CHAN LAI YING v. LI FO MUI AND ANOTHER

Folio No. AJ386 of 1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMIRALTY JURISDICTION

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J U D G M E N T

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1. At about 10:30 p.m. on 9th June 1990, the Plaintiff's motor boat "Keung Kee II" was in collision with the Defendants' fishing vessel "Hoi Ying No. 1". "Keung Kee" sank but was later raised and repaired. The Plaintiff now claims damages on the ground of the negligent

navigation of the "Hoi Ying" by the 2nd named Defendant. The Defendants' counterclaim for damages on the ground of the Plaintiff's negligent navigation was with leave withdrawn at the opening of the Defendants' case.

2. The Plaintiff's case is that the "Hoi Ying" was an overtaking vessel. Pursuant to the International Regulations for Preventing Collisions at Sea 1972 (the Regulations) by Rule 13, the "Hoi Ying" was obliged to keep out of the way of "Keung Kee" until she was finally past and clear. The Regulations and effect thereof are accepted by the Defendants. The factual situation, however, is not.

3. Mr. Tam Loi Yau (Mr. Tam) was the master in charge of "Keung Kee" on 9th June. He has been a master for over 30 years. He was alone on the vessel. He said that he left Yaumatei typhoon shelter by the southern exit, bound for Buoy A27 to deliver meal boxes to workers on a vessel there.

4. A chart of Victoria Harbour, which was an exhibit, shows that A27 bears a few degrees north of west from the southern exit of the typhoon shelter. Buoy B7 lies almost due east of A27.

5. On the chart, Mr. Tam marked his course. That showed that he took a course north of B7 where he altered to a more southerly course until the collision occurred. According to Mr. Tam's marking, the collision was at a position bearing approximately east-south-east of A27. Mr. Tam agreed, in cross-examination, that after passing B7, he changed course to steer south-west.

6. The thrust of Mr. Tam's evidence was that, immediately before the collision occurred, he became aware that the bow "Hoi Ying" was level with him at his position at the wheel of "Keung Kee" and a few feet to starboard. Then "Hoi Ying" collided with "Keung Kee" at an acute angle, the "Keung Kee's" starboard bow coming in contact with the mid portside of the "Hoi Ying". "Hoi Ying" had, therefore, drawn a little ahead of "Keung Kee"

7. "Keung Kee" received a severe jolt which caused its engine to shift. Although there was no damage to the starboard bow of "Keung Kee", it appears that because of the movement of the engine, cracks were caused on the portside. These cracks permitted flooding of "Keung Kee" which sank about ten minutes later. "Keung Kee" was later lifted and sent for repairs.

8. Mr. Tam said that before the collision occurred, the weather had been fine and "Keung Kee" was travelling at 5 knots. He heard no warning from the other vessel. He said that he could not see a vessel approaching "Keung Kee" from astern because his view aft was obstructed by the structure of "Keung Kee".

9. The 2nd named Defendant (Mr. Chan) was master in charge of "Hoi Ying". He obtained his master's qualification in 1976 and had been working as master on three fishing vessels since 1982. On 9th June at about 10:00 p.m., "Hoi Ying" left Cheung Sha Wan Fish Market Pier to go to Malaysia for fishing. There were eleven crew on board including Mr. Chan. "Hoi Ying" weighed about 280 tons and was 98' long. Mr. Chan's course took him to the east of Stonecutters Island at a speed of 9 knots. After rounding the eastern tip of the island, his course was south-west following the coast-line of the Island.

10. Mr. Chan then saw the navigation lights of a small motor boat about 400 feet away on his port bow. He saw the green starboard light and the white masthead light. He estimated the course of the other vessel to be 320 degrees, that is slightly north of north-west. His own course was about 220 degrees, that is slightly south of south-west. Upon seeing the motor boat (which was "Keung Kee"), Mr. Chan gave one long blast on "Hoi Ying's" whistle. Mr. Chan intended to warn "Keung Kee" to pay attention because, it being to port, it should give way to "Hoi Ying". He maintained the same speed. He did not see any alteration of course or speed by "Keung Kee". The angle between them remained the same. As he found the distance closing, he thought there might be danger. He gave five short blasts on "Hoi Ying's" whistle and steered to starboard to avoid "Keung Kee". There was a collision in which "Keung Kee" struck the portside of "Hoi Ying" at almost right angles or slightly on "Keung Kee's" starboard bow.

11. I accept the general tenor of Mr. Chan's evidence, to the effect that the two vessels were in a crossing situation in which "Keung Kee", having "Hoi Ying" on her starboard side, was obliged by Rule 15 of the Regulations to keep out of the way and try to avoid crossing ahead of "Hoi Ying". I make that finding, first, because Mr. Chan was a clear and coherent witness in contrast with Mr. Tam who, in my view, had difficulty in explaining what he considered to have occurred. Second, because of the destinations to which the two vessels were heading, Mr. Chan's account of what occurred is more probable. To reach A27 Mr. Tam needed to take a course slightly north of west. On his own evidence, that course took a more northerly heading because he rounded B7. Mr. Chan, meanwhile, was heading south-west off Stonecutters Island. He would, therefore, have seen "Keung Kee" on his port bow in those circumstances, although not necessarily heading north-west as Mr. Chan asserted.

12. Mr. Chan was subjected to considerable cross-examination about how he estimated "Keung Kee's" course. Mr. Chan agreed that it was dark and that there was no moon so that he could not see "Keung Kee" itself. He said, however, that, because of his experience and because of the relative positions of the starboard and masthead lights of motor boats of that nature, he could estimate the direction.

13. Mr. Leong for the Plaintiff pointed out that a course of 320 degrees would have had "Keung Kee" heading for the rocks of Stonecutters Island. Mr. Chan's estimate was, however, just an estimate. While I have no doubt that his estimate was someway from being accurate, it was not inconsistent with "Keung Kee" being on a course as I have described and in the position of a crossing vessel.

14. Mr. Tam's evidence, apart from generally lacking coherence, contained two difficulties which were not, to my mind, satisfactorily resolved. First, he said that after rounding B7, he altered course to south-west. I cannot understand why he should have done this when A27, which was his destination lies, almost due west of B7. Conveniently, of course, that would put "Keung Kee" in front of "Hoi Ying" and on a similar course, so that "Hoi Ying" would be an overtaking vessel.

15. The second difficulty was that on 11th June, Mr. Tam, like Mr. Chan, completed a casualty report for the Marine Department. This report requires the maker to answer a number of printed questions. Question 38 reads:

"What was bearing and range of other vessel when first seen?

To that question, Mr. Tam is recorded as replying:

"W. N. W. Starboard of front at about two point." (sic)

16. Prime facie, that reply suggests that Mr. Tam first saw "Hoi Ying" to the west-north-west, two points on his starboard bow, that is, approaching from starboard. That was inconsistent with a sketch plan contained in the report which showed an overtaking position much as Mr. Tam described in his evidence. It was also inconsistent with various diagrams (exhibits p2, 5 & 6) which he drew in court to try and illustrate his account. It was, however, consistent with exhibit p3, a diagram which Mr. Tam drew of the position of the vessels at impact which suggests that "Hoi Ying" was a crossing vessel.

17. Mr. Tam sought to explain this inconsistency by saying that he could not draw very well and was simply trying to convey what he meant. He said in re-examination that he thought he did not use the words "two point" to the Marine Officer who took the report from him. He said that he meant that when he looked to starboard from his position at the view, "Hoi Ying" was two points from where he was. I am bound to say that that was an explanation which did not appeal to me. If Mr. Tam's evidence is correct, then "Hoi Ying", a much bigger vessel, was alongside him when he first became aware of it. "Hoi Ying" would have obscured his view completely. His obvious answer to question 38 would have been "immediately alongside to starboard" or words to that effect.

18. Mr. Leong Kam Chuen was called as a witness by the Plaintiff. Mr. Leong was a worker on the vessel moored at A27. He said that the vessel was facing east or north-east towards Yaumatei typhoon shelter. He was standing at the head of the gang way which was towards the stern on the portside. He said he saw the red navigation light of "Keung Kee" approaching and also another red navigation light. He marked the chart with the position where he first saw "Keung Kee" a position bearing north-east from his vessel, in almost direct line with the southern tip of Stonecutters Island. Shortly after, he realized that there had been a collision. Mr. Leong agreed, however, that he was really not paying much attention to what happened.

19. Mr. Leong's evidence was really worth very little. Assuming he is accurate as to the heading of the vessel on which he was standing, he could not possibly have seen the collision if it occurred as described by Mr. Tam. His evidence would, however, be consistent with the account given by Mr. Chan. He would have seen "Keung Kee" approaching on a course of west or something north of west, and the navigation light of "Hoi Ying" after it had altered course to starboard to try and avoid a collision.

20. On the assumption that I find a crossing situation, Mr. Leong sought to persuade me that I should nevertheless find for the Plaintiff and apportion blame. He relied upon the Regulations which he said, and I accept, impose a general duty on a vessel to take all necessary steps to avoid danger and collision. He argued that, in the circumstances, Mr. Chan had not taken all necessary steps. Be that as it may, as Mr. Pow correctly pointed out, such an argument is not open to the Plaintiff. The Plaintiff's claim asserts only that the "Hoi Ying" was negligent in an overtaking situation. The statement of claim does not assert, in the alternative, any breach of a general duty. The Plaintiff's claim must therefore fail.

21. For the sake of completeness, I add that I would have been satisfied that the Plaintiff had proved the quantum of damages sought. Quite plainly, all the repairs, replacements and other expenses were a direct consequence of the collision.

22. The Plaintiff's claim is, therefore, dismissed with costs. The Defendants withdrew their counterclaim at the 11th hour. The counterclaim was very small and generated little if any extra work. There seems to me, however, to be no reason why the Plaintiff should not have the costs of the counterclaim and I make an order nisi to that effect.