessons have been learned.

509.  With the conclusion of this Inquest, it is hoped that the 39 lives lost on 1 October 2012 will continue to remind all concerned, builders, regulators, operators and the community, of the continuing obligation to maintain the highest standards of maritime safety and vigilance.

510.  Finally, the Court expresses its gratitude to the experts for their contributions, the Hong Kong Marine Police for their investigation, and the Coroner’s Officers, counsel and solicitors for their conduct and assistance in this case involving complex shipping technicalities.