RE THE YUAN TONG NO. 6

HCAJ159/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.159 OF 2002

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Admiralty action in rem against the ship or vessel "YUAN TONG NO.6" (Cambodian Flag)

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J U D G M E N T

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1. I have before me an ex parte urgent application for the issue of a Warrant of Arrest. The application was referred to me by the Registrar who, upon reading the papers, regarded it as a case where it may not be suitable to issue the Warrant of Arrest and therefore he referred it to me rather than refused it point blank.

2. This is a simple case. There was a shipment of cargo that was alleged to have suffered damage upon arrival. This was some time, I believe, in August last year. The Writ of Summons was issued on 31 July 2002, i.e. yesterday. Immediately upon the issue of the Writ, application was made ex parte on paper, supported by the affirmation of Miss Man and further supplemented by the affidavit of Mr Kerry, for the issue of the Warrant of Arrest. There was no indication in the papers as to the whereabouts of the vessel or that the vessel is even about to come into Hong Kong in the near future.

3. When I took over the Admiralty Court as the Admiralty Judge, I discovered that a practice on issue of Warrant had been built up prior to my appointment: in the Admiralty Court, very often a Warrant of Arrest was issued immediately upon the issue of the Writ, and that Warrant will lie in the hands of the bailiff for execution because in Hong Kong, unlike in England, the Writ and the Warrant are executed and the arrest of a ship is executed by the bailiff. In England, I believe, the practice is different and the parties' own lawyers were responsible for the execution of the Writ and the Warrant.

4. The practice had also grown, as I understand it, for the Marine Department to be given a copy of the Warrant and the good office of the Marine Department was improperly used as a means of tracking the arrival of the vessel, and for the automatic arrest of the vessel and detention of the vessel by the bailiff when notified by the Marine Department. As a result of the triple steps taken, namely, issue of the Warrant immediately upon the issue of the Writ, the bailiff being put in charge of keeping the watch for a possible arrival of a vessel and the Marine Department having the burden of keeping a watch on the possible arrival of a vessel, a practice had been adopted for the automatic issue of Warrant upon the issue of the Writ. In my view, it is quite wrong. It is the responsibility of the individual solicitors to keep track of the vessel, to see whether it is about to come to Hong Kong or has come to Hong Kong and then to make application for the issue of the Warrant of Arrest for a particular vessel to be arrested.

5. If the vessel does not come to Hong Kong, then of course there would be valid reason when the Writ is about to expire after the one-year period for the party to seek a renewal from the court on the basis that there was no opportunity to arrest the vessel. If the vessel did come to Hong Kong for a short period of time and slipped away somehow and there was not enough time to arrest the vessel, and this happened without in any way due to the fault of the plaintiff's solicitors, then again, that will provide a valid reason for the court to renew the Writ and I have done it repeatedly. I have on many occasions renewed the Writ on the basis that there was no proper opportunity for arrest notwithstanding the due diligence of the solicitors for the plaintiff.

6. What the plaintiff's solicitors must do is to keep a constant watch. That may, of course, involve expense, but that is part of the price to be paid for obtaining security and if, through the plaintiff's fault, the vessel comes in, stays in fact for a period of time sufficient for arrest to take place and the vessel then sails away, then upon the expiry of the Writ or before the expiry of the Writ, an application for renewal is not likely to be entertained for the reason set out in The Myrto [1987] 1 AC 597, namely that there was opportunity to effect service of the Writ in rem but was not properly taken advantage of by the plaintiff.

7. A Writ has to be renewed for good reason. A Warrant of Arrest has to be issued with good reason. There is a duty on the part of solicitors for the plaintiffs on ex parte application for issue of the Warrant to make full disclosure to the court, so that the court would be put in the position of knowing whether the vessel is about to come and whether it has, for example, changed its name, changed its ownership or events have taken place relating to the vessel which may be material in the decision of the court to order arrest or not.

8. Very often, for example, a short time after the issue of the Writ, it is discovered that a change of ownership of the vessel had taken place earlier than the date of the issue of the Writ. If the Warrant is immediately issued upon the date of the issue of the Writ and not upon some later day when it is clear that the vessel is about to come, that kind of information will not be available to the court and the court would not be able to properly exercise its discretion as to whether it is a suitable case of action in rem or for the issue of Warrant of Arrest.

9. In my view, the proper way for the management of the Admiralty Court list and for the discharge of the bailiff's work is for individual solicitors to keep a close watch on the movement of the ship (and not seek to place the duty of tracking vessels on the Marine Department and the bailiff). There are various means of tracking vessels, including subscription to Lloyds and others. That would enable the latest information to be available. Proper application for arrest can be made to the court at any time even after court hours. Very often after court hours or during weekends, the applications are made and Warrants of Arrest are issued.

10. I appreciate that in this particular application, solicitors for the plaintiffs may not be fully aware of this correct practice, although, as I understand it, the matter was discussed in the Admiralty Court Users Committee and it should be well-known to shipping solicitors who regularly practise in this court. But be that as it may, I think it is time that this proper practice should be widely known and that solicitors will not labour under the misapprehension that it would be the right thing to apply for a Warrant of Arrest immediately upon the issue of the Writ without providing any information to the court as to the whereabouts of the ship and that it is about to come to Hong Kong and therefore necessitating an order of arrest.

11. In this particular case, I am informed that there is no information that these solicitors can provide as to the whereabouts of the ship and, in the circumstances, I decline to grant the application and the solicitors for the plaintiffs are invited to make the proper application at the appropriate time, having the benefit of this judgment and of the practice of this Court.