THE OWNERS OF THE SHIP OR VESSEL "EASTERN CHALLENGER" v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESSEL "RITHI BHUM"

HCAJ196/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.196 OF 2004

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Admiralty action in rem against the ship or vessel
“RITHI BHUM”

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J U D G M E N T

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1. This is a contested discovery application which had been adjourned from a previous hearing.  It arose out of a collision between the plaintiffs’ vessel and the defendants’ vessel at night where there was suggested to be overtaking by the defendants’ vessel of the plaintiffs’ vessel thereby causing not only substantial damage to the plaintiffs’ vessel, but the loss of that ship.

2. The large dispute between the plaintiffs and the defendants is in relation to the contemporaneous data which normally ought to exist on the defendants’ vessel and which would cast substantial light on the navigational aspect and the step taken by the defendants in relation to that accident.  Some of the data requested are not available or in a form that is not satisfactory to the plaintiffs. 

3. A summons was issued, dated 25 May 2006, consisting of paragraph 1 with eight items and paragraph 2 with two items.  In the course of the submissions before me today, it would appear that some of the matters have now taken a different turn and I will deal with each subject matter of the discovery in turn. 

4. I will first deal with the question of the master’s statement to the German authority “BSU”.  The defendants said there was no such statement made by the master to the German authority.  There was already disclosed the second officer’s statement as well as the owner’s report to the BSU.  It seems to me that in the light of the assertion of the defendants that such document, the master’s statement, did not exist, that the order that I shall be making is for the responsible senior officer of the defendants to state on affidavit the non-existence of such a document, whether it is in the possession of the defendants or its managers.  That is in relation to item 1(ii).

5. In relation to items 1(iii) and 1(iv), that is now disposed of and they are no longer pursued.

6. So far as item 1(v) is concerned, that is reports of the master to the defendants after the collision in accordance with the requirement of ISM Code, again the assertion made by the defendants is that there is no such document and therefore there is no question of their being in possession of such document.  Again I will make a similar order in relation to this, that is all reports and statements submitted by the master and/or the second officer of Rithi Bhum to the defendants is to be the subject of an affidavit by senior officer of the defendants that there is no existence of such document, whether in the possession of the defendants or its managers.

7. The substantial dispute before me is in relation to two different recording systems onboard of the vessel to assist the safe navigation of the ship.  The first system onboard was the Electronic Chart Display and Information System, in short called “ECDIS” record.  What had happened is that the discovery given so far by the defendants to the plaintiffs was limited to what I may call 9 or 10 picture captures under that system.  There is substantial dispute or uncertainty as to the capability of that ECDIS and what it records or what is stored in the raw data under that system.  I think a sensible order to be made now is for an order (and I don’t have any resistance by the defendants to this) that the plaintiffs’ experts be allowed to attend the vessel for the purpose of inspecting the ECDIS system and associate the computer at a mutually convenient time and place in any event before 31 August 2006 and also for the defendants to furnish all operating manual and other documents of the ECDIS to the plaintiff’s experts to enable the plaintiffs’ experts to carry out a meaningful inspection and,pending the result of such inspection, paragraph 1(i) of the summons be adjourned.  

8. There is also a substantial dispute in relation to what is called the nautical equivalent of the black box, that is the VDR.  What had happened was that apparently the VDR data for the important period of about one hour, from 2 to 3 o’clock, of the defendants’ ship was not properly captured, if I may put it that way, or recorded, at least according to the CD Rom that had been given to the plaintiffs.  What had been given shows only the audio track, but not all the other vitally important tracks of that VDR system. 

9. There is general agreement that in order that this matter can be fairly resolved either by way of discovery, or if necessary by interrogatories (or I suspect possibly at the trial when this aspect had to be fully explored) that the plaintiffs’ experts be allowed to attend and inspect and gain from studying the VDR system onboard.  So there is no problem in relation to paragraphs 2(i) and (ii) of the summons.  

10. However, Mr Hirst of the plaintiffs also asked that, for meaningful exercise of reporting and preparing the trial about the VDR, and on the alleged non-proper function of the VDR, it would be necessary for the plaintiffs to be given (a) the raw data in the form of CD Rom which I understand Mr Lamplough of the defendants has not objected to, and (b) the software to enable the raw data to be properly read.  The dispute is over who should be responsible for the supply of the software.  Mr Lamplough said that they have the software now, but that they cannot give a copy to the plaintiffs because the licence of that software is only limited to them.  It can be purchased separately at US$5,000.  In my view, to enable the plaintiffs to make proper use of the raw data, the defendants should supply the plaintiffs with the necessary software to enable the plaintiffs’ experts to view and examine the VDR raw data.  As to the question of cost, that can be dealt with later and if at the end of the day the defendants are successful they can persuade the court that such costs should be borne by the plaintiffs and appropriate costs order can be made.  The order I make is that the plaintiffs be provided by the defendants with the necessary software. 

11. Mr Hirst also asked that for the attendance to be meaningful by the plaintiffs’ experts that the experts be allowed to have a copy of the VDR recording of the last 12 hours of the vessel’s movement, up to the time of inspection.  This is to enable the plaintiffs’ experts to study the function of the VDR system and what is supposed to do and contrast it with what has been given in terms of the CD Rom or in terms of other raw data that will be provided to the plaintiffs.  I think that is a reasonable course and I also make an order in terms of proposed paragraph 2(iv).  

12. In the light of that new paragraph 2 order that I make, it seems to me that paragraphs 1(vi) and 1(vii) can be disposed of in the form of, again, the same affidavit, to be sworn by the defendants’ senior officer that such documents do not exist.  These documents are in relation to of what Mr Hirst has said to be the proper expected reaction of the defendants who had been so badly served by their manufacturers in terms of the non-proper function of the VDR system.  The defendants said, there was no such complaint or reported investigation and so the defendants should swear affidavit to state to the non-existence of this document either in their possession or in the possession of their manager.  

13. I find in relation to paragraph 1(viii), the VDR log that in the light of the inspection that is going to be carried out, that the best course is to have that item adjourned.  

14. So far as the costs is concerned I have not heard argument by the lawyers on this.  I propose that for the moment the costs should be reserved but if the parties wish to address me on this, I will hear such argument.