ELENI MARITIME LTD (MARSHALL ISLANDS REGISTRATION NO 62043) v. HEUNG-A SHIPPING CO LTD AND OTHERS

HCAJ 189/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 189 OF 2013

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D E C I S I O N

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1. This is the plaintiff’s application under Order 75 for a decree of limitation of liabilities.

2. Mr Sussex SC acts for the 1^st defendant, who has not served its acknowledgement of service of the writ or the acknowledgement of issue under Order 75 rule 3(6) RHC.  On this basis, Mr Wright, counsel for the plaintiff submits that 1st defendant has not the right to be heard.

3. Mr Sussex SC advises me today that the reason for the non- service of the acknowledgement of issue is late notice to the 1^st defendant, which was served yesterday when he was in court.  However, he submits that the 1st defendant wishes to reserve its rights for discovery of information to find out the cause of the accident in order to determine whether the 1^st defendant should oppose the application, this being the right under Order 75 rule 38(6) RHC.  If the Court were to grant time to the 1^st defendant for this purpose, the matter should be adjourned to the Admiralty Judge.

4. Mr Wright argues that the Court should grant the decree now because the 1^st defendant has the opportunity of making application to set aside the order made under rule 40.  Against this proposal, Mr Sussex SC submits that it will affect the 1^st defendant’s right of discovery.

5. Mr Sussex SC also submits that paragraph 4 of the summons asks this Court to grant an injunction against the defendants, which this Court has no jurisdiction under Order 32 rule 11 RHC.  Mr Wright concedes that the plaintiff will not ask the Court to make an order in terms of paragraph 4.  But the Court should, nevertheless, make an order granting the decree of limitation of liability.

6. Miss Tang, solicitor acting for the 2^nd defendant and 3^rd defendant submits that there is still time for applications to be made.  She has no strong view one way or another.

7. Mr Lau is an employee of the 4^th defendant.  He does not have leave from court to represent the 4^th defendant.

8. It seems apparent that 1st defendant is going to dispute this application.  It will reserve its right to make discovery under this action. If the Court makes the order, its right may be affected. It also argues that there has been procedural unfairness because the plaintiff has failed to serve the writ on the 1^st defendant long after the issuance of the writ.

9. According to the case referred to me by Mr Wright, viz. The Equator Crystal [1998] 4 HKC 568, Mr Justice Waung held that if the application is contested, the matter should be referred to the Admiralty Judge for determination.

10. I have specifically asked Mr Wright if the matter is adjourned today, what prejudice will it cause to the plaintiff?  Mr Wright is unable to give me any real prejudice other than that it will incur more costs.

11. Balancing the plaintiff’s prejudice with the submissions of the 1^st defendant’s, I consider that it will be just for the matter to be adjourned to the Admiralty Judge for determination.  The 1^st defendant should be given 7 days to file and serve the acknowledgement of issue.

12. The costs of today will be reserved for the determination of the Admiralty Judge.